ý
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ANNUAL REPORT PURSUANT TO SECTION 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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¨
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TRANSITION REPORT PURSUANT TO SECTION 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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Page
Number
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Audited Financial Statements:
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Supplemental Schedule:
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/s/ Whitley Penn LLP
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December 31
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||||||
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2014
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2013
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||||
Assets
|
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||||
Investments, at fair value:
|
|
|
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|
||||
Common stock of Atmos Energy Corporation
|
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$
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247,968,285
|
|
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$
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202,827,448
|
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Registered Investment Companies:
|
|
|
|
|
||||
T. Rowe Price Balanced Fund
|
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20,166,716
|
|
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18,593,827
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|
||
T. Rowe Price Spectrum Income Fund
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12,464,404
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|
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11,375,527
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|
||
T. Rowe Price Spectrum Growth Fund
|
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27,669,458
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|
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31,640,404
|
|
||
T. Rowe Price Short-Term Bond Fund
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4,220,595
|
|
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3,908,394
|
|
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T. Rowe Price U.S. Bond Index Fund
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27,792,836
|
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26,320,376
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|
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T. Rowe Price New Horizons Fund
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31,730,794
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|
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29,922,221
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T. Rowe Price Mid-Cap Value Fund
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26,168,306
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|
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23,637,675
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T. Rowe Price New America Growth Fund
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16,495,045
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13,771,033
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T. Rowe Price Equity Income Fund
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35,837,195
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34,162,250
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T. Rowe Price Growth Stock Fund
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18,167,403
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|
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13,685,225
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Vanguard Institutional Index
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34,012,934
|
|
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24,654,980
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|
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Harbor International Fund
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31,125,949
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32,306,557
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T. Rowe Price Retirement 2005 Fund
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266,219
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|
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259,992
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T. Rowe Price Retirement 2010 Fund
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1,673,078
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1,058,471
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T. Rowe Price Retirement 2015 Fund
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3,664,156
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3,880,321
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T. Rowe Price Retirement 2020 Fund
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9,500,831
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7,456,562
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T. Rowe Price Retirement 2025 Fund
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6,951,282
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4,019,530
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T. Rowe Price Retirement 2030 Fund
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5,134,414
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4,840,867
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T. Rowe Price Retirement 2035 Fund
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5,329,745
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4,004,884
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T. Rowe Price Retirement 2040 Fund
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4,377,800
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3,522,461
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T. Rowe Price Retirement 2045 Fund
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5,187,330
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4,181,194
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T. Rowe Price Retirement 2050 Fund
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3,788,631
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2,809,843
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T. Rowe Price Retirement 2055 Fund
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1,836,125
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1,188,416
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T. Rowe Price Retirement Balanced Fund
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976,960
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706,493
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Common/Collective Trust:
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T. Rowe Price Stable Value Common Trust Fund
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22,308,854
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19,119,872
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Common stock of Entergy Corporation
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97,686
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70,651
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Common stock of Frontier Communications Corporation, Class B
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122,051
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|
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85,467
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|
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Total investments
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605,035,082
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524,010,941
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Receivables:
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||||
Due from broker
|
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326,279
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41,467
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Notes receivable from participants
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20,208,647
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18,331,798
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Total receivables
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20,534,926
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18,373,265
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Net assets available for benefits, at fair value
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625,570,008
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542,384,206
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Adjustment from fair value to contract value for fully benefit-responsive investment contracts
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(323,406
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)
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(267,199
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)
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Net assets available for benefits
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$
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625,246,602
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$
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542,117,007
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Additions to Net Assets
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Investment income:
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Net appreciation in fair value of investments
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$
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43,797,466
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Dividends on common stocks
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6,686,702
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Dividends on registered investment companies
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20,732,820
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Dividends on common/collective trust
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436,298
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Total investment income
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71,653,286
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Other Income
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Interest received on notes receivable from participants
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1,001,280
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Contributions:
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Participants
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20,845,844
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Company - noncash
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10,993,607
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Company - cash
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1,750,653
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Rollovers
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544,900
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Total contributions
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34,135,004
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Transfer from Atmos Energy Corporation Savings Plan for MVG Union Employees
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13,502,216
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Total additions to net assets
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120,291,786
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Deductions from Net Assets
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Distributions to participants
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36,945,215
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Administrative expenses
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216,976
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Total deductions from net assets
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37,162,191
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Net increase in net assets available for benefits
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83,129,595
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Net assets available for benefits at beginning of year
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542,117,007
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Net assets available for benefits at end of year
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$
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625,246,602
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Assets at Fair Value as of December 31, 2014
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Level 1
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Level 2
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Level 3
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Total
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Registered investment companies:
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Balanced fund
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$
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21,143,676
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$
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—
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$
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—
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$
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21,143,676
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Income funds
|
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12,464,404
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—
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—
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12,464,404
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Bond funds
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32,013,431
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—
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—
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32,013,431
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Growth funds
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94,062,700
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—
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—
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94,062,700
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Blend fund
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34,012,934
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—
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—
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34,012,934
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Value funds
|
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62,005,501
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|
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—
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—
|
|
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62,005,501
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|
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Target date funds
|
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47,709,611
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—
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—
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|
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47,709,611
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International fund
|
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31,125,949
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—
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—
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31,125,949
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Corporate stock
|
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248,188,022
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|
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—
|
|
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—
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|
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248,188,022
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||||
Common/collective trust
|
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—
|
|
|
22,308,854
|
|
|
—
|
|
|
22,308,854
|
|
||||
Total assets at fair value
|
|
$
|
582,726,228
|
|
|
$
|
22,308,854
|
|
|
$
|
—
|
|
|
$
|
605,035,082
|
|
|
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Assets at Fair Value as of December 31, 2013
|
||||||||||||||
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Level 1
|
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Level 2
|
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Level 3
|
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Total
|
||||||||
Registered investment companies:
|
|
|
|
|
|
|
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|
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Balanced fund
|
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$
|
19,300,320
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|
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$
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—
|
|
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$
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—
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|
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$
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19,300,320
|
|
Income funds
|
|
11,375,527
|
|
|
—
|
|
|
—
|
|
|
11,375,527
|
|
||||
Bond funds
|
|
30,228,770
|
|
|
—
|
|
|
—
|
|
|
30,228,770
|
|
||||
Growth funds
|
|
89,018,883
|
|
|
—
|
|
|
—
|
|
|
89,018,883
|
|
||||
Blend fund
|
|
24,654,980
|
|
|
—
|
|
|
—
|
|
|
24,654,980
|
|
||||
Value funds
|
|
57,799,925
|
|
|
—
|
|
|
—
|
|
|
57,799,925
|
|
||||
Target date funds
|
|
37,222,541
|
|
|
—
|
|
|
—
|
|
|
37,222,541
|
|
||||
International fund
|
|
32,306,557
|
|
|
—
|
|
|
—
|
|
|
32,306,557
|
|
||||
Corporate stock
|
|
202,983,566
|
|
|
—
|
|
|
—
|
|
|
202,983,566
|
|
||||
Common/collective trust
|
|
—
|
|
|
19,119,872
|
|
|
—
|
|
|
19,119,872
|
|
||||
Total assets at fair value
|
|
$
|
504,891,069
|
|
|
$
|
19,119,872
|
|
|
$
|
—
|
|
|
$
|
524,010,941
|
|
|
|
||
Common stock of Atmos Energy Corporation
|
$
|
46,087,444
|
|
Registered Investment Companies:
|
|
||
T. Rowe Price Balanced Fund
|
(328,210
|
)
|
|
T. Rowe Price Spectrum Income Fund
|
(74,351
|
)
|
|
T. Rowe Price Spectrum Growth Fund
|
(454,489
|
)
|
|
T. Rowe Price Short-Term Bond Fund
|
(34,873
|
)
|
|
T. Rowe Price U.S. Bond Index Fund
|
781,419
|
|
|
T. Rowe Price New Horizons Fund
|
(1,443,284
|
)
|
|
T. Rowe Price Mid-Cap Value Fund
|
(848,839
|
)
|
|
T. Rowe Price New America Growth Fund
|
(723,921
|
)
|
|
T. Rowe Price Equity Income Fund
|
(113
|
)
|
|
T. Rowe Price Growth Stock Fund
|
(228,279
|
)
|
|
Vanguard Institutional Index
|
3,337,310
|
|
|
Harbor International Fund
|
(2,947,205
|
)
|
|
T. Rowe Price Retirement 2005 Fund
|
2,008
|
|
|
T. Rowe Price Retirement 2010 Fund
|
(36,959
|
)
|
|
T. Rowe Price Retirement 2015 Fund
|
64,365
|
|
|
T. Rowe Price Retirement 2020 Fund
|
113,730
|
|
|
T. Rowe Price Retirement 2025 Fund
|
38,535
|
|
|
T. Rowe Price Retirement 2030 Fund
|
63,294
|
|
|
T. Rowe Price Retirement 2035 Fund
|
92,496
|
|
|
T. Rowe Price Retirement 2040 Fund
|
65,654
|
|
|
T. Rowe Price Retirement 2045 Fund
|
103,022
|
|
|
T. Rowe Price Retirement 2050 Fund
|
71,402
|
|
|
T. Rowe Price Retirement 2055 Fund
|
33,042
|
|
|
T. Rowe Price Retirement Balanced Fund
|
151
|
|
|
Common stock of Entergy Corporation
|
27,034
|
|
|
Common stock of Frontier Communications Corporation, Class B
|
37,083
|
|
|
|
|
||
|
$
|
43,797,466
|
|
|
|
|
|
December 31,
|
||||||
|
|
2014
|
|
2013
|
||||
Net assets available for benefits per the financial statements
|
|
$
|
625,246,602
|
|
|
$
|
542,117,007
|
|
Adjustment from contract value to fair value for fully benefit-responsive investment contracts
|
|
323,406
|
|
|
267,199
|
|
||
Net assets available for benefits per the Form 5500
|
|
$
|
625,570,008
|
|
|
$
|
542,384,206
|
|
|
|
||
Net increase in net assets available for benefits per the financial statements
|
$
|
83,129,595
|
|
Change in adjustment from contract value to fair value for fully benefit-responsive investment contracts
|
56,207
|
|
|
Net increase in net assets available for benefits per the Form 5500
|
$
|
83,185,802
|
|
(a)
|
|
(b)
Identity of issue,
borrower, lessor
or similar party
|
|
(c)
Description of investment
including maturity date,
rate of interest, collateral,
par or maturity value
|
|
(d)
Cost
|
|
(e)
Current value |
||
*
|
|
Atmos Energy Corporation
|
|
Common stock; 4,448,660 shares ***
|
|
**
|
|
$
|
247,968,285
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Stable Value Common Trust Fund
|
|
**
|
|
22,308,854
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Balanced Fund
|
|
**
|
|
20,166,716
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Spectrum Income Fund
|
|
**
|
|
12,464,404
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Spectrum Growth Fund
|
|
**
|
|
27,669,458
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Short-Term Bond Fund
|
|
**
|
|
4,220,595
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
U.S. Bond Index Fund
|
|
**
|
|
27,792,836
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
New Horizons Fund
***
|
|
**
|
|
31,730,794
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Mid-Cap Value Fund
|
|
**
|
|
26,168,306
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
New America Growth Fund
|
|
**
|
|
16,495,045
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Equity Income Fund
***
|
|
**
|
|
35,837,195
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Growth Stock Fund
|
|
**
|
|
18,167,403
|
|
|
|
|
Vanguard Group, Inc.
|
|
Vanguard Institutional Index
***
|
|
**
|
|
34,012,934
|
|
|
|
|
Harbor Capital Advisors, Inc.
|
|
Harbor International Fund
|
|
**
|
|
31,125,949
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Retirement 2005 Fund
|
|
**
|
|
266,219
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Retirement 2010 Fund
|
|
**
|
|
1,673,078
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Retirement 2015 Fund
|
|
**
|
|
3,664,156
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Retirement 2020 Fund
|
|
**
|
|
9,500,831
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Retirement 2025 Fund
|
|
**
|
|
6,951,282
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Retirement 2030 Fund
|
|
**
|
|
5,134,414
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Retirement 2035 Fund
|
|
**
|
|
5,329,745
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Retirement 2040 Fund
|
|
**
|
|
4,377,800
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Retirement 2045 Fund
|
|
**
|
|
5,187,330
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Retirement 2050 Fund
|
|
**
|
|
3,788,631
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Retirement 2055 Fund
|
|
**
|
|
1,836,125
|
|
|
*
|
|
T. Rowe Price Trust Company
|
|
Retirement Balanced Fund
|
|
**
|
|
976,960
|
|
|
|
|
Entergy Corporation
|
|
Common stock; 1,117 shares
|
|
**
|
|
97,686
|
|
|
|
|
Frontier Communications
|
|
Common stock; 18,298 shares
|
|
**
|
|
122,051
|
|
|
*
|
|
Notes receivable from participants
|
|
Interest rates from 5.25% to 10.75%
|
|
-0-
|
|
20,208,647
|
|
|
|
|
|
|
|
|
|
|
$
|
625,243,729
|
|
|
|
|
|
|
|
|
|
|
||
*
|
|
Indicates party-in-interest to the Plan
|
||||||||
**
|
|
Cost information in column (d) is not required for participant-directed investments
|
||||||||
***
|
|
Indicates investment that represents 5 percent or more of the Plan’s net assets available for benefits
|
|
|
|
|
|
ATMOS ENERGY CORPORATION
RETIREMENT SAVINGS PLAN AND TRUST
|
||
|
|
|
|
|
By:
|
|
/s/ BRET J. ECKERT
|
|
|
|
Bret J. Eckert
|
|
|
|
Chairman of the Qualified
Retirement Plans and
Trusts Committee
|
|
|
|
Exhibit Number
|
Description
|
Page Number or Incorporation by Reference to
|
|
|
|
4
|
Instruments defining rights of security holders:
|
|
|
|
|
|
(a) Atmos Energy Corporation Retirement Savings Plan and Trust (Amended and Restated Effective January 1, 2015)
|
|
|
|
|
|
(b) Amendment No. 1 to Atmos Energy Corporation Retirement Savings Plan and Trust (Amended and Restated Effective January 1, 2015)
|
|
|
|
|
23.1
|
Consent of Independent Registered Public Accounting Firm, Whitley Penn LLP
|
|
ARTICLE I.
|
PURPOSE AND AMENDMENT OF THE PLAN
1
|
1.01
|
Amendment and Restatement of the Plan
1
|
1.02
|
Purpose
1
|
ARTICLE II.
