Loading...
HomeMy WebLinkAboutAgr 1997-05-08 (Cafeteria Plan Corporate Reso)CERTIFICATE OF CORPORATE RESOLUTION The undersigned Secretary of Town of Tiburon (the Corporation) hereby certifies that the following resolutions were(No 3072) duly adopted by the board of directors of the Corporation on January 4, 1995 , and that such resolutions have not been modified or rescinded as of the date hereof: RESOLVED, that the updated form of Cafeteria Plan including a Dependent Care Assistance Program and Health Care Reimbursement Plan effective January 1, 1995, is hereby approved and adopted and that the proper officers of the Corporation are hereby authorized and directed to execute and deliver to the Administrator of the Plan one or more counterparts of the Plan. RESOLVED, that the Administrator shall be instructed to take such actions that are deemed necessary and proper in order to implement the updated Plan, and to set up adequate accounting and administrative procedures to provide benefits under the Plan. RESOLVED, that the proper officers of the Corporation shall act as soon as possible to notify the employees of the Corporation of the adoption of the updated Cafeteria Plan by delivering to each employee a copy of the summary description of the Plan in the form of the Summary Plan Description presented to this meeting, which form is hereby approved. The undersigned further certifies that attached hereto as Exhibits A and B, respectively, are true copies of Town of Tiburon Cafeteria Plan and the Summary Plan Description approved and adopted in the foregoing resolutions. Secretary Date: S'~?" ~ 7- TOWN OF TIBURON CAFETERIA PLAN INTRODUCTION We are pleased to announce that we have established a "flexible benefit plan" for you and other eligible employees. Under this program, you will be able to choose among certain benefits that we make available. The benefits that you may choose are outlined in this summary plan description. We will also tell you about other important information concerning the Plan, such as the rules you must satisfy before you can join and the laws that protect your rights. One of the most important features of our plan is that the benefits being offered are generally ones that you are already paying for, but normally with money that has first been subject to income and Social Security taxes. Under our Plan, these same expenses will be paid for with a portion of your pay before Federal Income or Social Security taxes are withheld. This means that you will pay less tax and have more money to spend and save. Read this summary plan description carefully so that you understand the provisions of our Plan and the benefits you will receive. You should direct any questions you have to the Administrator. There is a plan document on file which you may review if you desire. In the event there is a conflict between this summary plan description and the plan document, the Plan will control. Also, if there is a conflict between an insurance contract and either the plan document or this summary plan description, the insurance contract will control. TABLE OF CONTENTS I ELIGIBILITY 1. When Can I Become a Participant in the Plan? 1 2. What Are the Eligibility Requirements for Our Plan 1 3. When Is My Entry Date? 1 4. What Must I Do to Enroll in the Plan? 1 II OPERATION 1. How Does This Plan Operate? ..............................1 I I I CONTRIBUTIONS 1. How Much of My Pay May the Employer Redirect? 2 2. What Happens to Contributions Made to the Plan? 2 3. When Must I Decide Which Accounts I Want to Use?......... 2 4. When Is the "Election Period" for Our Plan? 2 5. May I Change My Elections During the Plan Year?.......... 2 6. May I Make N ew Elections in Future Plan Years? 3 IV BENEFITS 1. What Benefits Are Available? .............................4 V BENEFIT PAYMENTS 1. When Will I Receive Payments From My Accounts? 5 2. What Happens If I Don't Spend All Plan Contributions? 6 3. What Happens If I Terminate Employment? 6 4. Will My Social Security Benefits Be Affected? 8 VI HIGHLY COMPENSATED AND KEY EMPLOYEES 1. Do Limitations Apply to Highly Compensated Employees? 8 VII PLAN ACCOUNTING 1. Periodic Statements ......................................8 VIII GENERAL INFORMATION ABOUT OUR PLAN 1. General Plan Information .................................9 2. Employer Information .....................................9 3. Plan Administrator Information ..............:............9 4. Service of Legal Process .................................9 5. Type of Administration ...................................9 IX ADDITIONAL PLAN INFORMATION 1. Your Rights Under ERISA .................................10 2. Claims Process ..........................................12 X SUMMMARY I ELIGIBILITY 1. When Can I Become a Participant in the Plan? Before you become a member or a "participant" in the Plan, there are certain rules which you must satisfy. First, you must meet the "eligibility requirements." After that, the next step is to actually join the Plan on the "entry date" that we have established for all employees. You will also be required to complete certain election forms before you can enroll in the Health Care Reimbursement Plan or Dependent Care Assistance Account. 2. What Are the Eligibility Requirements for Our Plan? You will be eligible to join the Plan once you have satisfied the conditions for coverage under our group medical plan. 3. When Is My Entry Date? You can join the Plan on the same day you can enter our group medical plan. 4. What Must I Do to Enroll in the Plan? Before you can join the Plan, you must complete an election form to participate in the Plan. The election form includes your personal choices for each of the benefits which are being offered under the Plan. You must also authorize us to set some of your earnings aside in order to pay for the benefits you have elected. However, if you are already covered under any of the insured benefits, you will automatically participate in this Plan to the extent of your premiums unless during the "election period" you elect not to participate in this Plan. II OPERATION 1. How Does This Plan Operate? Before the start of each Plan Year, you will be able to elect to have some of your upcoming pay contributed to the Plan. These amounts can be placed in special funds or accounts which will be set up for you in order to pay for the benefits you have chosen. The portion of your pay that is paid to the Plan is not subject to Federal Income or Social Security taxes. In other words, this allows you to use tax-free dollars to pay for certain kinds of 1 benefits and expenses which you normally pay for with out-of- pocket, taxable dollars. However, if you receive a reimbursement for an expense under the Plan, you cannot claim a Federal Income tax credit or deduction on your return. III CONTRIBUTIONS 1. How Much of My Pay May the Employer Redirect? Each year, you may elect to pay for the benefits that you choose under the Plan. These amounts will be deducted from your pay each pay period on a pro-rata basis over the course of the year. If there are insured benefits provided under this Plan, we will automatically contribute on your behalf the employer portion for the insurance coverage provided. 2. What Happens to Contributions Made to the Plan? Before each Plan Year begins, you wi 1 1 select the benef its you want for the eligible categories of Health Expense Reimbursement and Dependent Care Assistance. It is very important to make these choices carefully based on what you expect to spend on each covered benefit or expenses during the Plan Year. Later, they will be used to pay for the expenses as they arise during the Plan Year. 3. When Must I Decide Which Accounts I Want to Use? You are required by Federal law to decide before the Plan Year begins, during the "election period." You must decide upon two things: first, which benefits you want and second, how much should go toward each benefit. If you are already covered by any insured benefits offered by this Plan, you automatically become a Participant to the extent of any premiums for such insurance unless you elect, during the "election period," not to participate in the Plan. 4. When Is the "Election Period" for Our Plan? Your election period will start on the date you first meet the "eligibility requirements" and end 30 days after your "entry date." (You should review Section I on Eligibility to better understand the terms "eligibility requirements" and "entry date.") Then, for each following Plan Year, the election period will be the 60 day period prior to the beginning of each Plan Year. (See the Article entitled "General Information About Our Plan" for the definition of Plan Year.) 5. May I Change My Elections During the Plan Year? Generally, no. You cannot change the elections you have made after the beginning of the Plan Year. However, there are certain 2 limited situations when you can change your elections. You are permitted to change if there is a change in your family status. Currently, Federal law considers the following events to be examples of a change in family status: You get married or divorced. You have a child or adopt one. Your spouse and/or child(ren) die(s). Your spouse commences or terminates employment. Your or your spouse's employment status changes from full-time to part-time or from part-time to full-time. You or your spouse take an unpaid leave of absence. Your spouse has a significant change in health coverage directly attributable to your spouse's employment. There may be other events which are considered to a change in family status. Also, any election change must be consistant with the reason that such change was permitted. However, with respect to the Health Care Reimbursement Plan, you may not make a change in your benefit election as the result of a change in family status. If you have a change in family status, you should contact the Administrator, who will provide you with the required forms for changing your benefit elections. In addition, should there be any health insurance premiums being contributed to the Plan, we will adjust the salary redirection election you have made for the remainder of the Plan Year if there is a change in the premium expense. If the increase in premium expense is significant, we will let you either change the salary redirection election or revoke you election entirely and, in lieu thereof, elect to receive on a prospective basis, coverage under another health plan with similar coverage. 6. May I Make New Elections in Future Plan Years? Yes, you may. For each new Plan Year, you may change the elections that you previously made. You may also choose not to participate in the Plan for the upcoming Plan Year. If you do not make new elections during the "election period" before a new Plan Year begins, you will not be considered to be continuing as a participant (for the non-insured benefit options - health expense, dependent care, ind. premiums accounts) under the Plan for the upcoming Plan Year. 3 IV BENEFITS 1. What Benefits Are Available? Under our Plan, you can choose compensation in cash (wages) or use following benefits or expenses pre-tax Health Care Reimbursement Plan: to receive your entire a portion to pay for the during the Plan Year: The Health Care Reimbursement Plan enables you to pay for expenses which are not covered by our insured medical plan and save taxes at the same time. The account allows you to be reimbursed by the Employer for out-of-pocket medical, dental, vision and other health expenses incurred by you and your dependents. The expenses which qualify are those permitted by Section 213 of the Internal Revenue Code. A list of covered expenses is available from the Administrator. The most that you can contribute Plan each Plan Year is $10,000. health care expense, you must itemized bill from the service r the Plan may not be claimed as a tax return. Reimbursement from once a month. to your Health Care Reimbursement In order to be reimbursed for a submit to the Administrator an ~rovider. Amounts reimbursed from deduction on your personal income the fund shall be paid at least Dependent Care Assistance Account: The Dependent Care Assistance Account enables you to pay for out-of-pocket, work-related dependent day-care cost with pre-tax dollars. If you are married, you can use the account if you and your spouse both work or, in some situations, if your spouse goes to school full-time. Single employees can also use the account. An eligible dependent is any member of your household for whom you can claim expenses on Federal Income Tax Form 2441 "Credit fo Child and Dependent Care Expenses." Children must be under the age of 13. Disabled Dependents qualify regardless of age when they are unable to physically or mentally care for themselves. Dependent Care arrangements which qualify include: A Dependent (Day) Care Center, provided that if care is provided by the facility for more than six individuals, the facility complies with applicable state and local laws. An Educational Institution for pre-school children. For older children, only expenses for non-school care are eligible. An "Individual" who provides care inside or outside your home. The "Individual" may not be a child of yours under age 19 or anyone you claim as a dependent for Federal Tax purposes. 