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HomeMy WebLinkAboutRES NO 91-81RESOLUTION NO. 91-81 A RESOLUTION OF THE COUNCIL OF THE CITY OF BAKERSFIELD APPROVING AN EMPLOYEES' DEFERRED COMPENSATION PLAN AND AUTHORIZING ITS IMPLEMENTATION. WHEREAS, the City of Bakersfield, having previously adopted a Deferred Compensation Plan for the Executive Group, Executive Support Group and the Supervisory Group, is desirous of adopting and implementing a Deferred Compensation Plan enabling all permanent employees to defer a portion of their income pursuant to such plan. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Bakersfield that the City of Bakersfield Amended Deferred Compensation Plan attached to this resolution, marked "Exhibit A," and by reference incorporated herein, is hereby adopted. BE IT FURTHER RESOLVED that the City Manager is authorized to implement said plan, and the City of Bakersfield consents to the plan and assumes the obligations to be performed on its part as set forth in said plan. BE IT FURTHER RESOLVED that the plan shall be operative immediately, but shall apply only to compensation earned by a participating employee subsequent to the date of filing a written declaration to participate, such participation to be in accordance with the "Employee's Participation Agreement." BE IT FURTHER RESOLVED that at the end of each calendar year, the City shall prepare a financial statement of the amount of employee compensation deferred pursuant to said plan and the types of investments held under such plan. BE IT FURTHER RESOLVED that this resolution shall not diminish any rights acquired by participants or their beneficiaries under the Deferred Compensation Plan adopted pursuant to Resolution No. 21-74. o0o. I HEREBY CERTIFY that the foregoing Resolution was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on the 2d day of December, 1981, by the following vote: (~COUNCILMEN: BARTON, CHRISTENSEN, MEANS, PAYNE, RATTY, ROCKOFF, STRONG NOES: COUNCILMEN: ABSENT: COUNCILMEN: ABSTAINING: COUNCILMEN: CITY CL '~Of~rk~of Council of the City of Bakersfield the A~! ?~!~y of December 1981 rsfielcl, APPROVED' as':tQ ~fOm: CI Y the ot"Bakersfield RJO:mm CITY OF BAKERSFIELD AMENDED DEFERRED COMPENSATION PLAN ARTICLE I General Section 1.01 Name. The name of this Amended Plan is the City of Bakersfield Amended Deferred Compensation Plan (hereinafter referred to as the "Plan"). This Plan amends in its entirety the City of Bakersfield Deferred Compensation Plan adopted on March 18, 1974. All participants in the Plan adopted on March 18, 1974 will be participants in this Plan. This Plan shall not diminish any rights acquired by participants or their beneficiaries in the City of Bakersfield Deferred Compensation Plan adopted on March 18, 1974. Section 1.02 Purpose. The purpose of this Plan is to extend to Employees of the Employer certain benefits which ordinarily accrue from participation in a Deferred Compensation Plan and to conform with IRS Code ~457. The Plan will permit Employees to provide for deferring current income until death, disability, retirement or other termination of employment with the City of Bakersfield. The Employer does not and cannot represent or guarantee that any particular federal or state income, payroll or other tax consequence will occur by reason of an Employee's participation in this Plan. The Employee wishing to participate in the Plan should consult his own attorney or other representative regarding all tax or other consequences of participation in this Plan. EXHIB T 4 Section 1.03 Definitions. (a) "Administrator" means Employer or its duly authorized designee for that purpose who shall exercise the discretion or other functions given to the Employer under the terms of the Plan. (b) "Advisory Committee" shall mean a committee consisting of three (3) members appointed by the City Manager. Such committee shall operate according to the guidelines specified in Section 2.05 of the Plan document. (c) "Annuity Contracts" referred to in this Plan means any annuity contracts qualified for sale in the State of California and approved by the Advisory Committee of the City of Bakersfield. Notwithstanding the above definition, annuity contracts actually used in conjunction with the Plan can be altered, amended, changed or substituted for from time to time by action of the Advisory Committee, and such altered, amended, changed or substituted contracts or contract thereafter may be used in the Plan. (d) "Beneficiary" means any person designated by the Participant to receive a pension, annuity, death benefit or other benefit under the provisions of this Deferred Compensation Plan. (e) "City" means the City of Bakersfield. (f) "Compensation" means all wages or salaries or other forms of income to be paid by Employer to an Employee for services rendered. (g) "Deferred Compensation" means that portion of an Employee's Compensation which said Employee has elected to defer in accordance with the provisions of this Deferred Compensation Plan or which the Employee and the City mutually agree shall be deferred in accordance with the provisions of this Plan· (h) "Employee" means any full-time, probationary or permanent employee or elected official of the Employer· (i) "Employer" means the City of Bakersfield. (j) "Normal Retirement Age" means the last day of the month in which a Participant retires pursuant to the retirement practices of the Employer as stated in Section 4.01(a). (k) "Participant" means any Employee