|
DEFINITIONS, CONSTRUCTION, ADOPTION AND APPLICABILITY
1
|
2.01
|
Definitions 1
|
(a)
|
ADDITIONS 1
|
(b)
|
AFFILIATE 2
|
(c)
|
AUTHORIZED LEAVE OF ABSENCE 2
|
(d)
|
BENEFICIARY 2
|
(e)
|
CODE 2
|
(f)
|
COMMITTEE 2
|
(g)
|
COMPANY 2
|
(h)
|
COMPANY STOCK 2
|
(i)
|
COMPENSATION 3
|
(i)(1)
|
DECERTIFICATION DATE 4
|
(j)
|
DISABILITY 4
|
(k)
|
EFFECTIVE DATE 4
|
(l)
|
EMPLOYEE 4
|
(m)
|
EMPLOYEE CONTRIBUTION ACCOUNT 5
|
(n)
|
EMPLOYER 5
|
(o)
|
EMPLOYER CONTRIBUTIONS ACCOUNT 5
|
(p)
|
EMPLOYMENT COMMENCEMENT DATE 5
|
(q)
|
ERISA 5
|
(r)
|
FIDUCIARIES 5
|
(s)
|
FORMER PARTICIPANT 6
|
(t)
|
HIGHLY COMPENSATED EMPLOYEE 6
|
(u)
|
HOUR OF EMPLOYMENT 6
|
(v)
|
INCOME 7
|
(w)
|
MATCHING CONTRIBUTIONS ACCOUNT 7
|
(w)(2)
|
MVG DECERTIFIED UNION PARTICIPANT 7
|
(w)(1)
|
MVG MERGER PARTICIPANT 8
|
(w)(2)
|
MVG NON-UNION TRANSFER PARTICIPANT 8
|
(w)(3)
|
MVG UNION SAVINGS PLAN 8
|
(x)
|
NON-HIGHLY COMPENSATED EMPLOYEE 8
|
(y)
|
PARTICIPANT 8
|
(z)
|
PARTICIPATING EMPLOYER 8
|
(aa)
|
PARTICIPATION 8
|
(bb)
|
PLAN 8
|
(bb)
|
PLAN ADMINISTRATOR 8
|
(cc)
|
PRIOR PLAN 8
|
(dd)
|
RE-EMPLOYMENT COMMENCEMENT DATE 8
|
(ee)
|
SAFEHARBOR MATCHING CONTRIBUTIONS ACCOUNT 8
|
(ff)
|
SALARY REDUCTION CONTRIBUTIONS ACCOUNT 8
|
(gg)
|
SERVICE 9
|
(hh)
|
SEVERANCE FROM SERVICE 9
|
(hh)(1)
|
SPOUSE 9
|
(ii)
|
TRUST (or TRUST FUND) 9
|
(jj)
|
TRUST COMMITTEE 9
|
(kk)
|
TRUSTEE 9
|
(kk)(1)
|
UNION 9
|
(ll)
|
VALUATION DATE 9
|
(mm)
|
YEAR or PLAN YEAR 9
|
2.02
|
Construction
9
|
2.03
|
Adoption by Others
9
|
2.04
|
Applicability
10
|
ARTICLE III.
|
PARTICIPATION AND SERVICE
10
|
3.01
|
Participation 10
|
3.02
|
Service 11
|
3.03
|
Transfer
12
|
3.04
|
Controlled Group
12
|
3.05
|
Special Rules for Former United Cities Gas Company Employees 12
|
3.06
|
Special Rules for Transfers from the Southwestern Energy Company 401(k) Savings Plan
12
|
3.07
|
Special Rules for Transfers from the CUC 401(k) Employee Benefit Plan
12
|
3.08
|
Special Rules for Transfers from the MVG Non-Union Plan
12
|
3.09
|
Special Rules for Transfers from the TXU Thrift Plan
13
|
3.10
|
Special Rules for Transfers from the MVG Union Savings Plan with Respect to MVG Merger Participants
13
|
ARTICLE IV.
|
CONTRIBUTIONS
14
|
4.01
|
Salary Reduction Contributions
14
|
4.02
|
Safeharbor Matching Contributions
21
|
4.03
|
Fixed Annual Company
Contributions
22
|
4.03A
|
MVG Decertification
Contribution
23
|
4.04
|
Contributions by Participants
23
|
4.05
|
Rollover Contributions; Transfers
23
|
4.06
|
Special Rules under USERRA
24
|
ARTICLE V.
|
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
24
|
5.01
|
Individual Accounts
24
|
5.02
|
Account Adjustments
24
|
5.03
|
Maximum Additions
25
|
5.04
|
Top-Heavy Provisions
28
|
ARTICLE VI.
|
BENEFITS
32
|
6.01
|
Retirement or Disability
32
|
6.02
|
Death
32
|
6.03
|
Termination for Other Reasons
32
|
6.04
|
Payments of Benefits
36
|
6.05
|
Designation of Beneficiary
44
|
6.06
|
In-Service Withdrawals
45
|
ARTICLE VII.
|
TRUST FUND AND TRUSTEE
47
|
7.01
|
In General
47
|
7.02
|
Investment of the Trust Fund
48
|
7.03
|
The Trustee
51
|
7.04
|
Diversification Option
52
|
7.05
|
Participant Loans
53
|
ARTICLE VIII.
|
ADMINISTRATION
54
|
8.01
|
Allocation of Responsibility Among Fiduciaries for Plan and Trust Administration
54
|
8.02
|
Appointment of Committee 55
|
8.03
|
Claims Procedure
55
|
8.04
|
Records and Reports
56
|
8.05
|
Other Committee Powers and Duties
56
|
8.06
|
Rules and Decisions
57
|
8.07
|
Committee Procedures
57
|
8.08
|
Authorization of Benefit Payments
57
|
8.09
|
Application and Forms for Benefits
57
|
8.10
|
Facility of Payment
57
|
8.11
|
Indemnification
58
|
8.12
|
Unclaimed Benefits
58
|
ARTICLE IX.
|
MISCELLANEOUS
58
|
9.01
|
Plan Voluntary
58
|
9.02
|
Rights to Trust Assets
58
|
9.03
|
Nonalienation of Benefits
58
|
9.04
|
Discontinuance of Employer Contributions
60
|
9.05
|
Certain Social Security Increases
60
|
ARTICLE X.
|
AMENDMENTS AND ACTION BY EMPLOYER
60
|
10.01
|
Amendments
60
|
10.02
|
Action by Employer
61
|
ARTICLE XI.
|
SUCCESSOR EMPLOYER AND MERGER OR
CONSOLIDATION OF PLANS
61
|
11.01
|
Successor Employer
61
|
11.02
|
Plan Assets
61
|
ARTICLE XII.
|
PLAN TERMINATION
62
|
12.01
|
Right to Terminate
62
|
12.02
|
Partial Termination
62
|
12.03
|
Liquidation of the Trust Fund
62
|
12.04
|
Manner of Distribution
62
|
ARTICLE XIII.
|
RESTRICTIONS ON SHARES
62
|
(a)
|
ADDITIONS : With respect to each Year, the sum of: (i) the total of the Employer contributions allocated to a Participant’s Employer Contributions Account, Safeharbor Matching Contributions Account, Matching Contributions Account, where appropriate, and Salary Reduction Contributions Account (including any amounts characterized as Excess Contributions and amounts characterized as Excess Deferrals, if such Excess Deferrals are not distributed as provided for in Subsection 4.01(c) hereof), (ii) any amount allocated to an “individual medical account,” as defined in Code Section 415(l)(2), which is part of a Defined Benefit Plan maintained by an Employer; and (iii) any amounts derived from contributions paid or accrued after December 31, 1985, in taxable years ending after such
|
(b)
|
AFFILIATE : Any corporation (other than a Participating Employer) which is (i) a member of a controlled group of corporations (as defined in Code Section 414(b)) which includes an Employer; (ii) a trade or business (whether or not incorporated) which is under common control (as defined in Code Section 414(c)) with an Employer; (iii) an organization (whether or not incorporated) which is a member of an affiliated service group (as defined in Code Section 414(m)) which includes an Employer; or (iv) any other entity required to be aggregated with an Employer pursuant to Code Section 414(o).
|
(c)
|
AUTHORIZED LEAVE OF ABSENCE : Any absence authorized by an Employer under the Employees standard personnel practices, provided that all persons under similar circumstances must be treated alike in the granting of such Authorized Leaves of Absence, and provided further that the Participant returns within the period of authorized absence. An absence due to service in the Armed Forces of the United States shall be considered an Authorized Leave of Absence provided that the absence is caused by war or other emergency, or provided that the Employee is required to serve under the laws of conscription in time of peace, and further provided that the Employee returns to employment with an Employer within the period provided by law.
|
(d)
|
BENEFICIARY : A person or persons (natural or otherwise) designated by a Participant in accordance with the provisions of Section 6.05 to receive any death benefit which shall be payable under this Plan.
|
(e)
|
CODE : The Internal Revenue Code of 1986, as amended from time to time and any regulations issued thereunder. Reference to any section of the Code shall include any successor provision thereto.
|
(f)
|
COMMITTEE : The persons appointed under the provisions of Article VIII to administer the Plan.
|
(g)
|
COMPANY : ATMOS ENERGY CORPORATION, a corporation organized and existing under the laws of the States of Texas and Virginia, or its successor or successors.
|
(h)
|
COMPANY STOCK : Shares of stock issued by the Company and owned by the Plan. For purposes of this Plan, Company Stock may include any of the following:
|
(1)
|
Common Stock
: Shares of common stock issued by the Company (or a corporation which is a member of the same controlled group as defined under Code Section 409(1)(4)) which are readily tradable on an established securities market. For all purposes under the Plan, “readily tradable on an established securities market” shall
|
(2)
|
Preferred Stock
: Shares of non-callable preferred stock convertible at any time into Common Stock or Other Stock at a conversion price which (as of the date of acquisition by the Plan) is reasonable. Preferred Stock shall be treated as non-callable if after the call there will be a reasonable opportunity for such conversion.
|
(3)
|
Other Stock
: When no common stock meets the definition of Common Stock in Section 2.01(h)(1) above, common stock issued by the Company (or a corporation which is a member of the same controlled group as defined under Code Section 409(1)(4)) having a combination of voting power and dividend rights equal to or in excess of:
|
(A)
|
that class of common stock of the Company (or a corporation which is a member of the same controlled group as defined under Code Section 409(1)(4)) having the greatest voting power, and
|
(B)
|
that class of common stock of the Company (or a corporation which is a member of the same controlled group as defined under Code Section 409(1)(4)) having the greatest dividend rights.
|
(i)
|
COMPENSATION :
|
(A)
|
The total of all amounts paid to a Participant by an Employer for personal services as reported on the Participant’s Federal Income Tax Withholding Statement (Form W-2) plus any amounts excluded from such reporting pursuant to Code Sections 125, 401(k) and 132(f)(4), but excluding (i) expense reimbursements, (ii) bonuses, (iii) any contributions made under this Plan, any other plan of deferred compensation or any welfare benefit plan (other than amounts contributed pursuant to such Sections 125 and 401(k)), and (iv) other special payments of any kind that are unrelated to the Participant’s activities associated with or in lieu of his performance of services for the Employer. Notwithstanding any other provision of this Plan, Compensation shall include any and all lump sum merit payments made to such Participant by an Employer.
|
(B)
|
In addition to other applicable limits set forth in this Plan, the Compensation of each Participant taken into account for purposes of determining benefits under the Plan for a given Plan Year shall not exceed Two Hundred Fifty-Five Thousand Dollars ($255,000) (as increased by the Secretary of the Treasury in accordance with Code Section 401(a)(17)(B)). For purposes of determining Salary Reduction Contributions under Section 4.01 of the Plan, the annual limit under Code Section 401(a)(17)(B) shall be prorated per pay period during the Plan Year.
|
(C)
|
Notwithstanding the preceding, for purposes of determining a Participant’s Company Contributions made pursuant to Section 4.03 hereof for the Plan Year in which a Participant begins or resumes Participation, Compensation received before his Participation began or resumed shall be disregarded.
|
(i)(1)
|
DECERTIFICATION DATE : July 8, 2014, the date of the decertification of the Union.
|
(j)
|
DISABILITY : A Participant is disabled if (i) he is qualified for long-term disability benefits under the Atmos Energy Corporation Group Long-Term Disability Plan, as in effect from time to time; or (ii) if such Long-Term Disability Plan is not then in existence, the Participant, because of ill health, physical or mental disability or any other reason beyond his control, is unable to perform his duties of employment for a period of six continuous months, determined in good faith by the Committee. Notwithstanding the preceding, a Participant shall be conclusively presumed to have incurred a Disability if he is eligible for Social Security disability benefits.
|
(k)
|
EFFECTIVE DATE : Except as otherwise provided herein, January 1, 2015, the date on which the provisions of this amended and restated Plan became effective.
|
(l)
|
EMPLOYEE :
|
(1)
|
Any individual on the payroll of an Employer whose wages from such Employer are subject to withholding for purposes of Federal income taxes and for purposes of the Federal Insurance Contributions Act.
|
(2)
|
The term “Employee” shall include any person (not employed by an Employer) who under an agreement between an Employer and any other person (a “leasing organization”) has performed services for such Employer (or for such Employer, Affiliate, and any person that is a “related person” to the Employer as determined in accordance with Code Section 414(n)(6)) on a substantially full-time basis for a period of at least one (1) year, and the services are performed under the primary direction or control by such Employer (a “Leased Employee”); provided, however, that if such Leased Employees constitute less than twenty percent (20%) of the Employer’s non-highly compensated work force (as defined in Code Section 414(n)(5)(C)(ii)), the term “Employee” shall not include any Leased Employees who are covered by a plan described in Code Section 414(n)(5), unless otherwise expressly provided by the terms of this Plan.
|
(3)
|
Notwithstanding the preceding, the term “Employee” shall not include any individual who is designated as an “independent contractor” by an Employer, even if the status of such individual subsequently is changed from that of an “independent contractor” to that of an “employee” as a result of an administrative or legal proceeding.
|
(m)
|
EMPLOYEE CONTRIBUTIONS ACCOUNT : The account maintained for a Participant to record his Employee Contributions and Supplemental Savings, if any, and adjustments relating thereto, as provided under the provisions of the Prior Plan as effective prior to October 1, 1987, and amounts transferred to the Plan and credited to this account subsequent thereto.
|
(n)
|
EMPLOYER : The Company, where applicable, and any Participating Employer. Employer refers to all Employers collectively, or to each one individually, as the context may require.
|
(o)
|
EMPLOYER CONTRIBUTIONS ACCOUNT : The account maintained for a Participant to record his share of the Company Contributions made pursuant to Section 4.03 hereof and rollover contributions made pursuant to Section 4.05 hereof, and adjustments relating thereto (the portion of the Employer Contributions Account containing a Participant’s share of Fixed Annual Company Contributions and any Income thereon being referred to herein as the “Fixed Annual Company Contributions Portion”), and amounts transferred to the Plan and credited to this account prior to the Effective Date. Said account shall include amounts from the matching contributions accounts under the MVG Union Savings Plan which were transferred to this Plan on behalf of the MVG Merger Participants in accordance with Section 3.10.
|
(p)
|
EMPLOYMENT COMMENCEMENT DATE : The first date on which an Employee completes an Hour of Employment.
|
(q)
|
ERISA : Public Law No. 93-406, the Employee Retirement Income Security Act of 1974, as amended from time to time.
|
(r)
|
FIDUCIARIES : Any person who exercises any discretionary authority or discretionary control respecting the management of the Plan, assets held under the Plan, or disposition of Plan assets; who renders investment advice for a fee or other compensation, direct or indirect, with respect to assets held under the Plan or has any authority or responsibility to do so; or who has any discretionary authority or discretionary responsibility in the administration of the Plan shall be treated as a Fiduciary hereunder. Any person who exercises authority or has responsibility of a fiduciary nature as described above shall be considered a Fiduciary under the Plan. Notwithstanding the foregoing, neither a Participant nor a Beneficiary shall be considered a Fiduciary with respect to the Plan by reason of his exercise of control over the assets held in his individual account pursuant to Section 7.04 hereof. In general the Employers, the Committee, and the Trustee shall be Fiduciaries hereunder, but only with respect to the specific responsibilities of each for Plan and Trust administration, all as described in Section 8.01.
|
(s)
|
FORMER PARTICIPANT : A Participant whose Participation has terminated but who has a vested account balance under the Plan, which has not been paid in full.
|
(t)
|
HIGHLY COMPENSATED EMPLOYEE : A Participant or Former Participant who is a Highly Compensated Employee, as defined in Code Section 414(q). A Participant or Former Participant is considered a Highly Compensated Employee if:
|
(1)
|
during the Plan Year (the “Determination Year”) or during the twelve month period immediately preceding the Determination Year or, if the Company elects, the calendar year ending with or within the Determination Year (the “Look Back Year”), the Participant or former Participant was at any time a “five percent owner” as defined in Section 5.04(a)(2)(C)(2) hereof; or
|
(2)
|
for the preceding Plan Year, the Participant or former Participant had Compensation from the Employer in excess of One Hundred Fifteen Thousand Dollars ($115,000), as adjusted by the Secretary of the Treasury. The $115,000 amount shall be adjusted at the same time and in the same manner as under Code Section 415(d), except that the base period is the calendar quarter ending September 30, 1996.