4 You should make sure that the dependent care expenses you are currently paying for qualify under our Plan. The law places limits on the amount of money that can be paid to you in a calendar year from your Dependent Care Assistance Account. Generally, your reimbursements may not exceed the lesser of: (a) $5,000 (if you are married filing a joint return or you are head of household) or $2,500 (if you are married filing separate returns); (b) your taxable compensation; (c) your spouse's actual or deemed earned income (a spouse who is a full time student or incapable of caring for himself/herself has a monthly earned income of $200 for one dependent or $400 for two or more dependents). Also, in order to have the reimbursements made to you from this account be excludable from your income, you must provide a statement from the service provider including the name, address and the taxpayer identifica- tion number of the service provider on your tax form for the year, as we 1 1 as the amount of such expense as proof that the expense has been incurred. Federal Tax laws also permit a tax credit for certain dependent care expenses you may be paying for even if you are not a participant in this Plan. Certain employees may save more if they take advantage of this tax credit rather than using the Dependent Care Assistance Account. Contact your tax advisor for information on which choice may be better for you. Premium Expense Account: A Premium Expense Account allows you to use tax-free dollars to pay for certain premium expenses under various insurance programs that we offer you. These premium expenses can include: Health care premiums under our insured group medical program as well as other eligible programs. The Administrator may terminate or modify Plan benefits at any time, subject to the provisions of any insurance contracts providing benefits described above. We will not be liable to you if an insurance company fails to provide any of the benefits described above. Also, your insurance will end when you leave employment, are no longer eligible under the terms of any insurance policies, or when insurance coverage terminates. Any benefits to be provided by insurance wi 1 1 be provided only after (1) you have provided the Administrator the necessary information to apply for insurance, and (2) the insurance is in effect for you. V BENEFIT PAYMENTS 1. When Will I Receive Payments From My Accounts? During the course of the Plan Year, you may submit requests for reimbursement of expenses you have incurred. Expenses are considered "incurred" when the service is performed, not necessarily when it is paid for. The Administrator will provide 5 you with acceptable forms for submitting these requests for reimbursement. If the request qualifies as a benefit or expense that the Plan has agreed to pay, you will receive a reimbursement payment soon thereafter. Remember, these reimbursements which are made from the Plan are generally not subject to Federal Income Tax or withholding. Nor are they subject to Social Security taxes. Requests for payment of insured benefits should be made directly to the insurer. You will only be reimbursed from the Dependent Care Assistance Account to the extent that there are sufficient funds in the Account to cover your request. 2. What Happens If I Don't Spend All Plan Contributions? Any monies left at the end of the Plan Year will be forfeited. Obviously, qualifying expenses that you incur late in the Plan Year for which you seek reimbursement after the end of such Plan Year will be paid first before any amount is forfeited. However, you must make your requests for reimbursement no later than 60 days after the end of the Plan Year. Because'it is possible that you might forfeit amounts in the Plan if you do not fully use the contributions that have been made, it is important-that you decide how much to place in each account carefully and conservatively. Remember, you must decide which benefits you want to contribute to and how much to place in each account before the Plan Year begins. You want to be as certain as you can that the amount you decide to place in each account will be used up entirely. 3. What Happens If I Terminate Employment? If you leave our employ during the Plan Year, your right to benefits will be determined in the following manner: You will remain covered by insurance, but only for the period for which premiums have been paid prior to your termination of employmenet. You will still be able to request reimbursement for qualifying dependent care expenses for the remainder of the Plan Year from the balance remaining in your dependent account at the time of termination of employment. However, no further salary redirection contributions will be made on your behalf after you terminate. Your participation in the Health Care Reimbursement Plan will continue for the remainder of the Plan Year. You must continue to pay the required contribution even though you are no longer employed. You will also be entitled to reimbursements for the remainder of the Plan Year. Under Federal Law, you, your spouse, and your dependents may be entitled to continuation of health care coverage. The Administrator will inform you of these rights if you terminate employment. Generally, if we (and any related companies) employed 6 twenty (20) or more employees "on a typical business day" in the preceding calendar year, health plan continuation must be made available for a period not to exceed (18) months if a loss of benefits occurs because of your termination of employment or reduction of hours, or for a period not to exceed three (3) years for any of the other reasons given in (b) and (c) below. Under certain circumstances, persons who are disabled at the time of termination of employment or reduction in hours may be eligible for continuation of coverage for a total of 29 months (rather than 18). You should check with the Administrator for more details regarding this extended coverage. However, in certain circumstances, this continuation coverage may be terminated for reasons such as failure to pay continuation coverage cost, coverage under another employer's plan (whether as an employee or otherwise, provided the other employer's health plan does not contain any exclusion or limitation with respect to any pre-existing condition of the beneficiary), termination of our health plan, or you (or the person entitled t.o continued coverage) become entitled to Medicare benefits. However, if you become entitled to Medicare benefits, your dependents may still qualify for continuation coverage. The cost of continuation coverage must be paid by - the individual choosing such coverage; however, the cost may not exceed 102% of the cost of the same coverage for a "similarly situated" employee or family member. When the continuation coverage for a disabled person is extended from 18 months to 29 months, the disabled person may be charged 150% (rather than 102%) of the cost of the coverage after expiration of the initial 18-month period. (a) If you would otherwise lose your health plan coverage under this Plan because of termination of employment or reduction in hours, you may continue the health plan coverage provided under this Plan. However, this will not be a tax-deductible expense to you, absent unusual circumstances. (b) Your spouse may choose continuation coverage for himself or herself if he or she loses group health coverage for any of the following reasons ( 1 ) your death; (2) your divorce or legal separation; or (3) you become eligible for Medicare. (c) Your dependent children may choose continuation coverage for themselves if they lose group health coverage for any of the following reasons: (1) death of a parent; (2) your divorce or legal separation; (3) you become eligible for Medicare; or (4) your dependent ceases to be a dependent child under the Plan. It is your responsibility to notify the Plan Administrator of a divorce, legal separation or other change in marital status, change in a spouse's address, or a child losing dependent status under the plan, within sixty (60) days of the event. It is our responsibility to notify the Plan Administrator of your death, 7 termination of employement or reduction in hours, or Medicare eligibility. 4. Will My Social Security Benefits Be Affected? Your Social Security benefits may be slightly reduced because when you receive tax-free benefits under our Plan, it reduces the amount of contributions that you make to the Federal Social Security system as well as our contribution to Social Security on your behalf. VI HIGHLY COMPENSATED AND KEY EMPLOYEES 1. Do Limitationsss Apply to Highly Compensated Employees? Under the Internal Revenue Code, "highly compensated employees" and "key employees" generally are Participants who are officers, shareholders or highly paid. You will be notified by the Administrator each Plan Year whether you are a "highly compensated employee" or a "key employee". If you are within these categories, the amount of contributions and benefits for you may be limited so that the Plan as a whole does not unfairly favor those who are highly paid, their spouses, or their dependents. Federal Tax laws state that a plan will considered to unfairly favor the key employees if they as a group receive more than 25% of all of the nontaxable benefits provided for under our Plan. Plan experience will dictate whether contribution limitations on "highly compensated employees" or "key employees" will apply. You will be notified of these limitations if you are affected. VII PLAN ACCOUNTING 1. Periodic Statements The Administrator will provide you with a statement of your account periodically during the Plan Year that shows your account balance. It is important to read these statements carefully so you understand the balance remaining to pay for a benefit. Remember, you want to spend all the money you have designated for a particular benefit by the end of the Plan. 8 VIII GENERAL INFORMATION ABOUT OUR PLAN This Section contains certain general information which you may need to know about the Plan. 1. General Plan Information Town of Tiburon Cafeteria Plan is the name of the Plan. Your Employer has assigned Plan Number 510 to your Plan. The Provisions of the Plan become effective on January 1, 1995, which is called the Effective Date of the Plan. Your Plan's records are maintained on a twelve-month period of time. This is known as the Plan Year. The Plan Year begins on January 1st and ends on December 31st. 2. Employer Information Your Employer's name, address, and identification number are: Town of Tiburon I.D.Number 94-1576861 1155 Tiburon Blvd. Tiburon, CA 94920 3. Plan Administrator Information The name, address and business telephone number of your Plan's Administrator are: Town of Tiburon Phone Number (415) 435-7379 1155 Tiburon Blvd. Tiburon, CA 94920 The Administrator keeps the records for the Plan and is responsible for the administration of the Plan. The Administrator will also answer any questions you may have about our Plan. You may contact the Administrator for any further information about the Plan. 4. Service of Legal Process The name and address of the Plan's agent for service of legal process are: Town of Tiburon 1155 Tiburon Blvd. Tiburon, CA 94920 5. Type of Administration The type of Administration is Employer Administration 9 IX ADDITIONAL PLAN INFORMATION 1. Your Rights Under ERISA Plan participants, eligible employees and all other employees of the Employer may be entitled to certain rights and protections under the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code. These laws provide that participants, eligible employees and all other employees are entitled to: (a) examine, without charge, at the Administrator's office, all Plan documents, and copies of all documents f i led by the Plan with the U. S. Department of Labor, such as detailed annual reports and Plan descriptions; and (b) obtain copies of all Plan documents and other Plan information upon request to the Administrator. The Administrator may charge a reasonable fee for the copies. In addition to creating rights for Plan part-icipants, ERISA imposes duties upon the people who are responsible for the operationof an employee benefit plan. The people who operate your Plan, called "fiduciaries" of the Plan, have a duty to do so prudently and in the best interest of you and other Plan participants. No one, including your employer or any other person, may fire you or otherwise discriminate against you in any way to prevent yhou from obtaining a benefit or exercising your rights under ERISA. If your claim for a benef it is denied in whole or in part, you must receive a written explanation of the reason for the denial. You have the right to have your claim reviewed and reconsidered. Under ERISA there are steps you can take to enforce the above rights. For instance, if you request materials from the Plan and do not receive them within thirty (30) days, you may file suit in a Federal court. In such a case, the court may request the Administrator to provide the materials and pay you up to $100 a day until you receive the materials, unless the materials were not sent because of reasons beyond the control of the Administrator. If you have a claim for benefits which is denied or ignored, in whole or in part, you may file suit in a state or Federal court. If it should happen that Plan fiduciaries misuse the Plan's money, or if you are discriminated against for asserting your rights, you may seek assistance from the U.S. Department of Labor, or you may file suit in a Federal court. The court will decide who should pay court costs and legal fees. If you are successful, the court may order the person you have sued to pay these costs and fees. If you lose, the court may order you to pay these costs and 10 fees; for example, if it finds your claim is frivolous. 