Exhibit
10.22
Volume
Submitter
Defined
Contribution Plan
Fidelity Basic Plan Document
No. 14
Cabot Microelectronics
Corporation 401(k) Plan
Preamble
.
This
volume submitter plan consists of three parts: (1) an Adoption
Agreement that is a separate document incorporated by reference into this Basic
Plan Document; (2) this Basic Plan Document; and (3) a Trust Agreement
that is a part of this Basic Plan Document and is found in
Article 20. Each part of the volume submitter plan contains
substantive provisions that are integral to the operation of the
plan. The Adoption Agreement is the means by which an adopting
Employer elects the optional provisions that shall apply under its
plan. The Basic Plan Document describes the standard provisions
elected in the Adoption Agreement. The Trust Agreement describes the
powers and duties of the Trustee with respect to plan assets.
The
volume submitter plan is intended to qualify under Code
Section 401(a). Depending upon the Adoption Agreement completed
by an adopting Employer, the volume submitter plan may be used to implement a
profit sharing plan with or without a cash or deferred arrangement intended to
qualify under Code Section 401(k). Provisions appearing on the
Additional Provisions Addendum of the Adoption Agreement, if present, supplement
or alter provisions appearing in the Adoption Agreement in the manner described
therein. Provisions appearing on the Additional Provisions Addendum
of the Basic Plan Document, if present, supplement or alter provisions appearing
in the Basic Plan Document in the manner described
therein. Provisions appearing on the Superseding Provisions Addendum
of the Adoption Agreement, if present, supersede any conflicting provisions
appearing in the Adoption Agreement, Basic Plan Document or any addendum to
either in the manner described therein.
Article
1.
Adoption
Agreement
.
Article
2.
Definitions
.
Wherever
used herein, the following terms have the meanings set forth below, unless a
different meaning is clearly required by the context:
(a)
"Account"
means an account
established for the purpose of recording any contributions made on behalf of a
Participant and any income, expenses, gains, or losses incurred
thereon. The Administrator shall establish and maintain sub-accounts
within a Participant's Account as necessary to depict accurately a Participant's
interest under the Plan.
(b)
"Active Participant"
means any
Eligible Employee who has met the requirements of Article 4 to participate
in the Plan and who may be entitled to receive allocations under the
Plan.
(c)
"Administrator"
means the
Employer adopting this Plan, as listed in Subsection 1.02(a) of the
Adoption Agreement, or any other person designated by the Employer in
Subsection 1.01(c) of the Adoption Agreement.
(d)
"Adoption Agreement"
means
Article 1, under which the Employer establishes and adopts, or amends the
Plan and Trust and designates the optional provisions selected by the Employer,
and the Trustee accepts its responsibilities under
Article 20. The provisions of the Adoption Agreement shall be an
integral part of the Plan.
(e)
"Annuity Starting Date"
means
the first day of the first period for which an amount is payable as an annuity
or in any other form permitted under the Plan.
(f)
"Basic Plan Document"
means
this Fidelity volume submitter plan document, qualified with the Internal
Revenue Service as Basic Plan Document No. 14.
(g)
"Beneficiary"
means the person
or persons (including a trust) entitled under Section 11.04 or 14.04 to
receive benefits under the Plan upon the death of a Participant.
(h)
"Break in Vesting Service"
means a 12-consecutive-month period beginning on an Employee's Severance Date or
any anniversary thereof in which the Employee is not credited with an Hour of
Service.
Notwithstanding
the foregoing, the following special rules apply in determining whether an
Employee who is on leave has incurred a Break in Vesting Service:
(1)
If an
individual is absent from work because of maternity/paternity leave on the first
anniversary of his Severance Date, the 12-consecutive-month period beginning on
the individual's Severance Date shall not constitute a Break in Vesting
Service. For purposes of this paragraph, "maternity/paternity leave"
means a leave of absence (i) by reason of the pregnancy of the individual,
(ii) by reason of the birth of a child of the individual, (iii) by
reason of the placement of a child with the individual in connection with the
adoption of such child by the individual, or (iv) for purposes of caring
for a child for the period beginning immediately following such birth or
placement.
(2)
If an
individual is absent from work because of FMLA leave and returns to employment
with the Employer or a Related Employer following such FMLA leave, he shall not
incur a Break in Vesting Service due to such FMLA leave. For purposes
of this paragraph, "FMLA leave" means an approved leave of absence pursuant to
the Family and Medical Leave Act of 1993.
(i)
"Catch-Up Contribution"
means
any Deferral Contribution made to the Plan by the Employer in accordance with
the provisions of Subsection 5.03(a).
(j)
"Code"
means the Internal
Revenue Code of 1986, as amended from time to time.
(k)
"Compensation"
means wages as
defined in Code Section 3401(a) and all other payments of compensation to
an Eligible Employee by the Employer (in the course of the Employer's trade or
business) for services to the Employer while employed as an Eligible Employee
for which the Employer is required to furnish the Eligible Employee a written
statement under Code Sections 6041(d) and
6051(a)(3). Compensation must be determined without regard to any
rules under Code Section 3401(a) that limit the remuneration included in
wages based on the nature or location of the employment or the services
performed (such as the exception for agricultural labor in Code
Section 3401(a)(2)). Compensation shall include amounts that are not
includable in the gross income of the Participant under a salary reduction
agreement by reason of the application of Code Section 125, 132(f)(4),
402(g)(3), 402(h), 403(b), or 457.
For any
Self-Employed Individual, Compensation means Earned Income; provided, however,
that if the Employer elects to exclude specified items from Compensation, such
Earned Income shall be adjusted in a similar manner so that it is equivalent
under regulations issued under Code Section 414(s) to Compensation for
Participants who are not Self-Employed Individuals.
Compensation
shall generally be based on the amount actually paid to the Eligible Employee
during the Plan Year or, for purposes of Article 5, if so elected by the
Employer in Subsection 1.05(b) of the Adoption Agreement, during that
portion of the Plan Year during which the Eligible Employee is an Active
Participant. Notwithstanding the preceding sentence, Compensation for
purposes of Section 6.12 (Code Section 415 Limitations) and Article 15
(Top-Heavy Provisions) shall be based on the amount actually paid or made
available to the Participant during the Limitation Year for purposes of Section
6.12 and during the Plan Year for purposes of Article 15.
If the
initial Plan Year of a new plan consists of fewer than 12 months, calculated
from the Effective Date listed in Subsection 1.01(g)(1) of the Adoption
Agreement through the end of such initial Plan Year, Compensation for such
initial Plan Year shall generally be determined as follows:
(1)
For
purposes of determining Highly Compensated Employees under Subsection
2.01(cc)
and, if
selected in Subsection 1.05(b)(1)(A) or (2)(A)
of the Adoption
Agreement, for purposes of allocating Nonelective Employer Contributions under
Section 1.12 of the Adoption Agreement (other than 401(k) Safe Harbor
Nonelective Employer Contributions), the initial Plan Year shall be the 12-month
period ending on the last day of the Plan Year.
(2)
For
purposes of Section 6.12 (Code Section 415 Limitations), if the Employer
has designated in Subsection 1.01(f) of the Adoption Agreement that the
Limitation Year is based on the Plan Year, the Limitation Year shall be the
12-month period ending on the last day of the Plan Year.
(3)
For all
other purposes, the initial Plan Year shall be the period from the Effective
Date listed in Subsection 1.01(g)(1) of the Adoption Agreement through the
end of the initial Plan Year.
The
annual Compensation of each Active Participant taken into account for
determining benefits provided under the Plan for any 12-month determination
period shall not exceed the annual Compensation limit under Code
Section 401(a)(17) as in effect on the first day of the determination
period (e.g., $210,000 for determination periods beginning in 2005). A
"determination period" means the Plan Year or other 12consecutive-month
period over which Compensation is otherwise determined for purposes of the Plan
(e.g., the Limitation Year).
The
annual Compensation limit under Code Section 401(a)(17) shall be adjusted by the
Secretary to reflect increases in the cost of living, as provided in Code
Section 401(a)(17)(B); provided, however, that the dollar increase in
effect on January 1 of any calendar year is effective for determination
periods beginning in such calendar year. If a Plan determines
Compensation over a determination period that contains fewer than
12 calendar months (a "short determination period"), then the Compensation
limit for such "short determination period" is equal to the Compensation limit
for the calendar year in which the "short determination period" begins
multiplied by the ratio obtained by dividing the number of full months in the
"short determination period" by 12; provided, however, that such proration shall
not apply if there is a "short determination period" because (i) the
Employer elected in Subsection 1.05(b) of the Adoption Agreement to
determine contributions based only on Compensation paid during the portion of
the Plan Year during which an individual was an Active Participant or
(ii) an Employee is covered under the Plan less than a full Plan
Year.
In lieu
of requiring an Active Participant to cease making Deferral Contributions for a
Plan Year after his Compensation has reached the annual Compensation limit under
Code Section 401(a)(17), the annual Compensation limit shall be applied with
respect to Deferral Contributions by limiting the total Deferral Contributions
an Active Participant may make for a Plan Year to the product of (i) such Active
Participant's Compensation for the Plan Year up to the annual Compensation limit
multiplied by (ii) the deferral limit specified in Subsection 1.07(a)(1)(A) of
the Adoption Agreement or Subsection 5.03(a), as applicable.
(l)
"Contribution Period"
means
the period for which Matching Employer and Nonelective Employer Contributions
are made and calculated. The Contribution Period for Matching
Employer Contributions described in Subsection 1.11 of the Adoption
Agreement is the period specified by the Employer in Subsection 1.11(d) of the
Adoption Agreement.
The
Contribution Period for Nonelective Employer Contributions is the Plan Year,
unless the Employer designates a different Contribution Period in
Subsection 1.12(c) of the Adoption Agreement.
(m)
"Deferral Contribution"
means
any contribution made to the Plan by the Employer in accordance with the
provisions of Section 5.03.
(n)
"Early Retirement Age"
means
the early retirement age specified in Subsection 1.14(b) of the Adoption
Agreement, if any.
(o)
"Earned Income"
means the net
earnings of a Self-Employed Individual derived from the trade or business with
respect to which the Plan is established and for which the personal services of
such individual are a material income-providing factor, excluding any items not
included in gross income and the deductions allocated to such items, except that
net earnings shall be determined with regard to the deduction allowed under Code
Section 164(f), to the extent applicable to the Employer. Net
earnings shall be reduced by contributions of the Employer to any qualified
plan, to the extent a deduction is allowed to the Employer for such
contributions under Code Section 404.
(p)
"Effective Date"
means the
effective date specified by the Employer in
Subsection 1.01(g)(1). The Employer may select special Effective
Dates with respect to specified Plan provisions, as set forth in
Section (a) of the Special Effective Dates Addendum to the Adoption
Agreement. In the event that another plan is merged into and made a
part of the Plan, the effective date of the merger shall be reflected in the
Plan Mergers Addendum to the Adoption Agreement.
(q)
"Eligibility Computation
Period"
means each 12-consecutive-month period beginning with an
Employee's Employment Commencement Date and each anniversary
thereof
(r)
"Eligibility Service"
means an
Employee's service that is taken into account in determining his eligibility to
participate in the Plan as may be required under Subsection 1.04(b) of the
Adoption Agreement. Eligibility Service shall be credited in
accordance with Article 3.
(s)
"Eligible Employee"
means any
Employee of the Employer who is in the class of Employees eligible to
participate in the Plan. The Employer must specify in
Subsection 1.04(d) of the Adoption Agreement any Employee or class of
Employees not eligible to participate in the Plan. Regardless of the
provisions of Subsection 1.04(d) of the Adoption Agreement,
the
following Employees are automatically excluded from eligibility to participate
in the Plan:
(1)
any
individual who is a signatory to a contract, letter of agreement, or other
document that acknowledges his status as an independent contractor not entitled
to benefits under the Plan or who is not otherwise classified by the Employer as
a common law employee, even if such individual is later determined to be a
common law employee; and
(2)
any
Employee who is a resident of Puerto Rico.
If the
Employer elects, in Subsection 1.04(d)(2)(A) of the Adoption Agreement, to
exclude collective bargaining employees from the eligible class, the exclusion
applies to any Employee of the Employer included in any unit of Employees
covered by an agreement which the Secretary of Labor finds to be a collective
bargaining agreement between employee representatives and one or more employers,
unless the collective bargaining agreement requires the Employee to be covered
under the Plan. The term "employee representatives" does not include
any organization more than half the members of which are owners, officers, or
executives of the Employer.
If the
Employer does not elect, in Subsection 1.04(d)(2)(C) of the Adoption Agreement,
to exclude Leased Employees from the eligible class, contributions or benefits
provided by the leasing organization which are attributable to services
performed for the Employer shall be treated as provided by the Employer and
there shall be no duplication of benefits under this Plan.
Anything
to the contrary herein notwithstanding, unless the Employer elects to exclude
statutory employees who are full-time life insurance salespersons (as described
in Code Section 7701(a)(20)) from the eligible class in Subsection 1.04(d)(2)(E)
of the Adoption Agreement, such statutory employees are Eligible
Employees.
(t)
"Employee"
means any common
law employee (or statutory employee who is a full-time life insurance
salesperson as described in Code Section 7701(a)(20)) of the Employer or a
Related Employer, any Self-Employed Individual, and any Leased
Employee. Notwithstanding the foregoing, a Leased Employee shall not
be considered an Employee if Leased Employees do not constitute more than
20 percent of the Employer's non-highly compensated work-force (taking into
account all Related Employers) and the Leased Employee is covered by a money
purchase pension plan maintained by the leasing organization and providing
(1) a nonintegrated employer contribution rate of at least 10 percent
of compensation, as defined for purposes of Code Section 415(c)(3),
(2) full and immediate vesting, and (3) immediate participation by
each employee of the leasing organization.
(u)
"Employee Contribution"
means
any after-tax contribution made by an Active Participant to the
Plan.
(v)
"Employer"
means the employer
named in Subsection 1.02(a) of the Adoption Agreement and any Related
Employer designated in the Participating Employers Addendum to the Adoption
Agreement. If the Employer has elected in Subsection (b) of the Participating
Employers Addendum to the Adoption Agreement that the term "Employer" includes
all Related Employers, an employer that becomes a Related Employer as a result
of an asset or stock acquisition, merger or other similar transaction shall not
be included in the term "Employer" for periods prior to the first day of the
second Plan Year beginning after the date of such transaction, unless the
Employer has designated therein to accept such Related Employer as a
participating employer prior to that date. Notwithstanding the
foregoing, the term "Employer" for purposes of authorizing any particular action
under the Plan means solely the employer named in Subsection 1.02(a) of the
Adoption Agreement.
If the
organization or other entity named in the Adoption Agreement is a sole
proprietor or a professional corporation and the sole proprietor of such
proprietorship or the sole shareholder of the professional corporation dies,
then the legal representative of such sole proprietor or shareholder shall be
deemed to be the Employer until such time as, through the disposition of such
sole proprietor's or sole shareholder's estate or otherwise, any organization or
other entity succeeds to the interests of the sole proprietor in the
proprietorship or the sole shareholder in the professional
corporation. The legal representative of a sole proprietor or
shareholder shall be (1) the person appointed as such by the sole
proprietor or shareholder prior to his death under a legally enforceable power
of attorney, or, if none, (2) the executor or administrator of the sole
proprietor's or shareholder's estate.
If a participating Employer designated
through Subsection 1.02(b) of the Adoption Agreement is not related to the
Employer (hereinafter "un-Related Employer"), the term "Employer" includes such
un-Related Employer and the provisions of Section 18.05 shall
apply.
(w)
"Employment Commencement Date"
means the date on which an Employee first performs an Hour of
Service.
(x)
"Entry Date"
means the date(s)
specified by the Employer in Subsection 1.04(e) of the Adoption Agreement
as of which an Eligible Employee who has met the applicable eligibility
requirements begins to participate in the Plan. The Employer may
specify different Entry Dates for purposes of eligibility to participate in the
Plan for purposes of (1) making Deferral Contributions and
(2) receiving allocations of Matching and/or Nonelective Employer
Contributions.
(y)
"ERISA"
means the Employee
Retirement Income Security Act of 1974, as from time to time
amended.
(z)
"
401(k) Safe Harbor Matching Employer
Contribution"
means any Matching Employer Contribution made by the
Employer to the Plan in accordance with Subsection 1.11(a)(3) of the Adoption
Agreement, the 401(k) Safe Harbor Matching Employer Contributions Addendum to
the Adoption Agreement, and Section 5.08, that is intended to satisfy the
requirements of Code Section 401(k)(12)(B).
(aa)
"
401(k) Safe Harbor Nonelective
Employer Contribution"
means any Nonelective Employer Contribution made
by the Employer to the Plan in accordance with Subsection 1.12(a)(3) of the
Adoption Agreement, the 401(k) Safe Harbor Nonelective Employer Contributions
Addendum to the Adoption Agreement, and Section 5.10, that is intended to
satisfy the requirements of Code Section 401(k)(12)(C).