|
(u)
|
HOUR OF EMPLOYMENT : Each hour (i) for which an Employee is on an Authorized Leave of Absence or is directly or indirectly paid or entitled to payment by an Employer for the performance of duties or for reasons other than the performance of duties, or (ii) for which back-pay (irrespective of mitigation of damages) has been either awarded or agreed to by an Employer. In the case of clause (i) above, each such Hour of Employment shall, in general, be credited for the computation period in which the duties were performed, or to which payments or entitlements to payments relate (in cases in which Hours of Employment are credited for periods in which duties are not performed). In the case of clause (ii) above, each such Hour of Employment shall, in general, be credited for the computation period to which the agreement or award pertains. Notwithstanding any provision to the contrary contained herein, no Employee shall be credited with an Hour of Employment under both clauses (i) and (ii) above.
|
(v)
|
INCOME : The net gain or loss of the Trust Fund, as reflected by interest payments, dividends, realized and unrealized gains and losses on securities, other investment transactions and expenses paid from the Trust Fund. In determining the Income of the Trust Fund for any period, assets shall be valued on the basis of their fair market value, as determined by the Trustee.
|
(w)
|
MATCHING CONTRIBUTIONS ACCOUNT : The account maintained for a Participant who was covered by the collective bargaining agreement between the Company and the Communication Workers of America, Local 3212 to record contributions made from and after April 23, 2005, and through April 29, 2006, and any adjustments relating thereto.
|
(w)(1)
|
MVG DECERTIFIED UNION PARTICIPANT: An Employee of the Employer on January 1, 2015, who either:
|
(i)
|
was (A) covered by the collective bargaining agreement between the Employer and the Union (“the MVG Bargaining Agreement”) on July 7, 2014, (B) became a Participant in this Plan as a result of the decertification of the Union, and (C) if he was a participant in the MVG Union Savings Plan as of the Decertification Date, elected, prior to January 1, 2015, to have his account balances under the MVG Union Savings Plan transferred into this Plan in accordance with Section 4.07 of the Prior Plan; or
|
(ii)
|
had an Employment Commencement Date between the Decertification Date and July 14, 2014 and would have been covered by the MVG Bargaining Agreement if his Employment Commencement Date had been on July 7, 2014.
|
(w)(2)
|
MVG MERGER PARTICIPANT : A participant in the MVG Union Savings Plan who had an account in the MVG Union Savings Plan on December 31, 2014, which was transferred to this Plan in accordance with Section 3.10.
|
(w)(3)
|
MVG NON-UNION TRANSFER PARTICIPANT : A participant in the MVG Union Savings Plan who, on or after October 1, 2010, but prior to the Decertification Date, transferred to employment that was not covered by the MVG Bargaining Agreement.
|
(w)(4)
|
MVG UNION SAVINGS PLAN : The Atmos Energy Corporation Savings Plan for MVG Union Employees.
|
(x)
|
NON-HIGHLY COMPENSATED EMPLOYEE : An Employee who is not a Highly Compensated Employee.
|
(y)
|
PARTICIPANT : An Employee participating in the Plan in accordance with the provisions of Section 3.01.
|
(z)
|
PARTICIPATING EMPLOYER : Any entity which, with the consent of the Company, has adopted this Plan in accordance with the provisions of Section 2.03.
|
(aa)
|
PARTICIPATION : With respect to an Employee, the period commencing on the date on which the Employee became a Participant and ending on the date on which the Employee incurs a Severance from Service.
|
(bb)
|
PLAN : ATMOS ENERGY CORPORATION RETIREMENT SAVINGS PLAN AND TRUST, as set forth in this document and as it may be amended from time to time.
|
(bb)(1)
|
PLAN ADMINISTRATOR : The Committee.
|
(cc)
|
PRIOR PLAN : ATMOS ENERGY CORPORATION RETIREMENT SAVINGS PLAN AND TRUST, as constituted prior to January 1, 2015.
|
(dd)
|
RE-EMPLOYMENT COMMENCEMENT DATE : The first date on which an Employee completes an Hour of Employment upon his return to the employment of an Employer after a Severance from Service.
|
(ee)
|
SAFEHARBOR MATCHING CONTRIBUTIONS ACCOUNT : The account maintained for a Participant to record contributions made on his behalf by his Employer pursuant to Section 4.02 hereof, and adjustments relating thereto.
|
(ff)
|
SALARY REDUCTION CONTRIBUTIONS ACCOUNT : The account maintained for a Participant to record contributions made on his behalf by his Employer pursuant to Section 4.01 hereof, and adjustments relating thereto and amounts transferred to the Plan and credited to this account subsequent thereto. Said account shall include amounts from the deferred income accounts under the MVG Union Savings Plan which were transferred to this Plan on behalf of MVG Merger Participants in accordance with Section 3.10.
|
(gg)
|
SERVICE : A Participant’s period of employment with an Employer or an Affiliate as determined in accordance with Sections 3.02, 3.04 and 6.03 hereof.
|
(hh)
|
SEVERANCE FROM SERVICE : With respect to an Employee, the earlier of (i) the date on which he quits, or is discharged from the employment of an Employer, or (ii) the date of his retirement, Disability or death.
|
(hh)(1)
|
SPOUSE : Effective on and after September 16, 2013, the person to whom the Participant is legally married (under applicable Federal law). The Participant must provide proof of marriage if requested by the Plan Administrator, such as, for example, an affidavit of marriage or a marriage license issued by the applicable state.
|
(ii)
|
TRUST (or TRUST FUND) : The fund established hereunder, maintained in accordance with the terms of the Plan and constituting a part of this Plan.
|
(jj)
|
TRUST COMMITTEE : The Qualified Retirement Plans and Trusts Committee appointed by the Board of Directors of the Company to act as Trustee hereunder. The same provisions applicable to the Qualified Retirement Plans and Trusts Committee specified in Sections 8.02 and 8.07 hereof shall apply to, respectively, the appointment of the members of the Trust Committee and the procedures to be adopted by the Trust Committee for the conduct of its affairs.
|
(kk)
|
TRUSTEE : The Trust Committee, or any corporation, individual or individuals appointed by the Board of Directors of the Company to administer the Trust.
|
(kk)(1)
|
UNION : The International Chemical Workers Union Council, United Food & Commercial Workers Union International and its Local 1047C.
|
(ll)
|
VALUATION DATE : Each business day.
|
(mm)
|
YEAR or PLAN YEAR : The 12-month period beginning January 1 and ending on the next following December 31.
|
(a)
|
The Board of Directors of the Company must approve such adoption;
|
(b)
|
The administrative powers and control of the Company as provided herein shall not be deemed diminished under the Plan by reason of the adoption of the Plan by any Participating Employer, and
|
(c)
|
The administrative powers and control granted to the Company in Section 8.01 with respect to the appointment of the Committee and other matters shall apply only with respect to the Company and not to any Participating Employer.
|
(a)
|
Any Employee included under the provisions of the Prior Plan as of the Effective Date shall continue to participate in accordance with the provisions of this amended and restated Plan.
|
(b)
|
(1) For purposes of eligibility to make Salary Reduction Contributions under Section 4.01, an Employee shall be eligible to become a Participant in this Plan as of the Entry Date coincident with or immediately following the date on which he or she becomes an Employee (an “Eligible Employee”). For purposes of eligibility to receive allocations of Safeharbor Matching Contributions under Section 4.02, a Participant shall be eligible to participate in this Plan as of the Entry Date coincident with or immediately following his completion of one (1) year of Service. Notwithstanding the foregoing, for the Plan Year commencing January 1, 2015, the one (1) year of Service requirement for Safeharbor Matching Contributions shall not apply to any MVG Decertified Union Participant.
|
(A)
|
If such Participant was an Employee on September 30, 2010 and elected, pursuant to the special election given to all such Employees during the period from September 27, 2010 to November 5, 2010, to cease participation or relinquish eligibility to participate, in the Pension Account Plan effective as of the close of business on December 31, 2010, such Participant shall be eligible to receive allocations of Fixed Annual Company Contributions as of the later of January 1, 2011 or the Entry Date coincident with or immediately following completion of one (1) year of Service.
|
(B)
|
If such Participant becomes an Employee on or after October 1, 2010, such Participant shall be eligible to receive allocations of Fixed Annual Company Contributions as of the later of January 1, 2011 or the Entry Date coincident with or immediately following completion of one (1) year of Service.
|
(C)
|
An MVG Non-Union Transfer Participant who (i) was an Employee of the Employer on January 1, 2015, and (ii) prior to January 1, 2015 elected to participate in the Pension Account Plan, shall not be eligible to receive Fixed Annual Company Contributions with respect to any Compensation earned from and after January 1, 2015. Accordingly, from and after January 1, 2015, only an MVG Non-Union Transfer Participant who did not elect to participate in the Pension Account Plan prior to January 1, 2015, shall be eligible to receive Fixed Annual Company Contributions with respect to Compensation earned on and after January 1, 2015.
|
(D)
|
MVG Decertified Union Participants shall not be eligible to receive Fixed Annual Company Contributions with respect to any Compensation earned from and after January 1, 2015.
|
(c)
|
The term “Entry Date” means the first day of the first payroll period.
|
(a)
|
Service Prior to the Effective Date
. For an Employee as of the Effective Date, the Employee’s employment with an Employer prior to the Effective Date shall be counted as Service to the extent that such employment was counted as service under the provisions of any Prior Plan, including any period or periods of Authorized Leave of Absence counted as service under such provisions.
|
(b)
|
Service On and After Effective Date
. On and after the Effective Date, an Employee shall accrue a year of Service for each consecutive twelve (12)-month computation period during which he completes at least one thousand (1,000) Hours of Employment. Such computation period shall begin on his Employment Commencement Date; provided, however, that if the Employee fails to complete one thousand (1,000) Hours of Employment during the first computation period, the second computation period shall be the Plan Year which includes the first anniversary of the Employment Commencement Date, and succeeding computation periods shall also be on the basis of the Plan Year. An Employee who completes a year of Service and, prior to Participation hereunder, incurs a Severance from Service shall, upon re-employment, be credited with such prior year of Service and be entitled to commence Participation as of the later of (i) the date as of which such Employee would have commenced Participation under Section 3.01(b) if he had not incurred a Severance from Service or (ii) his Re-Employment Commencement Date.
|
(a)
|
All loans under the Mississippi Valley Gas Company Savings Plan (the “MVG Non-Union Plan”) which were previously transferred in kind to the Plan shall, to the extent still outstanding, continue to be maintained and administered under Section 7.05 in accordance with the terms of said loans as in effect at the time of said transfer.
|
(b)
|
The amounts previously transferred from the MVG Non-Union Plan that are attributable to forfeitures of account balances under that Plan and to the suspense account containing unallocated contributions to that Plan shall be used to reduce Safeharbor Matching Contributions under the Plan.
|
(a)
|
The account balances of MVG Merger Participants in the MVG Union Savings Plan which are transferred into the Plan effective January 1, 2015, shall be held, administered, and distributed as part of the Plan as follows:
|
(1)
|
All amounts transferred from the MVG Union Savings Plan that are attributable to an MVG Merger Participant’s deferred income account under the MVG Union Savings Plan shall be held in the Salary Reduction Contribution Account established for such MVG Merger Participant under the Plan; and
|
(2)
|
All amounts transferred from the MVG Union Savings Plan that are attributable to an MVG Merger Participant’s matching contribution account under the MVG Union Savings Plan shall be held in a subaccount of the Employer Contribution Account established for such MVG Merger Participant under the Plan. The MVG Merger Participant shall be 100% vested in said subaccount and all amounts contained therein may be invested as soon as administratively possible in accordance with the procedures established by the Committee and communicated in writing to the MVG Merger Participants.
|
(b)
|
Prior to January 1, 2015, Hours of Employment for MVG Merger Participants shall be calculated in accordance with the terms of the MVG Union Savings Plan. From and after January 1, 2015, Hours of Employment for MVG Merger Participants shall be calculated in accordance with the terms of this Plan. Notwithstanding the foregoing, in no event will
|
(c)
|
Amounts transferred from the MVG Union Savings Plan that are attributable to forfeitures of account balances under the MVG Union Savings Plan and to the suspense account containing unallocated contributions to the MVG Union Savings Plan shall be used to reduce Safeharbor Matching Contributions and Fixed Annual Contributions under the Plan.
|
(d)
|
All loans under the MVG Union Savings Plan which were transferred in kind to the Plan shall, to the extent still outstanding, continue to be maintained and administered under Section 7.05 in accordance with the terms of said loans as in effect at the time of said transfer.
|
(a)
|
For each Plan Year, each Employer shall contribute to the Trust Fund, on behalf of each of its Eligible Employees and Participants an amount equal to the total amount of “Salary Reduction Contributions” (defined below). Salary Reduction Contributions may be in the form of cash or Company Stock, and shall be deposited in the Trust Fund as soon as administratively feasible, but in no event later than the fifteenth (15th) business day of the calendar month following the calendar month during which such contributions were made.
|
(b)
|
Subject to the provisions of Section 4.01(g) hereof, each Eligible Employee shall be given the opportunity to affirmatively elect to make Salary Reduction Contributions. Salary Reduction Contributions shall commence as of the Entry Date coinciding with or immediately following the date on which the Eligible Employee has properly completed the steps necessary to affirmatively elect to make Salary Reduction Contributions.
|
(c)
|
Notwithstanding anything herein to the contrary, for any Participant’s taxable year, a Participant’s Salary Reduction Contributions shall not exceed the dollar limitation contained in Code Section 402(g) in effect for such taxable year, except to the extent permitted under Section 4.01(f) and Code Section 414(v), if applicable. An Employer may amend or revoke a Participant’s Salary Reduction Contributions at any time if such Employer determines that
|
(d)
|
Salary Reduction Contributions credited to a Participant’s Salary Reduction Contributions Account pursuant to Section 4.01(a) shall be one hundred percent (100%) vested and non-forfeitable at all times. For all purposes of this Plan, a Participant’s Compensation for any Year during which Salary Reduction Contributions are being made on behalf of the Participant shall be equal to the Participant’s Compensation before deduction of Salary Reduction Contributions.
|
(e)
|
Salary Reduction Contributions shall be subject to the following rules and limitations:
|
(1)
|
Salary Reduction Contributions shall apply to each payroll period during which the Participant has agreed, or is deemed to have agreed, to make Salary Reduction Contributions in accordance with Section 4.01(b), hereof.
|
(2)
|
A Participant may modify or terminate Salary Reduction Contributions at any time upon notice to the Committee, subject to the requirements of paragraph (3), below. If a Participant terminates his or her Salary Reduction Contributions, he or she may elect to recommence Salary Reduction Contributions at any time thereafter, subject to the requirements of paragraph (3), below.
|
(3)
|
Any change or termination to Salary Reduction Contributions shall be effective as of, and shall not apply to any payroll period preceding, the payroll period immediately following the date on which the Committee receives notice of such change or termination of a Participant’s Salary Reduction Contributions.
|
(4)
|
An Employer may change or terminate Salary Reduction Contributions with respect to a Participant at any time if the Employer determines that such change or termination is necessary (i) to ensure that a Participant’s Additions for any Year will not exceed the limitation of Section 5.03 hereof, (ii) to ensure that Employer contributions made pursuant to Sections 4.01, 4.02 and 4.03 hereof are fully deductible by the Employer for Federal income tax purposes, or (iii) to ensure that a Participant’s Salary Reduction Contributions do not exceed the limitation of Section 4.01(c) hereof relating to “excess deferrals” (as defined in Code Section 402(g)(2) and the treasury regulations promulgated thereunder) or the limitations
|
(5)
|
Except as otherwise provided in Sections 4.01(g) hereof, the requirements of Code Section 401(k)(3) are satisfied by the safeharbor provided under Code Section 401(k)(12). Prior to (i) the Employee’s initial Entry Date, and (ii) the beginning of each Plan Year, the Employer shall provide written notice to each Employee who is eligible to receive Safeharbor Matching Contributions pursuant to Section 4.02 hereof that this Plan is exempt from the general nondiscrimination rules of Code Section 401(k)(3).
