This Agreement is made as of the last date set forth below by and between Emparion, LLC (hereinafter referred to as “Emparion”), and the undersigned Employer (hereinafter referred to as the “Employer”). This agreement will become effective on the date executed and shall remain in effect unless changed or terminated in writing by Emparion or the Employer. This Agreement shall be the sole Agreement between the parties, and shall supersede any other agreement(s), oral or written.
Emparion agrees to function as a Contract Administrator for the Employer’s benefit Plan (hereinafter known as the “Plan”). The Employer will act in the capacity of the Plan Administrator as defined in ERISA §3(21)(A). Emparion does not function as an investment, legal, or tax adviser with regard to the Plan. The Employer agrees to indemnify and hold Emparion (and its affiliates) harmless from any claims arising out of the Plan Administrator’s failure to perform its duties, unless such claims against Emparion result from gross negligence or willful misconduct by Emparion.
The Employer further agrees to seek the advice of a qualified ERISA attorney, as the Employer deems necessary, as to matters that might arise regarding the adoption and operation of the Plan.
II. SERVICES TO BE PERFORMED BY EMPARION
A. Plan Conversion. If the Plan is currently with another Third Party Administrator (“TPA”), Emparion will work with the retiring TPA to arrange the transfer of all data and assets related to and in accordance with the Plan.
B. Coverage & Discrimination Testing. Emparion will perform all coverage and discrimination testing for the Plan as required by the IRS and DOL. This includes, but is not limited to, the following:
1. Annually performing the Actual Deferral Percentage Test (the “ADP Test”) and Actual Contribution Test (the “ACP Test”) to determine whether the average deferral rate for the highly compensated employees is within the prescribed proportions to the average deferral rate for the non-highly compensated employees. The Employer will be promptly notified in the event the Plan fails the ADP or ACP Test. Emparion may run these tests during the year to advise the Employer of testing status.
2. Annually testing to verify the Plan’s compliance with any and all of the following sections of the Internal Revenue Code: § 401(a)(4), 401 (a)(26), 402 (g), 404, 410(b), 415, 416, 430 and 436.
3. Emparion will perform any other compliance testing deemed necessary to assure the plan is operating in accordance with the Employer’s expectations and current regulatory standards.
C. Distribution Processing. Emparion will process all requests for distribution, including loans, hardship distributions, and distributions as a result termination of employment of any Participant.
D. Annual Plan Evaluation. Emparion will periodically review the Plan with regard to, but not limited to, vesting percentages, contributions, earning, forfeitures, participation levels, and compliance with IRS and DOL regulations.
E. Qualified Domestic Relations Order Processing. Emparion will process all domestic relations orders with regard to the Plan and its Participants.
F. Technical Consulting. Emparion will provide the Employer with consulting services of an experienced Senior Plan Analyst on our staff with regard to Plan formulation, implementation, operation, and compliance.
G. Account Administrator. Emparion will provide the Employer with Senior Plan Analyst who will act as their key contact and resource at Emparion.
H. Books and Records. Emparion will maintain the required books and records of all transactions placed through it in accordance with the Employee Retirement Income Security Act of 1974 (“ERISA”) as well as additional IRS and DOL regulations.
III. EMPLOYER RESPONSIBILITIES
A. The Employer shall provide Emparion with accurate and timely information on all matters relating to the operation of the Plan. It is agreed and understood that the Employer is ultimately responsible for the accuracy of the data supplied.
B. The Employer shall be responsible for the timely filing of governmental reports received from Emparion and for the accuracy of the contents with the exception of clerical errors made by Emparion in preparation of the report. At Emparion’s sole discretion or to expediate the filing process, the Plan Administrator authorizes Emparion to sign and file Form 5500, 5500EZ or 5500SF (as required). This may be a hard copy signature or electronic signature. Should Emparion elect to sign such forms, Emparion is still NOT acting in the capacity of the Plan Administrator as defined in ERISA §3(21)(A). Employer agrees to hold Emparion harmless for any late filing penalties incurred by the IRS or DOL as a result of tax filings.
C. The Employer shall be responsible for notifying Emparion of other Plans and any change in the corporate status of the Employer.