2. Your Rights under Family and Medical Leave Act of 1993 (FMLA) To be eligible for FMLA benefits, an employee must have worked for a covered employer for a total of at least 12 months, have worked at least 1250 hours over the previous 12 months and work at a location (or locations within a 75 mile area) where at least 50 employees are employed by the employer. The Family and Medical Leave Act or 1993 generally requires covered employers to permit eligible employees to take up to 12 weeks of unpaid, job-protected leave each year: upon the birth of an employee's child, upon placement of a child with the employee for adoption or foster care, to care for a child, spouse or parent who has a serious health condition, or when the employee is unable to perform the functions of his or her position because of a serious health condition. Subject to certain conditions, instead of taking an unpaid leave, employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave. Maintenance of Group Health Plan Benefits is provided under FMLA. Employers are required to "maintain coverage under any group health plan for the duration of such leave at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of such leave." Employee's Share of the Premium can be paid by arrangement with the employer. If the leave is unpaid, the employer has a number of options for obtaining payment from the employee. All of the following options assume the employee elects to continue his group health coverage: (a) Payment would be due at the same time as it would have been made if by payroll deduction; (b) Payment would be due on the same schedule as as payments are made under COBRA; (c) Payment (during the same plan year) would be prepaid pursuant to a cafeteria plan at the employee's option; 11 (d) Another system voluntarily agreed upon by the employer and employee, which may include prepayment of premiums. The Employer must provide the employee with advance written notice of the selected option's terms and conditions under which these payments must be made. If a FMLA leave is substituted paid leave, the employee's share must be paid by the method normally used during any paid leave (e.g. through a payroll deduction). Continuation of a Health Care Reimbusement Account is permitted under FMLA. All of the following options assume the employee elects to continue their Health Expense Reimbursement Account while on FMLA leave: (a) Payment (during the same Plan Year) would be made in a lump sum payroll reduction upon the employee's return to work; (b) Payment (during the same Plan Year) would be made in pro-rata amounts for the period of time from return to work to the end of the Plan Year; Revocation of a Health Care Reimbursement Account is permitted under FMLA. If an employee's coverage under the Health Care FSA terminates while the employee is on FMLA leave, the employee is not entitled to receive reimbursements for claims incurred during the period when the coverage is terminated. The employee can elect to reinstate the Health Care FSA upon return from FMLA leave for the remainder of the Plan Year, the employee may not retroactively elect Health Care FSA coverage for claims incurred during the period when coverage was terminated. 3. Claims Process You should submit reimbursement claims during the Plan Year but in no event later than 60 days after the end of a Plan Year. Any claims submitted after that time will not be considered. Claims for benefits that are insured will be reviewed in accordance with procedures contained in the policies. All other general claims or requests should be directed to the Administrator of our Plan. If a non-insured claim under the plan is denied in whole or in part, you or your beneficiary will receive written notification. The notification will include the reasons for the denial, with reference. to the specific provisions of the Plan on which the denial was based, a description of any additional information needed to process the claim and an explanation of the claims review procedure. If we fail to respond within 90 days, your claim is treated as denied. Within 60 days after denial, you or your beneficiary may submit a written request for reconsideration of the 12 application to the Administrator. Any such request should be accompanied by documents or records in support of your appeal. You or your beneficiary may review pertinent documents and submit issues and comments in writing. The Administrator will review the claim and provide, within 60 days, a written response to the appeal. (This period may be extended in additional 60 days under certain circumstances.) In this response, the Administrator will explain the reason for the decision, with specific reference to the provisions of the Plan on which the decision is based. The Administrator has the exclusive right to interpet the appropriate plan provisions. Decisions of the Administrator are conclusive and binding. X SUMMARY The money you earn is important to you and your family. You need it to pay your bills, enjoy recreational activities and save for the future. Our f lexible benef its plan wi 1 1 help you keep more of the money you earn by lowering the amount of taxes you pay. The Plan is the result of our continuing efforts to find ways to help you get the most for your earnings. If you have any questions, please contact the Administrator. TOWN OF TIBURON CAFETERIA PLAN TABLE OF CONTENTS ARTICLE I DEFINITIONS ARTICLE II PARTICIPATION 2.1 ELIGIBILITY 2.2 EFFECTIVE DATE OF PARTICIPATION 2.3 APPLICATION TO PARTICIPATE 2.4 TERMINATION OF PARTICIPATION 2.5 TERMINATION OF EMPLOYMENT 2.6 DEATH ARTICLE III CONTRIBUTIONS TO THE PLAN 3 4 4 4 5 5 3.1 SALARY REDIRECTION 6 3.2 APPLICATION OF CONTRIBUTIONS 6 7 3.3 PERIODIC CONTRIBUTIONS ARTICLE IV BENEFITS 4.1 BENEFIT OPTIONS 7 4.2 HEALTH CARE REIMBURSEMENT PLAN BENEFIT 7 4.3 DEPENDENT CARE ASSISTANCE PROGRAM BENEFIT 7 4.4 HEALTH INSURANCE BENEFIT 7 4.5 CASH BENEFIT 8 4.6 NON-DISCRIMINATION REQUIREMENTS 8 ARTICLE V PARTICIPANT ELECTIONS 5.1 INITIAL ELECTIONS 5.2 SUBSEQUENT ANNUAL ELECTIONS 9 5.3 FAILURE TO ELECT 10 5.4 CHANGE OF ELECTIONS 10 ARTICLE VI HEALTH CARE REIMBURSEMENT PLAN 6.1 ESTABLISHMENT OF PLAN 12 6.2 DEFINITIONS 12 6.3 FORFEITURES 12 6.4 LIMITATION ON ALLOCATIONS 12 6.5 NONDISCRIMINATION REQUIREMENTS 13 6.6 COORDINATION WITH CAFETERIA PLAN 13 6.7 HEALTH CARE REIMBURSEMENT PLAN CLAIMS 13 ARTICLE VII DEPENDENT CARE ASSISTANCE PROGRAM 7. 1 ESTABLISHMENT OF PROGRAM 14 7. 2 DEFINITIONS 15 7. 3 DEPENDENT CARE ASSISTANCE ACCOUNTS 16 7. 4 INCREASES IN DEPENDENT CARE ASSISTANCE ACCOUNTS 16 7. 5 DECREASES IN DEPENDENT CAR ASSISTANCE ACCOUNTS 17 7. 6 ALLOWABLE DEPENDENT CARE ASSISTANCE REIMBURSEMENT 17 7. 7 ANNUAL STATEMENT OF BENEFITS 17 9 7.8 FORFEITURES 17 7.9 LIMITATION ON PAYMENTS 17 7.10 NONDISCRIMINATION REQUIREMENTS 17 7.11 COORDINATION WITH CAFETERIA PLAN........................ 18 7.12 DEPENDENT CARE ASSISTANCE PROGRAM CLAIMS 19 ARTICLE VIII INDIVIDUAL INSURANCE PREMIUM REIMBURSEMENT PLAN 8.1 INDIVIDUAL INSURANCE PREMIUM REIMBURSEMENT ACCOUNTS..... 20 8.2 INCREASES IN INDIVIDUAL INSURANCE PREMIUM REIMBURSEMENT. 20 8.3 DECREASES IN INDIVIDUAL INSURANCE PREMIUM REIMBURSEMENT. 20 8.4 INDIVIDUAL INSURANCE PREMIUM BENEFITS 20 8.5 FORFEITURES 21 ARTICLE IX ERISA PROVISIONS 9.1 CLAIM FOR BENEFITS 21 9.2 APPLICATION OF BENEFIT PLAN SURPLUS 23 9.3 NAMED FIDUCIARY 23 9.4 GENERAL FIDUCIARY RESPONSIBILITIES 23 9.5 NONASSIGNABILITY OF RIGHTS 23 ARTICLE X ADMINISTRATION 10.1 PLAN ADMINISTRATION 24 10.2 EXAMINATION OF RECORDS 25 10.3 PAYMENT OF EXPENSES 25 10.4 INSURANCE CONTROL CLAUSE 25 10.5 INDEMNIFICATION OF ADMINISTRATOR 25 ARTICLE XI AMENDMENT OR TERMINATION OF PLAN 11.1 AMENDMENT PROCESS 25 11.2 TERMINATION OF PLAN 26 ARTICLE XII MISCELLANEOUS 12. 1 PLAN INTERPRETATION 26 12. 2 GENDER AND NUMBER 26 12. 3 WRITTEN DOCUMENT 26 12. 4 EXCLUSIVE BENEFIT 27 12. 5 PARTICIPANT'S RIGHTS 27 12. 6 ACTION BY THE EMPLOYER 27 12. 7 EMPLOYER'S PROTECTIVE CLAUSES 27 12. 8 NO GUARANTEE OF TAX CONSEQUENCES 28 12. 9 INDEMNIFICATION OF EMPLOYER BY PARTICIPANTS 28 12. 10 FUNDING 28 12. 11 GOVERNING 29 12. 12 SEVERABILITY 29 12. 13 CAPTIONS 29 12. 14 CONTINUATION OF COVERAGE 29 12. 15 FAMILY MEDICAL LEAVE ACT PROVISIONS 30 12. 16 FAMILY MEDICAL LEAVE CAFETERIA OPTIONS 32 12. 17 NON-ELECTION OF PREMIUM REIMBURSEMENT ACCOUNT BY SPECIFIED EMPLOYEE CLASSIFICATION 34 TOWN OF TIBURON CAFETERIA PLAN INTRODUCTION The Employer has adopted this Plan effective January 1, 1995 to recognize the contributions made to the Employer by its Employees. Its purpose is to reward them by providing benefits for those Employees who shall qualify hereunder and their dependents and their beneficiaries. The concept of this Plan is to allow Employees to choose among different types of benefits based upon their own particular goals, desires and needs. The Plan shall be known as Town of Tiburon Cafeteria Plan (the "Plan"). The intention of the Employer is that the Plan qualify as a "Cafeteria Plan" within the meaning of Section 125 of the Internal Revenue Code of 1986, as amended, and that the benefits which an Employee elects to receive under the Plan be includable or excludable from the Employee's income under Section 125(a) and other applicable sections of the Internal Revenue Code of 1986, as amended. ARTICLE I DEFINITIONS 1.1 "Administrator" means the individuals or corporation appointed by the Employer to carry out the administration of the Plan. In the event the Administrator has not been appointed, or resigns from a prior agreement, the Employer shall be deemed to be the Administrator. 1.2 "Affiliated Employer" means the Employer and any corporation which is a member of a controlled group of corporations (as defined in Code Section 414(b) which includes the Employer; any trade or business (whether or not incorporated) which is under common control (as defined in Code Section 414(c)) with -the Employer; any organization (whether or not incorporated) which is a member of an affiliated service group (as defined in Code Section 414(m) which includes the Employer; and any other entity required to be aggregated with the Employer pursuant to Treasury regulations under Code Section 414(o). 1.3 "Benefit" means any of the optional benefit choices available to a Participant as outlined in Section 4.1. 1.4 "Cafeteria Plan Benefit Dollars" means the amount available to Participants, pursuant to Article III, to purchase Benefits. Each dollar contributed to this Plan shall be converted into one Cafetertia Plan Benefit Dollar. 1.5 "Code" means the Internal Revenue Code of 1986, as amended or replaced from time to time. 1 1.6 "Dependent" means any individual who qualifies as a dependent under an Insurance Contract or under Code Section 152 (as modified by Code Section 105(b)). 1.7 "Effective Date" means January 1, 1995 1.8 "Election Period" means the 60 days period immediately preceding the beginning of each Plan Year. However, an Employee's intitial Election Period shall be determined pursuant to Section 5.1. 1.9 "Eligible Employees" means any Employee who has satisfied the provisions of Section 2.1. 1.10 "Employee" means any person who is employed by the Employer, but excludes any person who is employed as an independent contractor. The term Employee can include leased and/or part-time employees within the meaning of Code Section 414(n)(2) if indicated by amendment to this Plan. 1.11 "Employer" means Town of Tiburon and any Affiliated Employer (as defined in Section 1.2) which shall adopt this Plan; any successor which shall maintain this Plan; and any predecessor which has maintained this Plan. 1.12 "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time. 1.13 "Highly Compensated Employee" means an Employee described in Code Section 414(q) and the Treasury regulations thereunder. 1.14 "Insurance Contract" means any contract issued by an Insurer underwriting a Benefit. 1.15 "Insurance Premium Payment Plan" means the plan of benefits contained in Section 4.1 of this Plan, which provides for the payment of Premium Expenses. 1.16 "Insurer" means any insurance company that underwrites a Benefit under this Plan. 1.17 "Key Employee" means an Employee described in Code Section 416(i)(1) and the Treasury regulations thereunder. 1.18 "Participant" means any Eligible Employee who elects to become a Participant pursuant to Section 2.3 and has not for any reason become ineligible to participate further in the Plan. 1.19 "Plan" means this instrument, including all amendments thereto. 1.20 "Plan Year" means the 12-month period beginning January 1st and ending December 31st. The Plan Year shall be the coverage period for the Benefits provided for under this Plan. In the event a Participant commences participation during a Plan Year, then the initial coverage period shall be that portion of the Plan Year commencing on such Participant's date of entry and ending on the last day of such Plan Year. 1.21 "Premium Expenses" or "Premiums" mean the Participant's cost for the Benefits described in Section 4.1. 1.22 "Premium Reimbursement Account" means the account established for a Participant pursuant to this Plan to which part of his Cafeteria" Plan Benef it Dol Lars may be al located and from which Premiums of the Participant shall be paid or reimbursed. If more than one type of insured Benefit is elected, sub-accounts shall be established for each type of insured Benefit. 