who voluntarily elects to participate in this Deferred Compensation Plan by filing a duly executed Participation Agreement with the Employer or who previously participated in the City of Bakersfield Deferred Compensation Plan adopted on March 18, 1974· (1) "Participation Account" means the book account to which there are credited the Participant's Deferred Compensation, together with any interest, dividends, gains, losses or the like thereon. (m) "Participation Agreement" means the contract by which the Employee and the Employer agree that some of the Employee's Compensation will be deferred pursuant to the Plan. (n) "Plan Year" means the calendar year in which the Plan becomes effective, and each succeeding year during the existence of this Plan. ARTICLE 2 Operation of Plan Section 2.01 Participation. Any Employee may elect to become a Participant of the Plan and to defer payment of part of his Compensation by executing a written Participation Agreement and filing it in the manner set forth in Article 3 hereof or by having participated in the City of Bakersfield Deferred Compensa- tion Plan adopted on March 18, 1974. The dollar amount deferred must be at least Twelve Dollars ($12.00) per pay period or such larger amount as may be designated by the Employer from time to time. The maximum amount that may be deferred under the Plan for the taxable year of a Participant shall not exceed the lesser of (a) Seven Thousand Five Hundred Dollars ($7,500.00), or (b) Thirty-Three and One-Third Percent (33-1/3%) of the Participant's includible Compensation (compensation for service performed for Employer); provided, however, that in one or more of a Participant's last three (3) taxable years ending before a Participant attains Normal Retirement Age under the Plan, the maximum amount that may be deferred under the Plan shall be the lesser of (a) Fifteen Thousand Dollars ($15,000.00), or (b) the maximum amount set forth above for each taxable year of a Participant, plus so much of the maximum deferral amount as has not been utilized in any Plan Year commencing after January 1, 1979. Section 2.02 Deferral of Compensation. Employer and Parti- cipant mutually acknowledge that the Compensation of each Employee is set forth in the annual salary resolution or ordinance of the Employer and that said Compensation includes the amount of funds deferred under the terms of this Plan. Employee Compensation shall be paid bi-weekly or as otherwise provided, except that during each employment year in which the Employee is a Participant in the Plan, that portion of his said Compensation which is specified by the Employee in the Participation Agreement shall be deferred and paid in accordance with the provisions of the Plan. Section 2.03 Investment of the Deferred Amount. The deferred amount may be held by the Employer to be paid to the Employee pursuant to Article 4, and Employee accounts shall be valued as if such amounts were invested in: (a) A fixed annuity contract; or (b) A variable annuity contract; or (c) A deferred savings account at a savings and loan or similar banking institu- tion; or (d) Any combination of (a), (b) and (c). The Employee's statement of investment preference shall only require the Employer to use such preference as an index for determining the benefits to be paid pursuant to Article 4. The Employer shall be under no obligation to invest the deferred amount in the manner requested. Section 2.04 Employer Responsibility. The Employer may, but is not required to, invest Deferred Compensation held pursuant to agreements between Participants and the Employer in accordance with the requests made by each Participant at the time of enroll- ment or change in enrollment. The Employer retains the right to approve or disapprove requests for a specific investment preference. Any investment action by the Employer, or approving of any in- vestment preference, shall not be considered to be an endorsement or guarantee of any investment preference, nor shall it be considered to attest in the financial soundness or the suitability of any investment preference for the purpose of meeting future obligations as provided in Article 4 of this Plan. Further, the Employer shall not be held responsible for any investment results, either gains or losses, from any investment preference used to meet future obligations under the Plan. Section 2.05. Administration of the Plan. The Plan shall be administered by an Advisory Committee which shall have the sole authority for the operation of the Plan in accordance with its terms and shall rule on all questions arising out of the administration, interpretation and application of the Plan, which determination shall be conclusive and binding on all Participants. Members of the Advisory Committee may participate in the Plan, but no member of the Advisory Committee shall be entitled to make decisions solely with respect to his own participation. Section 2.06 Ownership of Deferred Amounts. The Employer shall establish and maintain a fund (hereinafter the "Investment Fund") to provide a convenient method of setting aside sufficient of its assets to meet its future obligations under this Plan. The Employer shall at all times be the legal and beneficial owner of all assets in the Investment Fund, and neither the existence of the Plan nor of the Investment Fund shall be deemed to create ~ trust or limit use by the Employer of the funds therein for general Employer purposes. The obligations of the Employer to make