|
(6)
|
Upon termination of employment, a Participant’s Salary Reduction Contributions Account shall be distributed in accordance with Article VI.
|
(f)
|
Those Participants who have attained age fifty (50) before the close of the Plan Year shall be eligible to make Salary Reduction Contributions in addition to the Salary Reduction Contributions provided for in Section 4.01(b) hereof in accordance with, and subject to the limitations of, Code Section 414(v) (“Catch-Up Salary Reduction Contributions”). Such Catch-Up Salary Reduction Contributions shall not be taken into account for purposes of Section 4.01(c) (and Code Section 402(g)) and Section 5.03 (and Code Section 415). The Plan shall not be treated as failing to satisfy the provisions of the Plan implementing the requirements of Code Sections 401(k)(3), 401(k)(11), 401(k)(12), and 410(b), or 416, as applicable, by reason of making such Catch-up Salary Reduction Contributions. In addition, the Employers shall not make Matching Contributions with respect to Catch-Up Salary Reduction Contributions.
|
(g)
|
The limitations described in this Section 4.01(g) shall be determined in accordance with the applicable sections of the Code and regulations thereunder. This Subsection 4.01(g) shall apply to “ADP Participants”. “ADP Participants” shall mean any Participant who will not have completed at least one (1) year of Service by the close of the Plan Year, and who therefore is ineligible to receive Safeharbor Matching Contributions for such Plan Year. Any Automatic Salary Reduction Contribution that is distributed as an Automatic Salary Reduction Contributions Distribution, as described in Section 4.01(b) of the Plan, shall not be included as a Salary Reduction Contribution for purposes of determining whether the limitations in this Section 4.01(g) are met.
|
(1)
|
Notwithstanding any other provision of this Plan, in no event shall the Employer make a Salary Reduction Contribution on behalf of any ADP Participant in any Plan Year (the “Current Plan Year”) if such contribution would cause the “Actual Deferral Percentage” (or “ADP”) of Highly Compensated Employees who are ADP Participants (referred to in this Section 4.01(g) as “Highly Compensated ADP Employees”) to exceed the greater of the limitations indicated below:
|
(A)
|
One hundred twenty‑five percent (125%) of the ADP for all Non-Highly Compensated Employees who are ADP Participants (referred to in this Section 4.01(g) as “Non-Highly Compensated ADP Employees”) for the prior Plan Year; or
|
(B)
|
The lesser of (i) the sum of the ADP for all Non-Highly Compensated ADP Employees for the prior Plan Year plus two percent (2%), or (ii) two hundred percent (200%) of the ADP for all Non-Highly Compensated ADP Employees for the prior Plan Year.
|
(2)
|
The Committee shall, to the extent necessary to conform the Salary Reduction Contributions to the above limitations, reduce prospectively the amount of Salary Reduction Contributions to be made on behalf of Highly Compensated ADP Employees. Such prospective reduction shall first be applied to reduce the dollar amount elected by all those Highly Compensated ADP Employees who have elected the highest dollar amount of Salary Reduction Contributions compared to the dollar amount elected by all those Highly Compensated ADP Employees (including those Employees whose dollar amount was previously reduced) whose elected dollar amount is at the next highest dollar amount of Salary Reduction Contributions, and shall thereafter continue to be applied to the extent necessary in like manner in descending order on the basis of elected contribution amounts. The total amount by which the Salary Reduction Contributions must be reduced prospectively as provided above shall be determined under Section 4.01(g)(1) above and shall be calculated by reducing contributions made on behalf of Highly Compensated ADP Employees in the order of their actual deferral percentages beginning with the highest of such percentages, and continuing to reduce the Salary Reduction Contributions of the Highly Compensated ADP Employees with the next highest contribution percentages in a like manner in descending order based on rates of contribution percentages until the amount reduced is sufficient to satisfy the limitations of Section 4.01(g)(1) above.
|
(3)
|
In the event that following the end of a Plan Year, it is determined by the Committee that the Salary Reduction Contributions for Highly Compensated ADP Employees exceed the limitations of Section 4.01(g)(1), then the amount in excess of such limitation (“Excess Contributions”) (and the income thereon) (with the amount of such Excess Contributions calculated by reducing the contributions made on behalf
|
(4)
|
In determining the amount of income allocable to Excess Contributions which are being distributed, the following rules shall apply:
|
(A)
|
The income allocable to Excess Contributions for the Plan Year in which the contributions are made is the income for the Plan Year allocable to Salary Reduction Contributions and amounts treated as Salary Reduction Contributions with respect to the Highly Compensated ADP Employee, multiplied by a fraction, the numerator of which is the amount of Excess Contributions made on behalf of the Highly Compensated ADP Employee for the Plan Year and the denominator of which is the balance of such Employee’s Salary Reduction Contributions Account as of the end of the Plan Year, before adjustment of such Account as provided for in Section 5.02(a).
|
(B)
|
For purposes of this Section, the income of the Plan shall mean all earnings, gains and losses, computed in accordance with the provisions of Section 5.02.
|
(5)
|
For purposes of this Section 4.01(g), the following terms shall have the following meanings:
|
(A)
|
“Actual Deferral Percentage” (or “ADP”) shall mean for the Highly Compensated ADP Employees, as a group, and for the Non-Highly Compensated ADP Employees, as a group, the average of the ratios (calculated separately for each such ADP Participant in such group) of the Salary Reduction Contributions, if any, made on behalf of each such ADP Participant for each Plan Year, to such ADP Participant’s Total Compensation (as defined in Section 4.01(g)(5)(d)) for such Plan Year. For purposes of computing the ADP under the Prior Year Testing Method, changes between the prior Plan Year and the Current Plan Year in the group of Non-Highly Compensated ADP Employees are disregarded. For purposes of computing ADP, an ADP Participant who makes no Salary Reduction Contributions for a Plan Year shall be treated as making a zero percent (0%) contribution for the Plan Year.
|
(B)
|
“Total Compensation” as used in this Section 4.01(g) shall have the same meaning as that set forth in Section 5.03(b) hereof.
|
(a)
|
For each Plan Year, each Employer shall contribute on behalf of each of its Participants for whom a Salary Reduction Contribution was made pursuant to Section 4.01(b) and who is eligible to receive an allocation of Safeharbor Matching Contributions as described in Section 3.01(b) hereof a “Safeharbor Matching Contribution” in an amount equal to one hundred percent (100%) of such Participant’s Salary Reduction Contributions, up to a maximum of four percent (4%) of such Participant’s Compensation, for the Plan Year.
|
(b)
|
Except as otherwise provided in Subsection 4.01(g) with respect to ADP Participants (as defined in Subsection 4.01(g)), the discrimination tests of Code Section 401(k)(3) are satisfied by the safeharbor provided under Code Section 401(k)(12).
|
(c)
|
The discrimination tests of Code Section 401(m)(2) are satisfied by the safeharbor provided under Code Section 401(m)(11).
|
(d)
|
Prior to (i) the Employee’s initial Entry Date, and (ii) the beginning of each Plan Year, the Employer shall provide notice to each Employee who is eligible to receive a Safeharbor Matching Contribution pursuant to Section 4.02 here that this Plan is exempt from the general nondiscrimination rules of Code Section 401(k)(3) and Code Section 401(m)(2). Such notice shall be provided in writing or any other form approved by the Commissioner of Internal Revenue.
|
(e)
|
Safeharbor Matching Contributions credited to a Participant Safeharbor Matching Contributions Account shall be one hundred percent (100%) vested and non-forfeitable at all times. Safeharbor Matching Contributions may be made in cash or in Company Stock.
|
(f)
|
To the extent that a Safeharbor Matching Contribution is made with respect to an Automatic Salary Reduction Contribution that is distributed as an Automatic Salary Reduction Contribution Distribution, as described in Section 4.01(b) of the Plan, such Safeharbor Matching Contribution, and earnings and losses attributable thereto, shall be forfeited and allocated to a forfeiture account in the Plan and used to reduce future Employer contributions to the Plan. The amount to be forfeited shall be deducted from the Non-ESOP portion (as defined in Section 7.02 hereof) of the Participant’s Safeharbor Matching Contributions Account, so long as there are amounts in such portion, and thereafter shall be deducted from the ESOP portion of the Participant’s Safeharbor Matching Contributions Account (as defined in Section 7.02 hereof) containing Company Stock. If interests in more than one class of Company Stock have been allocated to the ESOP portion of such Account, the forfeiture will be made in the same proportion of each such class of Company Stock.
|
(a)
|
Each Employer shall contribute on behalf of each Participant eligible to receive a Fixed Annual Company Contribution as described in Section 3.01(b) herein, a “Fixed Annual Company Contribution” in an amount equal to four percent (4%) of such Participant’s Compensation for the Plan Year, regardless of whether such Participant is still employed on the last day of the Plan Year.
|
(b)
|
Fixed Annual Company Contributions credited to a Participant’s Employer Contributions Account shall be one hundred percent (100%) vested and non-forfeitable upon the date the Participant completes three (3) years of Vesting Service. Fixed Annual Company Contributions may be made in cash or in Company Stock.
|
(c)
|
Notwithstanding the foregoing provisions of this Section 4.03, the contribution of the Employers for any Year shall in no event exceed an amount which, when added to amounts contributed pursuant to Sections 4.01 and 4.02, above, and Section 4.03A, below will, under the law then in effect, be deductible by the Employers in computing, on a consolidated return basis, their Federal income taxes for the taxable year within which such Plan Year ends, including any amount deductible pursuant to carryover provisions of the Code. All contributions of the Employers made pursuant to this Section 4.03 for a Plan Year shall be paid to the Trustee, and payment shall be made not later than the date prescribed by law for filing the consolidated Federal income tax return of the Employers for the taxable year within which such Plan Year ends, including extensions which have been granted for the filing of such tax return.
|
(a)
|
For the Plan Year commencing January 1, 2015, the Employer shall make a one-time MVG Decertification Contribution on behalf of each MVG Decertified Union Participant who had not completed one (1) year of Service prior to the Decertification Date (such individuals, “MVG Decertification Contribution Participants.”) The MVG Decertification Contribution shall be made in cash, and the amount of the MVG Decertification Contribution shall be equal to the sum of (1) and (2), below.
|
(1)
|
The amount described in Column 1 of Exhibit A. The portion of the MVG Decertification Contribution described in this paragraph (1) shall be allocated to the MVG Decertification Contribution Participant’s Fixed Annual Company Contributions Portion of the Employer Contributions Account and shall be subject to the vesting requirements described in Section 6.03, hereof.
|
(2)
|
The amount described in Column 2 of Exhibit A. The portion of the MVG Decertification Contribution described in this paragraph (2) shall be allocated to the MVG Decertification Contribution Participant’s Matching Contribution Account and shall be 100% vested at all times.
|
(b)
|
Notwithstanding the foregoing provisions of this Section 4.03A, the contribution of the Employers for any Year shall in no event exceed an amount which, when added to amounts contributed pursuant to Sections 4.01, 4.02, and 403 above, will, under the law then in effect, be deductible by the Employers in computing, on a consolidated return basis, their Federal income taxes for the taxable year within which such Plan Year ends, including any amount deductible pursuant to carryover provisions of the Code. The MVG Decertification Contribution made pursuant to this Section 4.03A shall be paid to the Trustee, and payment shall be made not later than December 31, 2015.
|
(a)
|
With the approval of the Committee, a Participant who was a participant in another plan of deferred compensation which is qualified under Code Section 401(a) may contribute to this Plan a portion or all of the amount of any “distribution” received by him from such other plan. The qualified plans from which eligible rollover distributions may be received pursuant to this paragraph (a) are qualified plans described in Code Sections 401(a) or 403(a), annuity contracts described in Code Section 403(b) and eligible plans under Code Section 457(b) which are maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state. Any amounts so contributed shall be held in a subaccount of the Participant’s Employer Contributions Account, except that any amount so contributed that is attributable to after-tax contributions shall be separately accounted for in a subaccount under the Participant’s Employee Contributions Account. Such subaccount or subaccounts shall be 100% vested in the Participant, shall
|
(b)
|
Without express authorization by the Board of Directors of the Company, the Trustee hereunder shall not accept any direct or indirect transfer of assets in connection with a merger, spinoff, or conversion of a plan, or direct or indirect transfer of assets solely with respect to an Employee, if such transfer is from a defined benefit plan, or from a defined contribution plan that is either subject to the funding standards of Code Section 412 or otherwise subject to the requirements of Code Section 401(a)(11)(A). In the case of a transfer to the Trustee of all or any of the assets held in respect of any type of qualified plan or trust by the trustee of the transferor plan, the amounts so transferred shall be allocated under this Plan to the individual account of each Participant who was also a participant in such other qualified plan. In no event shall a Participant’s vested interest in such a transferred account be less after such transfer than it was prior to such transfer, or, in the alternative, this Plan may provide that the entire value of such transferred accounts of a Participant shall be fully vested and nonforfeitable.
|
(a)
|
Income
. The Income of the Trust Fund shall be allocated as follows:
|
(1)
|
Company Stock
. Subject to the provisions of Section 7.02(h) hereof, any cash dividends earned by Company Stock, and any Company Stock received by the Trustee as a stock split or dividend or as a result of a reorganization or other
|
(2)
|
Diversified Investments
. To the extent that the accounts of a Participant are invested, pursuant to Section 7.04 hereof in the Diversified Fund described in such Section 7.04, Income attributable to the portion so invested (hereinafter, the “Diversified Portion”) shall be allocated on the following basis: for each fund comprising the Diversified Fund, such Income shall be allocated to the accounts of Participants, Former Participants and Beneficiaries who had unpaid balances in the Diversified Portions of their accounts invested in such fund on the Valuation Date in accordance with the ratio of the Diversified Portions of each Participant’s account invested in such fund on such Valuation Date to the Diversified Portions of all accounts invested in such fund on such Valuation Date.
|
(b)
|
Salary Reduction Contributions
. The Employer contributions for a Plan Year made on behalf of a Participant pursuant to Section 4.01 hereof shall be allocated to the Participant’s Salary Reduction Contributions Account effective as of a date no later than the last day of such Plan Year.
|
(c)
|
Safeharbor Matching Contributions
. The Employer contributions for a Plan Year made pursuant to Section 4.02 hereof on behalf of a Participant who is eligible to receive an allocation of the Safeharbor Matching Contribution as described in Sections 3.01(b) and 4.02 hereof shall be allocated to the Participant’s Safeharbor Matching Contributions Account effective as of a date no later than the last day of such Plan Year.
|
(d)
|
Fixed Annual Company Contributions
. The Employer contributions for a Plan Year made pursuant to Section 4.03 hereof on behalf of a Participant who is eligible to receive Fixed Annual Company Contributions as described in Sections 3.01(b) and 4.03 hereof shall be allocated to the Participant’s Employer Contributions Account effective as of a date no later than the last day of such Plan Year.
|
(a)
|
Notwithstanding anything contained herein to the contrary, the total Additions made to the Salary Reduction Account, Safeharbor Matching Contributions Account, Employer Contributions Account and, if applicable, Matching Contributions Account of a Participant for any Plan Year shall not exceed the lesser of:
|
(1)
|
Fifty-One Thousand Dollars ($51,000) (or such higher amount to which such amount shall be adjusted by the Secretary of the Treasury or his delegate pursuant to Code Section 415(d)), or
|
(2)
|
One hundred percent (100%) of the Participant’s total compensation for such Plan Year (even though such Participant may not have been a Participant for the entire Plan Year).