1.23 "Salary Redirection" means the contributions made by the Employer on behalf of Participants pursuant to Section 3.1. These contributions shall be converted to Cafeteria Plan Benefit Dollars and allocated to the funds or accounts established under the Plan pursuant to the Participants' elections made under Article V. 1.24 "Salary Redirection Agreement" means an agreement between the Participant and the Employer under which the Participant agrees to reduce his Compensation or to forego all or part of the increases in such Compensation and to have such amounts contributed by the Employer to the Plan on the Participant's behalf. The Salary Redirection Agreement shall apply only to Compensation that has not been actually'or constructively received by the Participant as of the date of the agreement (after taking this Plan and Code Section 125 into account) and, subsequently does not become currently available to the Participant. 1.25 "Spouse" means the legally married husband or wife of a Participant, unless legally separated by court decree. ARTICLE II PARTICIPATION 2.1 ELIGIBILITY Any Eligible Employee shall be eligible to participate hereunder as of the date he satisfies the eligibility conditions for the Employer's group medical plan, the provisions of which are specifically incorporated herein by reference. 3 If a former Participant is rehired during the same Plan Year in which termination of employment occurs, and such former Participant had revoked existing Benefit elections and terminated the receipt of Benefits at the time of termination of employment, then such rehired former Participant shall be prohibited from making new Benefit elections for the remaining portion of the Plan Year. 2.2 EFFECTIVE DATE OF PARTICIPATION An Eligible Employee shall become a Participant effective as of the entry date under the Employer's group medical plan, the provisions of which are specifically incorporated herein by reference. 2.3 APPLICATION TO PARTICIPATE An Employee who is eligible to participate in this Plan shall, during the applicable Election Period, complete an application to participate and election of benefits from which the Administrator shall furnish to the Employee. The election made on such form shall be irrevocable until the end of the applicable Plan Year unless the Participant is entitled to change his Benefit elections pursuant to Section 5.4 hereof. An Eligible Employee shall also be required to execute a Salary Redirection Agreement during the Election Period for the Plan Year during which he wishes to participate in this Plan. Any such Salary Redirection Agreement shall be effective for the first pay period beginning on or after the Employee's effective date of participation pursuant to Section 2.2. Notwithstanding the foregoing, an Employee who is eligible to participate in this Plan and who is covered by the Employer's insured Benefits under this Plan shall automatically become a Participant to the extent of the Premiums for such insurance unless the Employee elects, during the Election Period, not to participate in the Plan. 2.4 TERMINATION OF PARTICIPATION A Participant shall no longer participate in this Plan upon the occurrence of any of the following events: (a) His termination of employment, subject to the provisions of Section 2.5; (b) His death, subject to the provisions of Section 2.6; or (c) The termination of this Plan, subject to the provisions of Section 10.2. 4 2.5 TERMINATION OF EMPLOYMENT If a Participant terminates employment with the Employer for any reason other than death, his participation in the Plan shall be governed in accordance with the following: (a) With regard to Benefits which are insured, the Participant's participation in the Plan shall cease, subject to the Participant's right to continue coverage under any Insurance Contract for which premiums have already been paid. (b) With regard to the Dependent Care Assistance Program, the Participant's participation in the Plan shall cease and no further Salary Redirection contributions shall be made. However, such Participant may submit claims for employment related Dependent Care Expense reimbursements for the remainder of the Plan Year in which such termination occurs, based on the level of his Dependent Care Assistance Account as of his date of termination. (c) With regard to the Health Care Reimbursement Plan, the Participant's participation in the Plan shall continue for the remainder of the Plan Year in which such termination occurs. The Participant may continue to seek reimbursement from the Health Care Reimbursement Fund and shall be required to make contributions to the fund based on the elections made prior to the beginning of the Plan Year. However, such contributions after termination of employment shall be with after-tax dollars instead of Salary Redirections. (d) This Section shall be applied and administered consistent with such further rights a Participant and his Dependents may be entitled to pursuant to Code Section 4980B and Section 12.14 of the Plan. 2.6 DEATH If a Participant dies, his participation in the Plan shall cease. However, such Participant's beneficiaries, or the representative of his estate, may submit claims for expenses or benefits for the remainder of the Plan Year or until the Cafeteria Plan Benefit Dollars allocated to each specific benefit are exhausted. A Participant may designate a specific beneficiary for this purpose. If no such beneficiary is specified, the Administrator may designate the Participant's Spouse, one of his Dependents or a representative of his estate. 5 ARTICLE III CONTRIBUTIONS TO THE PLAN 3.1 SALARY REDIRECTION Benefits under the Plan shall be financed by Salary Redirections sufficient to support Benefits that a Participant has elected hereunder and to pay the Participant's Premium Expenses. The salary administration program of the Employer shall be revised to allow each Participant to agree to reduce his pay during a Plan Year by an amount determined necessary to purchase the elected Benefit. The amount of such Salary Redirection shall be specified in the Salary Redirection Agreement and shall be applicable for a Plan Year. Notwithstanding the above, for new Participants, the Salary Redirection Agreement shall only be applicable from the first day of the pay period following the Employee's entry date up to and including the last day of the Plan Year. These contributions shall be converted to Cafeteria Plan Benefit Dollars and allocated to the funds or accounts established under the Plan pursuant to the Participants' elections made under Article V. Any Salary Redirection shall be determined prior to the beginning of a Plan Year (subject to initial elections pursuant to Section 5. 1 ) and prior to the end of the Election Period and shall be irrevocable for such Plan Year. However, a Participant may revoke a Benefit election or a Salary Redirection Agreement after the Plan Year has commenced and make a new election with respect to the remainder of the Plan Year, if both the'revocation and the new election are on account of and consistent with a change in family status and such other permitted events as determined under Article V of the Plan and consistent with the rules and regulations of the Department of the Treasury. Salary Redirection amounts shall be contributed on a pro rata basis for each pay period during the Plan Year. All individual Salary Redirection Agreements are deemed to be part of this Plan and incorporated by reference hereunder. 3.2 APPLICATION OF CONTRIBUTIONS As soon as reasonably practical after each payroll period, the Employer shall apply the Salary Redirection to provide the Benefits elected by the affected Participants. Any contributions made or withheld for the Health Care Reimbursement Fund, Dependent Care Assistance Account or Premium Expense Reimbursement Account shall be credited to such fund or account. 6 3.3 PERIODIC CONTRIBUTIONS Notwithstanding the requirement provided above and in other Articles of this Plan that Salary Redirections be contributed to the Plan by the Employer on behalf of an Employee on a level and pro rata basis for each payroll period, the Employer and Administrator may implement a procedure in which Salary Redirect ions are contributed throughout the Plan Year on a periodic basis that is not pro rata for each payroll period. However, with regard to the Health Care Reimbursement Plan, the payment schedule for the required contributions may not be based on the rate or amount of reimbursements during the Plan Year. ARTICLE IV BENEFITS 4.1 BENEFIT OPTIONS Each Participant may elect to have the amount of his Cafeteria Plan Benefit Dollars applied to any one or more of the following optional Benefits: (1) Health Care Reimbursement Plan (2) Dependent Care Assistance Program (3) Individual Health Premium Reimbursement Plan (4) Cash Benefit In addition, each Participant shall have a sufficient portion of his Cafeteria Plan Benefit Dollars applied to the following insured benefits unless the Participant elects not to receive such benefits: (5) Health Insurance Benefit 4.2 HEALTH CARE REIMBURSEMENT PLAN BENEFIT Each Participant may elect coverage under the Health Care Reimbursement Plan option, in which case Article VI shall apply. 4.3 DEPENDENT CARE ASSISTANCE PROGRAM BENEFIT Each Participant may elect coverage under the Dependent Care Assistance Program option, in which case Article VII shall apply. 4.4 INDIVIDUAL HEALTH PREMIUM REIMBURSEMENT PLAN Each Participant may elect coverage under the Individual Health Premium Reimbursement Plan option, in which case Article VIII shall apply. 7 4.5 CASH BENEFIT If a Participant elects not to participate in the Plan, such Participant shall be deemed to have chosen the Cash Benefit as his sole Benefit option. 4.6 HEALTH INSURANCE BENEFIT (a) Each Participant may elect to be covered under a health and hospitalization Insurance Contract for the Participant, his or her spouse and/or Dependent(s). (b) The Employer may select suitable health and hospitalization Insurance Contracts for use in providing this health insurance benefit, which policies will provide uniform benefits for all Participants electing this Benefit. (c) The rights and conditions with respect to the benefits payable from such health and hospitalization Insurance Contract shall be determined therefrom, and such Insurance Contract shall be incorporated herein by reference. 4.7 NONDISCRIMINATION REQUIREMENTS (a) It is the intent of this plan to provide benefits to a classification of employees which the Secretary of Treasury finds not to be discriminatory in favor of the group in whose favor discrimination may not occur under Code Section 125. (b) It is the intent of this Plan not to provide qualified benefits as defined under Code Section 125 to Key Employees in amounts that exceed 25% of the aggregate of such Benefits provided for all Eligible Employees under the Plan. For purposes of the preceding sentence, qualified benefits which (without regard to this paragraph) are includable in gross income. (c) If the Administrator deems it necessary to avoid discrimination or possible taxation to Key Employees or a group of employees in whose favor discrimination may not occur in violation of Code Section 125, it may, but shall not be required to, reduce contributions or non-taxable Benefits in order to assure compliance with this Section. Any act taken by the administrator under this Section shall be carried out in a uniform and nondiscriminatory manner. If the Administrator decides to reduce contributions or non-taxable Benefits, it shall be done in the following manner. First, the non-taxable Benefits of the affected Participant (either an employee who is highly compensated 8 or a Key Employee, whichever is applicable) who has the highest amount of non-taxable Benefits for the Plan Year shall have his non-taxable benefits reduced until the discrimination tests set forth in this Section are satisfied or until the amount of his non-taxable Benefits equals the non-taxable Benefits of the affected Participant who has the second highest amount of non- taxable Benefits. This process shall continue until the nondiscrimination tests set forth in the Section are satisfied. With respect to any affected Participant who has had Benefits reduced pursuant to this Section, the reduction shall be made proportionately among non- insured Benefits, and once all non-insured Benefits are expended, proportionately among insured Benefits. Contributions which are not utilized to provide Benefits to any Participant by virtue of any administrative act under this paragraph shall be forfeited and deposited into the benefit plan surplus. ARTICLE V PARTICIPANT ELECTIONS 5.1 INITIAL ELECTIONS An Employee who meets the eligibility requirements of Section 2.1 on the first day of, or during, a Plan Year may elect to participate in this Plan for all or the remainder of such Plan Year, provided he elects to do so before his effective date of participation pursuant to Section 2.2. However, if such Employee does not complete an application to participate and benefit election form and deliver it to the Administrator before such date, his Election Period shall extend 30 calendar days after such date, or for such further period as the Administrator shall determine and apply on a uniform and nondiscriminatory basis. However, any election during the extended 30-day election period pursuant to this Section 5.1 shall not be effective until the first pay period following the later of such Participant's effective date of participation pursuant to Section 2.2 or the date of the receipt of the election form by the Administrator, and shall be limited to the Benefit expenses incurred for the balance of the Plan Year for which the election is made. Notwithstanding the foregoing, an Employee who is eligible to participate in this Plan and who is covered by the Employer's insured benefits under this Plan shall automatically become a Participant to the extent of the Premiums for such insurance unless the Employee elects, during the Election period, not to participate in the Plan. 5.2 SUBSEQUENT ANNUAL ELECTIONS During the Election Period prior to each subsequent Plan Year, each Participant shall be given the opportunity to elect, on 9 an election of benefits form to be provided by the Administrator, which non-insured Benefit options he wishes to select and purchase with his Cafeteria Plan Benefit Dollars. Any such election shall be effective for any Benefit expenses incurred during the Plan Year which follows the end of the Election Period. With regard to subsequent annual elections, the following options shall apply: (a) A participant or Employee who failed to initially elect to participate may elect different or new Benefits under the Plan during the Election Period; (b) A Participant may terminate his participation in the Plan by notifying the Administrator in writing during the Election Period that he does not want to participate in the Plan for the next Plan year; (c) An Employee who elects not to participate for the Plan Year following the Election Period will have to wait until the next Election Period before again electing to participate in the Plan, with respect to non-insured Benefits. 