payments pursuant to this Plan is contractual only, and no Participant or Beneficiary shall have a preferred claim or lien on or to the assets of this Investment Fund, but shall have only the right to receive the benefits payable under the Plan. Interests of a Participant who changes employment may, under certain prescribed conditions, be transferred to the eligible Deferred Compensation Plan of a new Employer. ARTICLE 3 Administration and Accounting Section 3.01 Administration by Employer. This Deferred Compensation Plan shall be administered by the Employer who shall appoint an Advisory Committee which will prescribe such forms and adopt such rules and regulations as necessary to carry out the purposes of the Plan. Section 3.02 Election to Participate. An Employee's election to participate in this Deferred Compensation Plan shall be made by filing a duly executed Participation Agreement with the Employer, and not otherwise. Section 3.03 Enrollment Periods. (a) When the Plan is first made available, an Employee shall have sixty (60) days from the date participation in the Plan is offered to him to effect an election to participate. Such election shall be effective in the first month after the date on which his Participation Agreement is filed with the Employer. (b) Any person who becomes an Employee after this Plan is first made available shall have the option, within sixty (60) days after becoming an Employee, to effect an initial election to participate under this Plan in the first month after the date on which his Participation Agreement is filed with the Employer. (c) Any Employee who does not file an initial election, pursuant to (a) or (b) above, shall have the right to elect participation during enrollment periods for the Plan which will be held during the months of January and April and July and October. Such election will be for pay periods in the first month after the date on which his Participation Agreement is filed with the Employer. Section 3.04 Participation Agreement. The Employer shall establish a form of Participation Agreement and other enroll- ment forms which shall contain, among other provisions, the following:' (a) A provision whereby the Participant specifies the portion of his Compensation which is to be deferred. (b) A provision whereby the Participant shall indicate his investment preference. (c) A provision whereby the Participant shall designate a Beneficiary or Beneficiaries, including one or more contingent Beneficiaries, to receive any benefits which may be payable under this Plan on death of the Participant. (d) An acknowledgment by the Participant that his salary, wage or other compensation is as set forth in any salary ordinance or otherwise, without deductions for amounts deferred under the provisions of this Plan. (e) A provision whereby the Participant, together with his heirs, successors and assigns, holds harmless the Employer from any liability hereunder for all acts performed in good faith, including acts relating to the investment of deferred amounts and/or the Employee's investment preference hereunder. (f) A provision whereby the Participant shall indicate his payment option and method of payment (monthly, quarterly~'.sem'i- annually) if applicable and which is revocable. Section 3.05 Amendment of Participation Agreement. The Participant may revoke his election to participate at any time!by filing with the Employer a written revocation. He may change the amount of Compensation to be deferred or his investment preference during a stated enrollment period by signing and filing with the EmplDyer a written amendment on a form approved by the Employer. Any such amendment shall be effective prospec~ively only, begin- ning with the first enrollment period commencing on or after the amendment. If a Participant requests that amounts then held in a Participant's Account also be invested in accordance with an amended investment preference, the Employer may, if it deems it in the best interest of the Participant to do so, approve such change. Any such contracts and other evidence of the investment of all assets under this Plan shall be registered in the name of the Employer which shall be the owner-beneficiary thereof. Section 3.06 Participation Accounts. A separate Participation Account shall be maintained for each Participant. Each Participa- tion Account shall reflect the monies deferred, as well as that portion, if any, of monies being transferred from an eligible Deferred Compensation Plan of a prior employer, the investment of the monies and all consequences of the investment. For convenience, and to facilitate an orderly administration of the Plan, individual Participation Accounts for all Participants will be maintained by the Employer and/or its agent showing the Participant's name with all applicable debit and credit balances. The Participant's Deferred Account shall be credited each month with the amount deferred from the preceding month. A written report of the status of the Participation Account shall be furnished to Participants at least annually. All interest, dividends, charges for premiums, capital or market changes applicable to each Participation Account shall be credited or debited to the account as they occur. Credits to the Participant's Account shall be subject to the Participant's then effective investment preference. All reports to the Participant shall be based on the net fair market value of the assets as of the reporting date as if the deferred amount had been invested according to the investment preference. 