|
(b)
|
For purposes of this Section 5.03, a Participant’s “total compensation” shall mean:
|
(1)
|
The sum of:
|
(A)
|
All earned income, wages, salaries, fees for professional service and other amounts received for personal services actually rendered in the course of employment with his Employer and any Affiliates, without regard to whether or not an amount is paid in cash, (including, but not limited to, commissions paid salesmen, compensation for services on the basis of a percentage of profits, commissions on insurance premiums, tips, bonuses, fringe benefits, and reimbursements or other expense allowances under a nonaccountable plan (as described in Treasury Regulation Section 1.62-2(c)) which are actually paid or made available to an Employee during the Year;
|
(B)
|
Any elective deferral (as defined in Code Section 402(g)(3)) and any amount which is contributed or deferred by the Employer at the election of the Participant and which is not includable in the gross income of the Participant by reason of Code Sections 125 or 457; and
|
(C)
|
Any elective amounts which are not includable in the gross income of the Participant by reason of Code Section 132(f)(4).
|
(2)
|
Total compensation shall exclude the following:
|
(A)
|
Employer contributions to a plan of deferred compensation to the extent that, prior to the application of the limitations of Code Section 415 to the Plan, the contributions are not included in the gross income of a Participant for the taxable year in which contributed;
|
(B)
|
Employer contributions on behalf of a Participant to a simplified employee pension plan under Code Section 219(b)(7) to the extent the contributions are deductible by the Participant;
|
(C)
|
Any distributions from a plan of deferred compensation other than an unfunded nonqualified plan of deferred compensation, whether or not includable in the gross income of the Participant when distributed;
|
(D)
|
Amounts realized from the exercise of a nonqualified stock option, or when restricted stock (or property) held by a Participant becomes freely transferable or is no longer subject to a substantial risk of forfeiture;
|
(E)
|
Amounts realized from the sale, exchange or other disposition of stock acquired under a qualified stock option; and
|
(F)
|
Other amounts which receive special tax benefits, or contributions made by an Employer (whether or not under a salary reduction agreement) for the purchase of an annuity contract described in Code Section 403(b) (whether or not the contributions are excludable from the gross income of the Participant).
|
(c)
|
If such Additions exceed the limitation set forth in Section 5.03(a) above, such excess Additions shall be corrected in accordance with the applicable provisions of Revenue Procedure 2006-27, or such subsequent guidance issued by the Internal Revenue Service describing the Employee Plans Compliance Resolution System, or similar correction program. In the event that any Participant in this Plan is also a participant under any other defined contribution plan maintained by an Employer or an Affiliate (whether or not terminated), the total amount of Additions to such Participant’s accounts under all such defined contribution plans for the Year shall not exceed the limitations set forth in Subsection 5.03(a) above. If such total amount of Additions to a Participant’s accounts under all such defined contribution plans for the Year does exceed the limitations set forth in Subsection 5.03(a) above, then the excess Additions to such Participant’s accounts shall be corrected in accordance with this Section 5.03(c).
|
(d)
|
Notwithstanding the foregoing, in the case of a Participant (i) who is permanently and totally disabled (as provided in Code Section 415(c)(3)(C)), (ii) who was not a Highly Compensated Employee immediately prior to becoming permanently and totally disabled (as provided in Code Section 415(c)(3)(C)), and (iii) with respect to whom the Company elects to have this Section 5.03(d) apply, the term “total compensation” shall mean the compensation the Participant would have received for the Plan Year if the Participant had been paid at the rate of compensation paid immediately before becoming permanently and totally disabled, provided that such amount is greater than the Participant’s total compensation would have been without the application of this Section 5.03(d). Section 5.03(d) shall apply only to the extent that contributions made with respect to amounts treated as total compensation under this Section 5.03(d) are nonforfeitable when made.
|
(a)
|
Determination of Top-Heavy Status
. The ESOP portion or the Non-ESOP portion of the Plan will be considered a Top-Heavy Plan for the Plan Year if as of the last day of the preceding Plan Year (the “determination date”):
|
(1)
|
(A) The value of the sum of the ESOP portion or the Non-ESOP portion (as the case may be) of the Employer Contributions Accounts (but excluding rollover contributions made pursuant to Section 4.05 hereof, to the extent permissible under applicable treasury regulations under Code Section 416), Salary Reduction Contributions Accounts, Safe harbor Matching Contributions Accounts and, where applicable, Matching Contributions Accounts, plus Employee Contributions Accounts (but not including any allocations to be made as of such last day of the Plan Year except contributions actually made on or before that date and allocated pursuant to Sections 5.02(b) and (c)) of Participants who are Key Employees (as defined below) exceeds 60% of the value of the sum of the ESOP portion or the Non-ESOP portion (as the case may be) of the Employer Contributions Accounts, Salary Reduction Contributions Accounts, Safe harbor Matching Contributions Accounts and, where applicable, Matching Contributions Accounts, plus Employee Contributions Accounts (but not including any allocations to be made as of such last day of the Plan Year except contributions actually made on or before that date and allocated pursuant to Sections 5.02(b) and (c)) of all Participants and their Beneficiaries (the “60% Test”), or
|
(B)
|
The applicable portion of the Plan is part of a required aggregation group (within the meaning of Code Section 416(g)(2)) and the required aggregation group is top-heavy. However, and notwithstanding the results of the 60% Test, the ESOP portion or the Non-ESOP portion (as the case may be) of the Plan shall not be considered a Top-Heavy Plan for any Plan Year in which the applicable portion of the Plan is a part of a required or permissive aggregation group (within the meaning of Code Section 416(g)(2)) which is not top-heavy. For purposes of the 60% Test for any Plan Year, (i) the value of the Employer Contributions Accounts, Safe harbor Matching Contributions Accounts, Salary Reduction Contributions Accounts, Employee Contributions Accounts and, where applicable, Matching Contributions Accounts of individuals who are former Key Employees shall not be taken into account and (ii) the value of the Employer Contributions Accounts, Safe harbor Matching Contributions Accounts, Salary Reduction Contributions Accounts, Employee Contributions Accounts and, where applicable, Matching Contributions Accounts of individuals who have not performed services for an Employer for the five (5)-year period ending on the determination date shall not be taken into account.
|
(A)
|
The present values of accrued benefits and the amounts of account balances of an employee as of the determination date shall be increased by the distributions made with respect to the employee under the ESOP portion or the Non-ESOP portion (as the case may be) of the Plan and any plan aggregated with such portion of the Plan under Code Section 416(g)(2)
|
(B)
|
The accrued benefits and accounts of any individual who has not performed services for the Employer during the 1-year period ending on the determination date shall not be taken into account.
|
(2)
|
Aggregation shall be determined as follows:
|
(A)
|
Aggregation Group
.
|
(i)
|
Required Aggregation
. The term “aggregation group” means --
|
(I)
|
each plan of the Employer in which a key employee is a participant;
|
(II)
|
each other plan of the Employer which enables any plan described in subclause (I) to meet the requirements of Code Sections 401(a)(4) or 410; and
|
(III)
|
any plan terminated by the Employer within five years of the determination date of the Plan Year in question that would, but for the fact that it was terminated, be described in subclause (I) or (II). For purposes of Code Section 416, a terminated plan is one that has been formerly terminated, has ceased crediting service for benefit accruals and vesting, and has been or is distributing all plan assets to participants or their beneficiaries as soon as administratively feasible.
|
(ii)
|
Permissive Aggregation
. The Employer may treat any plan not required to be included in an aggregation group under clause (i) as being part of such group if such group would continue to meet the requirements of Code Sections 401(a)(4) and 410 with such plan being taken into account.
|
(B)
|
Top-Heavy Group
. The term “top-heavy group” means any aggregation group if:
|
(i)
|
The sum (as of the determination date) of:
|
(I)
|
the present value of the cumulative accrued benefits for key employees under all defined benefit plans included in such group, and
|
(II)
|
the aggregate of the accounts of key employees under all defined contribution plans included in such group,
|
(ii)
|
Exceeds 60 percent of a similar sum determined for all employees.
|
(C)
|
Key Employee
. For purposes of this Section 5.04, a “Key Employee” is any person employed or formerly employed by any Employer or Affiliate (and the beneficiaries of any such person) who is, at any time during the Plan Year that includes the determination date, any one or more of the following:
|
(i)
|
An officer of an Employer or an Affiliate having annual compensation for the applicable Plan Year greater than One Hundred Sixty-Five Thousand Dollars ($165,000), as adjusted under Code Section 416(i)(1) for Plan Years beginning after December 31, 2002.
|
(ii)
|
Any person owning (or considered as owning within the meaning of Code Section 318) more than five percent (5%) of the outstanding stock of an Employer or an Affiliate or stock possessing more than five percent (5%) of the total combined voting power of such stock or more than five percent (5%) of the capital or profits interest of an Employer or an Affiliate which is not a corporation.
|
(iii)
|
A person who would be described in Section 5.04 (a)(2) above if “one percent (1%)” were substituted for “five percent (5%)” each place it appears in said Section 5.04(a)(2), and whose aggregate annual compensation from all Employers or Affiliates is more than One Hundred Fifty Thousand Dollars ($150,000).
|
(iv)
|
Notwithstanding any other provision in this Plan to the contrary, for purposes of determining ownership under this Section 5.04(a)(2)(C), the rules of Code Sections 414(b), (c), and (m) shall not apply in defining who is an Employer.
|
(b)
|
Minimum Allocations
. Notwithstanding the provisions of Section 5.02(b), (c) and, where applicable, (e), for any Year during which either the ESOP portion of the Plan or the Non-ESOP portion of the Plan is deemed a Top-Heavy Plan, the amount of Employer contribution for the Year to be allocated in the aggregate to the Safeharbor Matching Contributions Account, Employer Contributions Account and, where applicable, Matching Contributions Account of each Participant who is not a Key Employee shall not be less than the lesser of (i) three percent (3%) of the Participant’s total compensation for the Plan Year or (ii) the Participant’s total compensation for the Plan Year multiplied by the highest percentage obtained by dividing the amount of Employer contribution allocated in the aggregate to the Salary Reduction Contributions Account, Safeharbor Matching Contributions Account, Employer Contributions Account and, where applicable, Matching Contributions Account of any Key Employee for the Year by so much of the total compensation of such Key Employee for the Year as does not exceed Two Hundred Fifty-Five Thousand Dollars $255,000 (as automatically increased in accordance with the applicable treasury regulations); provided, however, that the requirement of this Section 5.04(b) shall not apply to the extent that the minimum allocations set forth herein are made under another defined
|
(c)
|
Reserved.
|
(d)
|
“Total Compensation” Defined
. The term “total compensation” as used in this Section 5.04 shall have the same meaning as that set forth in Section 5.03(b) hereof.
|
(e)
|
Inapplicability of Top Heavy Plan Rules
. The provisions of this Section 5.04 and Code Section 416 shall not apply in any Plan Year in which the Plan consists solely of Salary Reduction Contributions which meet the requirements of Code Section 401(k)(12) or a qualified automatic contribution arrangement which meets the requirements of Code Section 401(k)(13) and Safeharbor Matching Contributions which meet the requirements of Code Section 401(m)(11) or matching contributions under a qualified automatic contribution arrangement which meets the requirements of Code Section 401(m)(12).
|
(a)
|
Entitlement to Benefits
. If a Participant’s employment with his Employer is severed or terminated before his normal retirement date for any reason other than Disability or death, the Participant shall be entitled to receive the entire vested amount then in each of his accounts other than his Fixed Annual Company Contributions Portion and, if at the time of such severance or termination of employment he has completed three (3) years of Vesting Service, the entire vested amount in his Fixed Annual Company Contributions Portion, all in accordance with Section 6.04. The entire vested or unvested amount in a Participant’s accounts at severance from employment shall include any Employer contributions to be made pursuant to Sections 4.01, 4.02 and 4.03 for the Plan Year of severance from employment but not yet allocated. For purposes of this Section 6.03, termination or severance of employment does not include an Employee becoming classified as a Leased Employee (as defined in Section 2.01(l)). If a Participant’s employment with his Employer is severed or terminated before his normal retirement date for any reason other than Disability or death, and before he has completed three (3) years of Vesting Service, his Fixed Annual Company Contributions Portion shall be forfeited as provided in Section 6.03(f) hereof. Notwithstanding the foregoing provisions of this Section 6.03(a), a Participant who terminated employment in connection with the sale of assets by the Company to Liberty Energy (Midstates) Corp. (“Liberty-Midstates”) effective as of August 1, 2012 and who became employed by Liberty-Midstates in connection with such sale of assets (a “Liberty-Midstates Transferred Participant”) shall be vested in the entire amount in his Fixed Annual Company Contributions Portion. Notwithstanding the foregoing provisions of this Section 6.03(a), a Participant who terminated employment in connection with the sale of assets by the Company to Liberty Energy (Georgia) Corp. (“Liberty-Georgia”) effective as of April 1, 2013 and who became employed by Liberty-Georgia in connection with such sale of assets (a “Liberty-Georgia Transferred Participant”) shall be vested in the entire amount in his Fixed Annual Company Contributions Portion.
|
(b)
|
Definition of Years of Vesting Service
. A Participant’s years of Vesting Service for vesting of his Fixed Annual Company Contributions Portion shall be determined on the basis of his period of Service as follows:
|
(1)
|
Vesting Service Prior to the Effective Date
. For an Employee as of the Effective Date, the Employee’s years of Vesting Service shall be equal to his years of Service prior to the Effective Date as determined under the Prior Plan.
|
(2)
|
Vesting Service On and After the Effective Date
. On and after the Effective Date, an Employee shall accrue a year of Vesting Service for each consecutive twelve (12)-month vesting computation period during which he completes at least one thousand (1,000) Hours of Employment. His vesting computation period shall begin on his Employment Commencement Date and on each anniversary of his Employment Commencement Date.
|
(c)
|
Determination of Years of Vesting Service
. All years of Vesting Service (whether or not continuous) shall be taken into account, except as follows:
|
(1)
|
Years of Vesting Service with any Employer or any Affiliate during a period for which such Employer or Affiliate did not maintain the Plan or a predecessor plan. For purposes of this paragraph, a “predecessor plan” is a plan which meets the definition of a predecessor plan set forth in Section 1.411(a)‑5(b)(3)(v)(B) of the Income Tax Regulations.
|
(2)
|
Years of Vesting Service not taken into account in accordance with Section 6.03(d) hereof.
|
(d)
|
Breaks in Service
. Except as otherwise provided in Section 6.03(c), and subject to the provisions of Section 6.03(g), years of Vesting Service shall be disregarded as follows:
|
(1)
|
In the case of any Participant who suffers a termination of employment and who has a One‑Year Break in Service, years of Vesting Service before such break shall not be taken into account until such Participant has completed a year of Vesting Service after such break.
|
(e)
|
Definition of One-Year Break in Service
.
|
(1)
|
A “One‑Year Break in Service” shall mean a twelve (12)‑consecutive month period beginning on the Participant’s Severance from Service Date (as defined in Section 2.01(hh)) and ending on the anniversary of such date, provided the Employee has five hundred (500) or fewer Hours of Employment during such twelve (12)‑consecutive month computation period.
|
(2)
|
Solely for purposes of determining whether a Participant has a One‑Year Break in Service, Hours of Employment shall include hours during which an Employee is first absent from work for any period solely for one of the following reasons: (1) by reason of (a) the Participant’s pregnancy, (b) the birth of the Participant’s child, (c) the placement of a child with the Participant in connection with the adoption of such child by the Participant, or (2) for the purpose of caring for such child for a period beginning immediately following such birth or placement. Hours of Employment shall be credited for purposes of this Section to the computation period in which such absence from work begins, provided crediting of such Hours of Employment in such computation period would prevent the Participant from incurring a One‑Year Break in Service in such computation period solely because of the crediting of hours in such computation period. In any other case, Hours of Employment shall be credited for purposes of this Section to the immediately following computation period. The Hours of Employment credited for purposes of this Section shall be those hours which otherwise normally would have been credited but for such absence, or, in any case in which the Committee is unable to determine the hours normally credited, Hours of Employment shall be calculated on the basis of the schedule of equivalent hours set forth in Section 2.01(u), if any, or if not, on the basis of eight (8) Hours of Employment for each workday of such absence. The total number of Hours of Employment required to be credited for any absence described in this Section shall not exceed five hundred one (501). Notwithstanding the foregoing provisions of this Section, no Hours of Employment credit shall be given pursuant to this Section unless the Participant furnishes the Committee with such information as the Committee shall require to establish: (A) that the absence
|
(3)
|
In addition, notwithstanding any of the foregoing provisions to the contrary, any period of unpaid Family Medical Leave Act (“FMLA”) leave shall not be treated as or counted toward a One-Year Break in Service for purposes of vesting of benefits hereunder.