D. The Employer shall be responsible for securing proper Fidelity Bond coverage.
E. The Employer shall be responsible for notifying Emparion if the business is a member of a controlled group or an affiliated service group or is subject to special rules regarding leased employees and shared employees.
IV. Plan set up fees are billed in advance. Plan administration fees are billed in arrears for the prior plan year. For example, annual administration will be billed in early calendar year 2021 for the 2020 plan year. The fees are minimum rates, and higher rates may apply. Employer acknowledges that Emparion is not required to perform any services as provided in this agreement until payment in received by Emparion.
V. If incorrect or incomplete information supplied by the Employer necessitates additional calculations or statements, services incurred will be charged to the Plan Sponsor.
VI. Any services not outlined herein will be charged at hourly rates as applied in the discretion of the service administrator. Fees are outlined at https://emparion.com/plan-pricing and reflect the charges for services specified in this Agreement. This includes a minimum charge of $200 for plan restatements as required by the IRS or DOL. Any changes in fees will be updated on the above webpage and will be communicated to the Employer in writing by email at least 30 days prior to the effective date of such change. In the event the Employer fails to pay administrative fees in accordance with the invoice provisions it will hold Emparion harmless in the event that such failure results in the suspension or cessation of administrative services by Emparion. The Employer and the Plan Administrator are responsible for the prudent and timely activities associated and or connected with the ongoing administration of the Plan.
- Modification of Agreement. Except as otherwise provided herein, this Agreement may be modified only in writing and signed by all parties to this Agreement. Such modification shall not be deemed a cancellation of this Agreement.
- Regulatory Review. This Agreement may be submitted to be approved by regulatory and self-regulatory bodies vested with the authority to review and approve this Agreement or any amendment or modifications hereto. In the event any such regulatory body disapproves of any provision of this Agreement the parties hereto agree to bargain in good faith to achieve the requisite approval.
- Dispute. Any dispute, controversy or claim arising out of this Agreement or the performance or breach hereof respecting an Account which the parties have not been able to settle amicably shall be settled exclusively by arbitration in accordance with any and all IRS and DOL Arbitration Procedures by arbitrators appointed in accordance with such procedures. Any other dispute, controversy or claim arising out of this Agreement or the performance or breach thereof, including matters which the parties have not been able to settle amicably, shall be settled exclusively by arbitration before the American Arbitration Association unless the parties mutually agree to arbitration in accordance with any and all IRS and DOL Arbitration Procedures by arbitrators appointed in accordance with such procedures.
- Investigation of Facts. Emparion will not be bound to make any investigation into the facts surrounding any transaction that it may have with the Employer. Emparion will not be under any responsibility for compliance by the Employer with any laws or regulations that may be applicable to the Employer.
- Assignment. This Agreement shall be binding upon all successors, assigns or transferees of both parties hereto, irrespective of any change with regard to the name of or the personnel of the Employer or Emparion. Any assignment of the Agreement shall be subject to the requisite review and/or approval of any regulatory or self-regulatory agency or body whose review and/or approval must be obtained prior to the effectiveness and validity of such assignment. No assignment of this Agreement shall be valid unless the non-assigning party consents to such an assignment in writing; such consent shall not, however, be unreasonably withheld any party. Any assignment by either Emparion or the Employer to any subsidiary that it may create or to a company affiliated with or controlled directly or indirectly by it will be deemed valid and enforceable in the absence of any consent from the other party.
- Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona; provided, however, that if any Arizona law or laws require or permit the application of the laws of any other jurisdiction to this Agreement, such Arizona law or laws shall be disregarded with the effect that the remaining laws of the State of Arizona shall nonetheless apply.
Further, the parties agree that any claims or legal proceedings under this Agreement shall be heard in Maricopa County, Arizona. The Employer agrees herein to pay any costs for collection of outstanding amounts due, including but not limited to attorney fees, as permitted under law.
- Headings. The headings preceding the sections hereof have been inserted for convenience and reference only and shall not be construed to affect the meaning, construction or effect of this Agreement.