(bb)
"Fund Share"
means the share,
unit, or other evidence of ownership in a Permissible Investment.
(cc)
"Highly Compensated Employee"
means both highly compensated active Employees and highly compensated former
Employees.
A highly compensated active Employee
includes any Employee who performs service for the Employer during the
"determination year" and who (1) at any time during the "determination
year" or the "look-back year" was a five percent owner or (2) received
Compensation from the Employer during the "look-back year" in excess of the
dollar amount specified in Code Section 414(q)(1)(B)(i) adjusted pursuant to
Code Section 415(d) (e.g., $95,000 for "determination years" beginning in
2005 and "look-back years" beginning in 2004) and, if elected by the Employer in
Subsection 1.06(d)(1) of the Adoption Agreement, was a member of the
top-paid group for such year.
For this purpose, the "determination
year" shall be the Plan Year. The "look-back year" shall be the
twelve-month period immediately preceding the "determination year", unless the
Employer has elected in Subsection 1.06(c)(1) of the Adoption Agreement to
make the "look-back year" the calendar year beginning within the preceding Plan
Year.
A highly compensated former Employee
includes any Employee who separated from service (or was deemed to have
separated) prior to the "determination year", performs no service for the
Employer during the "determination year", and was a highly compensated active
Employee for either the separation year or any "determination year" ending on or
after the Employee's 55th birthday, as determined under the rules in effect
for determining Highly Compensated Employees for such separation year or
"determination year".
The determination of who is a Highly
Compensated Employee, including the determinations of the number and identity of
Employees in the top-paid group, shall be made in accordance with Code
Section 414(q) and the Treasury Regulations issued thereunder.
(dd)
"Hour of Service"
, with
respect to any individual, means:
(1)
Each hour
for which the individual is directly or indirectly paid, or entitled to payment,
for the performance of duties for the Employer or a Related Employer, each such
hour to be credited to the individual for the Eligibility Computation Period in
which the duties were performed;
(2)
Each hour
for which the individual is directly or indirectly paid, or entitled to payment,
by the Employer or a Related Employer (including payments made or due from a
trust fund or insurer to which the Employer contributes or pays premiums) on
account of a period of time during which no duties are performed (irrespective
of whether the employment relationship has terminated) due to vacation, holiday,
illness, incapacity, disability, layoff, jury duty, military duty, or leave of
absence, each such hour to be credited to the individual for the Eligibility
Computation Period in which such period of time occurs, subject to the following
rules:
(A)
No more
than 501 Hours of Service shall be credited under this paragraph (2)
on account of any single continuous period during which the individual performs
no duties, unless the individual performs no duties because of military duty,
the individual's employment rights are protected by law, and the individual
returns to employment with the Employer or a Related Employer during the period
that his employment rights are protected under Federal law;
(B)
Hours of
Service shall not be credited under this paragraph (2) for a payment which
solely reimburses the individual for medically-related expenses, or which is
made or due under a plan maintained solely for the purpose of complying with
applicable worker's compensation, unemployment compensation or disability
insurance laws; and
(C)
If the
period during which the individual performs no duties falls within two or more
Eligibility Computation Periods and if the payment made on account of such
period is not calculated on the basis of units of time, the Hours of Service
credited with respect to such period shall be allocated between not more than
the first two such Eligibility Computation Periods on any reasonable basis
consistently applied with respect to similarly situated
individuals;
(3)
Each hour
not counted under paragraph (1) or (2) for which he would have been
scheduled to work for the Employer or a Related Employer during the period that
he is absent from work because of military duty, provided the individual's
employment rights are protected under Federal law and the individual returns to
work with the Employer or a Related Employer during the period that his
employment rights are protected, each such hour to be credited to the individual
for the Eligibility Computation Period for which he would have been scheduled to
work; and
(4)
Each hour
not counted under paragraph (1), (2), or (3) for which back pay,
irrespective of mitigation of damages, has been either awarded or agreed to be
paid by the Employer or a Related Employer, shall be credited to the individual
for the Eligibility Computation Period to which the award or agreement pertains
rather than the Eligibility Computation Period in which the award, agreement, or
payment is made.
For purposes of paragraphs (2) and
(4) above, Hours of Service shall be calculated in accordance with the
provisions of Section 2530.200b-2(b) and (c) of the Department of Labor
regulations, which are incorporated herein by reference.
The
Employer may elect to credit Hours of Service in accordance with one of the
other equivalencies set forth in paragraphs (d), (e), or (f) of Department
of Labor Regulation Section 2530.200b-3. If the Employer does not maintain
records that accurately reflect the actual Hours of Service to be credited to an
Employee, 190 Hours of Service will be credited to the Employee for each month
worked, unless the Employer has elected to credit Hours of Service in accordance
with one of the other equivalencies set forth in paragraphs (d), (e), or
(f) of Department of Labor Regulation Section 2530.200b-3, as provided in
Subsection 1.04(b)(4) of the Adoption Agreement.
(ee)
"Inactive Participant"
means
any individual who was an Active Participant, but is no longer an Eligible
Employee and who has an Account under the Plan.
(ff)
"Leased Employee"
means any
individual who provides services to the Employer or a Related Employer (the
"recipient") but is not otherwise an employee of the recipient if (1) such
services are provided pursuant to an agreement between the recipient and any
other person (the "leasing organization"), (2) such individual has
performed services for the recipient (or for the recipient and any related
persons within the meaning of Code Section 414(n)(6)) on a substantially
full-time basis for at least one year, and (3) such services are performed
under primary direction of or control by the recipient. The
determination of who is a Leased Employee shall be made in accordance with any
rules and regulations issued by the Secretary of the Treasury or his
delegate.
(gg)
"Limitation Year"
means the
12-consecutive-month period designated by the Employer in
Subsection 1.01(f) of the Adoption Agreement. If no other
Limitation Year is designated by the Employer, the Limitation Year shall be the
calendar year. All qualified plans of the Employer and any Related
Employer must use the same Limitation Year. If the Limitation Year is
amended to a different 12-consecutive-month period, the new Limitation Year must
begin on a date within the Limitation Year in which the amendment is
made.
(hh)
"Matching Employer
Contribution"
means any contribution made by the Employer to the Plan in
accordance with Section 5.08 or 5.09 on account of an Active Participant's
eligible contributions, as elected by the Employer in
Subsection 1.11(c)
of the Adoption Agreement.
(ii)
"Nonelective Employer
Contribution"
means any contribution made by the Employer to the Plan in
accordance with Section 5.10.
(jj)
"Non-Highly Compensated
Employee"
means any Employee who is not a Highly Compensated
Employee.
(kk)
"Normal Retirement Age"
means
the normal retirement age specified in Subsection 1.14(a) of the Adoption
Agreement. If the Employer enforces a mandatory retirement age in
accordance with Federal law, the Normal Retirement Age is the lesser of that
mandatory age or the age specified in Subsection 1.14(a) of the Adoption
Agreement.
(ll)
"Participant"
means any
individual who is either an Active Participant or an Inactive
Participant.
(mm)
"Permissible Investment"
means
each investment specified by the Employer as available for investment of assets
of the Trust and agreed to by the Trustee and the Volume Submitter
Sponsor. The Permissible Investments under the Plan shall be listed
in the Service Agreement.
(nn)
"Plan"
means the plan
established by the Employer in the form of the volume submitter plan, as set
forth herein as a new plan or as an amendment to an existing plan, by executing
the Adoption Agreement, together with any and all amendments
hereto.
(oo)
"Plan Year"
means the
12-consecutive-month period ending on the date designated in
Subsection 1.01(d) of the Adoption Agreement, except that the initial Plan
Year of a new Plan may consist of fewer than 12 months, calculated from the
Effective Date listed in Subsection 1.01(g)(1) of the Adoption Agreement
through the end of such initial Plan Year, in which event Compensation for such
initial Plan Year shall be treated as provided in Subsection 2.01(k).
Additionally, in the event the Plan has a short Plan year,
i.e.
, a Plan Year consisting
of fewer than 12 months, otherwise applicable limits and requirements that are
applied on a Plan Year basis shall be prorated, but only if and to the extent
required by law.
(pp)
"Qualified Matching Employer
Contribution"
means any contribution made by the Employer to the Plan on
account of Deferral Contributions or Employee Contributions made by or on behalf
of Active Participants in accordance with Section 5.09, that may be
included in determining whether the Plan meets the "ADP" test described in
Section 6.03.
(qq)
"Qualified Nonelective Employer
Contribution"
means any contribution made by the Employer to the Plan on
behalf of Non-Highly Compensated Employees in accordance with Section 5.07,
that may be included in determining whether the Plan meets the "ADP" test
described in Section 6.03 or the "ACP" test described in
Section 6.06.
(rr)
"Reemployment Commencement
Date"
means the date on which an Employee who terminates employment with
the Employer and all Related Employers first performs an Hour of Service
following such termination of employment.
(ss)
"Related Employer"
means any
employer other than the Employer named in Subsection 1.02(a) of the
Adoption Agreement if the Employer and such other employer are members of a
controlled group of corporations (as defined in Code Section 414(b)) or an
affiliated service group (as defined in Code Section 414(m)), or are trades
or businesses (whether or not incorporated) which are under common control (as
defined in Code Section 414(c)), or such other employer is required to be
aggregated with the Employer pursuant to regulations issued under Code Section
414(o).
(tt)
"Required Beginning Date"
means:
(1)
for a
Participant who is not a five percent owner, April 1 of the calendar year
following the calendar year in which occurs the later of (i) the
Participant's retirement or (ii) the Participant's attainment of
age 70 1/2; provided, however, that a Participant may elect to have
his Required Beginning Date determined without regard to the provisions of
clause (i).
(2)
for a
Participant who is a five percent owner, April 1 of the calendar year
following the calendar year in which the Participant attains
age 70 1/2.
Once the
Required Beginning Date of a five percent owner or a Participant who has elected
to have his Required Beginning Date determined in accordance with the provisions
of Section 2.01(tt)(1)(ii) has occurred, such Required
Beginning Date shall not be re-determined, even if the Participant ceases to be
a five percent owner in a subsequent year or continues in employment with the
Employer or a Related Employer.
For
purposes of this Subsection 2.01(tt), a Participant is treated as a five
percent owner if such Participant is a five percent owner as defined in Code
Section 416(i) (determined in accordance with Code Section 416 but
without regard to whether the Plan is top-heavy) at any time during the Plan
Year ending with or within the calendar year in which such owner attains
age 70 1/2.
(uu)
"Rollover Contribution"
means
any distribution from an eligible retirement plan, as defined in Section 13.04,
that an Employee elects to contribute to the Plan in accordance with the
provisions of Section 5.06.
(vv)
"Roth 401(k) Contribution"
means any Deferral Contribution made to the Plan by the Employer in accordance
with the provisions of Subsection 5.03(b) that is not excludable from gross
income and is intended to satisfy the requirements of Code Section
402A.
(ww)
"Self-Employed Individual"
means an individual who has Earned Income for the taxable year from the Employer
or who would have had Earned Income but for the fact that the trade or business
had no net profits for the taxable year, including, but not limited to, a
partner in a partnership, a sole proprietor, a member in a limited liability
company or a shareholder in a subchapter S corporation.
(xx)
"Service Agreement"
means the
agreement between the Employer and the Volume Submitter Sponsor (or an agent or
affiliate of the Volume Submitter Sponsor) relating to the provision of
investment and other services to the Plan and shall include any addendum to the
agreement and any other separate written agreement between the Employer and the
Volume Submitter Sponsor (or an agent or affiliate of the Volume Submitter
Sponsor) relating to the provision of services to the Plan.
(yy)
"Severance Date"
means the
earlier of (i) the date an Employee retires, dies, quits, or is discharged
from employment with the Employer and all Related Employers or (ii) the
12-month anniversary of the date on which the Employee was otherwise first
absent from employment; provided, however, that if an individual terminates or
is absent from employment with the Employer and all Related Employers because of
military duty, such individual shall not incur a Severance Date if his
employment rights are protected under Federal law and he returns to employment
with the Employer or a Related Employer within the period during which he
retains such employment rights, but, if he does not return to such employment
within such period, his Severance Date shall be the earlier of (1) the
first anniversary of the date his absence commenced or (2) the last day of
the period during which he retains such employment rights.
(zz)
"Trust"
means the trust
created by the Employer in accordance with the provisions of
Section 20.01.
(aaa)
"Trust Agreement"
means the
agreement between the Employer and the Trustee, as set forth in Article 20,
under which the assets of the Plan are held, administered, and
managed.
(bbb)
"Trustee"
means the trustee
designated in Section 1.03 of the Adoption Agreement, or its successor or
permitted assigns. The term Trustee shall include any delegate of the Trustee as
may be provided in the Trust Agreement.
(ccc)
"Trust Fund"
means the
property held in Trust by the Trustee for the benefit of Participants and their
Beneficiaries.
(ddd)
"Vesting Service"
means an
Employee's service that is taken into account in determining his vested interest
in his Matching Employer and Nonelective Employer Contributions Accounts as may
be required under Section 1.16 of the Adoption
Agreement. Vesting Service shall be credited in accordance with
Article 3.
(eee)
"Volume Submitter Sponsor"
means Fidelity Management & Research Company or its successor.
|
2.02.
|
Interpretation and
Construction of Terms
.
|
Where
required by the context, the noun, verb, adjective, and adverb forms of each
defined term shall include any of its other forms. Pronouns used in the Plan are
in the masculine gender but include the feminine gender unless the context
clearly indicates otherwise. Wherever used herein, the singular shall include
the plural, and the plural shall include the singular, unless the context
requires otherwise.
|
2.03.
|
Special
Effective Dates
.
|
Some
provisions of the Plan are only effective beginning as of a specified date or
until a specified date. Any such special effective dates are
specified within Plan text where applicable and are exceptions to the general
Plan Effective Date as defined in Section 2.01(p).
Article
3.
Service
.
|
3.01.
|
Crediting
of Eligibility Service
.
|
If the
Employer has selected an Eligibility Service requirement in
Subsection 1.04(b) of the Adoption Agreement for an Eligible Employee to
become an Active Participant, Eligibility Service shall be credited to an
Employee as follows:
(a) If
the Employer has selected the one year or two years of Eligibility Service
requirement described in Subsection 1.04(b) of the Adoption Agreement, an
Employee shall be credited with a year of Eligibility Service for each
Eligibility Computation Period during which the Employee has been credited with
the number of Hours of Service specified in that Subsection, as
applicable.
(b) If
the Employer has selected a days or months of Eligibility Service
requirement described in Subsection 1.04(b) of the Adoption Agreement, an
Employee shall be credited with Eligibility Service for the aggregate of the
periods beginning with the Employee's Employment Commencement Date (or
Reemployment Commencement Date) and ending on his subsequent Severance Date;
provided, however, that an Employee who has a Reemployment Date within the
12-consecutive-month period following the earlier of the first date of his
absence or his Severance Date shall be credited with Eligibility Service for the
period between his Severance Date and his Reemployment Date. A day of
Eligibility Service shall be credited for each day on which an Employee is
credited with Eligibility Service. Months of Eligibility Service
shall be measured from the Employee's Employment Commencement Date or
Reemployment Commencement Date to the corresponding date in the applicable
following month.
|
3.02.
|
Re-Crediting
of Eligibility Service Following Termination of Employment
.
|
An
Employee whose employment with the Employer and all Related Employers terminates
and who is subsequently reemployed by the Employer or a Related Employer shall
be re-credited upon reemployment with his Eligibility Service earned prior to
his termination of employment.
|
3.03.
|
Crediting
of Vesting Service
.
|
If the
Plan provides for Matching Employer and/or Nonelective Employer Contributions
that are not 100 percent vested when made, Vesting Service shall be credited to
an Employee, subject to any exclusions elected by the Employer in Subsection
1.16(b) of the Adoption Agreement, for the aggregate of the periods beginning
with the Employee's Employment Commencement Date (or Reemployment Commencement
Date) and ending on his subsequent Severance Date; provided, however, that an
Employee who has a Reemployment Date within the 12-consecutive-month period
following the earlier of the first date of his absence or his Severance Date
shall be credited with Vesting Service for the period between his Severance Date
and his Reemployment Date. Fractional periods of a year shall be
expressed in terms of days.
|
3.04.
|
Application
of Vesting Service to a Participant's Account Following a Break in Vesting
Service
.
|
The
following rules describe how Vesting Service earned before and after a Break in
Vesting Service shall be applied for purposes of determining a Participant's
vested interest in his Matching Employer and Nonelective Employer Contributions
Accounts.