|
(f)
|
Forfeiture of Nonvested Fixed Annual Company Contributions Portion
.
|
(1)
|
If a Participant who is not vested in his Fixed Annual Company Contributions Portion has a termination of employment and receives a distribution of the vested amount in his other Accounts as provided for in this Section 6.03 and Section 6.04(a) on or prior to the close of the second Plan Year following the Plan Year in which such termination of employment occurs, the amount in his Fixed Annual Company Contributions Portion shall be forfeited as of the date on which such Participant receives such cash‑out distribution (the amount so forfeited shall sometimes be referred to as the “Forfeiture”) and shall be allocated to a forfeiture account in the Plan.
|
(3)
|
If a Participant who is not vested in his Fixed Annual Company Contributions Portion has a termination of employment and has not received a distribution of the vested amount in his other Accounts as provided for in Sections 6.03 and 6.04(a) hereof on or prior to the close of the second Plan Year following the Plan Year in which such termination of employment occurs, and is reemployed prior to incurring five (5) consecutive One‑Year Breaks in Service, such Participant shall not forfeit his Fixed Annual Company Contributions Portion, and such Portion shall be restored as provided in Section 6.03(g) hereof.
|
(4)
|
Any Forfeiture pursuant to this Section 6.03(f) shall be deducted from the Non-ESOP portion (as defined in Section 7.02 hereof) of the Participant’s Fixed Annual Company Contributions Portion, so long as there are amounts in such Portion, and thereafter shall be deducted from the ESOP portion (as defined in Section 7.02 hereof) of the Participant’s Fixed Annual Company Contributions Portion. If interests in more than one class of Company Stock have been allocated to the ESOP portion of such Portion, the forfeiture will be made in the same proportion of each such class of Company Stock.
|
(5)
|
Forfeitures pursuant to this Section 6.03(f) hereof allocated to a forfeiture account in the Plan shall be applied first to fund any restorations of Forfeitures pursuant to Section 6.03(g) hereof, and thereafter shall be applied to reduce the amount of Fixed Annual Company Contributions made pursuant to Section 4.03 hereof.
|
(g)
|
Restoration of Forfeited Fixed Annual Company Contributions Portion
.
|
(1)
|
In the event a Participant who has received a distribution of the vested amount in all of his Accounts other than his Fixed Annual Company Contributions Portion in accordance with Section 6.03(f)(1) hereof is reemployed by an Employer prior to the date on which such Participant has incurred five (5) consecutive One‑Year Breaks in Service, his Forfeiture (without adjustment for any subsequent gains or losses in the Trust Fund) shall be restored to such Fixed Annual Company Contributions Portion. Upon the restoration of a Fixed Annual Company Contributions Portion as provided herein, the vested amount in such Fixed Annual Company Contributions Portion shall thereafter be determined in accordance with the provisions of this Section 6.03 without regard to such Participant’s original termination of employment.
|
(2)
|
The restoration of a Participant’s Fixed Annual Company Contributions Portion as provided for in Section 6.03(g)(1) above, shall be made from the Forfeitures which occurred during the Plan Year of such restoration before any use of such Forfeitures as otherwise provided in Subsection 6.03(f)(5) hereof. Should such Forfeitures be insufficient to restore the aggregate amounts in Fixed Annual Company Contributions Portions which were forfeited pursuant to Section 6.03(f) hereof and are owing to Participants under Section 6.03(g)(1) above, the additional amount necessary for restoration shall be contributed by the Employer employing the applicable Participant as a special contribution to be specially allocated to the Fixed Annual Company Contributions Portion for such Participant.
|
(a)
|
General
. Payment of a Participant’s benefits shall commence as soon as practicable after the date on which the Committee determines the final balances in such Participant’s accounts; provided, however, that the Participant must consent to a distribution prior to the date specified below if the value of his account balances exceeds $5,000.
|
(b)
|
Required Distributions
.
|
(1)
|
Payment of a Participant’s benefits must commence no later than the earlier of (i) the Participant’s Required Beginning Date (defined below); or (ii) unless the Participant elects a later date (which can be no later than the Participant’s Required Beginning Date), the 60th day after the latest of the close of the Plan Year in which the Participant terminates employment due to attainment of normal retirement, Disability or death or which is the fifth Plan Year following the Plan Year in which the Participant otherwise terminates employment; or (iii) unless the Participant elects a later date (but not later than the Participant’s Required Beginning Date), the 60th day after the latest of the close of the Plan Year in which the Participant attains age sixty-five (65), in which occurs the date ten years after the date the Participant first commenced Participation in the Plan, or in which the Participant incurs a Severance from Service.
|
(2)
|
The definition of “Required Beginning Date” is as follows:
|
(A)
|
The “Required Beginning Date” of a five percent owner, as described in Section 5.04(a)(2)(C)(3), hereof is the later of (i) April 1 of the calendar
|
(B)
|
The “Required Beginning Date” of a Participant who is not a five percent owner is the April 1 of the calendar year immediately following the later of (i) the calendar year in which he attains age seventy and one-half (70‑1/2), or (ii) the calendar year in which he incurs a Severance from Service.
|
(C)
|
Notwithstanding the foregoing, a Participant who is not a five percent owner and who attains age seventy and one-half (70‑1/2) prior to calendar year 1999 shall have the right to elect the commencement of his benefits on April 1 of the calendar year following the calendar year in which he attains such age and each subsequent year. A Participant who is not a five percent owner and who currently is receiving benefit payments solely because of the attainment of age seventy and one-half (70‑1/2) prior to calendar year 1997 shall have the right to elect the suspension of such benefit payments until the date specified in the first sentence of this paragraph. Any such election shall be made at such time and in such manner as the Committee shall determine in a nondiscriminatory manner.
|
(c)
|
Early Distributions
. Except as otherwise provided in Section 6.04(e) hereof, a benefit payment to a Participant prior to his attainment of age 59‑1/2 shall require the Participant’s approval, prior to which the Participant shall have been advised by the Committee that an additional income tax may be imposed equal to ten percent (10%) of the portion of the amount so received which is included in his gross income for the taxable year of receipt, unless the distribution qualifies for one of the exceptions from the ten percent (10%) tax contained in the Code.
|
(d)
|
Form of Distribution
. Distributions hereunder to Participants, Former Participants or Beneficiaries may be in the form of Company Stock or cash, as determined by the Committee; provided, however, that any such distributee shall have the right to demand that distribution of the ESOP portion of a Participant’s account balances (as provided for in Section 7.02(a) hereof) be made to him in the form of Company Stock and shall have been given written notification of such right by the Committee prior to the date of any cash distribution to him; provided, further, that fractional shares shall, in all events, be paid in cash. In the event that the Articles of Incorporation or bylaws of the Company are amended to restrict the ownership of substantially all outstanding shares of Company Stock to Employees and/or to the Trust Fund, then distributions hereunder to Participants, Former Participants and Beneficiaries shall, in all events, be in the form of cash. Subject to the provisions of Section 6.04(g) below, a Participant’s benefits shall be distributed in a single lump sum or any Participant, Former Participant or Beneficiary who does not have a Plan loan (pursuant to Section 7.05 hereof) outstanding may elect at any time and from time to time to take one or more partial distributions of his or her Plan benefit, in accordance with uniform and nondiscriminatory procedures established by the Committee. Any such partial distributions shall be subject to the minimum distribution rules set forth in Section 6.04(h) hereof.
|
(e)
|
Distribution of Small Amounts
. Notwithstanding any provisions of this Section 6.04 to the contrary, a Participant’s benefits hereunder shall in all events be paid in a lump sum, without the consent of the Participant, if the value of said benefits does not exceed $5,000. If a Participant is entitled to receive a lump sum distribution in accordance with the provisions of this paragraph (3) that is greater than one thousand dollars ($1,000), and does not require the consent of the Participant, and such Participant either (i) does not elect to have such distribution transferred in a direct rollover pursuant to the provisions of Section 6.04(f), or (ii) does not elect to receive such distribution directly, then such distribution shall be transferred in a direct rollover to an individual retirement plan designated by the Committee.
|
(f)
|
Direct Rollovers
. Notwithstanding any provision of the Plan to the contrary that would otherwise limit a distributee’s election under this Section, a distributee may elect, at the time and in the manner prescribed by the Committee, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover. In the event a Liberty-Midstates Transferred Participant who has a Plan loan outstanding at the time of his termination of employment with the Company elects a direct rollover of an eligible rollover distribution to the 401(k) plan established and maintained by Liberty-Midstates, such distribution shall include such Plan loan. In the event a Liberty-Georgia Transferred Participant who has a Plan loan outstanding at the time of his termination of employment with the Company elects a direct rollover of an eligible rollover distribution to the 401(k) plan established and maintained by Liberty-Georgia, such distribution shall include such Plan loan. For purposes of this Section 6.04(f), the following definitions shall apply.
|
(1)
|
“Eligible rollover distribution” means 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: (i) any distribution that is one of a series of substantially equal periodic payments (not less 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; (ii) any distribution to the extent such distribution is required under Code Section 401(a)(9); (iii) 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); (iv) any hardship distribution described in Code Section 401(k)(2)(B)(i)(IV), and (v) any in-service distribution made on account of hardship, if such hardship distributions are permitted under the Plan. After-tax contributions shall not be excluded from the definition of “eligible rollover distribution” pursuant to clause (iii) of the preceding sentence. However, any portion of an eligible rollover distribution attributable to after-tax contributions may be transferred only to an individual retirement account or annuity described in Code Section 408(a) or (b), or to a qualified defined contribution plan described in Code
|
(2)
|
“Eligible retirement plan” means any of the following that accepts the distributee’s eligible rollover distribution: 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), a qualified trust described in Code Section 401(a), an annuity contract described in Code Section 403(b), an eligible plan under Code Section 457(b) which is maintained by a state, political subdivision of a state and which agrees to account separately for amounts transferred into such plan from this Plan, or a Roth individual retirement annuity described in Section 408A(b). The foregoing definition of an “eligible retirement plan” also shall apply in the case of an eligible rollover distribution to the surviving Spouse, or to the Spouse or former Spouse who is an alternate payee under a Qualified Domestic Relations Order. Notwithstanding the foregoing definition of “eligible retirement plan”, if the distributee is a designated Beneficiary who is not the surviving Spouse of the deceased Participant, “Eligible retirement plan” shall mean only an individual retirement account described in Code Section 408(a) , an individual retirement annuity described in Code Section 408(b), or a Roth individual retirement annuity a Roth individual retirement annuity described in Section 408A(b) that is established in the name of the deceased Participant for the benefit of the such designated Beneficiary.
|
(3)
|
“Distributee” means the Participant and, with respect to the interest of such Spouse or former Spouse, the Participant’s surviving Spouse and the Participant’s Spouse or former Spouse who is the alternate payee under a qualified domestic relations order, as defined in Code Section 414(p). Distributee shall also mean a designated Beneficiary who is not the surviving Spouse or former Spouse who is the alternate payee under a qualified domestic relations order, as defined in Code Section 414(p).
|
(4)
|
“Direct rollover” is a payment by the Plan to the eligible retirement plan specified by the distributee.
|
(1)
|
Notwithstanding the preceding provisions of this Section 6.04, Participants with account balances which were transferred from the SEC Plan may elect to receive distribution of their benefits (i) in monthly installments over a period equal to the shorter of one hundred twenty (120) months or the applicable life expectancy of the Participant or the Participant’s Spouse, or (ii) in installment payments of a fixed amount, such payments to be made until exhaustion of the Participant’s Account balances under the Plan.
|
(2)
|
Notwithstanding the preceding provisions of this Section 6.04, (i) MVG Merger Participants and (ii) Participants with account balances in the Plan which were transferred from the MVG Non-Union Plan (as defined in Section 3.08(a), hereof) may elect, in addition to the lump sum and partial distribution options, to receive distribution of their benefits by payment of the amount in single sums, on the dates and in the amounts selected by the Participant (subject to a minimum for any single distribution of one hundred dollars ($100.00). This provision shall not be construed to allow automatic installment distributions.
|
(3)
|
If the Participant’s interest is to be distributed in other than a lump sum, the minimum distribution rules set forth in Section 6.04(h) hereof shall apply on or after the Required Beginning Date.
|
(1)
|
General Rules
.
|
(A)
|
Effective Date
. The provisions of this Section 6.04(h) will apply for purposes of determining the minimum required distributions.
|
(B)
|
Precedence
. The requirements of this Section 6.04(h) will take precedence over any inconsistent provisions of the Plan.
|
(C)
|
Requirements of Treasury Regulations Incorporated
. All distributions required under this Section 6.04(h) will be determined and made in accordance with the Section 1.401(a)(9)-1 through 9 of the Treasury Regulations.
|
(2)
|
Time and Manner of Distribution
.
|
(A)
|
Required Beginning Date
. The Participant’s entire interest will be distributed, or begin to be distributed, to the Participant no later than the Participant’s Required Beginning Date.
|
(B)
|
Death of Participant Before Distributions Begin
. If the Participant dies before distributions begin, the Participant’s entire interest will be distributed, or begin to be distributed, no later than as follows:
|
(i)
|
If the Participant’s surviving Spouse is the Participant’s sole Designated Beneficiary, then, distributions to the surviving Spouse will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died, or by December 31 of the calendar year in which the Participant would have attained age 70-1/2, if later.
|
(ii)
|
If the Participant’s surviving Spouse is not the Participant’s sole Designated Beneficiary, then, distributions to the Designated Beneficiary will begin by December 31 of the calendar year
|
(iii)
|
If there is no Designated Beneficiary as of September 30 of the year following the year of the Participant’s death, the Participant’s entire interest will be distributed by December 31 of the calendar year containing the fifth (5th) anniversary of the Participant’s death.
|
(iv)
|
If the Participant’s surviving Spouse is the Participant’s sole Designated Beneficiary and the surviving Spouse dies after the Participant, but before distributions to the surviving Spouse begin, this Section 6.04(h)(2)(B), other than Section 6.04(h)(2)(B)(i) above, will apply as if the surviving Spouse were the Participant.
|
(C)
|
Forms of Distribution. Unless the Participant’s interest is distributed in the form of a single sum on or before the Required Beginning Date, as of the first Distribution Calendar Year distributions will be made in accordance with Sections 6.04(h)(3) and (4). If the Participant’s interest is distributed in the form of an annuity purchased from an insurance company, distributions thereunder will be made in accordance with the requirements of Code Section 401(a)(9) and the Treasury Regulations issued thereunder.
|
(3)
|
Minimum Required Distribution During Participant’s Lifetime
.
|
(A)
|
Amount of Required Minimum Distribution for Each Distribution Calendar Year
. During the Participant’s lifetime, the minimum amount that will be distributed for each Distribution Calendar Year is the lesser of:
|
(i)
|
the quotient obtained by dividing the Participant’s Account Balance by the distribution period in the Uniform Lifetime Table set forth in Section 1.401(a)(9)-9, Q&A-2, of the Treasury Regulations, using the Participant’s age as of the Participant’s birthday in the Distribution Calendar Year; or
|
(ii)
|
if the Participant’s sole Designated Beneficiary for the Distribution Calendar Year is the Participant’s Spouse, the quotient obtained by dividing the Participant’s Account Balance by the number in the Joint and Last Survivor Table set forth in Section 1.401(a)(9)-9 of the Treasury Regulations, using the Participant’s and Spouse’s
|
(B)
|
Lifetime Required Minimum Distributions Continue Through Year of Participant’s Death
. Minimum required distributions will be determined under this Section 6.04(h)(3) beginning with the first Distribution Calendar Year and up to and including the Distribution Calendar Year that includes the Participant’s date of death.