3.07 Accounts. Transfer of Value of Participant's Participation In the event a Participant terminates employment with the Employer and accepts employment with a new employer, the Employer may propose to the new employer that the funds, assets and accumulations of said Participant's Participation Account be transferred to the ownership and control of the new employer's eligible deferred compensation plan. Transfer of any funds under this section will be subject to the following conditions: (a) That the Employer has no defined current or future need for the funds, assets and accumulations in the said Partici- pant's Account for the payment of its general creditors or for any other purpose, and (b) That the new employer's deferred compensation plan is an eligible plan and provides for the acceptance of transferred accounts of transferring employees and that the new employer will accept the funds, and (c) That the new employer will agree in writing with the Employee to assume the continuing contractual liability to pay Deferred Compensation so transferred according to the provisions of the new employer's plan, and (d) That the Employee will agree, in writing, to release the present Employer from any and all contractual obligations under the provisions of this Plan upon completion of the transfer of funds to the new employer, and (e) Notwithstanding any provisions of this article, a terminating Employee may elect to leave the funds, assets and 11. accumulations in his Participation Account until such time as he would otherwise receive the benefits in accordance with his stated preference as provided in Article 4 of this Plan. (f) No disbursements must have been made to Participant prior to any transfer. Section 3.08 Employer Participation. Notwithstanding any other provisions of the Plan, the Employer may make deposits into the Plan as Compensation for services not yet rendered by a participating Employee during an Employment period, provided the Employee has agreed in writing to have any such additional Com- pensation deferred pursuant to this Plan prior to the employment period in which the Compensation would be earned. Also, the Employer may make other additional deposits to the Plan as he may deem advisable, subject, however, to the limitations on deferrals stated in Article 2.01 hereof. ARTICLE 4 Benefits Section 4.01 Benefits Generally. The Participant is entitled to have paid to him the benefits created by his participating in this Deferred Compensation Plan in accordance with the provisions of this Article. The benefits payable to the Participant will be equivalent of the total benefits that would have been created had the deferred amounts been invested as specified by the Participant from time to time, taking into consideration losses and gains where applicable and any deductions authorized in Section 3.07 above. Amounts paid to a Participant pursuan~ to this Article shall be reported to a Participant as wages, subject to withholding for Federal and State income taxes and reportable on Form W-2. In the event of death of a Participant prior to the commencement of benefits as called for under the Plan, the named Beneficiary of a Participant shall have the right to designate the payments to such Beneficiary in accordance with one of the available options provided under the Plan. Such selections must be made within sixty (60) days of the death of a Participant. If the Beneficiary fails to make such selection, payments shall be made to the Beneficiary in accordance with the option previously selected by the Participant. In the event of death of a Participant after the commencement of payments, the balance of a Participant's Account shall be paid to the Beneficiary in accordance with payment options, if previously selected by the Participant. All actions and determinations of the Employer under this Article 4 shall be made on a uniform and non-discriminatory basis. (a) Normal Retirement. Upon the Participant's attaining Normal Retirement Age, he may retire and receive the benefits provided under this Plan. Normal Retirement is defined as retire- ment at any time, provided that Participant is at least age fifty (50) with at least five (5) years of service. The maximum age at which a Participant may retire under this definition is age seventy-five (75). Such benefits shall be paid in accordance with the payment Option 1, 2, 3, 4 or 5 as selected by the Participant pursuant to subsection (i) of this section. Any credits remaining 13. in the deferred account of a Participant receiving benefits under this paragraph who dies shall be paid in accordance with subsection (f) of this section. (b) Early Retirement. The Participant may select early retirement in accordance with those rules applicable to retirement from service with the Employer. Such benefits shall be paid in accordance with the payment option selected by the Participant pursuant to subsections (a) and (i) of this section. Any credits remaining in the deferred account of a Participant receiving benefits under this paragraph who dies shall be paid in accordance with subsection (f) of this section. Alternatively, an Employee selecting early retirement may elect to have his benefits deferred and paid in accordance with Section 3.0~(e) of the Plan. (c) Late~Retirement. If the Participant continues his em- ployment with the Employer after attaining Normal Retirement Age, all benefits payable under this Plan will be