(a)
If a
Participant incurs five-consecutive Breaks in Vesting Service, all years of
Vesting Service earned by the Employee after such Breaks in Service shall be
disregarded in determining the Participant's vested interest in his Matching
Employer and Nonelective Employer Contributions Account balances attributable to
employment before such Breaks in Vesting Service. However, Vesting
Service earned both before and after such Breaks in Vesting Service shall be
included in determining the Participant's vested interest in his Matching
Employer and Nonelective Employer Contributions Account balances attributable to
employment after such Breaks in Vesting Service.
(b)
If a
Participant incurs fewer than five-consecutive Breaks in Vesting Service,
Vesting Service earned both before and after such Breaks in Vesting Service
shall be included in determining the Participant's vested interest in his
Matching Employer and Nonelective Employer Contributions Account balances
attributable to employment both before and after such Breaks in Vesting
Service.
|
3.05.
|
Service
with Predecessor Employer
.
|
If the
Plan is the plan of a predecessor employer, an Employee's Eligibility and
Vesting Service shall include years of service with such predecessor
employer. In any case in which the Plan is not the plan maintained by
a predecessor employer, service for an employer specified in Section 1.17 of the
Adoption Agreement shall be treated as Eligibility and/or Vesting Service as
specified in Subsection 1.17(a)(1) and/or Subsection 1.17(a)(2) of the
Adoption Agreement.
|
3.06.
|
Change
in Service Crediting
.
|
If an
amendment to the Plan or a transfer from employment as an Employee covered under
another qualified plan maintained by the Employer or a Related Employer results
in a change in the method of crediting Eligibility and/or Vesting Service with
respect to a Participant between the Hours of Service crediting method set forth
in Section 2530.200b-2 of the Department of Labor Regulations and the
elapsed-time crediting method set forth in Section 1.410(a)-7 of the
Treasury Regulations, each Participant with respect to whom the method of
crediting Eligibility and/or Vesting Service is changed shall have his
Eligibility and/or Vesting Service determined using either the Hours of Service
method for the entire Eligibility Computation Period and/or Plan Year, for
vesting purposes, or the elapsed time method for the entire Eligibility
Computation Period and/or Plan Year, for vesting purposes, whichever provides
the greater period of Eligibility Service and/or Vesting Service.
Article
4.
Participation
.
|
4.01.
|
Date
of Participation
.
|
If the
Plan is an amendment, as indicated in Subsection 1.01(g)(2)(B) of the Adoption
Agreement, all employees who were active participants in the Plan immediately
prior to the Effective Date shall continue as Active Participants on the
Effective Date, provided that they are Eligible Employees on the Effective
Date. If elected by the Employer in Subsection 1.04(f) of the
Adoption Agreement, all Eligible Employees who are in the service of the
Employer on the date specified in Subsection 1.04(f) (and, if this is an
amendment, as indicated in Subsection 1.01(g)(2)(B) of the Adoption Agreement,
were not active participants in the Plan immediately prior to that date) shall
become Active Participants on the date elected by the Employer in
Subsection 1.04(f) of the Adoption Agreement. Any other Eligible
Employee shall become an Active Participant in the Plan on the Entry Date
coinciding with or immediately following the date on which he first satisfies
the eligibility requirements set forth in Subsections 1.04(a) and (b) of
the Adoption Agreement.
Any age and/or Eligibility Service
requirement that the Employer elects to apply in determining an Eligible
Employee's eligibility to make Deferral Contributions shall also apply in
determining an Eligible Employee's eligibility to make Employee Contributions,
if Employee Contributions are permitted under the Plan, and to receive Qualified
Nonelective Employer Contributions. An Eligible Employee who has met
the eligibility requirements with respect to certain contributions, but who has
not met the eligibility requirements with respect to other contributions, shall
become an Active Participant in accordance with the provisions of the preceding
paragraph, but only with respect to the contributions for which he has met the
eligibility requirements.
Notwithstanding any other provision of
the Plan, if the Employer selects in Subsection 1.01(g)(5) of the Adoption
Agreement that the Plan is a frozen plan, no Employee who was not already an
Active Participant on the date the Plan was frozen shall become an Active
Participant while the Plan is frozen. If the Employer amends the Plan to remove
the freeze, Employees shall again become Active Participants in accordance with
the provisions of the amended Plan.
|
4.02.
|
Transfers
Out of Covered Employment
.
|
If any
Active Participant ceases to be an Eligible Employee, but continues in the
employ of the Employer or a Related Employer, such Employee shall cease to be an
Active Participant, but shall continue as an Inactive Participant until his
entire Account balance is forfeited or distributed. An Inactive
Participant shall not be entitled to receive an allocation of contributions or
forfeitures under the Plan for the period that he is not an Eligible Employee
and wages and other payments made to him by the Employer or a Related Employer
for services other than as an Eligible Employee shall not be included in
Compensation for purposes of determining the amount and allocation of any
contributions to the Account of such Inactive Participant. Such
Inactive Participant shall continue to receive credit for Vesting Service
completed during the period that he continues in the employ of the Employer or a
Related Employer.
|
4.03.
|
Transfers
Into Covered Employment
.
|
If an
Employee who is not an Eligible Employee becomes an Eligible Employee, such
Eligible Employee shall become an Active Participant immediately as of his
transfer date if such Eligible Employee has already satisfied the eligibility
requirements and would have otherwise previously become an Active Participant in
accordance with Section 4.01. Otherwise, such Eligible Employee shall
become an Active Participant in accordance with Section 4.01.
Wages and other payments made to an
Employee prior to his becoming an Eligible Employee by the Employer or a Related
Employer for services other than as an Eligible Employee shall not be included
in Compensation for purposes of determining the amount and allocation of any
contributions to the Account of such Eligible Employee.
|
4.04.
|
Resumption
of Participation Following Reemployment
.
|
If a
Participant who terminates employment with the Employer and all Related
Employers is reemployed as an Eligible Employee, he shall again become an Active
Participant on his Reemployment Commencement Date. If a former
Employee is reemployed as an Eligible Employee on or after an Entry Date
coinciding with or following the date on which he met the age and service
requirements elected by the Employer in Section 1.04 of the Adoption Agreement,
he shall become an Active Participant on his Reemployment Commencement
Date. Any other former Employee who is reemployed as an Eligible
Employee shall become an Active Participant as provided in Section 4.01 or
4.03. Any distribution which a Participant is receiving under the
Plan at the time he is reemployed by the Employer or a Related Employer shall
cease, except as otherwise required under Section 12.04.
Article
5.
Contributions
.
|
5.01.
|
Contributions
Subject to Limitations
.
|
All
contributions made to the Plan under this Article 5 shall be subject to the
limitations contained in Article 6.
|
5.02.
|
Compensation
Taken into Account in Determining Contributions
.
|
In
determining the amount or allocation of any contribution that is based on a
percentage of Compensation, only Compensation paid to a Participant prior to
termination for services rendered to the Employer while employed as an Eligible
Employee shall be taken into account. Except as otherwise
specifically provided in this Article 5, for purposes of determining the amount
and allocation of contributions under this Article 5, Compensation shall
not include any amounts elected by the Employer with respect to such
contributions in Subsection 1.05(a) or (b), as applicable, of the Adoption
Agreement.
If the initial Plan Year of a new plan
consists of fewer than 12 months, calculated from the Effective Date listed
in Subsection 1.01(g)(1) of the Adoption Agreement through the end of such
initial Plan Year, except as otherwise provided in this paragraph, Compensation
for purposes of determining the amount and allocation of contributions under
this Article 5 for such initial Plan Year shall include only Compensation for
services during the period beginning on the Effective Date listed in
Subsection 1.01(g)(1) of the Adoption Agreement and ending on the last day
of the initial Plan Year. Notwithstanding the foregoing, to the
extent selected in Subsection 1.05(b)(1)(A) or (2)(A) of the Adoption Agreement,
Compensation for purposes of determining the amount and allocation of
Nonelective Employer Contributions, other than 401(k) Safe Harbor Nonelective
Employer Contributions, under this Article 5 for such initial Plan Year
shall include Compensation for the full 12-consecutive-month period ending on
the last day of the initial Plan Year.
|
5.03.
|
Deferral
Contributions
.
|
If so
provided in Subsection 1.07(a) of the Adoption Agreement, each Active
Participant may elect to execute a salary reduction agreement with the Employer
to reduce his Compensation by an amount, as specified in Subsection 1.07(a) of
the Adoption Agreement, for each payroll period. Except as specifically elected
by the Employer within Subsections 1.07(a) of the Adoption Agreement, with
respect to each payroll period, an Active Participant may not elect to make
Deferral Contributions in excess of the percentage of Compensation specified by
the Employer in Subsection 1.07(a)(1)(A) of the Adoption Agreement and
Subsection 5.03(a) below. Notwithstanding the foregoing, if the Employer has
elected 401(k) Safe Harbor Matching Contributions in Option 1.11(a)(3) of the
Adoption Agreement, a Participant must be permitted to make Deferral
Contributions under the Plan sufficient to receive the full 401(k) Safe Harbor
Matching Employer Contribution provided under Subsection (a)(1) or (2), as
applicable of the 401(k) Safe Harbor Matching Employer Contributions Addendum to
the Adoption Agreement.
An
Active Participant's salary reduction agreement shall become effective on the
first day of the first payroll period for which the Employer can reasonably
process the request, but not earlier than the later of (a) the effective
date of the provisions permitting Deferral Contributions or (b) the date
the Employer adopts such provisions. The Employer shall make a
Deferral Contribution on behalf of the Participant corresponding to the amount
of said reduction. Under no circumstances may a salary reduction
agreement be adopted retroactively.
An Active Participant may elect to
change or discontinue the amount by which his Compensation is reduced by notice
to the Employer as provided in Subsection 1.07(a)(1)(C) or (D) of the
Adoption Agreement. Notwithstanding the Employer's election in
Subsection 1.07(a)(1)(C) or (D) of the Adoption Agreement, if the Employer
has elected 401(k) Safe Harbor Matching Employer Contributions in Subsection
1.11(a)(3) of the Adoption Agreement or 401(k) Safe Harbor Nonelective Employer
Contributions in; Subsection 1.12(a)(3) of the Adoption Agreement, an Active
Participant may elect to change or discontinue the amount by which his
Compensation is reduced by notice to the Employer within a reasonable period, as
specified by the Employer (but not less than 30 days), of receiving the
notice described in Section 6.09.
Based
upon the Employer's elections in Subsection 1.07(a) of the Adoption Agreement,
the following special types of Deferral Contributions may be made to the
Plan:
(a)
Catch-Up
Contributions
. If elected by the Employer in Subsection
1.07(a)(4) of the Adoption Agreement, an Active Participant who has attained or
is expected to attain age 50 before the close of the calendar year shall be
eligible to make Catch-Up Contributions to the Plan in excess of an otherwise
applicable Plan limit, but not in excess of (i) the dollar limit in effect under
Code Section 414(v)(2)(B)(i) for the calendar year or (ii) when added to the
other Deferral Contributions made by the Participant for the calendar year, the
deferral limit described in Subsection 1.07(a)(1)(A) of the Adoption Agreement,
provided such deferral limit is not less than 75 percent. Except as otherwise
elected by the Employer in the Adoption Agreement, if the Employer elects to
provide for Catch-Up Contributions pursuant to Subsection 1.07(a)(4) of the
Adoption Agreement, such deferral limit shall be 75 percent of
Compensation. An otherwise applicable Plan limit is a limit that
applies to Deferral Contributions without regard to Catch-Up Contributions,
including, but not limited to, (1) the dollar limitation on Deferral
Contributions under Code Section 402(g), described in Section 6.02, (2) the
limitations on annual additions in effect under Code Section 415, described in
Section 6.12, and (3) the limitation on Deferral Contributions for Highly
Compensated Employees under Code Section 401(k)(3), described in Section
6.03.
In the event that the deferral limit
described in Subsection 1.07(a)(1)(A) of the Adoption Agreement or the
administrative limit described in Section 6.05, as applicable, is changed during
the Plan Year, for purposes of determining Catch-Up Contributions for the Plan
Year, such limit shall be determined using the time-weighted average method
described in Section 1.414(v)-1(b)(2)(i)(B)(1) of the Treasury Regulations,
applying the alternative definition of compensation permitted under Section
1.414(v)-1(b)(2)(i)(B)(2) of the Treasury Regulations.
(b)
Roth 401(k)
Contributions
. Notwithstanding any other provision of the Plan
to the contrary, if the Employer elects in Subsection 1.07(a)(5) of the Adoption
Agreement to permit Roth 401(k) Contributions, then a Participant may
irrevocably designate all or a portion of his Deferral Contributions made
pursuant to Subsection 1.07(a) of the Adoption Agreement as Roth 401(k)
Contributions that are includible in the Participant’s gross income at the time
deferred, pursuant to Code Section 402A and any applicable guidance or
regulations issued thereunder. A Participant may change his
designation prospectively with respect to future Deferral Contributions as of
the date or dates elected by the Employer in Subsection 1.07(a)(1)(C) of the
Adoption Agreement. The Administrator will maintain all such
contributions made pursuant to Code Section 402A separately and make
distributions in accordance with the Plan unless required to do otherwise by
Code Section 402A and any applicable guidance or regulations issued
thereunder.
(c)
Automatic Enrollment
Contributions
. If the Employer elected Option 1.07(a)(6)
of the Adoption Agreement, for each Active Participant to whom the Employer has
elected to apply the automatic enrollment contribution provisions, such Active
Participant's Compensation shall be reduced by the percentage specified by the
Employer in Option 1.07(a)(6) of the Adoption Agreement. These amounts
shall be contributed to the Plan on behalf of such Active Participant as
Deferral Contributions.
An Active
Participant's Compensation shall continue to be reduced and Deferral
Contributions made to the Plan on his behalf until the Active Participant elects
to change or discontinue the percentage by which his Compensation is reduced by
notice to the Employer as provided in Subsection 1.07(a)(1)(C) or (D) of
the Adoption Agreement. An Eligible Employee may affirmatively elect
not to have his Compensation reduced in accordance with this Subsection 5.03(c)
by notice to the Employer within a reasonable period ending no later than the
date Compensation subject to reduction hereunder becomes available to the Active
Participant.
If the
Employer elected Option 1.07(b) of the Adoption Agreement, the deferral election
of an Active Participant on whose behalf Deferral Contributions are being made
pursuant to the automatic enrollment provisions described above shall be
increased annually by the percentage of Compensation specified in Subsection
1.07(b)(1) of the Adoption Agreement, unless and until the percentage of
Compensation being contributed on behalf of the Active Participant reaches the
limit specified in Subsection 1.07(b)(2) of the Adoption Agreement or, if none,
in Subsection 1.07(a)(1) of the Adoption Agreement. An Active
Participant may affirmatively elect not to have his deferral election increased
in accordance with the provisions of this paragraph by notice to the Employer
within a reasonable period ending no later than the date Compensation subject to
the increase becomes available to the Active Participant.
Notwithstanding any other provision of
this Section or of any Participant's salary reduction agreement, in no event
shall a Participant be permitted to make Deferral Contributions in excess of his
"effectively available Compensation." A Participant's "effectively
available Compensation" is his Compensation remaining after all applicable
amounts have been withheld (e.g., tax-withholding and withholding of
contributions to a cafeteria plan).
|
5.04.
|
Employee
Contributions
.
|
If so
provided by the Employer in Subsection 1.08(a) of the Adoption Agreement, each
Active Participant may elect to make non-deductible Employee Contributions to
the Plan in accordance with the rules and procedures established by the Employer
and subject to the limits provided in Subsection 1.08(a) of the Adoption
Agreement. An Active Participant may not elect to make non-deductible Employee
Contributions in excess of the percentage of Compensation specified by the
Employer in Subsection 1.08(a)(1) of the Adoption Agreement.
|
5.05.
|
No
Deductible Employee Contributions
.
|
No
deductible Employee Contributions may be made to the Plan. Deductible
Employee Contributions made prior to January 1, 1987 shall be maintained in
a separate Account. No part of the deductible Employee Contributions
Account shall be used to purchase life insurance.
|
5.06.
|
Rollover
Contributions
.
|
If so
provided by the Employer in Subsection 1.09(a) of the Adoption Agreement,
an Eligible Employee who is or was entitled to receive an eligible rollover
distribution, as defined in Code Section 402(c)(4) and Treasury Regulations
issued thereunder, including an eligible rollover distribution received by the
Eligible Employee as a surviving spouse or as a spouse or former spouse who is
an alternate payee under a qualified domestic relations order, from an eligible
retirement plan, as defined in Section 13.04, may elect to contribute all or any
portion of such distribution to the Trust directly from such eligible retirement
plan (a "direct rollover") or within 60 days of receipt of such
distribution to the Eligible Employee. Rollover Contributions shall
only be made in the form of cash, allowable Fund Shares, or promissory notes
evidencing a plan loan to the Eligible Employee; provided, however, that
Rollover Contributions shall only be permitted in the form of promissory notes
if the Plan otherwise provides for loans.