|
(4)
|
Minimum Required Distributions After Participant’s Death
.
|
(A)
|
Death on or after date distributions begin.
|
(i)
|
Participant Survived by Designated Beneficiary
. If the Participant dies on or after the date distributions begin and there is a Designated Beneficiary, the minimum amount that will be distributed for each Distribution Calendar Year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s Account Balance by the longer of the remaining Life Expectancy of the Participant or the remaining Life Expectancy of the Participant’s Designated Beneficiary, determined as follows:
|
(I)
|
The Participant’s remaining Life Expectancy is calculated using the age of the Participant in the year of death, reduced by one for each subsequent year.
|
(II)
|
If the Participant’s surviving Spouse is the Participant’s sole Designated Beneficiary, the remaining Life Expectancy of the surviving Spouse is calculated for each Distribution Calendar Year after the year of the Participant’s death using the surviving Spouse’s age as of the Spouse’s birthday in that year. For Distribution Calendar Years after the year of the surviving Spouse’s death, the remaining Life Expectancy of the surviving Spouse is calculated using the age of the surviving Spouse as of the Spouse’s birthday in the calendar year of the Spouse’s death, reduced by one for each subsequent calendar year.
|
(III)
|
If the Participant’s surviving Spouse is not the Participant’s sole Designated Beneficiary, the Designated Beneficiary’s remaining Life Expectancy is calculated using the age of the Beneficiary in the year following the year of the Participant’s death, reduced by one for each subsequent year.
|
(ii)
|
No Designated Beneficiary
. If the Participant dies on or after the date distributions begin and there is no Designated Beneficiary as of September 30 of the year after the year of the Participant’s death, the minimum amount that will be distributed for each Distribution Calendar Year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s Account Balance by the
|
(i)
|
Participant Survived by Designated Beneficiary
. If the Participant dies before the date distributions begin and there is a Designated Beneficiary, the minimum amount that will be distributed for each Distribution Calendar Year after the year of the Participant’s death is the quotient obtained by dividing the Participant’s Account Balance by the remaining Life Expectancy of the Participant’s Designated Beneficiary, determined as provided in Section 6.04(h)(4)(A) above.
|
(ii)
|
No Designated Beneficiary
. If the Participant dies before the date distributions begin and there is no Designated Beneficiary as of September 30 of the year following the year of the Participant’s death, distribution of the Participant’s entire interest will be completed by December 31 of the calendar year containing the fifth anniversary of the Participant’s death.
|
(iii)
|
Death of Surviving Spouse Before Distributions to Surviving Spouse Are Required to Begin
. If the Participant dies before the date distributions begin, the Participant’s surviving Spouse is the Participant’s sole Designated Beneficiary, and if the surviving Spouse dies before distributions are required to begin to the surviving Spouse under Section 6.04(h)(2)(B)(i), this Section 6.04(h)(4)(B) will apply as if the surviving Spouse were the Participant.
|
(5)
|
For purposes of this Section 6.04(h), the following terms shall have the following meanings:
|
(A)
|
“Designated Beneficiary” means the individual who is designated as the Beneficiary under Section 6.05 of the Plan and is the Designated Beneficiary under Code Section 401(a)(9) and Section 1.401(a)(9)-4 of the Treasury Regulations.
|
(B)
|
“Distribution Calendar Year” shall mean a calendar year for which a minimum distribution is required. For distributions beginning before the Participant’s death, the first Distribution Calendar Year is the calendar year immediately preceding the calendar year which contains the Participant’s Required Beginning Date. For distributions beginning after the Participant’s death, the first Distribution Calendar Year is the calendar year in which distributions are required to begin under Section 6.04(h)(2)(B) above. The minimum required distribution for the Participant’s first Distribution Calendar Year will be made on or before the Participant’s Required Beginning Date. The minimum required distribution for other Distribution Calendar Years, including the minimum required distribution for the Distribution Calendar Year in which the Participant’s Required Beginning Date occurs, will be made on or before December 31 of that Distribution Calendar Year.
|
(C)
|
“Life Expectancy” shall mean the Life Expectancy as computed by use of the Single Life Table in Section 1.401(a)(9)-9 of the Treasury Regulations.
|
(D)
|
“Participant’s Account Balance” shall mean the balances in the Participant’s various accounts under the Plan as of the last Valuation Date in the calendar year immediately preceding the Distribution Calendar Year (“valuation calendar year”) increased by the amount of any contributions made and allocated or any forfeitures allocated to the account balances as of dates in the valuation calendar year after the Valuation Date and decreased by distributions made in the valuation calendar year after the Valuation Date. The account balances for the valuation calendar year include any amounts rolled over or transferred to the Plan either in the valuation calendar year or in the Distribution Calendar Year if distributed or transferred in the valuation calendar year.
|
(E)
|
“Required Beginning Date” shall mean the date specified in Section 6.04(b)(2) of the Plan.
|
(a)
|
Each Participant from time to time may designate any person or persons (who may be designated contingently or successively and who may be an entity other than a natural person) as his Beneficiary or Beneficiaries to whom his Plan benefits will be paid if he dies before receipt of all such benefits. Each Beneficiary designation shall be on a form prescribed by the Committee and will be effective only when filed with the Committee during the Participant’s lifetime. Each Beneficiary designation filed with the Committee will cancel all Beneficiary designations previously filed with the Committee. Except as otherwise provided below, the revocation of a Beneficiary designation, no matter how effected, shall not require the consent of any designated Beneficiary.
|
(b)
|
If a Participant fails to designate a Beneficiary in the manner provided above, or if the Beneficiary designated by a deceased Participant dies before him or before complete distribution of the Participant’s benefits, the Committee shall direct the Trustee to distribute such Participant’s benefits (or the balance thereof) to his surviving Spouse or, if he has no surviving Spouse, to his children, if any, per stirpes, or, if he has no children, to his estate.
|
(c)
|
Notwithstanding any provision to the contrary herein contained, the designation by a married Participant of a Beneficiary other than his Spouse shall require the written and notarized consent of such Spouse. The consent must name the designated Beneficiary or Beneficiaries who are to be the recipients) of the Participant’s benefits. The Spouse’s consent must acknowledge the effect of the election and be witnessed by a notary public.
|
(a)
|
From Salary Reduction Contributions Account and Safeharbor Matching Contributions Account
. No amounts may be withdrawn by a Participant from his Salary Reduction Contributions Account or his Safeharbor Matching Contributions Account prior to termination of employment with the Employers except in accordance with the following:
|
(1)
|
If the Participant elects a withdrawal from his or her Salary Reduction Contributions Account prior to the date on which he or she attains age 59-1/2, such withdrawal (i) may not include any earnings accrued after 1988 and (ii) will require the consent
|
(A)
|
Expenses for (or necessary to obtain) medical care that would be deductible under Code Section 213(d) (determined without regard to whether the expenses exceed 7.5% of adjusted gross income), including expenses for (or necessary to obtain) medical care, as defined in Code Section 2.13(d) for a Participant’s designated Beneficiary;
|
(B)
|
The purchase (excluding mortgage payments) of a principal residence for the Participant;
|
(C)
|
Payment of tuition, related educational fees and room and board expenses for up to the next twelve (12) months of post‑secondary education for the Participant, the Participant’s designated Beneficiary, or such Participant’s Spouse, children or dependents (as defined in Code Section 152 without regard to Code Section 152(b)(1), (b)(2) and (d)(1)(B));
|
(D)
|
Payments necessary to prevent the eviction of the Participant from, or a foreclosure on the mortgage of the Participant’s principal residence;
|
(E)
|
Payment for a funeral or burial expenses for the Participant’s deceased parent, deceased designated Beneficiary, Spouse, child or dependent (as defined in Code Section 152 without regard to Code Section 152(b)(1), (b)(2) and (d)(1)(B)); or
|
(F)
|
Payment for expenses to repair damage to the Participant’s principal residence that would qualify for a casualty loss deduction under Code Section 165 (determined without regard to whether the loss exceeds ten percent (10%) of adjusted gross income.
|
(A)
|
The distribution is not in excess of the amount of his or her immediate and heavy financial needs, and
|
(B)
|
The Participant has obtained all distributions, other than hardship distributions, and all nontaxable loans currently available to him or her under all plans currently maintained by the Employers, including electing to receive all dividends to the extent currently available under Section 7.02(f) hereof.
|
(2)
|
Withdrawals made from a Participant’s Safeharbor Matching Contributions Account may not occur on account of financial hardship.
|
(3)
|
If the Participant elects a withdrawal on or after the date on which he attains age 59-1/2, such a withdrawal will not require the consent of the Committee.
|
(4)
|
Any withdrawal by a Participant may not exceed the balance then credited to his Salary Reduction Contributions Account and/or Safeharbor Matching Contributions Account. All withdrawal elections shall be made by a Participant on written forms supplied by the Committee for that purpose.
|
(b)
|
From Employer Contribution, Matching Contribution and Employee Contributions Accounts
. On any January 1, a Participant may elect to withdraw any amount allocated to his Employer Contributions Account other than his Fixed Annual Company Contributions Portion, but with respect to the amounts in such Account subject to withdrawal, other than amounts attributable to rollover contributions, such withdrawal is permitted only to the extent that such amounts were allocated and paid to such Account under this Plan or the Prior Plan at least two (2) years prior to withdrawal. A Participant may withdraw any amount allocated to his Employer Contributions Account other than his Fixed Annual Company Contributions Portion and may withdraw any amount allocated to his Matching Contributions Account, if any, at any time if such Participant properly demonstrates a financial hardship as described in Section 6.06(a)(1) hereof, or after the Participant attains age 59-1/2. A Participant may withdraw the entire (but not less than the entire) amount allocated to his Employee Contributions Account, if any, at any time. A Participant shall not cease to be a Participant under the Plan solely because a distribution is made to such Participant pursuant to this Section 6.06(b). Withdrawal elections shall be made by the Participant on written forms provided by the Committee for that purpose.
|
(c)
|
Active Duty Distribution
. During any period that a Participant is performing service in the uniformed services (as defined in chapter 43 of title 38 of the Code) while on active duty
|
(d)
|
Qualified Reservist Distribution
. Effective from and after January 1, 2013, a Participant who is ordered or called to active duty after September 11, 2001 may elect a Qualified Reservist Distribution. A “Qualified Reservist Distribution” is any distribution, if: (i) the distribution is from amounts attributable to Salary Reduction Contributions; (ii) the Participant was, by reason of being a member of a reserve component, as defined in Section 101 of Title 37 of the Code, ordered or called to active duty for a period in excess of one hundred seventy-nine (179) days or for an indefinite period; and (iii) such distribution is made during the period beginning on the date of such order or call, and ending at the close of the Participant’s active duty period.
|
(e)
|
Section 6.04 to Apply
. All withdrawals under this Section 6.06 shall be made in accordance with the provisions of Section 6.04 hereof, relating to the form of payment. The Committee shall advise any Participant who elects a withdrawal prior to his attainment of age 59-1/2 of the potential imposition of the additional income tax described in Section 6.04(c) hereof.
|
(a)
|
There are two portions of the Plan: One portion, consisting of all of the Plan’s investments at any time and from time to time in Company Stock, is specifically designated as an “employee stock ownership plan” within the meaning of Code Section 4975(e)(7) and is referred to in the Plan as the “ESOP portion”; the other portion, consisting of the Plan’s investments at any time and from time to time in any investment other than Company Stock (including, but not limited to investments in any Diversified Fund, as defined in Section 7.04(b) hereof), is referred to in the Plan as the “Non-ESOP portion.” Any portion of a Participant’s accounts that are invested at any time and from time to time in Company Stock shall constitute the ESOP portion, and to the extent a Participant’s accounts are invested at any time and from time to time in investments other than Company Stock, that portion of such accounts shall constitute the Non-ESOP portion. Accordingly, and subject to the
|
(b)
|
If Company Stock is readily tradable on an established securities market, the price to be paid by the Trustee for such Company Stock (whether purchased from the Company, from a shareholder of the Company, or on the open market) shall be equal to its public trading price as determined at the time of each such purchase. If Company Stock is not, or ceases to be, readily tradable on an established securities market, the price to be paid by the Trustee for Company Stock shall be determined by appraisal each year by an independent, qualified financial analyst or consultant who shall determine the current fair market value of such Company Stock. Notwithstanding the foregoing, in the event that it is finally determined in a court of law or by an agreement among the Trustee, the Company and the Internal Revenue Service that the purchase price paid by the Trust for the purchase of any Company Stock is greater than the current fair market value of such Company Stock at the time of the purchase, then, in that event, said purchase price shall be considered to have been retroactively reduced to the actual fair market value as determined by such court or by such agreement with the Internal Revenue Service, and any party who has sold Company Stock to the Trust shall be required to remit so much of the funds received by such party in payment for such shares as is necessary to adjust the price paid by the Trust for such shares to the adjusted fair market value of such shares at the date of such sale to the Trust as determined by such court of law or agreement with the Internal Revenue Service. Any major shareholder of the Company wishing to sell his shares to the Trust shall, prior to any such sale, be required to execute an agreement with the Trust to remit to the Trust any such excess payments received by such person from the Trust on account of his sale of Company Stock to the Trust.
|
(c)
|
Notwithstanding the provisions of Section 7.02(b), above, the Trustee may purchase Company Stock at a price lower than that determined in accordance with the provisions of Section 7.02(b) from any source whatsoever, except that the Trustee shall not purchase Company Stock from Participants hereunder for less than the fair market value of such Company Stock.
|
(d)
|
So long as Company Stock is publicly traded, each Participant or Beneficiary in the Plan shall have the right to direct the Trustee as to the manner in which voting rights with respect to any such Company Stock allocated to his accounts are to be exercised and, to the extent that such Company Stock is attributable to the Participant’s investment direction under
|
(e)
|
Subject to the provisions of Section 7.02(f) and Section 7.04 hereof, any cash received by the Trustee shall be invested by the Trustee in Company Stock. Pending such investment of cash, the Trustee may retain, cash uninvested without liability for interest, or may invest all or any part thereof in securities issued or guaranteed by the United States of America, certificates of deposit of national banks, commercial notes, bonds, equity securities of other corporations traded on any Exchange or in any other investment authorized in Section 7.02(a), above.
|
(f)
|
Subject to the provisions of Section 7.04 hereof, all dividends, income and other property received by the Trustee shall, to the extent practicable, be converted by the Trustee into cash and invested in Company Stock, provided, however, that the Board of Directors of the Company may, in its sole discretion and as of the date of declaration of any dividend paid with respect to Company Stock held in the ESOP portion of the Trust Fund, direct the Trustee, at the election of the person then with an account under the ESOP portion of the Plan, either (A) to distribute such dividend to each person then with an account hereunder in accordance with the ratio of the balance of shares of Company Stock in such person’s accounts (as of the date of declaration of such dividend) to such share balance in all such accounts (as of such date of declaration), or (B) to pay such dividend to the ESOP portion of the Plan to be reinvested in Company Stock for the benefit of such person’s accounts. Any dividend paid
|
(g)
|
At least once a Year the Committee shall furnish each Participant with a statement showing the status of his accounts as of the close of the preceding Year, including the share of the cost (including brokerage commissions, transfer taxes, and other incidental expenses) properly allocable to his accounts, of any Company Stock in the ESOP portion of the Plan acquired by purchase during that Year.
|
(h)
|
Notwithstanding any provision to the contrary herein contained, to the extent that the accounts of a Participant who was included under the provisions of the Prior Plan as in effect prior to January 1, 1999, had been invested in the Fixed Income Fund described in such provisions, such accounts shall continue to be so invested; provided, however, that (i) such Fixed Income Fund has been merged into a fixed income fund established as part of the Diversified Fund described in Section 7.04 hereof and (ii) the Participant has the right to elect that such accounts be invested in other funds constituting the Diversified Fund, all in accordance with procedures established by the Committee pursuant to such Section 7.04.