5.3 FAILURE TO ELECT Any Participant who fails to complete a new benefit election form pursuant to Section 5.2 by the end of the applicable Election Period shall be treated in the following manner: (a) With regard to Benefits available under the Plan that are non-insured and for which no Premium Expenses apply, such Participant shall be deemed to have elected not to participate in the Plan for the upcoming Plan Year. No further Salary Redirections shall therefore be authorized or made for the subsequent Plan Year for such non-insured Benefits. 5.4 CHANGE OF ELECTIONS (a) Any Participant may change a Benefit election after the Plan Year (to which such election relates) has commenced and make new elections with respect to the remainder of such Plan Year if the changes are necessitated by and are consistent with a change in family status which is acceptable under rules and regulations adopted by the Department of the Treasury. Benefit election changes are consistent with family status changes only if the election changes are necessary or appropriate as a result of the family status change. Any new election under this Section 5.4 shall be effective at such time as the Administrator shall prescribe, but not earlier than the first pay period beginning after the election form is completed and returned to the Administrator. For the purposes of this 10 paragraph, the following events shall be considered examples of a change in family status: (1) the marriage or divorce of the Participant; (2) the birth or adoption of a child by the Participant; (3) the death of the Participant's spouse or a Dependent; (4) the termination or commencement of employment of the Participant's spouse; (5) the switching from part-time to full-time employment status or from full-time to part-time status) by the Participant or the Participant's spouse; (6) the taking of an unpaid leave of absence by the Participant or the Participant's spouse; or (7) a significant change in health coverage attributable to the spouse's employment. (b) A Participant may not make changes to his Benefit elections under the Health Care Reimbursement Fund in the event of a change in family status. (c) If the Premium Expenses under a health insurance Benefit provided by an independent, third-party provider under the Plan increases or decreases during a Plan Year, then the Plan shall automatically increase or decrease, as the case may be, the Salary Redirections of all affected Participants for such health insurance Benefit. Alternatively, if the Premium Expense increases significantly, the Administrator shall permit the affected Participants to either make corresponding changes in their Premium payments or revoke their elections and, in lieu thereof, receive on a prospective basis coverage under another health plan with similar coverage. In addition, if the coverage under a health insurance Benefit provided by an independent, third-party provider is significantly curtailed or ceases during a Plan Year, affected Participants may revoke their elections of such health insurance Benefit and, in lieu thereof, elect to receive on a prospective basis coverage under another plan with similar coverage. (d) Generally, the termination of employment by a Participant shall not be considered a change in family status. Therefore, upon termination, such Participant shall not be entitled to change existing Benefit 11 elections. Rather, such termination shall constitute a revocation of all existing benefit elections, except with regard to the Health Care Reimbursement Plan, in which case the Participant's election prior to termination shall continue in force and may not be modified. ARTICLE VI HEALTH CARE REIMBURSEMENT PLAN 6.1 ESTABLISHMENT OF PLAN This Health Care Reimbursement Plan is intended to qualify as a medical reimbursement plan under Code Section 105 and shall be interpreted in a manner consistent with such Code Section and the Treasury regulations thereunder. Participants who elect to participate in this Health Care Reimbursement Plan may submit claims for the reimbursement of Medical Expenses. All amounts reimbursed under this Health Care Reimbursement Plan shall be periodically paid from amounts allocated to the Health Care Reimbursement Fund. Periodic payments reimbursing Participants from Health Care Reimbursement Fund shall in no event occur less frequently than monthly. 6.2 DEFINITIONS For the purposes of this Article and the Cafeteria Plan, the terms below have the following meaning: (a) "Health Care Reimbursement Fund" means the fund established for Participants pursuant to this Plan to which part of their Cafeteria Plan Benefit Dollars may be allocated and from which all allowable Medical Expenses may be reimbursed. (b) "Health Care Reimbursement Plan" means the plan of benefits contained in the Article, which provides for the reimbursement of eligible Medical Expenses incurred by a Participant or his Dependents. (c) "Highly Compensated Participant" means, for the purposes of this Article and determining discrimination under Code Section 105(h), a participant who is: (1) one of the 5 highest paid officers; (2) a shareholder who owns (or is considered to own applying the rules of Code Section 318) more than 10 percent in value of the stock of the Employer; or (3) among the highest paid 25 percent of all Employees (other than exclusions permitted by 12 individuals who are not Participants. (d) "Medical Expenses" means any expense for medical care within the meaning of the term "medical care" or "medical expense" as defined in Code Section 213 and the rulings and Treasury regulations thereunder, and not otherwise used by the Participant as a deduction in determining his tax liability under the Code. However, a Participant may not be reimbursed under the Health Care Reimbursement Fund for the cost of other health coverage maintained by the employer of the Participant's spouse or individual policies maintained by the Participant or his spouse or Dependent. (e) The definitions of Article I are hereby incorporated by reference to the extent necessary to interpet and apply the provisions of this Health Care Reimbursement Plan. 6.3 FORFEITURES (a) The amount in the Health Care Reimbursement Account as of the end of the Plan Year (and after the processing of all claims for such Plan Year pursuant to Section 6.7 hereof) shall be forfeited and credited to the benefit plan surplus. In such event, the Participant shall have no further claim to such amount for any reason, subject to Section 9.2. 6.4 LIMITATION ON ALLOCATIONS (a) Nonwithstanding any provision contained in this Health Care Reimbursement Plan to the contrary, no more than $10,000 may be allocated to the Health Plan Reimbursement fund by a Participant in or on account of any Plan Year. 6.5 NONDISCRIMINATION REQUIREMENTS (a) It is the intent of this Health Care Reimbursement Plan not to discriminate in violation of the Code and the Treasury regulations thereunder. (b) If the Administrator deems it necessary to avoid discrimination under this Health Care Reimbursement Plan, it may, but shall not be required to, reject any elections or reduce contributions or Benefits in order to assure compliance with this Section. Any act taken by the Administrator under this Section shall be carried out in a uniform and nondiscriminatory manner. If the Administrator decides to reject any elections or reduce contributions or Benefits, it shall be done in the following manner. First, the Benefits designated for the 13 Health Care Reimbursement Fund by the member of the group in whose favor discrimination may not occur pursuant to Code Section 105 or 125 that elected to contribute the highest amount to the fund for the Plan Year shall be reduced until the nondiscrimination tests set forth in this Section or the Code are satisfied, or until the amount designated for the fund equals the amount designated for the fund by the next member of the group in whose favor discrimination may not occur pursuant to Code Sections 105 or 125 who has elected the second highest contribution to the Health Care Reimbursement Fund for the Plan Year. This process shall continue until the nondiscrimination tests set forth in this Section or the Code are satisfied. Contributions which are not utilized to provide Benefits to any Participant by virtue of any administrative act under this paragraph shall be forfeited and credited to the benefit plan surplus. 6.6 COORDINATION WITH CAFETERIA PLAN All Participants under the Cafeteria Plan are eligible to receive Benefits under this Health Care Reimbursement Plan. The enrollment under the Cafeteria Plan shall constitute enrollment under this Health Care Reimbursement Plan. In addition, other matters concerning contributions, elections and the like shall be governed by the general provisions of the Cafeteria Plan. 6.7 HEALTH CARE REIMBURSEMENT PLAN CLAIMS (a) All Medical Expenses incurred by a Participant shall be reimbursed during the Plan Year subject to Section 2.5, even though the submission of such a claim occurs after his participation hereunder ceases; but provided that the Medical Expenses were incurred during the applicable Plan Year. (b) The Administrator shall direct the reimbursement to each eligible Participant for all allowable Medical Expenses, up to a maximum of the amount designated by the Participant for the Health Care Reimbursement Fund for the Plan Year. Reimbursements shall be made available to the Participant throughout the year without regard to the level of Cafeteria Plan Benefit Dollars which have been allocated to the fund at any given point in time. Furthermore, a Participant shall be entitled to reimbursements only for the amounts in excess of any payments or other reimbursements under any health care plan covering the Participant and/or his Spouse or Dependents. (c) Claims for the reimbursement of Medical Expenses incurred in any Plan Year shall be paid as soon 14 after a claim has been filed as is administratively practicable; provided however, that if a Participant fails to submit a claim within the 60 day period immediately following the end of the Plan Year, those Medical Expense claims shall not be considered for reimbursement by the Administrator. (d) Reimbursement payments under this Plan shall be made directly to the Participant. However, in the Administrator's discretion, payments may be made directly to the service provider. The application for payment or reimbursement shall be made to the Administrator on an acceptable form within a reasonable time of incurring the debt or paying for the service. The application shall include a written statement from an independent third party stating that the Medical Expense has been incurred and the amount of such expense. Furthermore, the Participant shall provide a written statement that the Medical Expenses has not been reimbursed or is not reimbursable under any other health plan coverage and, if reimbursed from the Health Care Reimbursement Fund, such amount will not be claimed as a tax deduction. The Administrator shall retain a file of all such applications. ARTICLE VII DEPENDENT CARE ASSISTANCE PROGRAM 7.1 ESTABLISHMENT OF PROGRAM This Dependent Care Assistance Program is intended to qualify as a program under Code Section 129 and shall be interpreted in a manner consistent with such Code Section. Participants who elect to participate in this program may submit claims for the reimbursement of Employment-Related Dependent Care Expenses. All amounts reimbursed under this Dependent Care Assistance Program shall be paid from amounts allocated to the Participant's Dependent Care Assistance Account. 