Notwithstanding the foregoing, the Plan
shall not accept the following as Rollover Contributions:
|
(a)
|
any
rollover of after-tax employee contributions that is not made by a direct
rollover;
|
(b)
if
elected by the Employer in Subsection 1.09(a)(1) of the Adoption Agreement, a
direct rollover of after-tax employee contributions from a qualified plan
described in Code Section 401(a) or 403(a);
(c)
any
rollover of after-tax employee contributions from an annuity contract described
in Code Section 403(b) or from an individual retirement account or annuity
described in Code Section 408(a) or (b);
(d)
any
rollover of nondeductible individual retirement account or annuity
contributions;
(e)
any
rollover of after-tax employee contributions from an eligible deferred
compensation plan described in Code Section 457(b) that is maintained by a
state, political subdivision of a state, or any agency or instrumentality of a
state or political subdivision of a state;
(f)
if
elected by the Employer in Subsection 1.09(a)(2) of the Adoption Agreement, any
rollover of "designated Roth contributions", as defined in Subsection
6.01(e);
(g)
any
rollover of the non-taxable portion of an Eligible Employee's "designated Roth
contributions", as defined in Subsection 6.01(e), that is not made by a direct
rollover; or
(h)
any
rollover of "designated Roth contributions", as defined in Subsection 6.01(e),
from a Roth IRA described in Code Section 408A.
To the extent the Plan accepts Rollover
Contributions of after-tax employee contributions, the Plan will separately
account for such contributions, including separate accounting for the portion of
the Rollover Contribution that is includible in gross income and the portion
that is not includible in gross income.
Any
rollover of "designated Roth contributions", as defined in Subsection 6.01(e),
shall be subject to the requirements of Code Section 402(c). To the extent the
Plan accepts Rollover Contributions of "designated Roth contributions", the Plan
will separately account for such contributions in accordance with the provisions
of Section 7.01, including separate accounting for the portion of the Rollover
Contribution that is includible in gross income and the portion that is not
includible in gross income, if applicable. If the Plan accepts a direct rollover
of "designated Roth contributions", the Trustee and the Plan Administrator shall
be entitled to rely on a statement from the distributing plan's administrator
identifying (i) the Eligible Employee's basis in the rolled over amounts and
(ii) the date on which the Eligible Employee's 5-taxable-year period of
participation (as required under Code Section 402A(d)(2) for a qualified
distribution of "designated Roth contributions") started under the distributing
plan. If the 5-taxable-year period of participation under the distributing plan
would end sooner than the Eligible Employee's 5-taxable-year period of
participation under the Plan, the 5-taxable-year period of participation
applicable under the distributing plan shall continue to apply with respect to
the Rollover Contribution.
An Eligible Employee who has not yet
become an Active Participant in the Plan in accordance with the provisions of
Article 3 may make a Rollover Contribution to the Plan. Such Eligible
Employee shall be treated as a Participant under the Plan for all purposes of
the Plan, except eligibility to have Deferral Contributions made on his behalf
and to receive an allocation of Matching Employer or Nonelective Employer
Contributions.
The Administrator shall develop such
procedures and require such information from Eligible Employees as it deems
necessary to ensure that amounts contributed under this Section 5.06 meet
the requirements for tax-deferred rollovers established by this
Section 5.06 and by Code Section 402(c). No Rollover
Contributions may be made to the Plan until approved by the
Administrator.
If a Rollover Contribution made under
this Section 5.06 is later determined by the Administrator not to have met
the requirements of this Section 5.06 or of the Code or Treasury
regulations, the Trustee shall, within a reasonable time after such
determination is made, and on instructions from the Administrator, distribute to
the Employee the amounts then held in the Trust attributable to such Rollover
Contribution.
A Participant's Rollover Contributions
Account shall be subject to the terms of the Plan, including Article 14, except
as otherwise provided in this Section 5.06.
|
5.07.
|
Qualified
Nonelective Employer Contributions
.
|
The
Employer may, in its discretion, make a Qualified Nonelective Employer
Contribution for the Plan Year in any amount necessary to satisfy or help to
satisfy the "ADP" test, described in Section 6.03, and/or the "ACP" test,
described in Section 6.06. Unless the Employer elects the
allocation provisions in Subsection 1.10(a)(1) of the Adoption Agreement, any
Qualified Nonelective Employer Contribution shall be allocated among the
Accounts of Non-Highly Compensated Employees who were Active Participants at any
time during the Plan Year in the ratio that each eligible Active Participant's
"testing compensation", as defined in Subsection 6.01(r), for the Plan Year
bears to the total "testing compensation" paid to all eligible Active
Participants for the Plan Year. If the Employer elects the allocation
provisions in Subsection 1.10(a)(1) of the Adoption Agreement, any Qualified
Nonelective Employer Contribution shall be allocated among the Accounts of only
those Non-Highly Compensated Employees who are designated by the Employer and
who were Active Participants at any time during the Plan Year and shall be
allocated to each such Non-Highly Compensated Employee in the amount determined
by the Employer; provided, however, that the amount of any Qualified Nonelective
Contribution included in a Non-Highly Compensated Employee's "contribution
percentage amounts", as defined in Subsection 6.01(c), shall not exceed 5% of
such Non-Highly Compensated Employee's "testing compensation", as defined in
Subsection 6.01(r), and the amount of any Qualified Nonelective Contribution
included as " in a Non-Highly Compensated Employee's "includable contributions",
as defined in Subsection 6.01(n), shall not exceed 5% of such Non-Highly
Compensated Employee's "testing compensation", as defined in Subsection
6.01(r).
Participants shall not be required to
satisfy any Hours of Service or employment requirement for the Plan Year in
order to receive an allocation of Qualified Nonelective Employer
Contributions.
Qualified Nonelective Employer
Contributions shall be distributable only in accordance with the distribution
provisions that are applicable to Deferral Contributions; provided, however,
that a Participant shall not be permitted to take a hardship withdrawal of
amounts credited to his Qualified Nonelective Employer Contributions Account
after the later of December 31, 1988 or the last day of the Plan Year
ending before July 1, 1989.
|
5.08.
|
Matching
Employer Contributions
.
|
If so
provided by the Employer in Section 1.11 of the Adoption Agreement, the
Employer shall make a Matching Employer Contribution on behalf of each of its
"eligible" Participants. For purposes of this Section 5.08, an "eligible"
Participant means any Participant who was an Active Participant during the
Contribution Period, who meets the requirements in Subsection 1.11(e) of
the Adoption Agreement or Section 1.13 of the Adoption Agreement, as
applicable, and who had eligible contributions, as elected by the Employer in
Subsection 1.11(c) of the Adoption Agreement, made on his behalf during the
Contribution Period. The amount of the Matching Employer Contribution
shall be determined in accordance with Subsection 1.11(a) and/or (b)
of the Adoption Agreement and/or the 401(k) Safe Harbor Matching Employer
Contributions Addendum to the Adoption Agreement, as applicable.
Notwithstanding
the foregoing, unless otherwise elected in Subsection 1.11(c)(1)(A) of the
Adoption Agreement, the Employer shall
not
make
Matching Employer Contributions, other than 401(k) Safe Harbor Matching Employer
Contributions, with respect to an "eligible" Participant's Catch-Up
Contributions. If, due to application of a Plan limit, Matching
Employer Contributions other than 401(k) Safe Harbor Matching Employer
Contributions are attributable to Catch-Up Contributions, such Matching Employer
Contributions, plus any income and minus any loss allocable thereto, shall be
forfeited and applied as provided in Section 11.09.
|
5.09.
|
Qualified
Matching Employer Contributions
.
|
If so
provided by the Employer in Subsection 1.11(f) of the Adoption Agreement,
prior to making its Matching Employer Contribution (other than any 401(k) Safe
Harbor Matching Employer Contribution) to the Plan, the Employer may designate
all or a portion of such Matching Employer Contribution as a Qualified Matching
Employer Contribution. The Employer shall notify the Trustee of such designation
at the time it makes its Matching Employer Contribution. Qualified Matching
Employer Contributions shall be distributable only in accordance with the
distribution provisions that are applicable to Deferral Contributions; provided,
however, that a Participant shall not be permitted to take a hardship withdrawal
of amounts credited to his Qualified Matching Employer Contributions Account
after the later of December 31, 1988 or the last day of the Plan Year
ending before July 1, 1989.
If the amount of an Employer's
Qualified Matching Employer Contribution is determined based on a Participant's
Compensation, and the Qualified Matching Employer Contribution is necessary to
satisfy the "ADP" test described in Section 6.03, the compensation used in
determining the amount of the Qualified Matching Employer Contribution shall be
"testing compensation", as defined in Subsection 6.01(r). If the
Qualified Matching Employer Contribution is not necessary to satisfy the "ADP"
test described in Section 6.03, the compensation used to determine the amount of
the Qualified Matching Employer Contribution shall be Compensation as defined in
Subsection 2.01(k), modified as provided in Section 5.02.
|
5.10.
|
Nonelective
Employer Contributions
.
|
If so
provided by the Employer in Section 1.12 of the Adoption Agreement, the
Employer shall make Nonelective Employer Contributions to the Trust in
accordance with Subsection 1.12(a) and/or (b) of the Adoption Agreement to
be allocated among "eligible" Participants. For purposes of this Section 5.10,
an "eligible" Participant means any Participant who was an Active Participant
during the period for which the contribution is made and who meets the
requirements in Subsection 1.12(d) of the Adoption Agreement or Section 1.13 of
the Adoption Agreement, as applicable. Nonelective Employer Contributions shall
be allocated as follows:
(a)
If the
Employer has elected a fixed contribution formula, Nonelective Employer
Contributions shall be allocated among "eligible" Participants in the manner
specified in Section 1.12 of the Adoption Agreement or the 401(k) Safe
Harbor Nonelective Employer Contributions Addendum to the Adoption Agreement, as
applicable.
(b)
If the
Employer has elected a discretionary contribution amount, Nonelective Employer
Contributions shall be allocated among "eligible" Participants, as determined in
accordance with Section 1.12 and Section 1.13 of the Adoption
Agreement, as follows:
(1)
If the
non-integrated formula is elected in Subsection 1.12(b)(1) of the Adoption
Agreement, Nonelective Employer Contributions shall be allocated to "eligible"
Participants in the ratio that each "eligible" Participant's Compensation bears
to the total Compensation paid to all "eligible" Participants for the
Contribution Period.
(2)
If the
integrated formula is elected in Subsection 1.12(b)(2) of the Adoption
Agreement, Nonelective Employer Contributions shall be allocated in the
following steps:
(A)
First, to
each "eligible" Participant in the same ratio that the sum of the "eligible"
Participant's Compensation and "excess Compensation" for the Plan Year bears to
the sum of the Compensation and "excess Compensation" of all "eligible"
Participants for the Plan Year. This allocation as a percentage of
the sum of each "eligible" Participant's Compensation and "excess Compensation"
shall not exceed the "permitted disparity limit", as defined in
Section 1.12 of the Adoption Agreement.
Notwithstanding
the foregoing, if in any Plan Year an "eligible" Participant has reached the
"cumulative permitted disparity limit", such "eligible" Participant shall
receive an allocation under this Subsection 5.10(b)(2)(A) based on two
times his Compensation for the Plan Year, rather than the sum of his
Compensation and "excess Compensation" for the Plan Year. If an
"eligible" Participant did not benefit under a qualified defined benefit plan or
target benefit plan for any Plan Year beginning on or after January 1,
1994, the "eligible" Participant shall have no "cumulative disparity
limit".
(B)
Second,
if any Nonelective Employer Contributions remain after the allocation in
Subsection 5.10(b)(2)(A), the remaining Nonelective Employer Contributions
shall be allocated to each "eligible" Participant in the same ratio that the
"eligible" Participant's Compensation for the Plan Year bears to the total
Compensation of all "eligible" Participants for the Plan Year.
Notwithstanding
the provisions of Subsections 5.10(b)(2)(A) and (B) above, if in any Plan
Year an "eligible" Participant benefits under another qualified plan or
simplified employee pension, as defined in Code Section 408(k), that
provides for or imputes permitted disparity, the Nonelective Employer
Contributions for the Plan Year allocated to such "eligible" Participant shall
be in the ratio that his Compensation for the Plan Year bears to the total
Compensation paid to all "eligible" Participants.
For
purposes of this Subsection 5.10(b)(2), the following definitions shall
apply:
(C)
"Cumulative permitted disparity
limit"
means 35 multiplied by the sum of an "eligible" Participant's
annual permitted disparity fractions, as defined in
Sections 1.401(l)-5(b)(3) through (b)(7) of the Treasury Regulations,
attributable to the "eligible" Participant's total years of service under the
Plan and any other qualified plan or simplified employee pension, as defined in
Code Section 408(k), maintained by the Employer or a Related
Employer. For each Plan Year commencing prior to January 1,
1989, the annual permitted disparity fraction shall be deemed to be one, unless
the Participant never accrued a benefit under any qualified plan or simplified
employee pension maintained by the Employer or a Related Employer during any
such Plan Year. In determining the annual permitted disparity
fraction for any Plan Year, the Employer may elect to assume that the full
disparity limit has been used for such Plan Year.
(D)
"Excess Compensation"
means
Compensation in excess of the "integration level" specified by the Employer in
Subsection 1.12(b)(2) of the Adoption Agreement.
|
5.11.
|
Vested
Interest in Contributions
.
|
A
Participant's vested interest in the following sub-accounts shall be
100 percent:
|
(a)
|
his
Deferral Contributions Account;
|
|
(b)
|
his
Qualified Nonelective Employer Contributions
Account;
|
|
(c)
|
his
Qualified Matching Employer Contributions
Account;
|
|
(d)
|
his
401(k) Safe Harbor Nonelective Employer Contributions
Account;
|
|
(e)
|
his
401(k) Safe Harbor Matching Employer Contributions
Account;
|
|
(f)
|
his
Rollover Contributions Account;
|
|
(g)
|
his
Employee Contributions Account; and
|
|
(h)
|
his
deductible Employee Contributions
Account.
|
Except as
otherwise specifically provided in the Vesting Schedule Addendum to the Adoption
Agreement or as may be required under Section 15.05, a Participant's vested
interest in his Nonelective Employer Contributions Account attributable to
Nonelective Employer Contributions other than those described in
Subsection 5.11(d) above, shall be determined in accordance with the
vesting schedule elected by the Employer in Subsection 1.16(c)(1) of the
Adoption Agreement. Except as otherwise specifically provided in the
Vesting Schedule Addendum to the Adoption Agreement, a Participant's vested
interest in his Matching Employer Contributions Account attributable to Matching
Employer Contributions other than those described in Subsection 5.11(e)
above, shall be determined in accordance with the vesting schedule elected by
the Employer in
Subsection 1.16(c)(2)
of the Adoption Agreement.
|
5.12.
|
Time
for Making Contributions
.
|
The
Employer shall pay its contribution for each Plan Year not later than the time
prescribed by law for filing the Employer's Federal income tax return for the
fiscal (or taxable) year with or within which such Plan Year ends (including
extensions thereof).
If the Employer has elected the payroll
period as the Contribution Period in Subsection 1.11(d) of the Adoption
Agreement, the Employer shall remit any 401(k) Safe Harbor Matching Employer
Contributions made during a Plan Year quarter to the Trustee no later than the
last day of the immediately following Plan Year quarter.
The Employer should remit Employee
Contributions and Deferral Contributions to the Trustee as of the earliest date
on which such contributions can reasonably be segregated from the Employer's
general assets, but not later than the 15th business day of the calendar month
following the month in which such amount otherwise would have been paid to the
Participant, or within such other time frame as may be determined by applicable
regulation or legislation.
The Trustee shall have no authority to
inquire into the correctness of the amounts contributed and remitted to the
Trustee, to determine whether any contribution is payable under this
Article 5, or to enforce, by suit or otherwise, the Employer's obligation,
if any, to make a contribution to the Trustee. The Trustee is a directed trustee
pursuant to ERISA Section 403(a)(1) for all purposes, and, specifically, has no
responsibility or authority to collect Plan contributions or loan repayments or
to pursue any claim the Plan might have with respect to loan repayments or Plan
contributions.
|
5.13.
|
Return
of Employer Contributions
.
|
The
Trustee shall, upon request by the Employer, return to the Employer the amount
(if any) determined under Section 20.23. Such amount shall be
reduced by amounts attributable thereto which have been credited to the Accounts
of Participants who have since received distributions from the Trust, except to
the extent such amounts continue to be credited to such Participants' Accounts
at the time the amount is returned to the Employer. Such amount shall
also be reduced by the losses of the Trust attributable thereto, if and to the
extent such losses exceed the gains and income attributable thereto, but shall
not be increased by the gains and income of the Trust attributable thereto, if
and to the extent such gains and income exceed the losses attributable
thereto. To the extent such gains exceed losses, the gains shall be
forfeited and applied as provided in Section 11.09. In no event
shall the return of a contribution hereunder cause the balance of the individual
Account of any Participant to be reduced to less than the balance which would
have been credited to the Account had the mistaken amount not been
contributed.