deferred, whether or not the Participant continues to defer additional sums under this Plan, until the Participant retires or attains age seventy-five (75), whichever occurs first. At such time, benefits shall be paid in accordance with the payment option selected by the Participant pursuant to subsections (a) and (i) of this section. No deferral or additional credits under this Plan may be made by the Participant after the month in which he attains age seventy-five (75). Any credits remaining in the deferred account of a Participant receiving, or eligible to receive, benefits under this paragraph who dies shall be paid in accordance with subsection (f) of this section. (d) Disability. If, prior to retiring, the Participant becomes disabled as defined by the disability income provision in the Employer's retirement program applicable to the Participant, the Employer shall exercise the nonforfeiture provisions of any contracts and pay any benefits provided and all other credits, if any, in the Participant's deferred account in accordance with payment option 1, 2, 3, 4 or 5 as selected by the Participant pursuant to subsection (i) of this section. (e) Termination of Employment. If the Participant terminates his employment with the Employer (without being disabled or retiring), benefits shall be paid in accordance with payment option as elected by Participant pursuant to subsection (i) of this section. (f) Death. (1) Before Benefits are Paid for Retirement, Disability or Termination of Service. In the event of death of a Participant prior to the commencement of benefits as called for under the Plan, the named Beneficiary of a Participant's Participation Account shall have the right to designate that payments to such Beneficiary shall be in accordance with one of the available options provided under the Plan. Such selection must be made within sixty (60) days of the death of a Participant. If the Beneficiary fails to make such selection, payments shall be made to the Beneficiary in accordance with the option previously selected by the Participant. 15. (2) Designated Beneficiary. The Participant has the right to name and file with the Employer a written Beneficiary or Change of Beneficiary form, designating the person or persons who shall receive the benefits payable under this Plan in the event of the Participant's death. The form for this purpose shall be Drovided by the Employer. It is not binding on the Employer until it is signed, filed with the Employer by the Participant an~ accepted by the Employer. If the Participant dies without having a Beneficiary form on file, the payment shall be made to the properly appointed fiduciary of the Participant's probate estate. However, if a fiduciary has not been appointed and qualified within one hundred twenty (120) days after the death, the payment may be made first to a surviving spouse, second to a surviving child or children, and third to a surviving parent or parents. The Participant accepts and acknowledges that he has the burden for executing and filing with the Employer a proper Beneficiary designation form. (g) Commencement of Payment. The payment of benefits to the Participant shall begin no later than the first day of the next calendar year after the occurrence of the event that gives rise to the beginning of the payment of benefits. (h) Short-Term or L~mp-Sum Settlement. Notwithstanding anything in this Article to the contrary, if at any time the amounts held under this Plan in the account maintained for the Participant, or his Beneficiary, total to a credit of $2,000 or less, and for any reason the Participant has ceased to be an Employee of the Employer, the Employer is authorized to deviate 16. from the restrictions imposed by the paragraphs in this Article and effect a lump sum settlement. (i) Options. The following options are available for selection by Participant. If, at the time of his election to participate in the Plan the Participant fails to select a payment option for any event which causes payment of benefits to begin, he shall be deemed to have elected to have the benefits payable upon occurrence of such event as if he had elected payments for a specified period of ten (10) years as provided for in option 2. A. Payment Options. As provided in subsections (a) through (f) of this section, Participants may select: Option 1. Lump-Sum Payment. The total benefits payable in one cash payment. Option 2. Payment for a Specified Period. Amounts payable in equal installments over a period of three (3) to thirty (30) years, provided that the period requested does not exceed the life expectancy of Participant, or the greater of the life expectancy of Participant or spouse. Option 3. Life Annuity. An annuity payable during the lifetime of the Participant. 