7.2 DEFINITIONS For the purposes of this Article and the Cafeteria Plan the terms below shall have the following meaning: (a) "Dependent Care Assistance Account" means the account established for a Participant pursuant to this Article to which part of his Cafeteria Plan Benefit Dollars may be allocated and from which Employment- Related Dependent Care Expenses of the Participant may be reimbursed. 15 (b) "Dependent Care Assistance Program" means the program of benefits contained in this Article, which provides for the reimbursement of eligible expenses for the care of the Qualifying Dependents of Participants. (c) "Earned Income" means earned income as defined under Code Section 32 ( c ) ( 2) , but excluding such amounts paid or incurred by the Employer for dependent care assistance to the Participant. (d) "Employment-Related Dependent Care Expenses" means the amounts paid for expenses of a Participant for those services which if paid by the Participant would be considered employment related expenses under Code Section 21 (b) (2). Generally, they shall include expenses for household services or for the care of a Qualifying Dependent, to the extent that such expenses are incurred to enable the Participant to be gainfully employed for any period for which there are one or more Qualifying Dependents with respect to such Participant. The determination of whether an amount qualifies as an Employment-Related Dependent Care Expense shall be made subject to the following rules: (1) If such amounts are paid for expenses incurred outside the Participant's household, they shall constitute Employment-Related Dependent Care Expenses only if incurred fora Qualifying Dependent as defined in Section 7.2 (f) ( 1 ) (or deemed to be, as described in Section 7.2 (f) (1) pursuant to Section 7.2 (f) (3) or for a Qualifying Dependent defined in Section 7.2 (f) (2) (or deemed to be, as described in Section 7.2 (f) (2) pursuant to Section 7.2 (f) (3) ) who regularly spends at least 8 hours per day in the Participant's household; (2) If the expense is incurred outside the Participant's home at a facility that provides care for a fee, payment, or grant for more than 6 individuals who do not regularly reside at the facility, the facility must comply with all applicable state and local laws and regulations, including licensing requirements, if any; and (3) Employment-Related Dependent Care Expenses of a Participant shall not include amounts paid or incurred to a child of such Participant who is under the age of 19 or to an individual who is a dependent of such Participant or such Participant's Spouse. (e) "Highly Compensated Employee" means an Employee who is a highly compensated employee within the meaning 16 of Code Section 414(q) and the Treasury regulations if, during the plan year or the preceding plan year: ( 1 ) the employee was at any time a 5% owner of the Employer; (2) the employee received compensation from the Employer in excess of $100,000(as indexed for 1996); (3) the employee received compensation from the Employer in excess of $66,000 (as indexed for 1996) and was in the "top paid" group (generally consitituting the highest paid 20% of all employees during the year"; or (4) the employee was an any time an officer and received compensation in excess of $60,000 (as indexed for 1996). ( f ) "Qualifying Dependent" means, for Dependent Care Assistance Program Purposes, (1) a Dependent of a Participant who is under the age of 13, with respect to whom the Participant is ent it 1 ed to an exempt ion under Code Sect ion 151 (c) ; (2) a Dependent or the Spouse of a Participant who is physically or mentally incapable of caring for himself or herself; or (3) a child that is deemed to be a Qualifying Dependent described in paragraph (1) or (2) above, whichever is appropriate, pursuant to Code Section 21 (e) (5). (g) The definitions of Article I are hereby incorporated by reference to the extent necessary to interpret and apply the provisions of the Dependent Care Assistance Program. 7.3 DEPENDENT CARE ASSISTANCE ACCOUNTS The Administrator shall establish a Dependent Care Assistance Account for each Participant who elects to apply Cafeteria Plan Benefit Dollars to Dependent Care Assistance Program benefits. 7.4 INCREASES IN DEPENDENT CARE ASSISTANCE ACCOUNTS A Participant's Dependent Care Assistance Account shall be increased each pay period by the portion of Cafeteria Plan Benefit Dollars that he has elected to apply toward his Dependent Care Assistance Account pursuant to elections made under Article V. 17 7.5 DECREASES IN INDEPENDENT CARE ASSISTANCE ACCOUNTS A Participant's Dependent Care Assistance Account shall be reduced by the amount of any Employment-Related Dependent Care Expense reimbursements paid or incurred on behalf of a Participant pursuant to Section 7.12 hereof. 7.6 ALLOWABLE DEPENDENT CARE ASSISTANCE REIMBURSEMENT Subject to limitations contained in Section 7.9 of this Program, and to the extent of the amount contained in the Participant's Dependent Care Assistance Account, a Participant who incurs Employment-Related Dependent Care Expenses shall be entitled to receive from the Employer full reimbursement for the entire amount of such expenses incurred during the Plan Year or portion thereof during which he is a Participant. 7.7 ANNUAL STATEMENT OF BENEFITS On or Before January 31st of each calendar year, the Employer shall furnish to each Employee who was a'Participant and received benefits under Section 7.6 during the prior calendar year, a statement of all such benefits paid to or on behalf of such Participant during the prior calendar year. 7.8 FORFEITURES The amount in a Participant's Dependent Care Assistance Account as of the end of any Plan Year (and after the processing of all claims for such Plan Year Pursuant to Section 7.12 hereof) shall be forfeited and credited to the benefit plan surplus. In such event, the Participant shall have no further claim to such amount for any reason. 7.9 LIMITATION ON PAYMENTS Notwithstanding any provision contained in this Article to the contrary, amounts paid from a Participant's Dependent Care Assistance Account in or on account of any taxable year of the Participant shall not exceed the lesser of the Earned Income limitation described in Code Section 129(b) or $5,000 ($2,500 if a separate tax return is filed by a Participant who is married as determined under the rules of paragraphs (3) and (4) of Code Section 21 (e) 7.10 NONDISCRIMINATION REQUIREMENTS (a) It is the intent of this Dependent Care Assistance Program that contributions or benefits not discriminate in favor of Highly Compensated Employees or their Dependents, as prohibited by Code Section 129(d). 18 (b) It is the intent of this Dependent Care Assistance Program that not more than 25 percent of the amounts paid by the Employer for dependent care assistance during the Plan Year will be provided for the class of individuals who are shareholders or owners (or their Spouses or Dependents), each of whom (on any day of the Plan Year) owns more than 5 percent of the stock or of the capital or profits interest in the Employer. (c) If the Administrator deems it necessary to avoid discrimination or possible taxation to Highly Compensated Employees defined under Section 7.2(e) or to principal shareholders or owners as set forth in this Section, it may, but shall not be required to, reject any elections or reduce contributions or reject any elections or reduce contributions or non-taxable benefits in order to assure compliance with this Section. Any act taken by the Administrator under this Section shall be carried out in a uniform and nondiscriminatory manner. If the Administrator decides to reject any elections or reduce contributions or Benefits, it shall be done in the following manner. First, the Benefits designated for the Dependent Care Assistance Account by the Highly Compensated Employee that elected to contribute the highest amount to such account for the Plan Year shall be reduced until the nondiscrimination tests set forth in this Section are satisfied, or until the amount designated for the account equals the amount designated for the account of the Highly Compensated Employee who has elected the second highest contribution to the Dependent Care Assistance Account for the Plan Year. This process shall continue until the nondiscrimination tests set forth in this Section are satisfied, or until the amount designated for the account of the Highly Compensated Employee who has elected the second highest contribution to the Dependent Care Assistance Account for the Plan Year. This process shall continue until the nondiscrimination tests set forth in this Section are satisfied. Contributions which are not utilized to provide Benefits to any Participant by virtue of any administrative act under this paragraph shall be forfeited. 7.11 COORDINATION WITH CAFETERIA PLAN A11 Participants under the Cafeteria Plan are eligible to receive Benefits under this Dependent Care Assistance Program. The enrollment and termination of participation under the Cafeteria Plan shall constitute enrollment and termination of participation under this Dependent Care Assistance Program. In addition, other matters concerning contributions, elections and the like shall be governed by the general provisions of the Cafeteria Plan. 19 7.12 DEPENDENT CARE ASSISTANCE PROGRAM CLAIMS The Administrator shall direct the payment of all such Dependent Care Assistance claims to the Participant upon the presentation to the Administrator of documentation of such expenses in a form satisfactory to the Administrator. However, in the Administrator's discretion, payments may be made directly to the service provider. In its discretion in administering the Plan, the Administrator may utilize forms and require documentation of costs as may be necessary to verify the claims submitted. At a minimum, the form shall include a statement from an independent third party as proof that the expense has been incurred and the amount of such expense. In addition, the Administrator may require that each Participant who desires to receive reimbursement under this Program for Employment-Related Dependent Care Expenses submit a statement which may contain some or all of the following information: (a) The Dependent or Dependents for whom the services were performed; (b) The nature of the services performed for the Participant, the cost of which he wishes reimbursement; (c) The relationship, if any, of the person performing the services to the Participant; (d) If the services are being performed by a child of the Participant, the age of the child; (e) A statement as to where the services were performed; (f) If any of the services were performed outside the home, a statement as to whether the Dependent for whom such services were performed spends at least 8 hours a day in the Participant's household; (g) If the services were being performed in a day care center, a statement (1) that the day care center complies with all applicable laws and regulations of the state residence, (2) that the day care center provides care for more than 6 individuals (other than individuals residing at the center) , and (3) of the amount of fee paid to the provider. (h) If the Participant is married, a statement containing the following: 20 (1) the Spouse's salary or wages if he or she is employed, or (2) if the Participant's Spouse is not employed, that (i) he or she is incapacitated, or (ii) he or she is a full-time student attending an educational institution and the months during the year which he or she attended such institution. ( i ) If a Participant fails to submit a claim within the 60 day period immediately following the end of the Plan Year, those claims shall not be considered for reimbursement by the Administrator. ARTICLE VIII INDIVIDUAL INSURANCE PREMIUM REIMBURSEMENT PLAN 8.1 INDIVIDUAL INSURANCE PREMIUM REIMBURSEMENT ACCOUNTS The Employer shall establish for each Participant an Individual Insurance Premium Reimbursement Account for each Plan Year. Each Individual Insurance Premium Reimbursement Account shall initially contain Zero Dollars (0.00). 8.2 INCREASES IN INDIVIDUAL INSURANCE PREMIUM REIMBURSEMENT ACCOUNTS A Participant's Individual Insurance Premium Reimbursement Account for a Plan Year shall be increased by the portion of the Participant's Salary Redirection Contributions for the Plan Year that he has elected to apply toward his Individual Insurance Premium Reimbursement Account pursuant to Section 3.1. 8.3 DECREASES IN INDIVIDUAL INSURANCE PREMIUM REIMBURSEMENT ACCOUNTS A Participant's Individual Insurance Premium Reimbursement Account for a Plan Year shall be reduced by the amount of any benefits paid to or on behalf of a Participant pursuant to Section 8.4. 8.4 INDIVIDUAL INSURANCE PREMIUM BENEFITS Subject to limitations contained in other provisions of this Plan, a Participant who pays premiums for individual medical, dental, vision and disability insurance coverage which is effective during his Period of Coverage for a Plan Year shall be entitled to receive from the Employer full reimbursement for the entire amount 21 of such premiums to the extent of the amount contained in the Participant's Individual Insurance Premium Reimbursement Account for that Plan Year. The Employer shall pay all such amounts to the Participant upon the presentation to the Employer of documentation of such premiums in a form satisfactory to the Employer. However, in its discretion, the Employer may pay any of such amounts directly, in which event the Employer shall be relieved of all further responsibility with respect to that particular premium. Participants shall be reimbursed for such premium on a monthly basis during the Plan Year (no minimum claim) based on accepted claims filed with the Employer by the last day of the preceding month. Claims shall be accepted for payment only if they are presented in proper form. 8.5 FORFEITURES The amount of the Individual Insurance Premium Reimbursement Fund as of the end of any Plan Year (and after the processing of all claims for such Plan Year pursuant to Section 8.6 hereof) shall be forfeited and credited to the benefit plan surplus. In such event, the Participant shall have no further claim to such amount for any reason, subject to Section 9.2. 