If the
Employer has selected in Subsection 1.01(g)(5) of the Adoption Agreement that
the Plan is a frozen plan, then during the period that the Plan is a frozen Plan
and notwithstanding any other provision of the Plan to the contrary, no further
contributions may be made to the Plan in accordance with this Article 5. If the
Employer amends the Plan to remove the freeze, contributions shall resume in
accordance with the provisions of the amended Plan.
Article
6.
Limitations on
Contributions
.
|
6.01.
|
Special
Definitions
.
|
For
purposes of this Article, the following definitions shall apply:
(a)
"Annual additions"
mean the
sum of the following amounts allocated to an Active Participant for a Limitation
Year:
(1)
all
employer contributions allocated to an Active Participant's account under
qualified defined contribution plans maintained by the "415 employer",
including amounts applied to reduce employer contributions as provided under
Section 11.09, but excluding amounts treated as Catch-Up
Contributions;
(2)
all
employee contributions allocated to an Active Participant's account under a
qualified defined contribution plan or a qualified defined benefit plan
maintained by the "415 employer" if separate accounts are maintained with
respect to such Active Participant under the defined benefit plan;
(3)
all
forfeitures allocated to an Active Participant's account under a qualified
defined contribution plan maintained by the "415 employer";
(4)
all
amounts allocated to an "individual medical benefit account" which is part of a
pension or annuity plan maintained by the "415 employer";
(5)
all
amounts derived from contributions paid or accrued after December 31, 1985,
in taxable years ending after such date, which are attributable to
post-retirement medical benefits allocated to the separate account of a key
employee, as defined in Code Section 419A(d)(3), under a "welfare benefit
fund" maintained by the "415 employer"; and
(6)
all
allocations to an Active Participant under a "simplified employee
pension".
(b)
"Contribution percentage"
means the ratio (expressed as a percentage) of (1) the "contribution
percentage amounts" allocated to an "eligible participant's" Accounts for the
Plan Year to (2) the "eligible participant's" "testing compensation" for
the Plan Year.
(c)
"Contribution percentage
amounts"
mean those amounts included in applying the "ACP"
test.
|
(1)
|
"Contribution
percentage amounts" include the
following:
|
|
(A)
|
any
Employee Contributions made by an "eligible participant" to the
Plan;
|
(B)
any
Matching Employer Contributions on eligible contributions as elected by the
Employer in Subsection 1.11(c) of the Adoption Agreement, made for the Plan
Year, but excluding (A) Qualified Matching Employer Contributions that are
taken into account in satisfying the "ADP" test described in Section 6.03
and (B) Matching Employer Contributions that are forfeited either to
correct "excess aggregate contributions" or because the contributions to which
they relate are "excess deferrals", "excess contributions", "excess aggregate
contributions", or Catch-Up Contributions (in the event the Plan does not
provide for Matching Employer Contributions with respect to Catch-Up
Contributions);
(C)
if
elected, Qualified Nonelective Employer Contributions, excluding Qualified
Nonelective Employer Contributions that are taken into account in satisfying the
"ADP" test described in Section 6.03;
(D)
if
elected, 401(k) Safe Harbor Nonelective Employer Contributions, to the extent
such contributions are not required to satisfy the safe harbor contribution
requirements under Section 1.401(k)-3(b) of the Treasury Regulations, excluding
401(k) Safe Harbor Nonelective Employer Contributions that are taken into
account in satisfying the "ADP" test described in Section 6.03; and
(E)
if
elected, Deferral Contributions, provided that the "ADP" test described in
Section 6.03 is satisfied both including Deferral Contributions included as
"contribution percentage amounts" and excluding such Deferral
Contributions.
(2)
Notwithstanding
the foregoing, for any Plan Year in which the "ADP" test described in
Section 6.03 is deemed satisfied pursuant to Section 6.09 with respect
to some or all Deferral Contributions, "contribution percentage amounts" shall
not include the following:
(A)
any
Deferral Contributions with respect to which the "ADP" test is deemed satisfied;
and
(B)
if
elected, the following Matching Employer Contributions:
(i)
if the
requirements described in Section 6.10 for deemed satisfaction of the "ACP"
test with respect to some or all Matching Employer Contributions are met, those
Matching Employer Contributions with respect to which the "ACP" test is deemed
satisfied; or
(ii)
if the
"ADP" test is deemed satisfied using 401(k) Safe Harbor Matching Employer
Contributions, but the requirements described in Section 6.10 for deemed
satisfaction of the "ACP" test with respect to Matching Employer Contributions
are
not
met,
any Matching Employer Contributions made on behalf of an "eligible participant"
for the Plan Year that do not exceed four percent of the "eligible
participant's" Compensation for the Plan Year.
(3)
Notwithstanding
any other provisions of this Subsection, if an Employer elects to change from
the current year testing method described in Subsection 1.06(a)(1) of the
Adoption Agreement to the prior year testing method described in
Subsection 1.06(a)(2) of the Adoption Agreement, the following shall not be
considered "contribution percentage amounts" for purposes of determining the
"contribution percentages" of Non-Highly Compensated Employees for the prior
year immediately preceding the Plan Year in which the change is
effective:
(A)
Qualified
Matching Employer Contributions that were taken into account in satisfying the
"ADP" test described in Section 6.03 for such prior year;
(B)
Qualified
Nonelective Employer Contributions that were taken into account in satisfying
the "ADP" test described in Section 6.03 or the "ACP" test described in
Section 6.06 for such prior year;
(C)
401(k)
Safe Harbor Nonelective Employer Contributions that were taken into account in
satisfying the "ADP" test described in Section 6.03 or the "ACP" test described
in Section 6.06 for such prior year or that were required to satisfy the safe
harbor contribution requirements under Section 1.401(k)-3(b) of the Treasury
Regulations for such prior year; and
(D)
all
Deferral Contributions.
To be included in determining an
"eligible participant's" "contribution percentage" for a Plan Year, Employee
Contributions must be made to the Plan before the end of such Plan Year and
other "contribution percentage amounts" must be allocated to the "eligible
participant's" Account as of a date within such Plan Year and made before the
last day of the 12-month period immediately following the Plan Year to which the
"contribution percentage amounts" relate. If an Employer has elected the prior
year testing method described in Subsection 1.06(a)(2) of the Adoption
Agreement, "contribution percentage amounts" that are taken into account for
purposes of determining the "contribution percentages" of Non-Highly Compensated
Employees for the prior year relate to such prior year. Therefore,
such "contribution percentage amounts" must be made before the last day of the
Plan Year being tested.
(d)
"Deferral ratio"
means the
ratio (expressed as a percentage) of (1) the amount of "includable
contributions" made on behalf of an Active Participant for the Plan Year to
(2) the Active Participant's "testing compensation" for such Plan
Year. An Active Participant who does not receive "includable
contributions" for a Plan Year shall have a "deferral ratio" of
zero.
(e)
"Designated Roth
contributions"
mean any Roth 401(k) Contributions made to the Plan and
any "elective deferrals" made to another plan that would be excludable from a
Participant's income, but for the Participant's election to designate such
contributions as Roth contributions and include them in income.
(f)
"Determination year"
means
(1) for purposes of determining income or loss with respect to "excess
deferrals", the calendar year in which the "excess deferrals" were made and
(2) for purposes of determining income or loss with respect to "excess
contributions", and "excess aggregate contributions", the Plan Year in which
such "excess contributions" or "excess aggregate contributions" were
made.
(g)
"Elective deferrals"
mean all
employer contributions, other than Deferral Contributions, made on behalf of a
Participant pursuant to an election to defer under any qualified cash or
deferred arrangement as described in Code Section 401(k), any simplified
employee pension cash or deferred arrangement as described in Code
Section 402(h)(1)(B), any eligible deferred compensation plan under Code
Section 457, any plan as described under Code Section 501(c)(18), and
any employer contributions made on behalf of a Participant pursuant to a salary
reduction agreement for the purchase of an annuity contract under Code
Section 403(b). "Elective deferrals" include "designated Roth
contributions" made to another plan. "Elective deferrals" do not include any
deferrals properly distributed as excess "annual additions" or any deferrals
treated as catch-up contributions in accordance with the provisions of Code
Section 414(v).
(h)
"Eligible participant"
means
any Active Participant who is eligible to make Employee Contributions, or
Deferral Contributions (if the Employer takes such contributions into account in
calculating "contribution percentages"), or to receive a Matching Employer
Contribution. Notwithstanding the foregoing, the term "eligible
participant" shall not include any Active Participant who is included in a unit
of Employees covered by an agreement which the Secretary of Labor finds to be a
collective bargaining agreement between employee representatives and one or more
employers.
(i)
"Excess aggregate
contributions"
with respect to any Plan Year mean the excess
of
(1)
The
aggregate "contribution percentage amounts" actually taken into account in
computing the average "contribution percentages" of "eligible participants" who
are Highly Compensated Employees for such Plan Year, over
(2)
The
maximum amount of "contribution percentage amounts" permitted to be made on
behalf of Highly Compensated Employees under Section 6.06 (determined by
reducing "contribution percentage amounts" made for the Plan Year on behalf of
"eligible participants" who are Highly Compensated Employees in order of their
"contribution percentages" beginning with the highest of such "contribution
percentages").
"Excess aggregate contributions" shall
be determined after first determining "excess deferrals" and then determining
"excess contributions".
(j)
"Excess contributions"
with
respect to any Plan Year mean the excess of
(1)
The
aggregate amount of "includable contributions" actually taken into account in
computing the average "deferral percentage" of Active Participants who are
Highly Compensated Employees for such Plan Year, over
(2)
The
maximum amount of "includable contributions" permitted to be made on behalf of
Highly Compensated Employees under Section 6.03 (determined by reducing
"includable contributions" made for the Plan Year on behalf of Active
Participants who are Highly Compensated Employees in order of their "deferral
ratios", beginning with the highest of such "deferral ratios").
(k)
"Excess deferrals"
mean those
Deferral Contributions and/or "elective deferrals" that are includable in a
Participant's gross income under Code Section 402(g) to the extent such
Participant's Deferral Contributions and/or "elective deferrals" for a calendar
year exceed the dollar limitation under such Code Section for such calendar
year.
(l)
"Excess 415 amount"
means the
excess of an Active Participant's "annual additions" for the Limitation Year
over the "maximum permissible amount".
(m)
"415 employer"
means the
Employer and any other employers which constitute a controlled group of
corporations (as defined in Code Section 414(b) as modified by Code
Section 415(h)) or which constitute trades or businesses (whether or not
incorporated) which are under common control (as defined in Code
Section 414(c) as modified by Code Section 415(h)) or which constitute
an affiliated service group (as defined in Code Section 414(m)) and any
other entity required to be aggregated with the Employer pursuant to regulations
issued under Code Section 414(o).
(n)
"Includable contributions"
mean those amounts included in applying the "ADP" test.
|
(1)
|
"Includable
contributions" include the
following:
|
(A)
any
Deferral Contributions made on behalf of an Active Participant, including
"excess deferrals" of Highly Compensated Employees and "designated Roth
contributions", except as specifically provided in Subsection
6.01(n)(2);
(B)
if
elected, Qualified Nonelective Employer Contributions, excluding Qualified
Nonelective Employer Contributions that are taken into account in satisfying the
"ACP" test described in Section 6.06; and
(C)
if
elected, Qualified Matching Employer Contributions on Deferral Contributions or
Employee Contributions made for the Plan Year; provided, however, that the
maximum amount of Qualified Matching Employer Contributions included in
"includable contributions" with respect to an Active Participant shall not
exceed the greater of 5% of the Active Participant's "testing compensation" or
100% of his Deferral Contributions for the Plan Year.
|
(2)
|
"Includable
contributions" shall not include the
following:
|
(A)
Catch-Up
Contributions, except to the extent that a Participant's Deferral Contributions
are classified as Catch-Up Contributions as provided in Section 6.04 solely
because of a failure of the "ADP" test described in Section 6.03;
(B)
"excess
deferrals" of Non-Highly Compensated Employees that arise solely from Deferral
Contributions made under the Plan or plans maintained by the Employer or a
Related Employer;
(C)
Deferral
Contributions that are taken into account in satisfying the "ACP" test described
in Section 6.06;
(D)
additional
elective contributions made pursuant to Code Section 414(u) that are treated as
Deferral Contributions;
(E)
for any
Plan Year in which the "ADP" test described in Section 6.03 is deemed
satisfied pursuant to Section 6.09 with respect to some or all Deferral
Contributions, the following:
(i)
any
Deferral Contributions with respect to which the "ADP" test is deemed satisfied;
and
(ii)
Qualified
Matching Employer Contributions, except to the extent that the "ADP" test
described in Section 6.03 must be satisfied with respect to some Deferral
Contributions and such Qualified Matching Employer Contributions are used in
applying the "ADP" test.
(3)
Notwithstanding
any other provision of this Subsection, if an Employer elects to change from the
current year testing method described in Subsection 1.06(a)(1) of the Adoption
Agreement to the prior year testing method described in Subsection 1.06(a)(2) of
the Adoption Agreement, the following shall not be considered "includable
contributions" for purposes of determining the "deferral ratios" of Non-Highly
Compensated Employees for the prior year immediately preceding the Plan Year in
which the change is effective:
(A)
Deferral
Contributions that were taken into account in satisfying the "ACP" test
described in Section 6.06 for such prior year;
(B)
Qualified
Nonelective Employer Contributions that were taken into account in satisfying
the "ADP" test described in Section 6.03 or the "ACP" test described in Section
6.06 for such prior year;
(C)
401(k)
Safe Harbor Nonelective Employer Contributions that were taken into account in
satisfying the "ADP" test described in Section 6.03 or the "ACP" test described
in Section 6.06 for such prior year or that were required to satisfy the safe
harbor contribution requirements under Section 1.401(k)-3(b) of the Treasury
Regulations for such prior year;
(D)
401(k)
Safe Harbor Matching Employer Contributions that were taken into account in
satisfying the "ADP" test described in Section 6.03 for such prior year or that
were required to satisfy the safe harbor contribution requirements under Section
1.401(k)-3(c) of the Treasury Regulations for such prior year; and
(E)
all
Qualified Matching Employer Contributions.
To be
included in determining an Active Participant's "deferral ratio" for a Plan
Year, "includable contributions" must be allocated to the Participant's Account
as of a date within such Plan Year and made before the last day of the 12-month
period immediately following the Plan Year to which the "includable
contributions" relate. If an Employer has elected the prior year
testing method described in Subsection 1.06(a)(2) of the Adoption
Agreement, "includable contributions" that are taken into account for purposes
of determining the "deferral ratios" of Non-Highly Compensated Employees for the
prior year relate to such prior year. Therefore, such "includable
contributions" must be made before the last day of the Plan Year being
tested.
(o)
"Individual medical benefit
account"
means an individual medical benefit account as defined in Code
Section 415(l)(2).
(p)
"Maximum permissible amount"
means for a Limitation Year with respect to any Active Participant the lesser of
(1) the maximum dollar amount permitted for the Limitation Year under Code
Section 415(c)(1)(A) adjusted as provided in Code Section 415(d) (e.g., $42,000
for the Limitation Year ending in 2005) or (2) 100 percent of the
Active Participant's Compensation for the Limitation Year. If a short
Limitation Year is created because of an amendment changing the Limitation Year
to a different 12-consecutive-month period, the dollar limitation specified in
clause (1) above shall be adjusted by multiplying it by a fraction the
numerator of which is the number of months in the short Limitation Year and the
denominator of which is 12.
The Compensation limitation specified
in clause (2) above shall not apply to any contribution for medical
benefits within the meaning of Code Section 401(h) or 419A(f)(2) after
separation from service which is otherwise treated as an "annual addition" under
Code Section 419A(d)(2) or 415(l)(1).
(q)
"Simplified employee pension"
means a simplified employee pension as defined in Code
Section 408(k).
(r)
"Testing compensation"
means
compensation as defined in Code Section 414(s). "Testing
compensation" shall be based on the amount actually paid to a Participant during
the "testing year" or, at the option of the Employer, during that portion of the
"testing year" during which the Participant is an Active Participant; provided,
however, that if the Employer elected different Eligibility Service requirements
for purposes of eligibility to make Deferral Contributions and to receive
Matching Employer Contributions, then "testing compensation" must be based on
the amount paid to a Participant during the full "testing year".