|
(a)
|
The Trustee shall maintain adequate books and records reflecting all transactions affecting the Trust Fund, which books and records shall be open at all times to the inspection of the Employers and the Committee or their authorized representatives. Furthermore, the Trustee shall furnish the Committee, at least annually, statements showing the assets then held in the Trust Fund since the last preceding statement. Each such statement shall be conclusive and final as between the Trustee and all interested parties unless the Committee delivers written objections thereto to the Trustee within sixty (60) days after receipt of such statement.
|
(b)
|
The Company may remove the Trustee at any time by giving sixty (60) days written notice to such Trustee, and the Trustee may resign at any time by giving sixty (60) days written notice to the Company. In the event of the removal or resignation of the Trustee, the Company shall appoint a successor Trustee. The receipt by such successor Trustee of all securities, property and money then held hereunder shall be a full and complete acquittance and discharge of the Trustee which has been removed or resigned.
|
(c)
|
The Trustee may rely upon any notice, certificate, letter, telegram or other paper or document believed by it to be sufficient in making any payment or in taking any action whatsoever hereunder.
|
(d)
|
The Trustee shall be required to comply with the fiduciary bonding requirements of ERISA, but only to the extent required by ERISA Section 412.
|
(e)
|
The Trustee shall be paid reasonable compensation commensurate with the services and responsibilities involved hereunder from time to time. The Employers shall pay the Trustee’s compensation; but, if not so paid, the Trustee may pay itself from the Trust Fund. The provisions of this Section 7.03(e) shall not apply to any period during which the Trust Committee is serving as the Trustee hereunder.
|
(f)
|
The Trustee may employ counsel, brokers or agents and may pay for their services and any other reasonable expenses incurred by the Trustee on behalf of the Trust from the Trust Fund if such expenses are not paid by the Employers. All costs of administration incurred by the Trustee shall be paid by the Employers.
|
(g)
|
Whenever and as often as the Trustee deems such action desirable, it may by written instrument appoint any person or corporation in any state of the United States to act as ancillary trustee with respect to any portion of the trust assets then held or about to be acquired on behalf of the Trust. Each ancillary trustee shall have such rights, powers, duties and discretions as are delegated to it by the Trustee, but shall exercise the same subject to the limitations or further directions of the Trustee as shall be specified in the instrument evidencing its appointment. The ancillary trustee may resign or may be removed by the Trustee, as to all or any portion of the assets so held at any time or from time to time, by written instrument delivered one to the other, and the Trustee may thereupon appoint another ancillary trustee or successor to whom the assets shall be transferred, or may itself receive such assets in termination of the ancillary trusteeship to that extent. Such ancillary trustee shall be accountable solely to the Trustee and shall be entitled to reasonable compensation.
|
(h)
|
In addition to the powers granted to the Trustee by law and those granted elsewhere in this Plan, and except as otherwise provided in Section 7.02 hereof, the Trustee shall have the following powers:
|
(1)
|
With respect to securities held hereunder, the Trustee may vote the same in person or by proxy, may join in any merger, reorganization, or capital adjustment, may exercise or sell any conversion, subscription or similar rights, and may hold any assets hereunder in the name of the Trust.
|
(2)
|
The Trustee may sell, convey, exchange, encumber, lease and otherwise deal with and dispose of the assets in the Trust Fund upon such terms and conditions as it deems for the best interest of those interested in the Trust Fund.
|
(3)
|
The Trustee may execute any and all deeds, conveyances, leases, transfers, proxies and other documents which it believes necessary or advisable in the administration of the Trust Fund.
|
(4)
|
The Trustee may pay or contest any tax or other governmental charge involving any assets held hereunder or the income therefrom and may pay any taxes and expenses thus incurred as an expense of the Trust Fund.
|
(5)
|
The Trustee may execute receipts, releases, changes of beneficiary and any other papers or documents relating to any insurance contracts held hereunder and may exercise any and all rights, options and privileges available under such contracts.
|
(i)
|
Although it is intended that the foregoing powers of the Trustee be applicable hereunder, it is also intended that all provisions of the Texas Trust Act, and any amendments thereto, not inconsistent with the above enumerated powers or other provisions of this Plan, shall be applicable in the administration of this Trust.
|
(a)
|
In General
. Notwithstanding the preceding provisions of this Article VII, a Participant or Beneficiary shall have the right, in accordance with the provisions of this Section 7.04, to direct the Trustee as to the investment of (i) his Salary Reduction Contributions Account, (ii) any amounts held in his Employer Contributions Account, and (iii) any amounts in his Employee Contributions Account either in the ESOP portion of the Plan, or in the Non-ESOP portion of the Plan which consists of various investment media comprising a Diversified Fund. In addition, a Participant or Beneficiary shall have the right, as of any Valuation Date, in accordance with the provisions of this Section 7.04, to direct the Trustee to reinvest, in the Non-ESOP portion of the Plan, any amount invested in Company Stock in the ESOP portion of the Plan. Such investment directions shall be made in accordance with procedures established by the Committee and the requirements of Department of Labor Regulations § 2550.404c-1(b)(2)(i)(A), or any successor thereto. Should a Participant or Beneficiary fail to provide the Trustee with the investment directions described herein as to any Salary Reduction Contribution, or rollover contribution, or other amounts deposited in his Employer Contributions Account, or amounts deposited in his Employee Contributions Account, if any, such contribution or amount deposited shall be invested in the Diversified Fund which constitutes a “qualified default investment alternative” as defined in regulations issued under ERISA Section 404(c)(5), as selected by the Trustee. The Trustee may decline to implement instructions by a Participant or Beneficiary which (i) would result in a prohibited transaction described in Code Section 4975 or ERISA Section 406 and which would generate income that would be taxable to the Plan, or (ii) are described in Department of Labor Regulations § 2550.404c-1(d)(2)(ii), or any successor thereto.
|
(b)
|
Diversified Fund
. The “Diversified Fund” is an investment fund, managed by one or more individuals or entities who qualify, with respect to the Plan, as an “investment manager” within the meaning of ERISA Section 3(38), consisting of a fixed income fund and such other fund or funds as may be selected from time to time by the Committee.
|
(c)
|
Limitation
. It is expressly understood that the only amounts eligible for investment hereunder in the Diversified Fund are the amounts described in this Section.
|
(d)
|
Entergy Stock Fund
. Notwithstanding the foregoing provisions of this Section 7.04, a Participant for whom amounts are invested in the Entergy Stock Fund provided for under Section 3.06(a) may direct that all or any portion of such amounts be invested in a Diversified Fund or in Company Stock in accordance with the procedures established by the Committee; however, no additional amounts may be invested in the Entergy Stock Fund.
|
(e)
|
Citizens Stock Fund
. Notwithstanding the foregoing provisions of this Section 7.04, a Participant for whom amounts are invested in the Citizens Stock Fund provided for under Section 3.07(a) may direct that all or any portion of such amounts be invested in a Diversified
|
(a)
|
General
. The Committee may, but is not required to, adopt a written loan policy which authorizes the Trustee to make loans on a nondiscriminatory basis to Participants and/or Beneficiaries, provided that the loan policy satisfies the requirements listed below:
|
(1)
|
Loans must be available to all Participants and Beneficiaries on a reasonably equivalent basis and must not be available in a greater amount to Participants who are Highly Compensated Employees than to other Participants;
|
(2)
|
Each loan must be adequately secured and bear a reasonable rate of interest;
|
(3)
|
Each loan must provide for repayment within a specified time;
|
(4)
|
The default provisions of the promissory note which evidences each loan must prohibit offset of the Participant’s account balance under this Plan prior to the time that the Participant has a Severance From Service or the Trustee otherwise would distribute the Participant’s account balance under the Plan;
|
(5)
|
The amount of the loan(s) must not exceed (at the time that the Plan extends the loan) one-half of the present value of the Participant’s (or Beneficiary’s) account balance;
|
(6)
|
The loan must otherwise conform to the exemption requirements of Code Section 4975(d)(1); and
|
(7)
|
If the joint and survivor requirements of Code Section 401(a)(11) apply to a Participant, the Participant must not be permitted to pledge any portion of his account balance as security for a loan unless, within the 90-day period ending on the date that the pledge becomes effective, the Participant’s Spouse, if any, consents (in a manner described in Section 6.05) to such pledge.
|
(b)
|
Loan Policy
. If the Committee adopts a loan policy, pursuant to Section 7.05(a) above, the loan policy must be a written document and must include the following:
|
(1)
|
The identity of the person or positions authorized to administer the participant loan program;
|
(2)
|
A procedure for applying for the loan;
|
(3)
|
The criteria for approving or denying a loan;
|
(4)
|
The limitations, if any, on the types and amounts of loans available;
|
(5)
|
The procedure for determining a reasonable rate of interest;
|
(6)
|
The types of collateral which may secure the loan; and
|
(7)
|
The events constituting default and the steps the Plan will take to preserve plan assets in the event of default.
|
(c)
|
Special Rules under USERRA for Loan Repayments
. Loan repayments will be suspended under this Plan, as permitted under Code Section 414(u)(4), on behalf of those Participants who are on an authorized leave of absence pursuant to qualified military service.
|
(a)
|
Reference to pertinent provisions of the Plan;
|
(b)
|
Such additional information as may be relevant to the denial of the claim;
|
(c)
|
An explanation of the claims review procedure; and
|
(d)
|
Notice that such claimant may request the opportunity to review pertinent Plan documents and submit a statement of issues and comments.
|
(a)
|
The discretionary authority to control and manage the operation and administration of the Plan, including the discretionary authority to determine whether the Participant, Beneficiary or alternate payee (as provided for in Section 9.03 hereof) is entitled to payment of benefits under this Plan;
|
(b)
|
The discretionary power to construe and interpret the Plan, to supply any omissions therein, to reconcile and correct any errors or inconsistencies, to decide any questions in the administration and application of the Plan, and to make equitable adjustments for any mistakes or errors made in the administration of the Plan, all such actions or determinations to be made in good faith, not be subject to review by anyone, and be final, binding and conclusive on all persons ever interested hereunder;
|
(c)
|
To determine all questions with respect to the individual rights of all Participants and their Beneficiaries and alternate payees under this Plan, including, but not limited to, all issues with respect to eligibility, Compensation, Service, valuation of Accounts, allocation of contributions and Income, and retirement or termination of employment, and to direct the Trustee concerning the allocation, payment and distribution of all funds held in trust for purposes of the Plan;
|
(d)
|
To prescribe procedures to be followed by Participants or Beneficiaries filing applications for benefits;
|
(e)
|
To prepare and distribute, in such manner as the Committee determines to be appropriate, information explaining the Plan;
|
(f)
|
To receive from the Employers and from Participants such information as shall be necessary for the proper administration of the Plan;
|
(g)
|
To furnish the Employers, upon request, such annual reports with respect to the administration of the Plan as are reasonable and appropriate;
|
(h)
|
To receive, review and keep on file (as it deems convenient or proper) reports of the financial condition, and of the receipts and disbursements, of the Trust Fund from the Trustee; and
|
(i)
|
To appoint or employ individuals to assist in the administration of the Plan and any other agents it deems advisable, including legal and actuarial counsel.
|
(j)
|
To take such actions as may be necessary to comply in all respects with the requirements of ERISA Section 404(c) and the regulations thereunder.
|
(k)
|
To make equitable adjustments in the records of the Plan as may be necessary or appropriate to correct any error or omission that is discovered with respect to Participants’ accounts.
|
(l)
|
To authorize the Employer to make a special contribution to the Plan, and to allocate any such special contribution as is necessary to correct any error or omission that is discovered with respect to Participants’ accounts.
|
(a)
|
Participant Loans
. If a Participant, Former Participant or Beneficiary who has become entitled to receive payment of benefits under this Agreement is indebted to the Trustee by virtue of a participant loan the Committee may direct the Trustee to pay the indebtedness and charge it against the account balance of the Participant, Former Participant or Beneficiary.
|
(b)
|
Distributions Under Domestic Relations Orders
. Nothing contained in this Plan prevents the Trustee, under the direction of the Committee, from complying with the provisions of a qualified domestic relations order, as defined in Code Section 414(p). A distribution to an “alternate payee” (as described in Code Section 414(p)) prior to the Participant’s attainment of his or her earliest retirement age is available only: (1) if the order specifies distribution at that time or permits an agreement between the Plan and the alternate payee to authorize an earlier distribution; and (2) if the alternate payee consents to any distribution occurring prior to the Participant’s attainment of earliest retirement age. Nothing in this Section 9.03(b) gives a Participant the right to receive a distribution at a time otherwise not permitted under the Plan or permits the alternate payee to receive a form of payment not otherwise permitted under the Plan.
|
(c)
|
Distributions Under Certain Judgments and Settlements
. Nothing contained in this Plan prevents the Trustee from complying with a judgment or settlement which requires the Trustee to reduce a Participant’s benefits under the Plan by an amount that the Participant is ordered or required to pay to the Plan if each of the following criteria are satisfied:
|
(1)
|
The order or requirement must arise:
|
(A)
|
under a judgment or conviction for a crime involving the Plan;
|
(B)
|
under a civil judgment (including a consent order or decree) entered by a court in an action brought in connection with an actual or alleged violation of Part 4 of Title I of ERISA; or
|
(C)
|
under a settlement agreement with either the Secretary of Labor or the Pension Benefit Guarantee Corporation and the Participant in connection with an actual or alleged violation of Part 4 of Title I of ERISA by a fiduciary or any other person.
|
(2)
|
The decree, judgment, order or settlement expressly provides for the offset of all or part of the amount ordered or required to be paid to the Plan against the Participant’s benefits under the Plan.
|
(3)
|
To the extent that (i) the survivor annuity requirements of Code Section 401(a)(11) apply to the portion of the Participant’s account balance which will be reduced or offset, and (ii) the Participant has a Spouse at the time at which the reduction or offset is to be made:
|
(A)
|
(i) the Spouse must consent to the reduction or offset in writing, as witnessed by a notary public or a plan representative, (ii) it must be established that such consent may not be obtained for any of the reasons outlined in Code Section 417(a)(2)(B), or (iii) the Spouse must previously have executed an election to waive his or her right to a qualified joint and survivor annuity or a qualified preretirement annuity in accordance with the requirements of Code Section 417(a);
|
(B)
|
the decree, judgment, order or settlement must require the Spouse to pay an amount to the Plan in connection with a violation of Part 4 of Title I of ERISA; or
|
(C)
|
the decree, judgment, order or settlement must provide that the Spouse shall retain his or her right to receive a survivor annuity calculated as provided in Code Section 401(a)(13)(D).
|
(c)
|
the date which is sixty (60) days after the day the Participant is issued a written notice of the amendment by the Company.
|
(a)
|
each Participant would (if either this Plan or the other plan then terminated) receive a benefit immediately after the merger, consolidation or transfer which is equal to or greater than the benefit he or she would have been entitled to receive immediately before the merger, consolidation or transfer (if this Plan had then terminated);
|
(b)
|
resolutions of the Boards of Directors of the Employers under this Plan, or of any new or successor employer of the affected Participants, shall authorize such transfer of assets; and, in the case of a new or successor employer of the affected Participants, its resolutions shall include an assumption of liabilities with respect to such Participants’ inclusion in the new employer’s plan;
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(c)
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such other plan and trust are qualified under Code Sections 401(a) and 501(a); and
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(d)
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such other plan satisfies the distribution limitations described in Code Section 401(k)(2)(B) and Section 1.401(k)-1(d) of the Treasury Regulations.
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Employee Number of MVG Decertified Union Participant
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Column One
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Column Two
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/s/ Whitley Penn LLP
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Dallas, Texas
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June 19, 2015
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