8.6 INDIVIDUAL INSURANCE PREMIUM REIMBURSEMENT PLAN CLAIMS Claims for the reimbursement of Individual Insurance Premiums incurred in any Plan Year shall be paid as soon after a claim has been filed as is adminst'ratively practicable; provided however, that if a Participant fails to submit a claim within the 60 day period immediately following the end of the Plan Year, those Medical Expense claims shall not be considered for reimbursement by the Adminstrator. Upon presentation of a claim, a Participant shall expressly represent that the item for which a claim is made is not subject to reimbursement from any other source. ARTICLE IX ERISA PROVISIONS 9.1 CLAIM FOR BENEFITS (a) Any claim Benefits underwritten by an Insurance Contract shall be made to the Insurer. If the Insurer denies any claim, the Participant or beneficiary shall follow the Insurer's claims review procedure. Any other claim for Benefits shall be made to the Administrator. If the Administrator denies a claim, the Administrator may provide notice to the Participant or beneficiary, in writing, within 90 days after the claim is filed unless special circumstances require an extension of time for processing the claim. If the Administrator does not notify the 22 Participant of the denial of the claim within the 90 day period specified above, then the claim shall be deemed denied. The notice of a denial of a claim shall be written in a manner calculated to be understood by the claimant and shall set forth: (1) specific references to the pertinent Plan provisions on which the denial is based; (2) a description of any additional material or information necessary for the claimant to perfect the claim and an explanation as to why such information is necessary; and (3) an explanation of the Plan's claim procedure. (b) Within 60 days after receipt of the above material, the claimant shall have a reasonable opportunity to appeal the claim denial to the Administrator for a full and fair review. The claimant or his duly authorized representative may: (1) request a review upon written notice to the Administrator; (2) review pertinent documents; and (3) submit issues and comments in writing. (c) A decision on the review by the Administrator will be made not later than 60 days after receipt of a request for review, unless special circumstances require an extension of time for processing (such as the need to hold a hearing), in which event a decision should be rendered as soon as possible, but in no event later than 120 days after such receipt. The decision of the Administrator shall be written and shall include specific reasons for the decision, written in a manner calculated to be understood by the claimant, with specific references to the pertinent Plan provisions on which the decision is based. (d) Any balance remaining in the Participants' Health Care Reimbursement Fund, Dependent Care Assistance Account and Individual Insurance Premium Account as of the end of each Plan Year shall be forfeited and deposited in the benefit plan surplus of the Employer pursuant to Section 6.3 or Section 7.8, whichever is applicable, unless the Participant had made a claim for such Plan Year, in writing, which has been denied or is pending; in which event the amount of the claim shall be held in his account until the claim appeal procedures set forth above have been satisfied or the claim is paid. If any such claim is denied on appeal, the amount 23 held beyond the end of the Plan Year shall be forfeited and credited to the benefit plan surplus. 9.2 APPLICATION OF BENEFIT PLAN SURPLUS Any forfeited amounts credited to the benefit plan surplus by virtue of the failure of a Participant to incur a qual if ied expense or seek reimbursement in a timely manner may, but need not be, separately accounted for after the close of the Plan Year (or after such further time specif ied herein for the f i 1 ing of claims) in which such forfeitures arose. In no event shall such amounts be carried over to reimburse a Participant for expenses incurred during a subsequent Plan Year for the same or any other Benefit available under the Plan; nor shall amounts forfeited by a particular Participant be made available to such Participant in any other form or manner, except as permitted by Treasury regulations. Amounts in the benefit plan surplus shall first be used to defray any administrative costs and experience losses and thereafter be distributed to Participants on a per capita basis as soon as administratively feasible. 9.3 NAMED FIDUCIARY The Administrator shall be the named fiduciary pursuant to ERISA Section 402 and shall be responsible for the management and control of the operation and administration of the Plan. 9.4 GENERAL FIDUCIARY RESPONSIBILITIES The Administrator and any other fiduciary under ERISA shall discharge their duties with respect to this Plan solely in the interest of the Participants and their beneficiaries and (a) for the exclusive purpose of providing Benefits to Participants and their beneficiaries and defraying reasonable expenses of administering the Plan; (b) with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; and (c) in accordance with the documents and instruments governing the Plan insofar as such documents and instruments are consistent with ERISA. 9.5 NONASSIGNABILITY OF RIGHTS The right of any Participant to receive any reimbursement under the Plan shall not be alienable by the Participant by assignment or any other method; and shall not be subject to the rights of creditors, and any attempt to cause such right to be so 24 subjected shall not be recognized, except to such extent as may be required by law. ARTICLE X ADMINISTRATION 10.1 PLAN ADMINISTRATION The operation of the Plan shall be under the supervision of the Administrator. It shall be a principal duty of the Administrator to see that the Plan is carried out in accordance with its terms, and for the exclusive benefit of Employees entitled to participate in the Plan. The Administrator shall have full power to administer the Plan in all of its details, subject, however, to the pertinent provisions of the Code. The Administrator's powers shall include, but shall not be limited to the following authority, in addition to all other powers provided by this Plan: (a) To make and enforce such rules and regulations as the Administrator deems necessary or proper for the efficient administration of the Plan; (b) To interpret the Plan, the Administrator's interpretations thereof in good faith to be final and conclusive on all persons claiming benefits under the Plan; (c) To decide all questions concerning the Plan and the eligibility of any person to participate in the Plan and to receive benefits provided under the Plan; (d) To reject elections or to limit contributions or Benefits for certain highly compensated participants if it deems such to be desirable in order to avoid discrimination under the Plan in violation of applicable provisions of the Code; (e) To provide Employees with a reasonable notification of their benefits available under the Plan; (f) To approve reimbursement requests and to authorize the payment of benefits; and (g) To appoint such agents, counsel, accountants, consultants, and actuaries as may be required to assist in administering the Plan. Any procedure, discretionary act, interpretation or construction taken by the Administrator shall be done in a nondiscriminatory manner based upon uniform principles consistently applied and shall be consistent with the intent that the Plan shall continue to comply with the terms of Code Section 125 and the Treasury regulations thereunder. 25 10.2 EXAMINATION OF RECORDS The Administrator shall make available to each Participant, Eligible Employee and any other Employee of the Employer such records as pertain to their interest under the Plan for examination at reasonable times during normal business hours. 10.3 PAYMENT OF EXPENSES Any reasonable administrative expenses shall be paid by the Employer unless the Employer determines that administrative costs shall be borne by the Participants under the Plan or by any Trust Fund which may be established hereunder. The Administrator may impose reasonable conditions for payments, provided that such conditions shall not discriminate in favor of highly compensated employees. 10.4 INSURANCE'CONTROL CLAUSE In the event of a conflict between terms of this Plan and the terms of an Insurance Contract of an independent third party Insurer whose product is then being used in conjunction with this Plan, the terms of the Insurance Contract shall control as to those Participants receiving coverage under such Insurance Contract. For this purpose, the Insurance Contract shall control in defining the persons eligible for insurance, the dates of their eligibility, the conditions which must be satisfied to become insured, if any, the benefits Participants are entitled to and the circumstances under which insurance terminates. 10.5 INDEMNIFICATION OF ADMINISTRATOR The Employer agrees to indemnify and to defend to the fullest extent permitted by law any, Employee serving as the Administrator or as a member of a committee designated as Administrator (including any Employee or former Employee who previously served as Administrator or as a member of such committee) against all liabilities, damages, costs and expenses (including attorney's fees and amounts paid in settlement of any claims approved by the Employer) occasioned by any act or omission to act in connection with the Plan, if such act or omission is in good faith. ARTICLE XI AMENDMENT OR TERMINATION OF PLAN 11.1 AMENDMENT The Employer, at any time or from time to time, may amend any or all of the provisions of the Plan without the consent of any Employee or Participant. Any such amendment shall be adopted by formal action of the Employer's board of directors and executed by an officer authorized to act on behalf of the Employer. No 26 amendment shall have the effect of modifying any benefit election of any Participant in effect at the time of such amendment, unless such amendment is made to comply with Federal, state or local laws, statues or regulations. 11.2 TERMINATION The Employer is establishing this Plan with the intent that it will be maintained for an indefinite period of time. Notwithstanding the foregoing, the Employer reserves the right to terminate the Plan, in whole or in part, at any time. In the event the Plan is terminated, no further contributions shall be made. Benefits under any Insurance Contract shall be paid in accordance with the terms of the Contract. No further additions shall be made to the Health Care Reimbursement Fund or Dependent Care Assistance Account, but all payments from such fund shall continue to be made according to the elections in effect until the end of the Plan Year in which the Plan termination occurs (and for a reasonable period of time thereafter, if required for the filing of claims), or until the balances of all accounts have been reduced to zero, whichever occurs first. Any amounts remaining in any such fund or account as of the end of the Plan Year in which Plan Termination occurs shall be forfeited and deposited in the benefit plan surplus after the expiration of the filing period. ARTICLE XII MISCELLANEOUS 12.1 PLAN INTERPRETATION All provisions of this Plan shall be interpreted and applied in a uniform, nondiscriminatory manner. This Plan shall be read in its entirety and not severed except as provided in Section 12.12. 12.2 GENDER AND NUMBER Wherever any words are used herein in the masculine, feminine or neuter gender, they shall be construed as though they were also used in another gender in all cases where they would so apply, and whenever any words are used herein in the singular or plural form, they shall be construed as though they were also used in the other form in all cases where they would so apply. 12.3 WRITTEN DOCUMENT This Plan, in conjunction with any separate written document which may be required by law, is intended to satisfy the written Plan requirement of Code Section 125 and any Treasury regulations thereunder relating to cafeteria plans. 27 12.4 EXCLUSIVE BENEFIT This Plan shall be maintained for the exclusive benefit of the Employees who participate in the Plan. 12.5 PARTICIPANT'S RIGHTS This Plan shall not be deemed to constitute an employment contract between the Employer and any Participant or to be a consideration or an inducement for the employment of any Participant or Employee. Nothing contained in this Plan shall be deemed to give any Participant or Employee the right to be retained in the service of the Employer or to interfere with the right of the Employer to discharge any Participant or Employee at any time regardless of the effect which such discharge shall have upon him as a Participant of this Plan. 12.6 ACTION BY-THE EMPLOYER Whenever the Employer under the terms of the Plan is Permitted or required to do or perform any act or matter or thing, it shall be done and performed by a person duly authorized by its legally constituted authority. 