The annual "testing compensation" of
each Active Participant taken into account in applying the "ADP" test described
in Section 6.03 and the "ACP" test described in Section 6.06 for any
"testing year" shall not exceed the annual compensation limit under Code
Section 401(a)(17) as in effect on the first day of the "testing year"
(e.g., $210,000 for the "testing year" beginning in 2005). This limit
shall be adjusted by the Secretary to reflect increases in the cost of living,
as provided in Code Section 401(a)(17)(B); provided, however, that the
dollar increase in effect on January 1 of any calendar year is effective
for "testing years" beginning in such calendar year. If a Plan
determines "testing compensation" over a period that contains fewer than
12 calendar months (a "short determination period"), then the Compensation
limit for such "short determination period" is equal to the Compensation limit
for the calendar year in which the "short determination period" begins
multiplied by the ratio obtained by dividing the number of full months in the
"short determination period" by 12; provided, however, that such proration shall
not apply if there is a "short determination period" because (1) an election was
made, in accordance with any rules and regulations issued by the Secretary of
the Treasury or his delegate, to apply the "ADP" test described in
Section 6.03 and/or the "ACP" test described in Section 6.06 based
only on Compensation paid during the portion of the "testing year" during which
an individual was an Active Participant or (2) an Employee is covered under
the Plan for fewer than 12 calendar months or (3) there is a short initial
Plan Year.
(s)
"Testing year"
means
(1)
if the
Employer has elected the current year testing method in
Subsection 1.06(a)(1) of the Adoption Agreement, the Plan Year being
tested.
(2)
if the
Employer has elected the prior year testing method in Subsection 1.06(a)(2)
of the Adoption Agreement, the Plan Year immediately preceding the Plan Year
being tested.
(t)
"Welfare benefit fund"
means a
welfare benefit fund as defined in Code Section 419(e).
To the extent that types of
contributions defined in Section 2.01 are referred to in this Article 6, the
defined term includes similar contributions made under other plans where the
context so requires.
|
6.02.
|
Code
Section 402(g) Limit on Deferral Contributions
.
|
In no
event shall the amount of Deferral Contributions, other than Catch-Up
Contributions, made under the Plan for a calendar year, when aggregated with the
"elective deferrals" made under any other plan maintained by the Employer or a
Related Employer, exceed the dollar limitation contained in Code
Section 402(g) in effect at the beginning of such calendar
year.
A Participant may assign to the Plan
any "excess deferrals" made during a calendar year by notifying the
Administrator on or before March 15 following the calendar year in which
the "excess deferrals" were made of the amount of the "excess deferrals" to be
assigned to the Plan. A Participant is deemed to notify the
Administrator of any "excess deferrals" that arise by taking into account only
those Deferral Contributions made to the Plan and those "elective deferrals"
made to any other plan maintained by the Employer or a Related
Employer. Notwithstanding any other provision of the Plan, "excess
deferrals", plus any income and minus any loss allocable thereto, as determined
under Section 6.08, shall be distributed no later than April 15 to any
Participant to whose Account "excess deferrals" were so assigned for the
preceding calendar year and who claims "excess deferrals" for such calendar
year. In the event that "excess deferrals" are allocated to a Participant's
Deferral Contributions Accounts, such "excess deferrals" will be distributed
first from the Participant's Deferral Contributions for the Plan Year other than
his Roth 401(k) Contributions then from his Roth 401(k)
Contributions.
"Excess deferrals" to be distributed to
a Participant for a calendar year shall be reduced by any "excess contributions"
for the Plan Year beginning within such calendar year that were previously
distributed or re-characterized in accordance with the provisions of Section
6.04.
Any Matching Employer Contributions
attributable to "excess deferrals", plus any income and minus any loss allocable
thereto, as determined under Section 6.08, shall be forfeited and applied
as provided in Section 11.09.
"Excess deferrals" shall be treated as
"annual additions" under the Plan, unless such amounts are distributed no later
than the first April 15 following the close of the calendar year in which
the "excess deferrals" were made.
|
6.03.
|
Additional
Limit on Deferral Contributions ("ADP" Test)
.
|
Unless
the Employer has elected in Subsection 1.11(a)(3) or Subsection 1.12(a)(3) of
the Adoption Agreement to make 401(k) Safe Harbor Matching Employer
Contributions or 401(k) Safe Harbor Nonelective Employer Contributions for a
Plan Year, notwithstanding any other provision of the Plan to the contrary, the
Deferral Contributions, excluding additional elective contributions made
pursuant to Code Section 414(u) that are treated as Deferral Contributions and
Catch-Up Contributions (except to the extent that a Participant's Deferral
Contributions are classified as Catch-Up Contributions as provided in Section
6.04 solely because of a failure of the "ADP" test described herein), made with
respect to the Plan Year on behalf of Active Participants who are Highly
Compensated Employees for such Plan Year may not result in an average "deferral
ratio" for such Active Participants that exceeds the greater of:
(a)
the
average "deferral ratio" for the "testing year" of Active Participants who are
Non-Highly Compensated Employees for the "testing year" multiplied by 1.25;
or
(b)
the
average "deferral ratio" for the "testing year" of Active Participants who are
Non-Highly Compensated Employees for the "testing year" multiplied by two,
provided that the average "deferral ratio" for Active Participants who are
Highly Compensated Employees for the Plan Year being tested does not exceed the
average "deferral ratio" for Participants who are Non-Highly Compensated
Employees for the "testing year" by more than two percentage
points.
For the first Plan Year in which the
Plan provides a cash or deferred arrangement, the average "deferral ratio" for
Active Participants who are Non-Highly Compensated Employees used in determining
the limits applicable under Subsections 6.03(a) and (b) shall be either
three percent or the actual average "deferral ratio" for such Active
Participants for such first Plan Year, as elected by the Employer in
Section 1.06(b) of the Adoption Agreement.
The "deferral ratios" of Active
Participants who are included in a unit of Employees covered by an agreement
which the Secretary of Labor finds to be a collective bargaining agreement shall
be disaggregated from the "deferral ratios" of other Active Participants and the
provisions of this Section 6.03 shall be applied separately with respect to each
group.
The "deferral ratio" for any Active
Participant who is a Highly Compensated Employee for the Plan Year being tested
and who is eligible to have "includable contributions" allocated to his accounts
under two or more cash or deferred arrangements described in Code
Section 401(k) that are maintained by the Employer or a Related Employer,
shall be determined as if such "includable contributions" were made under the
Plan. If a Highly Compensated Employee participates in two or more
cash or deferred arrangements that have different plan years, all "includable
contributions" made during the Plan Year under all such arrangements shall be
treated as having been made under the Plan. Notwithstanding the
foregoing, certain plans, and contributions made thereto, shall be treated as
separate if mandatorily disaggregated under regulations under Code
Section 401(k).
If this Plan satisfies the requirements
of Code Section 401(k), 401(a)(4), or 410(b) only if aggregated with one or
more other plans, or if one or more other plans satisfy the requirements of such
Code Sections only if aggregated with this Plan, then this Section 6.03
shall be applied by determining the "deferral ratios" of Employees as if all
such plans were a single plan. Plans may be aggregated in order to
satisfy Code Section 401(k) only if they have the same plan year and use
the same method to satisfy the "ADP" test.
Notwithstanding anything herein to the
contrary, if the Plan permits Employees to make Deferral Contributions prior to
the time the Employees have completed the minimum age and service requirements
of Code Section 410(a)(1)(A) and the Employer elects, pursuant to Code Section
410(b)(4)(B), to disaggregate the Plan into two component plans for purposes of
complying with Code Section 410(b)(1), one benefiting Employees who have
completed such minimum age and service requirements and the other benefiting
Employees who have not, the Plan must be disaggregated in the same manner for
ADP testing purposes, unless the Plan applies the alternative rule in Code
Section 401(k)(3)(F). In determining the component plans for purposes of such
disaggregation, the Employer may apply the maximum entry dates permitted under
Code Section 410(a)(4).
The Employer shall maintain records
sufficient to demonstrate satisfaction of the "ADP" test and the amount of
Qualified Nonelective Employer Contributions and/or Qualified Matching Employer
Contributions used in such test.
|
6.04.
|
Allocation
and Distribution of "Excess Contributions"
.
|
Notwithstanding
any other provision of this Plan, the "excess contributions" allocable to the
Account of a Participant, plus any income and minus any loss allocable thereto,
as determined under Section 6.08, shall be distributed to the Participant
no later than the last day of the Plan Year immediately following the Plan Year
in which the "excess contributions" were made, unless the Employer elected
Catch-Up Contributions in Subsection 1.07(a)(4) of the Adoption Agreement and
such "excess contributions" are classified as Catch-Up
Contributions.
If "excess contributions" are to be
distributed from the Plan and such "excess contributions" are distributed more
than 2 1/2 months after the last day of the Plan Year in which the "excess
contributions" were made, a ten percent excise tax shall be imposed on the
Employer maintaining the Plan with respect to such amounts.
The "excess contributions" allocable to
a Participant's Account shall be determined by reducing the "includable
contributions" made for the Plan Year on behalf of Active Participants who are
Highly Compensated Employees in order of the dollar amount of such "includable
contributions", beginning with the highest such dollar amount. "Excess
contributions" allocated to a Participant for a Plan Year shall be reduced by
the amount of any "excess deferrals" previously distributed for the calendar
year ending in such Plan Year.
"Excess contributions" shall be treated
as "annual additions".
For purposes of distribution, "excess
contributions" shall be considered allocated among a Participant's Deferral
Contributions Accounts and, if applicable, the Participant's Qualified
Nonelective Employer Contributions Account and/or Qualified Matching Employer
Contributions Account in the order prescribed and communicated to the Trustee,
which order shall be uniform with respect to all Participants and
nondiscriminatory. In the event that "excess contributions" are allocated to a
Participant's Deferral Contributions Accounts, such "excess contributions" will
be distributed first from the Participant's Deferral Contributions for the Plan
Year other than his Roth 401(k) Contributions then from his Roth 401(k)
Contributions.
Any Matching Employer Contributions
attributable to "excess contributions", plus any income and minus any loss
allocable thereto, as determined under Section 6.08, shall be forfeited and
applied as provided in Section 11.09.
|
6.05.
|
Reductions
in Deferral Contributions to Meet Code Requirements
.
|
If the
Administrator anticipates that the Plan will not satisfy the "ADP" and/or "ACP"
test for the year, the Administrator may reduce the rate of Deferral
Contributions of Participants who are Highly Compensated Employees to an amount
determined by the Administrator to be necessary to satisfy the "ADP" and/or
"ACP" test.
|
6.06.
|
Limit
on Matching Employer Contributions and Employee Contributions ("ACP"
Test)
.
|
The
provisions of this Section 6.06 shall not apply to Active Participants who
are included in a unit of Employees covered by an agreement which the Secretary
of Labor finds to be a collective bargaining agreement between employee
representatives and one or more employers. The provisions of this
Section shall not apply to Matching Employer Contributions made on account of
amounts deferred pursuant to Code Section 457 under a separate eligible
deferred compensation plan.
Notwithstanding any other provision of
the Plan to the contrary, Matching Employer Contributions and Employee
Contributions made with respect to a Plan Year by or on behalf of "eligible
participants" who are Highly Compensated Employees for such Plan Year may not
result in an average "contribution percentage" for such "eligible participants"
that exceeds the greater of:
(a)
the
average "contribution percentage" for the "testing year" of "eligible
participants" who are Non-Highly Compensated Employees for the "testing year"
multiplied by 1.25; or
(b)
the
average "contribution percentage" for the "testing year" of "eligible
participants" who are Non-Highly Compensated Employees for the "testing year"
multiplied by two, provided that the average "contribution percentage" for the
Plan Year being tested of "eligible participants" who are Highly Compensated
Employees does not exceed the average "contribution percentage" for the "testing
year" of "eligible participants" who are Non-Highly Compensated Employees for
the "testing year" by more than two percentage points.
For the first Plan Year in which the
Plan provides for "contribution percentage amounts" to be made, the "ACP" for
"eligible participants" who are Non-Highly Compensated Employees used in
determining the limits applicable under paragraphs (a) and (b) of this
Section 6.06 shall be either three percent or the actual "ACP" of such
eligible participants for such first Plan Year, as elected by the Employer in
Section 1.06(b) of the Adoption Agreement.
The "contribution percentage" for any
"eligible participant" who is a Highly Compensated Employee for the Plan Year
and who is eligible to have "contribution percentage amounts" allocated to his
accounts under two or more plans described in Code Section 401(a) that are
maintained by the Employer or a Related Employer, shall be determined as if such
"contribution percentage amounts" were contributed to the Plan. If a
Highly Compensated Employee participates in two or more such plans that have
different plan years, all "contribution percentage amounts" made during the Plan
Year under such other plans shall be treated as having been contributed to the
Plan. Notwithstanding the foregoing, certain plans shall be treated as separate
if mandatorily disaggregated under Treasury Regulations issued under Code
Section 401(m).
If this Plan satisfies the requirements
of Code Section 401(m), 401(a)(4) or 410(b) only if aggregated with one or
more other plans, or if one or more other plans satisfy the requirements of such
Code Sections only if aggregated with this Plan, then this Section 6.06
shall be applied by determining the "contribution percentages" of Employees as
if all such plans were a single plan. Plans may be aggregated in
order to satisfy Code Section 401(m) only if they have the same plan year
and use the same method to satisfy the "ACP" test.
Notwithstanding anything herein to the
contrary, if the Plan permits Employees to make Employee Contributions and/or
receive Matching Employer Contributions prior to the time the Employees have
completed the minimum age and service requirements of Code Section
410(a)(1)(A) and the Employer elects, pursuant to Code Section 410(b)(4)(B), to
disaggregate the Plan into two component plans for purposes of complying with
Code Section 410(b)(1), one benefiting Employees who have completed such minimum
age and service requirements and the other benefiting Employees who have not,
the Plan must be disaggregated in the same manner for ACP testing purposes,
unless the Plan applies the alternative rule in Code Section 401(m)(5)(C). In
determining the component plans for purposes of such disaggregation, the
Employer may apply the maximum entry dates permitted under Code Section
410(a)(4).
The Employer shall maintain records
sufficient to demonstrate satisfaction of the "ACP" test and the amount of
Deferral Contributions, Qualified Nonelective Employer Contributions, and/or
Qualified Matching Employer Contributions used in such test.
|
6.07.
|
Allocation,
Distribution, and Forfeiture of "Excess Aggregate
Contributions"
.
|
Notwithstanding
any other provision of the Plan, the "excess aggregate contributions" allocable
to the Account of a Participant, plus any income and minus any loss allocable
thereto, as determined under Section 6.08, shall be forfeited, if
forfeitable, or if not forfeitable, distributed to the Participant no later than
the last day of the Plan Year immediately following the Plan Year in which the
"excess aggregate contributions" were made. If such excess amounts
are distributed more than 2 1/2 months after the last day of the Plan
Year in which such "excess aggregate contributions" were made, a ten percent
excise tax shall be imposed on the Employer maintaining the Plan with respect to
such amounts.
The "excess aggregate contributions"
allocable to a Participant's Account shall be determined by reducing the
"contribution percentage amounts" made for the Plan Year on behalf of "eligible
participants" who are Highly Compensated Employees in order of the dollar amount
of such "contribution percentage amounts", beginning with the highest such
dollar amount.
"Excess aggregate contributions" shall
be treated as "annual additions".
"Excess aggregate contributions" shall
be forfeited or distributed from a Participant's Employee Contributions Account,
Matching Employer Contributions Account and, if applicable, the Participant's
Deferral Contributions Account and/or Qualified Nonelective Employer
Contributions Account in the order prescribed and communicated to the Trustee,
which order shall be uniform with respect to all Participants and
nondiscriminatory. In the event that "excess aggregate contributions" are
allocated to a Participant's Deferral Contributions Accounts, such "excess
aggregated contributions" will be distributed first from the Participant's
Deferral Contributions for the Plan Year other than his Roth 401(k)
Contributions then from his Roth 401(k) Contributions.
Forfeitures of "excess aggregate
contributions" shall be applied as provided in Section 11.09.
|
6.08.
|
Income
or Loss on Distributable Contributions
.
|
The
income or loss allocable to "excess deferrals", "excess contributions", and
"excess aggregate contributions" shall be determined under one of the following
methods:
(a)
the
income or loss attributable to such distributable contributions shall be the sum
of (i) the income or loss for the "determination year" allocable to the
Participant's Account to which such contributions were made multiplied by a
fraction, the numerator of which is the amount of the distributable
contributions and the denominator of which is the balance of the Participant's
Account to which such contributions were made, determined as of the end of the
"determination year" without regard to any income or loss occurring during the
"determination year", plus (ii) 10 percent of the amount determined under (i)
multiplied by the number of whole calendar months between the end of the
"determination year" and the date of distribution, counting the calendar month
of distribution if distribution occurs after the 15th of the month;
or
(b)
the
income or loss attributable to such distributable contributions shall be the sum
of (i) the income or loss on such contributions for the "determination year",
determined under any other reasonable method, plus (ii) the income or loss on
such contributions for the "gap period", determined under such other reasonable
method. Any reasonable method used to determine income or loss
hereunder shall be used consistently for all Participants in determining the
income or loss allocable to distributable contributions hereunder and shall be
the same method that is used by the Plan in allocating income or loss to
Participants' Accounts. For purposes of this paragraph, the "gap
period" means the period between the end of the "determination year" and the
date of distribution; provided, however, that income or loss for the "gap
period" may be determined as of a date that is no more than seven days before
the date of distribution.
|
6.09.
|
Deemed
Satisfaction of "ADP" Test
.
|
Notwithstanding
any other provision of this Article 6 to the contrary, if the Employer has
elected in Subsection 1.11(a)(3) or Subsection 1.12(a)(3) of the
Adoption Agreement to make 401(k) Safe Harbor Matching Employer Contributions or
401(k) Safe Harbor Nonelective Employer Contributions, , the Plan shall be
deemed to have satisfied the "ADP" test described in Section 6.03 for a
Plan Year provided all of the following requirements are met:
(a)
The
401(k) Safe Harbor Matching Employer Contribution or 401(k) Safe Harbor
Nonelective Employer Contribution must be allocated to an Active Participant's
Account as of a date within such Plan Year and must be made before the last day
of the 12-month period immediately following such Plan Year.