- No Ties. This Agreement shall cover only the types of services set forth herein and is in no way intended nor shall it be construed to bestow upon the Employer any special treatment regarding any other arrangements, agreements or understandings which presently exist between the Employer and Emparion or which may hereinafter exist. The Employer shall be under no obligation whatsoever to deal with Emparion or any of its subsidiaries or any companies controlled directly or indirectly by or affiliated with Emparion, in any capacity other than as set forth in this Agreement. Likewise, Emparion shall be under no obligation whatsoever to deal with the Employer or any of its affiliates in any capacity other than as set forth in this Agreement.
- Remedies Cumulative. The enumeration herein of specific remedies shall not be exclusive of any other remedies. Any delay or failure by any party to this Agreement to exercise any right, power, remedy or privilege herein contained, or now or hereafter existing under any applicable statute or law, shall not be construed to be a waiver of such right, power, remedy or privilege or to limit the exercise of such right, power, remedy or privilege. No single, partial or other exercise of any such right, power, remedy or privilege shall preclude the further exercise thereof or the exercise of any other right, power remedy or privilege.
- Time is of the Essence. The parties agree that, with respect to the time deadlines stated in this Agreement or documents incorporated by reference herein, time is of the essence.
- Severability. If any provision of this Agreement is found by any court or other tribunal of competent jurisdiction to be invalid or unenforceable in any jurisdiction, that provision shall be unenforceable in such jurisdiction only and the remainder of this Agreement shall remain effective in such jurisdiction as if such unenforceable provision had not been contained herein. The enforceability of such provision shall otherwise be in effect and remain enforceable in all other jurisdictions.
- Force Majeure. No party shall be liable for delay or failure in performance hereunder due to causes beyond its control, including acts of God, fires, strikes, acts of war or intervention by any governmental authority, and each party shall take steps to minimize any such delay.
- Agency. Nothing in this Agreement or to be done pursuant to its terms and conditions is intended to, or shall, create a partnership, joint venture or principal-agent relationship, for federal tax purposes or otherwise, between the parties hereto or shall confer upon either party the power or authority to bind the other party in any transaction with third parties. Exception: In order to transmit funds for disbursement and to perform other plan functions, (1) the Employer makes Emparion its agent with respect to acting in the performance of duties as Plan Administrator, and (2) the Trustee herein makes Emparion its agent with respect to acting in a ministerial capacity in the role of directed plan Trustee.
- Notices. All notices and other communications required or permitted hereunder shall be effective if in writing and delivered personally or sent by telecopier, Federal Express or registered or certified mail, return receipt requested, postage prepaid, addressed:
To: Emparion, LLC
2450 S. Gilbert Road, Suite 100
Chandler, AZ 85286
- TERMINATION OF SERVICES
Any party may terminate this Agreement by giving the other party written notice at least thirty (30) days in advance of the effective date of such termination, except that any termination by Emparion that shall be based upon breach of contract by the Employer. Such notice from the Employer must include the name and address of the new administrator and, if appropriate the name(s) of the Successor Trustee(s). Emparion will charge for all services related to plan termination or plan transfer independently on a time and material basis.
- TRUST IDENTIFICATION NUMBER (TIN) LIMITED POWER OF ATTORNEY
By signing this Agreement, the Plan Administrator hereby makes, constitutes and appoints Emparion as attorney-in-fact to act separately in the plan sponsor name, place and stead in any way which the Plan Administrator could act, if personally present, to the extent permitted by law to act through an agent:
- Obtain a new tax ID number for the retirement trust(s)
This power of attorney, however, shall terminate 90 days from the date of execution or upon written revocation whichever shall occur first.
The Plan Administrator hereby agrees to indemnify and hold harmless any such third party from and against any and all claims that may arise against such third party by reason of such third party having relied upon the provisions of this power of attorney.
The Employer acknowledges that it has consulted to the extent the Employer deems necessary with legal and tax advisers. Solely the provisions of this Agreement will govern the actions of Emparion. Emparion shall not be required to review any action taken by the Employer or the Plan Administrator and shall be fully protected in taking, permitting or omitting any actions on the basis of the Employer’s action. Emparion shall incur no liability or responsibility for acting at the directions of the Employer or Plan Administrator.
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as of the last date set forth below.
Employer Name Signature
Employer Identification Number (EIN) Printed Name and Title