Section 10. Effective Date. Unless a different effective date is specified in the adoption

agreement, this Article is effective for plan years beginning on or after January 1, 2008.

(Note to reviewer: Code §I RC 436 is generally effective for plan years beginning on or after January 1, 2008. However, later effective dates apply to certain collectively bargained, eligible cooperative, eligible charity, Pension Benefit Guaranty Corporation

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(PBGC) settlement plans, and government contractor plans described in sectionsIRC 103(c)(2), 104(c), 104(d), 105, and 106, respectivelyofr espectively, of the Pension Protection Act of 2006 (PPA ’06), as amended by the Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010 (PRA 2010). In these cases, the appropriate effective date should be specified in the adoption agreement. See the sample adoption agreement language following this note to reviewer.

Additionally, the Cooperative and Small Employer Charity Pension Flexibility Act amended Code §I RC 436 to allow an exemption to all plans defined under Code §I RC 414(y). However, a Cooperative and Small Employer Charity Plan that is in funding restoration status is subject to restrictions on certain amendments increasing benefits, adding new benefits, changing the rate of benefit accruals, or changing the rate at which benefits become nonforfeitable (see Code §I RC 433(j)(2)).

The sample plan language reflects the requirements of the final Treas. Reg. § 1.436-1 issued on October 15, 2009. For plan years beginning before January 1, 2010, a plan sponsor may have operated its plan in reliance on the proposed Regulations or on Notices 2008-21 and 2008-73. If the plan’s operation in plan years beginning on or after January 1, 2008, but before January 1, 2010, was not consistent with the sample plan language but satisfies the rules in either the Proposed Regulations or the Final Regulations under Code § IRC 436, or another reasonable interpretation of Code §I RC 436, the plan sponsor should specify in the adoption agreement that the provisions of this article are effective for plan years beginning on or after January 1, 2010, and the requirements of Code § IRC 436 are incorporated by reference in the terms of the plan for earlier plan years beginning on or after January 1, 2008. See the following sample adoption agreement language.)

Sample Adoption Agreement Language:

Effective Date of the Limitations of Code § IRC 436 With Respect to the Plan

(Select One)

1. ( ) Article _____ of the plan is effective for plan years beginning on or after January 1, 2008.

2. ( ) Article _____ of the plan is effective for plan years beginning on or after January 1, 2010. The requirements of Code §I RC 436 are hereby incorporated by reference in the plan for plan years beginning on or after January 1, 2008 and before January 1, 2010.

3. ( ) The plan is a collectively bargained plan that is maintained pursuant to one or more collective bargaining agreements between employee representatives and one or more employers ratified before January 1, 2008. Article _____ of the plan is effective for plan years beginning on or after ____________ (insert date which is the earlier of (a) January 1, 2010, or (b) the later of the date on which the last of such collective bargaining agreements relating to the plan terminates (determined without regard to any extension thereof agreed to after August 17, 2006), or the first day of the first plan year to which the requirements of Code §

IRC 436 would otherwise apply to the plan.)

4. ( ) The plan is an eligible cooperative plan within the meaning of section 104(c) of

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PPA ’06 that was in existence on July 26, 2005 and was an eligible cooperative plan for its plan year which includes that date. Article _____ of the plan is effective for plan years beginning on or after _____(Insert date which is the earlier of (a) January 1, 2017, or (b) the later of the first day of the first plan year the plan ceases to be an eligible cooperative plan or the first day of the first plan year to which the requirements of Code § IRC 436 would otherwise apply to the plan.)

5. ( ) The plan is an eligible charity plan within the meaning of section 104(d) of PPA ’06, as amended by PRA ’10 that was in existence on July 26, 2005 and was an eligible charity plan for its plan year which includes that date. Article _____of the plan is effective for plan years beginning on or after ______(Insert date which is the earlier of (a) January 1, 2017, or (b) the later of the first day of the first plan year the plan ceases to be an eligible charity plan or the first day of the first plan year to which the requirements of Code § IRC 436 would otherwise apply to the plan.) The plan sponsor elects that Article _____ of the plan (check one)

( ) is

( ) is not

also effective for any plan year beginning on or after January 1, 2008 but before January 1, 2009.