(b)
If the
Employer has elected to make 401(k) Safe Harbor Matching Employer Contributions,
such 401(k) Safe Harbor Matching Employer Contributions must be made with
respect to Deferral Contributions made by the Active Participant for such Plan
Year.
(c)
The
Employer shall provide to each Active Participant during the Plan Year a
comprehensive notice, written in a manner calculated to be understood by the
average Active Participant, of the Active Participant's rights and obligations
under the Plan. If the Employer either (i) is considering amending its Plan to
satisfy the "ADP" test using 401(k) Safe Harbor Nonelective Employer
Contributions, as provided in Section 6.11, or (ii) has selected 401(k) Safe
Harbor Nonelective Employer Contributions under Subsection 1.12(a)(3) of the
Adoption Agreement and selected Subsection (a)(2), but not Subsection (a)(2)(A)
of the 401(k) Safe Harbor Nonelective Employer Contributions Addendum, the
notice shall include a statement that the Plan may be amended to provide a
401(k) Safe Harbor Nonelective Employer Contribution for the Plan
Year. The notice shall be provided to each Active Participant within
one of the following periods, whichever is applicable:
(1)
if the
Employee is an Active Participant 90 days before the beginning of the Plan
Year, within the period beginning 90 days and ending 30 days, or any
other reasonable period, before the first day of the Plan Year; or
(2)
if the
Employee becomes an Active Participant after the date described in
paragraph (f) above, within the period beginning 90 days before and
ending on the date he becomes an Active Participant.
If the
notice provides that the Plan may be amended to provide a 401(k) Safe Harbor
Nonelective Employer Contribution for the Plan Year and the Plan is amended to
provide such contribution, a supplemental notice shall be provided to all Active
Participants stating that a 401(k) Safe Harbor Nonelective Employer Contribution
in the specified amount shall be made for the Plan Year. Such
supplemental notice shall be provided to Active Participants at least
30 days before the last day of the Plan year.
(d)
If the
Employer has elected to make 401(k) Safe Harbor Matching Employer Contributions,
the ratio of Matching Employer Contributions made on behalf of each Highly
Compensated Employee for the Plan Year to each such Highly Compensated
Employee's eligible contributions for the Plan Year is not greater than the
ratio of Matching Employer Contributions to eligible contributions that would
apply to any Non-Highly Compensated Employee for whom such eligible
contributions are the same percentage of Compensation, adjusted as provided in
Section 5.02, for the Plan Year.
(e)
Except as
otherwise provided in Subsection 6.11(b), or with respect to the Plan Year
described in (2) below the Plan is amended to provide for 401(k) Safe Harbor
Matching Employer Contributions or 401(k) Safe Harbor Nonelective Employer
Contributions before the first day of such Plan Year, and except as otherwise
provided in Subsection 6.11(d) or with respect to a Plan Year described in (1)
through (4) below, such provisions remain in effect for an entire 12-month Plan
Year. The 12-month Plan Year requirement shall not apply to:
(1)
The first
Plan Year of a newly established Plan (other than a successor plan) if such Plan
Year is at least 3 months long, provided that the 3-month requirement shall not
apply in the case of a newly established employer that establishes a plan as
soon as administratively feasible;
(2)
The Plan
Year in which a cash or deferred arrangement is first added to an existing plan
(other than a successor plan) if the cash or deferred arrangement is effective
no later than 3 months before the end of such Plan Year;
(3)
Any short
Plan Year resulting from a change in Plan Year if (i) the Plan satisfied the
safe harbor requirements for the immediately preceding Plan Year and (ii) the
Plan satisfies the safe harbor requirements for the immediately following Plan
Year (or the immediately following 12 months, if the following Plan Year has
fewer than 12 months);
(4)
The final
Plan Year of a terminating Plan if any of the following applies: (i) the Plan
would satisfy the provisions of paragraph Subsection 6.11(d) below, other than
the provisions of paragraph Subsection 6.11(d)(3), treating the termination as
an election to reduce or suspend 401(k) Safe Harbor Matching Employer
Contributions; (ii) the termination is in connection with a transaction
described in Code Section 410(b)(6)(C); or (iii) the Employer incurs a
substantial business hardship comparable to a substantial business hardship
described in Code Section 412(d).
Notwithstanding
any other provision of this Section, if the Employer has elected a more
stringent eligibility requirement in Section 1.04 of the Adoption Agreement for
401(k) Safe Harbor Matching Employer Contributions or 401(k) Safe Harbor
Nonelective Employer Contributions than for Deferral Contributions, the Plan
shall be disaggregated and treated as two separate plans pursuant to Code
Section 410(b)(4)(B). The separate disaggregated plan that satisfies Code
Section 401(k)(12) shall be deemed to have satisfied the "ADP" test. The other
disaggregated plan shall be subjected to the "ADP" test described in Section
6.03.
If the
Employer has elected in Subsection (a)(1)(B) or (a)(2)(B) of the 401(k) Safe
Harbor Matching Employer Contributions Addendum to the Adoption Agreement or
Section (b) of the 401(k) Safe Harbor Nonelective Employer Contributions
Addendum to the Adoption Agreement to exclude collectively-bargained employees
from receiving 401(k) Safe Harbor Matching Employer Contributions or 401(k) Safe
Harbor Nonelective Employer Contributions, the Plan shall be deemed to have
satisfied the "ADP" test only with respect to those employees who are eligible
to receive such contributions. The remainder of the Plan shall be subjected to
the "ADP" test described in Section 6.03.
Except as
otherwise provided in Subsection 6.11(d) regarding amendments suspending or
eliminating 401(k) Safe Harbor Matching Contributions, a plan that does not meet
the requirements specified in (a) through (e) above with respect to a Plan Year
may not default to ADP testing in accordance with Section 6.03
above.
|
6.10.
|
Deemed
Satisfaction of "ACP" Test With Respect to Matching Employer
Contributions
.
|
The
portion of the Plan that is deemed to satisfy the "ADP" test pursuant to
Section 6.09 shall also be deemed to have satisfied the "ACP" test
described in Section 6.06 with respect to Matching Employer Contributions,
if Matching Employer Contributions to the Plan for the Plan Year meet all of the
following requirements:
(a)
Matching
Employer Contributions meet the requirements of Subsections 6.09(a) and (b) as
if they were 401(k) Safe Harbor Matching Employer Contributions;
(b)
the
percentage of eligible contributions matched does not increase as the percentage
of Compensation contributed increases;
(c)
the ratio
of Matching Employer Contributions made on behalf of each Highly Compensated
Employee for the Plan Year to each such Highly Compensated Employee's eligible
contributions for the Plan Year is not greater than the ratio of Matching
Employer Contributions to eligible contributions that would apply to each
Non-Highly Compensated Employee for whom such eligible contributions
are the same percentage of Compensation, adjusted as provided in
Section 5.02, for the Plan Year;
(d)
eligible
contributions matched do not exceed six percent of a Participant's Compensation;
and
(e)
if the
Employer elected in Subsection 1.11(a)(2) or 1.11(b) of the Adoption
Agreement to provide discretionary Matching Employer Contributions, the Employer
also elected in Subsection 1.11(a)(2)(A) or 1.11(b)(1) of the Adoption
Agreement, as applicable, to limit the dollar amount of such discretionary
Matching Employer Contributions allocated to a Participant for the Plan Year to
no more than four percent of such Participant's Compensation for the Plan
Year.
The
portion of the Plan not deemed to have satisfied the "ACP" test pursuant to this
Section shall be subject to the "ACP" test described in Section 6.06 with
respect to Matching Employer Contributions.
If the Plan provides for Employee
Contributions, the "ACP" test described in Section 6.06 must be applied
with respect to such Employee Contributions.
|
6.11.
|
Changing
Testing Methods
.
|
Notwithstanding
any other provisions of the Plan, if the Employer elects to change between the
"ADP" testing method and the safe harbor testing method, the following shall
apply:
(a)
Except as
otherwise specifically provided in this Section or Subsection 6.09(e), the
Employer may not change from the "ADP" testing method to the safe harbor testing
method unless Plan provisions adopting the safe harbor testing method are
adopted before the first day of the Plan Year in which they are to be effective
and remain in effect for an entire 12-month Plan Year.
(b)
A Plan
may be amended during a Plan Year to make 401(k) Safe Harbor Nonelective
Employer Contributions to satisfy the testing rules for such Plan Year
if:
(1)
The
Employer provides both the initial and subsequent notices described in Section
6.09 for such Plan Year within the time period prescribed in Section
6.09.
(2)
The
Employer amends its Adoption Agreement no later than 30 days prior to the end of
such Plan Year to provide for 401(k) Safe Harbor Nonelective Employer
Contribution in accordance with the provisions of the 401(k) Safe Harbor
Nonelective Employer Contributions Addendum to the Adoption
Agreement.
(c)
Except as
otherwise specifically provided in this Section, a Plan may not be amended
during the Plan Year to discontinue 401(k) Safe Harbor Nonelective or Matching
Employer Contributions and revert to the "ADP" testing method for such Plan
Year.
(d)
A Plan
may be amended to reduce or suspend 401(k) Safe Harbor Matching Contributions on
future contributions during a Plan Year and revert to the "ADP" testing method
for such Plan Year if:
(1)
All
Active Participants are provided notice of the reduction or suspension
describing (i) the consequences of the amendment, (ii) the procedures for
changing their salary reduction agreements and (iii) the effective date of the
reduction or suspension.
(2)
The
reduction or suspension of 401(k) Safe Harbor Matching Contributions is no
earlier than the later of (i) 30 days after the date the notice described in
paragraph (1) is provided to Active Participants or (ii) the date the amendment
is adopted.
(3)
Active
Participants are given a reasonable opportunity before the reduction or
suspension occurs, including a reasonable period after the notice described in
paragraph (1) is provided to Active Participants, to change their salary
reduction agreements elections.
(4)
The Plan
makes 401(k) Safe Harbor Matching Employer Contributions in accordance with the
provisions of the Adoption Agreement in effect prior to the amendment with
respect to Deferral Contributions made through the effective date of the
amendment.
If the
Employer amends its Plan in accordance with the provisions of this paragraph
(d), the "ADP" test described in Section 6.03 shall be applied as if it had been
in effect for the entire Plan Year using the current year testing method in
Subsection 1.06(a)(1) of the Adoption Agreement.
|
6.12.
|
Code
Section 415 Limitations
.
|
Notwithstanding
any other provisions of the Plan, the following limitations shall
apply:
(a)
Employer Maintains Single
Plan
: If the "415 employer" does not maintain any other
qualified defined contribution plan or any "welfare benefit fund", "individual
medical benefit account", or "simplified employee pension" in addition to the
Plan, the provisions of this Subsection 6.12(a) shall apply.
(1)
If a
Participant does not participate in, and has never participated in any other
qualified defined contribution plan, "welfare benefit fund", "individual medical
benefit account", or "simplified employee pension" maintained by the
"415 employer", which provides an "annual addition", the amount of "annual
additions" to the Participant's Account for a Limitation Year shall not exceed
the lesser of the "maximum permissible amount" or any other limitation contained
in the Plan. If a contribution that would otherwise be contributed or
allocated to the Participant's Account would cause the "annual additions" for
the Limitation Year to exceed the "maximum permissible amount", the amount
contributed or allocated shall be reduced so that the "annual additions" for the
Limitation Year shall equal the "maximum permissible amount".
(2)
Prior to
the determination of a Participant's actual Compensation for a Limitation Year,
the "maximum permissible amount" may be determined on the basis of a reasonable
estimation of the Participant's Compensation for such Limitation Year, uniformly
determined for all Participants similarly situated. Any Employer
contributions based on estimated annual Compensation shall be reduced by any
"excess 415 amounts" carried over from prior Limitation Years.
(3)
As soon
as is administratively feasible after the end of the Limitation Year, the
"maximum permissible amount" for such Limitation Year shall be determined on the
basis of the Participant's actual Compensation for such Limitation
Year.
(4)
If there
is an "excess 415 amount" with respect to a Participant for a Limitation Year as
a result of the estimation of the Participant's Compensation for the Limitation
Year, the allocation of forfeitures to the Participant's Account, or a
reasonable error in determining the amount of Deferral Contributions that may be
made on behalf of the Participant under the limits of this Section 6.12,
such "excess 415 amount" shall be disposed of as follows:
(A)
Any
Employee Contributions that have not been matched shall be reduced to the extent
necessary to reduce the "excess 415 amount".
(B)
If after
application of Subsection 6.12(a)(4)(A) an "excess 415 amount" still
exists, any Employee Contributions that have been matched and the Matching
Employer Contributions attributable thereto shall be reduced to the extent
necessary to reduce the "excess 415 amount".
(C)
If after
application of Subsection 6.12(a)(4)(B) an "excess 415 amount" still
exists, any Deferral Contributions that have not been matched shall be reduced
to the extent necessary to reduce the "excess 415 amount". If both pre-tax
Deferral Contributions and Roth 401(k) Contributions have been made on behalf of
a Participant, the pre-tax Deferral Contributions that have not been matched
shall be reduced first. If there is still an "excess 415 amount" after all such
pre-tax Deferral Contributions have been distributed, then Roth 401(k)
Contributions that have not been matched shall be reduced to the extent
necessary.
(D)
If after
application of Subsection 6.12(a)(4)(C) an "excess 415 amount" still
exists, any Deferral Contributions that have been matched and the Matching
Employer Contributions attributable thereto shall be reduced to the extent
necessary to reduce the "excess 415 amount". If both pre-tax Deferral
Contributions and Roth 401(k) Contributions have been made on behalf of a
Participant, the pre-tax Deferral Contributions that have been matched and the
Matching Contributions attributable thereto shall be reduced first. If there is
still an "excess 415 amount" after all such pre-tax Deferral Contributions have
been distributed, then Roth 401(k) Contributions that have been matched and the
Matching Contributions attributable thereto shall be reduced to the extent
necessary.
(E)
If after
the application of Subsection 6.12(a)(4)(D) an "excess 415 amount" still
exists, any Nonelective Employer Contributions shall be reduced to the extent
necessary to reduce the "excess 415 amount".
(F)
If after
the application of Subsection 6.12(a)(4)(E) an "excess 415 amount" still
exists, any Qualified Nonelective Employer Contributions shall be reduced to the
extent necessary to reduce the "excess 415 amount".
Employee Contributions and Deferral
Contributions that are reduced as provided above shall be returned to the
Participant. Any income allocable to returned Employee Contributions
or Deferral Contributions shall also be returned or shall be treated as
additional "annual additions" for the Limitation Year in which the excess
contributions to which they are allocable were made.
If Matching Employer, Nonelective
Employer, or Qualified Nonelective Employer Contributions to a Participant's
Account are reduced as an "excess 415 amount", as provided above, then such
"excess 415 amount" shall be allocated and re-allocated among Active
Participants, except to the extent such allocation or re-allocation pursuant to
the provisions of the Plan would cause an Active Participant to exceed the
limitations contained in this Section. If any excess remains after
allocation and re-allocation has been made as provided in the preceding
sentence, then such excess shall be held unallocated in a suspense account
established for the Limitation Year and shall be allocated and re-allocated
among Active Participants for the next Limitation Year.
If a suspense account is in existence
at any time during the Limitation Year pursuant to this
Subsection 6.12(a)(4), it shall participate in the allocation of the Trust
Fund's investment gains and losses. All amounts in the suspense
account must be allocated to the Accounts of Active Participants before any
Employer contribution may be made for the Limitation Year.
Except as otherwise specifically
provided in this Subsection 6.12, "excess 415 amounts" may not be
distributed to Participants.
(b)
Employer Maintains Multiple
Defined Contribution Type Plans
: Unless the Employer specifies
another method for limiting "annual additions" in the 415 Correction
Addendum to the Adoption Agreement, if the "415 employer" maintains any other
qualified defined contribution plan or any "welfare benefit fund", "individual
medical benefit account", or "simplified employee pension" in addition to the
Plan, the provisions of this Subsection 6.12(b) shall apply.