12.7 EMPLOYER'S PROTECTIVE CLAUSES (a) Upon the failure of either the Participant or the Employer to obtain the insurance contemplated by this Plan (whether as a result of negligence, gross neglect or otherwise), the Participant's Benefits shall be limited to the insurance premium, if any, that remained unpaid for the period in question and the actual insurance proceeds, if any, received by the Employer or the Participant as a result of the Participant's claim. (b) The Employer's liability to the Participant shall only extend to and shall be limited to any payment actually received by the Employer from the Insurer. In the event that the full insurance Benefit contemplated is not promptly received by the Employer within a reasonable time after submission of a claim, then the Employer shall notify the Participant of such facts and the Employer shall no longer have any legal obligation whatsoever (except to execute any document called for by a settlement reached by the Participant). The Participant shall be free to settle, compromise or refuse to pursue the claim as the Participant, in his sole discretion, shall see fit. (c) The Employer shall not be responsible for the validity of any Insurance Contract issued hereunder or for the failure on the part of the Insurer to make payments provided for under any Insurance Contract. Once 28 insurance is applied for or obtained, the Employer shall not be liable for any loss which may result from the failure to pay Premiums to the extent Premium notices are not received by the Employer. 12.8 NO GUARANTEE OF TAX CONSEQUENCES Neither the Administrator nor the Employer makes any commitment or guarantee that any amounts paid to or for the benefit of a Participant under the Plan will be excludable from the Participant's gross income for federal or state income tax purposes, or that any other federal or state tax treatment will apply to or be available to any Participant. It shall be the obligation of each Participant to determine whether each payment under the Plan is excludable from the Participant's gross income for federal and state income tax purposes, and to notify the Employer if the Participant has reason to believe that any such payment is not so excludable. Notwithstanding the forgoing, the rights of Participants under this Plan shall be legally enforceable. 12.9 INDEMNIFICATION OF EMPLOYER BY PARTICIPANTS If any Participant receives one or more payments or reimbursements under the Plan that are not for a permitted Benefit, such Participant shall indemnify and reimburse the Employer for any liability it may incur for failure to withhold federal or state income tax or Social Security tax from such payments or reimbursements. However, such indemnification and reimbursement shall not exceed the amount of additional federal and state income tax (plus any penalties) that the Participant would have owed if the payments or reimbursements had been made to the Participant as regular cash compensation, plus the Participant's share of any Social Security tax that would have been-paid on such compensation, less any such additional income and Social Security tax actually paid by the Participant. 12.10 FUNDING Unless otherwise required by law, contributions to the Plan need not be placed in trust or dedicated to a specific Benefit, but may instead be considered general assets of the Employer. Furthermore, and unless otherwise required by law, nothing herein shall be construed to require the Employer or the Administrator to maintain any fund or segregate any amount for the benefit of any Participant, and no Participant or other person shall have any claim against, right to, or security or other interest in, any fund, account or asset of the Employer from which any payment under the Plan may be made. 29 12.11 GOVERNING LAW This Plan is governed by the Code and Treasury regulations issued thereunder (as they might be amended from time to time). In no event shall the Employer guarantee the favorable tax treatment sought by this Plan. To the extent not preempted by Federal law, the provisions of this Plan shall be construed, enforced and administered according to the laws of the State of California. 12.12 SEVERABILITY If any provision of the Plan is held invalid or unenforceable, its invalidity or unenforceability shall not affect any other provisions of the Plan, and the Plan shall be construed and enforced as if such provision had not been included herein. 12.13 CAPTIONS The captions contained herein are inserted only as a matter of convenience and for reference, and in no way define, limit, enlarge or describe the scope or intent of the Plan, nor in any way shall affect the Plan or the construction of any provision thereof. 12.14 CONTINUATION OF COVERAGE Notwithstanding anything in the Plan to the contrary, in the event any benefit under this Plan subject to the continuation coverage requirement of Code Section 4980B becomes unavailable, each Participant will be entitled to continuation coverage as prescribed in Code Section 4980B. our IN WITNESS original Plan WHEREOF, document day this updated Plan document replaces and is- hereby executed this of , 19 By EMPLOYER WITNESSES AS TO EMPLOYER 30 The Family and Medical Leave Act of 1993 generally requires covered employers to permit eligible employees to take up to 12 weeks of unpaid, job protected leave each year * upon the birth of an employee's child * upon placement of a child with the employee for adoption or foster care * to care for a child, spouse or parent who has a serious health condition, or * when the employee is unable to perform the functions of his or her position because of serious health condition. Subject to certain conditions, instead of taking an unpaid leave, employees or employers may choose to use accrued paid leave (such as sick or vacation leave) to cover some or a 1 1 of FMLA leave. The FMLA applies to all public agencies, including state, local and federal employers, and local education agencies. It also applies to private sector employers with 50 or more employees in 20 or more workweeks in the current or preceding year. To be eligible for FMLA benefits, an employee must have worked for a covered employer for a total of at least 12 months, have worked at least 1250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles. The Employee's Share of any Health Premiums (if any) and payment will need to be arranged prior to FMLA leave. If the FMLA leave is substituted paid leave, the employee's share of premiums must be paid by the method normally used during any paid leave, presumably as a payroll deduction. In contrast, if the FMLA leave is unpaid, the employer has a number of options of obtaining payment from the employee. All of the following options assume the employee elects to continue his group insurance coverage. Note that an employee may choose not to retain health coverage during FMLA leave. The employer may require that payment be made to the emloyer or to the insurance carrier, but no additional charge may be added to the employee's premium payment for administrative expenses. The employer may require employees to pay their share of premium payments in any of the following ways: * Payment would be due at the same time as it would be made if by payroll deduction; * Payment would be due on the same schedule as payments are made under COBRA; 31 * Payment (during the Plan Year) would be prepaid pursuant to a cafeteria plan at the employee's option; * The employer's existing rules for payment by the employees on "leave without pay" would be followed, provided that such rules do not require prepayment (i.e. prior to the commencement date of the leave) of the premiums that will become due during the period of unpaid FMLA leave or payment of higher premiums than if the employee had continued to work instead of taking leave; or * Another system voluntarily agreed to between the employer and the employee, which may include prepayment of premiums (e.g.through increased payroll deductions when the need for FMLA leave is forseeable). Whichever employee payment method is selected, "The employer must provide the employee with advance written notice of the terms and conditions under which these payments must be made." Recovering the Group Health Plan Premium by the Employer if the Employee Doesn't Return From Leave may be made. The regulations permit an employer to recover a debt owed by the non-returning employee. To the extent recovery is allowed, the employer may recover the costs of deduction from any sums due to the employee (e.g. unpaid wages, vacation pay, profit-sharing, etc.) provided such deductions do not otherwise violate applicable Federal or State wage payment or other laws. Alternatively, the employer may initiate legal action against the employee to recover such costs. Exceptions are made to recover when the employee's return is prevented because of a serious health condition of the employee or the employee's child, spouse or parent or because of other circumstances beyond the control of the employee. 32 12.16 CAFETERIA PLAN ELECTION OPTIONS UNDER FMLA I. Continuing Coverage via Prepayment of Premiums - The "Pre-Pay" Option. As an option, employees are given the opportunity to prepay the premiums expected to owe during the FMLA leave period. Choice of this option allows the employee to voluntarily elect to have their final pre-leave paycheck to make a special salary reduction contribution that will cover the employee's share of the premiums for the expected duration of the leave. The employee's salary reduction election is then suspended for the duration of the leave. This reduction then resumes upon the employee's return to work unless the employee makes a change in family status election upon return from the leave. II. Continuing Coverage via After-Tax Contributions - The Pay-As-You-Go option. As an option, employees are given the opportunity to pay their share of premiums during the leave with after-tax dollars. During the FMLA leave, salary reduction contributions are suspended and then resumed upon return from FMLA leave. This can be the only option allowed by the employer. III. Continuing Coverage via Promise to Make "Catch-Up" Salary Reduction Contributions Upon Return from Leave. Under the "catch-up" option, the employer pays both the employer share of the premium and the employee share of the premium during the FMLA leave. The employee, upon returning from FMLA leave will repay the premium the employer advanced. Under this option, the employee will make a special catch-up salary reduction contribution that will cover the employee's share of the premiums paid for them by the employer. This option can be the only option allowed by the employer, if and only if, it is the only option made available to employee on non-FMLA leave. IV. Health Flexible Spending Account Options A health plan that is a flexible spending account (FSA) offered under a cafeteria plan must conform to the generally applicable rules concerning employees who take FMLA leave. Thus, FMLA requires that an employee taking FMLA leave be permitted to * Continue coverage under a Health FSA while on FMLA leave; or * Revoke an existing Health FSA election under the cafeteria plan for the remainder of the coverage period; or * Reinstate the Health FSA upon return from FMLA leave on the same terms as prior to taking FMLA leave. Based upon the selection of the above, the employee must exercise their choice of salary reduction contribution in the same manner as allowed under the Group Health Plan Premium Payment options. (NOTE: SEE EMPLOYER RESPONSE NOTICE AND SELECTION FORM) 33 MEMORANDUM RESPONDING TO EMPLOYEE'S REQUEST FOR FMLA LEAVE AND CAFETERIA PLAN OPTION SELECTION FORM RE: EMPLOYER RESPONSE TO EMPLOYEE REQUEST FOR FAMILY OR MEDICAL LEAVE TO: FROM: SUBJECT: (EMPLOYEE (EMPLOYER REPRESENTATIVE) REQUEST FOR FAMILY LEAVE SELECTION OF CAFETERIA PLAN OPTION On , you notified us of your need to take family/medical leave. To continue benefits under the Cafeteria plan, you may elect one of the following options: 1. 2. 3. Choice of a "Pre-Pay" option in which the employee's final pre-leave paycheck is reduced by the amount of contributions expected to occur during the FMLA leave. Choice of a "Suspending" option in which the employee's contributions are suspended during the FMLA leave and reinstated at the original per pay-period amount upon return from FMLA leave. Choice of a "Catch-Up" option in which the employee's contributions are suspended during the FMLA leave and reinstated upon return from FMLA leave at the original annual amount. The new pay period amount to be calculated on a pro-rata basis for the remaining pay periods of the plan year. SIGNATURE EMPLOYEE NAME (PRINT) DATE 34 12.17 INELIGIBLE CLASSIFICATION FOR PREMIUM REIMBURSEMENT ACCOUNT (OPTIONAL) For purposes of this , all employee designated as follows are ineligible for the Reimbursement Account discussed in Section 4.1. classifications will have their premiums paid directly and not under the Cafeteria plan. classifications are: s classifications Premium Expense These employee by the employer The employee 1.) President/Chief Executive officer 2.) Vice President(s) 3.) Treasurer/Controller 4.) All Management Classifications as defined: 35