17. Option 4. Life Annuity with Period Certain Guaranteed. An annuity payable during the lifetime of the Participant, or his Beneficiary, with the guarantee that if at Participant's death payments have not been made for the guaranteed period as elected, payments will continue to the Beneficiary or Beneficiaries until payments have been made for the full guaranteed period elected. The guaranteed period to be elected must be either five (5), ten (10), fifteen (15) or twenty (20) years. Option 5. Joint and Survivor Annuity. An annuity payment during the lifetimes of the Participant and a secondary payee named by the Participant. B. Method of Payment Options. If the Participant has elected a payment-option requiring installment payments, the Participant may also elect to have such payments made either monthly, quarterly, semi-annually or annually. Section 4.02 Financial Hardship. Notwithstanding any other provision herein, for "financial hardship" a Participant may apply to the Advisory Committee to withdraw, in whole or in part, from the Plan prior to retirement or any other termination of his employment with the Employer. If the application for withdrawal is approved by the Advisory Committee, the withdrawal shall be effected as of the first day of the month next following such approval being given. Benefits to be paid upon any withdrawal shall be limited strictly to that amount necessary to meet the emergency situation constituting financial hardship. Any remaining benefits shall be paid upon retirement, termination of employment, disability or death, in accordance with Section 4.01 above. 18. Withdrawal for "financial hardship" shall be limited to real emergencies beyond the control of the Participant which would cause him great hardship if early withdrawal were not permitted. "Financial hardship" shall include the following: impending personal bankruptcy; unexpected and unreimbursed major expenses resulting from illness or accident of the Participant or any dependent thereof; major property loss of any other type of unexpected and unreimbursed personal expense of a major nature that would not normally be budgetable. Foreseeable personal expenditures normally budgetable, such as a down payment for a home, the purchase of an automobile, college or other schooling expenses, etc., will not constitute a "financial hardship." The decision of the Advisory Committee concerning "financial hardship" shall be final aS to all Participants. ARTICLE 5 Miscellaneous Section 5.01 Leave of Absence. If a Participant is on an approved leave of absence from the Employer with compensation, participation in this Plan will continue. If a Participant is on an approved leave of absence without compensation and such leave of absence continues for more than six (6) months, said Participant will be deemed to have terminated participation in the Plan as of the end of such six (6) month period. Such termination of participation will not cause distribution of benefits. Upon return from such leave of absence, the Participant's full compensation on a non-deferred basis will be thereupon restored. Such Employee may again become a Participant by meeting the requirements for eligibility as herein provided. Section 5.02 Retirement System Integration. Benefits payable to, and deductions for Employee contributions to, the retirement system of the Employer shall be computed based upon gross compensation, including any amounts deferred pursuant to this Deferred Compensation Plan. Total compensation for the purposes of the retirement system of the Employee shall include all amounts deducted by the Employee, or paid by the Employer, pursuant to the Deferred Compensation Plan. Section 5.03 Amendment. This Plan may be modified, amended or terminated in whole or in part (including retroactive amendments) by the Employer at any time. No amendment or termination of the Plan shall reduce or impair the rights of any Participant or his Beneficiary which have already accrued. Upon termination of the Plan, the Employer shall distribute all amounts credited to each Participation Account in accordance with the Participant's payment option selected pursuant to Section 4.01. All Participants shall be treated in the same manner. Section 5.04 Creditors. A Participant may not assign, transfer, sell, hypothecate, or otherwise dispose of any or all of his investment account or any right which he may have under the Plan, and any attempt to do so shall be void. Section 5.05 Employment. Participation in the Plan shall not be construed as giving any Participant any right to continue his employment with the Employer. 20. Section 5.06 Successors and assigns. The Plan shall be binding upon and shall inure to the benefit of the Employer, its successors and assigns, all Participants and Beneficiaries and their heirs and legal representatives. Section 5.07 Written Notice. Any notice or other communication required or permitted under the Plan shall be in writing, and if directed to the Employer, shall be sent to the designated office of the Employer, and, if directed to a Participant or to a Beneficiary, shall be sent to such Participant or Beneficiary at either his last known address as it appears on the Employer's record or to his work site, at the Employer's option. Section 5.08 Facility of Payment. If any Participant terminates his employment with an unpaid debt owing to the Employer and neglects or refuses to liquidate the debt by any other means when due and upon demand, the Employer shall be entitled to collect the amounts due from the deferred compensation owed to the Participant under the Plan. Section 5.09 Total Agreement. This Plan and the Participa- tion Agreement, and any subsequently adopted amendment thereof, shall constitute the total agreement or contract between the Employer and the Participant regarding the Plan. No oral statement regarding the Plan may be relied upon by the Participant. Section 5.10 Gender. As used herein, the masculine shall include the neuter and the feminine where appropriate. Section 5.11 Controlling Law. This Plan is created and shall be interpreted under the laws of the State of California as the same shall be at the time any dispute or issue is raised. 21.