6. ( ) The plan is a Cooperative and Small Employer Charity plan within the meaning of Code § IRC 414(y). Article _____ of the plan does not apply to this plan unless it ceases to be a Cooperative and Small Employer Charity plan.

7. ( ) The plan is a PBGC settlement plan within the meaning of section 105 of PPA ’06 that was in existence on July 26, 2005 and was a PBGC settlement plan as of that date. Article _____ of the plan is effective for plan years beginning on or after January 1, 2014.

8. ( ) The plan is an eligible government contractor plan within the meaning of section 106 of PPA ’06. Article _____ of the plan is effective for plan years beginning on or after the earliest of January 1, 2011, the first day of the first plan year for which the plan ceases to be an eligible government contractor plan, and the first day of the first plan year beginning on or after the effective date of the Cost Accounting Standards Pension Harmonization Rule.

Employer Elections Regarding the Limitations of Code §I RC 436

1. ( ) If checked, the employer elects that, during a period when Section 1(a) of Article _____ applies to the plan, participants and beneficiaries are permitted to elect payment in any optional form of benefit otherwise available under the plan that provides for the current payment of the unrestricted portion of the benefit, with a delayed commencement for the restricted portion of the benefit, as provided in Section 1(a) of Article _____ of the plan. This election is effective:

(Check one)

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( ) As of the effective date of Article __ of the plan.

( ) For plan years beginning on or after ___________________

(Enter the first day of the plan year for which the election is effective.)

2. ( ) If checked, the employer elects that, after the Code § IRC 436 measurement date on which the limitation on prohibited payments under Section 1(a) of Article _____ ceases to apply to the plan, any participant or beneficiary who had an annuity starting date within the period during which that limitation applied to the plan is permitted to make a new election under which the form of benefit previously elected is modified at a new annuity starting date to be changed to a single sum payment for the remaining value of the participant or beneficiary’s benefit under the plan, as provided in Section 4(a) of Article _____ of the plan. This election is effective:

(Check one)

( ) As of the effective date of Article __ of the plan.

( ) For plan years beginning on or after _____________________

(Enter the first day of the plan year for which the election is effective.)

3. ( ) If checked, the employer elects that, after the Code § IRC 436 measurement date on which the limitation on prohibited payments under Section 2(a) of Article _____ ceases to apply to the plan, any participant or beneficiary who had an annuity starting date within the period during which that limitation applied to the plan is permitted to make a new election under which the form of benefit previously elected is modified at a new annuity starting date to be changed to a single sum payment for the remaining value of the participant or beneficiary’s benefit under the plan, as provided in Section 4(a) of Article _____ of the plan. This election is effective:

(Check one)

( ) As of the effective date of Article __ of the plan.

( ) For plan years beginning on or after _________________________

(Enter the first day of the plan year for which the election is effective.)

4. ( ) If checked, the employer elects that benefit accruals that were not permitted to accrue because of the application of Section 2(c) of Article _____ shall be restored when that limitation ceases to apply if the continuous period of the limitation was 12 months or less and the plan’s enrolled actuary certifies that the adjusted funding target attainment percentage for the plan year would not be less than 60% taking into account any restored benefit accruals for the prior plan year. This election is effective:

(Check one)

( ) As of the effective date of Article __ of the plan.

( ) For plan years beginning on or after _________________________

(Enter the first day of the plan year for which the election is effective.)

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(Note to reviewer: The following provision should be included in the adoption agreement if the plan may be adopted as a multiple employer plan.)

Multiple employer plans check one:

( ) The plan is a multiple employer plan to which Code § IRC 413(c)(4)(A) applies,

including a plan for which the election described in Code § IRC 413(c)(4)(B) has been made. Therefore, Article _____ of the plan applies separately to each employer under the plan, as if each such employer maintained a separate plan.

( ) The plan is a multiple employer plan to which Code § IRC 413(c)(4)(A) does not

apply. Therefore, Article _____ of the plan applies as if all participants in the plan were employed by a single employer.

(Note to reviewer: The blanks above should be filled in with the corresponding plan section, except as otherwise indicated.)