(1)
If a
Participant is covered under any other qualified defined contribution plan or
any "welfare benefit fund", "individual medical benefit account", or "simplified
employee pension" maintained by the "415 employer", that provides an "annual
addition", the amount of "annual additions" to the Participant's Account for a
Limitation Year shall not exceed the lesser of
(A)
the
"maximum permissible amount", reduced by the sum of any "annual additions" to
the Participant's accounts for the same Limitation Year under such other
qualified defined contribution plans and "welfare benefit funds", "individual
medical benefit accounts", and "simplified employee pensions", or
(B)
any other
limitation contained in the Plan.
If the "annual additions" with respect
to a Participant under other qualified defined contribution plans, "welfare
benefit funds", "individual medical benefit accounts", and "simplified employee
pensions" maintained by the "415 employer" are less than the "maximum
permissible amount" and a contribution that would otherwise be contributed or
allocated to the Participant's Account under the Plan would cause the "annual
additions" for the Limitation Year to exceed the "maximum permissible amount",
the amount to be contributed or allocated shall be reduced so that the "annual
additions" for the Limitation Year shall equal the "maximum permissible
amount". If the "annual additions" with respect to the Participant
under such other qualified defined contribution plans, "welfare benefit funds",
"individual medical benefit accounts", and "simplified employee pensions" in the
aggregate are equal to or greater than the "maximum permissible amount", no
amount shall be contributed or allocated to the Participant's Account under the
Plan for the Limitation Year.
(2)
Prior to
the determination of a Participant's actual Compensation for the Limitation
Year, the amounts referred to in Subsection 6.12(b)(1)(A) above may be
determined on the basis of a reasonable estimation of the Participant's
Compensation for such Limitation Year, uniformly determined for all Participants
similarly situated. Any Employer contribution based on estimated
annual Compensation shall be reduced by any "excess 415 amounts" carried over
from prior Limitation Years.
(3)
As soon
as is administratively feasible after the end of the Limitation Year, the
amounts referred to in Subsection 6.12(b)(1)(A) shall be determined on the
basis of the Participant's actual Compensation for such Limitation
Year.
(4)
Notwithstanding
the provisions of any other plan maintained by a "415 employer", if there is an
"excess 415 amount" with respect to a Participant for a Limitation Year as a
result of estimation of the Participant's Compensation for the Limitation Year,
the allocation of forfeitures to the Participant's account under any qualified
defined contribution plan maintained by the "415 employer", or a reasonable
error in determining the amount of Deferral Contributions that may be made on
behalf of the Participant to the Plan or any other qualified defined
contribution plan maintained by the "415 employer" under the limits of this
Subsection 6.12(b), such "excess 415 amount" shall be deemed to consist
first of the "annual additions" allocated to this Plan and shall be reduced as
provided in Subsection 6.12(a)(4).
Article
7.
Participants'
Accounts
.
|
7.01.
|
Individual
Accounts
.
|
The
Administrator shall establish and maintain an Account for each Participant that
shall reflect Employer and Employee contributions made on behalf of the
Participant and earnings, expenses, gains and losses attributable thereto, and
investments made with amounts in the Participant's Account. The
Administrator shall separately account for any Deferral Contributions made on
behalf of a Participant and the earnings, expenses, gains and losses
attributable thereto. The Administrator shall establish and maintain such other
accounts and records as it decides in its discretion to be reasonably required
or appropriate in order to discharge its duties under the Plan. The
Administrator shall notify the Trustee of all Accounts established and
maintained under the Plan.
If "designated Roth contributions", as
defined in Section 6.01, are held under the Plan either as Rollover
Contributions or because of an Active Participant's election to make Roth 401(k)
Contributions under the terms of the Plan, separate accounts shall be maintained
with respect to such "designated Roth contributions." Contributions and
withdrawals of "designated Roth contributions" will be credited and debited to
the "designated Roth contributions" sub-account maintained for each Participant
within the Participant's Account. The Plan will maintain a record of the amount
of "designated Roth contributions" in each such sub-account. Gains, losses, and
other credits or charges will be separately allocated on a reasonable and
consistent basis to each Participant's "designated Roth contributions"
sub-account and the Participant's other sub-accounts within the Participant's
Account under the Plan. No contributions other than "designated Roth
contributions" and properly attributable earnings will be credited to each
Participant's "designated Roth contributions" sub-account.
|
7.02.
|
Valuation
of Accounts
.
|
Participant
Accounts shall be valued at their fair market value at least annually as of a
"determination date", as defined in Subsection 15.01(a), in accordance with a
method consistently followed and uniformly applied, and on such date earnings,
expenses, gains and losses on investments made with amounts in each
Participant's Account shall be allocated to such Account.
Article
8.
Investment of
Contributions
.
|
8.01.
|
Manner
of Investment
.
|
All
contributions made to the Accounts of Participants shall be held for investment
by the Trustee. Except as otherwise specifically provided in
Section 20.10, the Accounts of Participants shall be invested and
reinvested only in Permissible Investments selected by the Employer and
designated in the Service Agreement. The Trustee shall have no responsibility
for the selection of investment options under the Trust and shall not render
investment advice to any person in connection with the selection of such
options.
|
8.02.
|
Investment
Decisions
.
|
Investments
shall be directed by the Employer or by each Participant or both, in accordance
with the Employer's election in Subsection 1.24 of the Adoption
Agreement. Pursuant to Section 20.04, the Trustee shall have no
discretion or authority with respect to the investment of the Trust Fund;
however, an affiliate of the Trustee may exercise investment management
authority in accordance with Subsection (e) below.
(a)
With
respect to those Participant Accounts for which Employer investment direction is
elected, the Employer (in its capacity as a named fiduciary under ERISA) has the
right to direct the Trustee in writing with respect to the investment and
reinvestment of assets comprising the Trust Fund in the Permissible Investments
designated in the Service Agreement.
(b)
With
respect to those Participant Accounts for which Employer investment direction is
elected, each Participant shall direct the investment of his Account among the
Permissible Investments designated in the Service Agreement. The
Participant shall file initial investment instructions using procedures
established by the Administrator, selecting the Permissible Investments in which
amounts credited to his Account shall be invested.
(1)
While any
balance remains in the Account of a Participant after his death, the Beneficiary
of the Participant shall make decisions as to the investment of the Account as
though the Beneficiary were the Participant. To the extent required
by a qualified domestic relations order as defined in Code Section 414(p),
an alternate payee shall make investment decisions with respect to any
segregated account established in the name of the alternate payee as provided in
Section 18.04.
(2)
If the
Trustee receives any contribution under the Plan as to which investment
instructions have not been provided, such amount shall be invested in the
Permissible Investment selected by the Employer for such purposes.
To the extent that the Employer elects
to allow Participants to direct the investment of their Account in
Section 1.24 of the Adoption Agreement, the Plan is intended to constitute
a plan described in ERISA Section 404(c) and regulations issued
thereunder. The fiduciaries of the Plan shall be relieved of
liability for any losses that are the direct and necessary result of investment
instructions given by the Participant, his Beneficiary, or an alternate payee
under a qualified domestic relations order. The Employer shall not be
relieved of fiduciary responsibility for the selection and monitoring of the
Permissible Investments under the Plan.
(c)
All
dividends, interest, gains and distributions of any nature received in respect
of Fund Shares shall be reinvested in additional shares of that Permissible
Investment.
(d)
Expenses
attributable to the acquisition of investments shall be charged to the Account
of the Participant for which such investment is made.
(e)
The
Employer may appoint an investment manager (which may be the Trustee or an
affiliate) to determine the allocation of amounts held in Participants' Accounts
among various investment options (the "Managed Account" option) for Participants
who direct the Trustee to invest any portion of their accounts in the Managed
Account option. The investment options utilized under the Managed
Account option may be those generally available under the Plan or may be as
selected by the investment manager for use under the Managed Account option.
Participation in the Managed Account option shall be subject to such conditions
and limitations (including account minimums) as may be imposed by the investment
manager. The Employer may also appoint an investment manager (which
may be the Trustee or an affiliate) to manage any Permissible Investment subject
to management by such investment manager.
|
8.03.
|
Participant
Directions to Trustee
.
|
The
method and frequency for change of investments shall be determined under
(a) the rules applicable to the Permissible Investments selected by the
Employer and designated in the Service Agreement and (b) any additional
rules of the Employer limiting the frequency of investment changes, which are
included in a separate written administrative procedure adopted by the Employer
and accepted by the Trustee. The Trustee shall have no duty to
inquire into the investment decisions of a Participant or to advise him
regarding the purchase, retention, or sale of assets credited to his
Account.
Article
9.
Participant
Loans
.
|
9.01.
|
Special
Definition
.
|
For
purposes of this Article, a "
participant
" is any
Participant or Beneficiary, including an alternate payee under a qualified
domestic relations order, as defined in Code Section 414(p), who is a
party-in-interest (as determined under ERISA Section 3(14)) with respect to
the Plan.
|
9.02.
|
Participant
Loans
.
|
If so
provided by the Employer in Section 1.18 of the Adoption Agreement, the
Administrator shall allow "participants" to apply for a loan from their Accounts
under the Plan, subject to the provisions of this Article 9.
|
9.03.
|
Separate
Loan Procedures
.
|
All Plan
loans shall be made and administered in accordance with separate loan procedures
that are hereby incorporated into the Plan by reference.
|
9.04.
|
Availability
of Loans
.
|
Loans
shall be made available to all "participants" on a reasonably equivalent
basis. Loans shall not be made available to
"participants" who are Highly Compensated Employees in an amount greater than
the amount made available to other "participants".
|
9.05.
|
Limitation
on Loan Amount
.
|
No loan
to any "participant" shall be made to the extent that such loan when added to
the outstanding balance of all other loans to the "participant" would exceed the
lesser of (a) $50,000 reduced by the excess (if any) of the highest
outstanding balance of plan loans during the one-year period ending on the day
before the loan is made over the outstanding balance of plan loans on the date
the loan is made, or (b) one-half the present value of the "participant's"
vested interest in his Account. For purposes of the above limitation,
plan loans include all loans from all plans maintained by the Employer and any
Related Employer.
Subject
to the requirements of the Servicemembers Civil Relief Act, all loans shall bear
a reasonable rate of interest as determined by the Administrator based on the
prevailing interest rates charged by persons in the business of lending money
for loans which would be made under similar circumstances. The
determination of a reasonable rate of interest must be based on appropriate
regional factors unless the Plan is administered on a national basis in which
case the Administrator may establish a uniform reasonable rate of interest
applicable to all regions.
|
9.07.
|
Level
Amortization
.
|
All loans
shall by their terms require that repayment (principal and interest) be
amortized in level payments, not less than quarterly, over a period not
extending beyond five years from the date of the loan unless such loan is for
the purchase of a "participant's" primary residence. Notwithstanding
the foregoing, the amortization requirement may be waived while a "participant"
is on a leave of absence from employment with the Employer and any Related
Employer either without pay or at a rate of pay which, after withholding for
employment and income taxes, is less than the amount of the installment payments
required under the terms of the loan, provided that the period of such waiver
shall not exceed one year, unless the "participant" is absent because of
military leave during which the "participant" performs services with the
uniformed services (as defined in chapter 43 of title 38 of the United States
Code), regardless of whether such military leave is a qualified military leave
in accordance with the provisions of Code Section 414(u). Installment
payments must resume after such leave of absence ends or, if earlier, after the
first year of such leave of absence, in an amount that is not less than the
amount of the installment payments required under the terms of the original
loan. Unless a "participant" is absent because of military leave, as
discussed below, no waiver of the amortization requirements shall extend the
period of the loan beyond five years from the date of the loan, unless the loan
is for purchase of the "participant's" primary residence. If a "participant" is
absent because of military leave during which the "participant" performs
services with the uniformed services (as defined in chapter 43 of title 38 of
the United States Code), regardless of whether such military leave is a
qualified military leave in accordance with the provisions of Code Section
414(u), waiver of the amortization requirements may extend the period of the
loan to the maximum period permitted for such loan under the separate loan
procedures extended by the period of such military leave.
Loans
must be secured by the "participant's" vested interest in his Account not to
exceed 50 percent of such vested interest. If the provisions of
Section 14.04 apply to a Participant, a Participant must obtain the consent
of his or her spouse, if any, to use his vested interest in his Account as
security for the loan. Spousal consent shall be obtained no earlier
than the beginning of the 90-day period that ends on the date on which the loan
is to be so secured. The consent must be in writing, must acknowledge
the effect of the loan, and must be witnessed by a Plan representative or notary
public. Such consent shall thereafter be binding with respect to the
consenting spouse or any subsequent spouse with respect to that
loan.
If a
"participant's" loan is being repaid through payroll withholding, the Employer
shall remit any such loan repayment to the Trustee as of the earliest date on
which such amount can reasonably be segregated from the Employer's general
assets, but not later than the earlier of (a) the close of the period specified
in the separate loan procedures for preventing a default or (b) the 15th
business day of the calendar month following the month in which such amount
otherwise would have been paid to the "participant".
The
Administrator shall treat a loan in default if
(a)
any
scheduled repayment remains unpaid at the end of the period specified in the
separate loan procedures (unless payment is not made due to a waiver of the
amortization schedule for a "participant" who is on a leave of absence, as
described in Section 9.07), or
(b)
there is
an outstanding principal balance existing on a loan after the last scheduled
repayment date.
Upon default, the entire outstanding
principal and accrued interest shall be immediately due and
payable. If a distributable event (as defined by the Code) has
occurred, the Administrator shall direct the Trustee to foreclose on the
promissory note and offset the "participant's" vested interest in his Account by
the outstanding balance of the loan. If a distributable event has not
occurred, the Administrator shall direct the Trustee to foreclose on the
promissory note and offset the "participant's" vested interest in his Account as
soon as a distributable event occurs. The Trustee shall have no
obligation to foreclose on the promissory note and offset the outstanding
balance of the loan except as directed by the Administrator.
|
9.11.
|
Effect
of Termination Where Participant has Outstanding Loan Balance
.
|
If
a Participant has an outstanding loan balance at the time his employment
terminates, the entire outstanding principal and accrued interest shall be
immediately due and payable. Any outstanding loan amounts that are
immediately due and payable hereunder shall be treated in accordance with the
provisions of Sections 9.10 and 9.12 as if the Participant had defaulted on
the outstanding loan. Notwithstanding the foregoing, if a Participant
with an outstanding loan balance terminates employment with the Employer and all
Related Employers under circumstances that do not constitute a separation from
service, as described in Subsection 12.01(b), such Participant may elect, within
60 days of such termination, to roll over the outstanding loan to an eligible
retirement plan, as defined in Section 13.04, that accepts such
rollovers.
|
9.12.
|
Deemed
Distributions Under Code Section 72(p)
.
|
Notwithstanding
the provisions of Section 9.10, if a "participant's" loan is in default,
the "participant" shall be treated as having received a taxable "deemed
distribution" for purposes of Code Section 72(p), whether or not a
distributable event has occurred. The tax treatment of that portion
of a defaulted loan that is secured by Roth 401(k) Contributions shall be
determined in accordance with Code Section 402A and guidance issued
thereunder.
The amount of a loan that is a deemed
distribution ceases to be an outstanding loan for purposes of Code
Section 72, except as otherwise specifically provided herein, and a
Participant shall not be treated as having received a taxable distribution when
the Participant's Account is offset by the outstanding balance of the loan
amount as provided in Section 9.10. In addition, interest that accrues on a
loan after it is deemed distributed shall not be treated as an additional loan
to the Participant and shall not be included in the income of the Participant as
a deemed distribution. Notwithstanding the foregoing, unless a
Participant repays a loan that has been deemed distributed, with interest
thereon, the amount of such loan, with interest, shall be considered an
outstanding loan under Code Section 72(p) for purposes of determining the
applicable limitation on subsequent loans under Section 9.05.
If a Participant makes payments on a
loan that has been deemed distributed, payments made on the loan after the date
it was deemed distributed shall be treated as Employee Contributions to the Plan
for purposes of increasing the Participant's tax basis in his Account, but shall
not be treated as Employee Contributions for any other purpose under the Plan,
including application of the "ACP" test described in Section 6.06 and
application of the Code Section 415 limitations described in
Section 6.12.
The provisions of this
Section 9.12 regarding treatment of loans that are deemed distributed shall
not apply to loans made prior to January 1, 2002, except to the extent provided
under the transition rules in Q & A 22(c)(2) of
Section 1.72(p)-l of the Treasury Regulations.
|
9.13.
|
Determination
of Vested Interest Upon Distribution Where Plan Loan is
Outstanding
.
|
Notwithstanding
any other provision of the Plan, the portion of a "participant's" vested
interest in his Account that is held by the Plan as security for a loan
outstanding to the "participant" in accordance with the provisions of this
Article shall reduce the amount of the Account payable at the time of death or
distribution, but only if the reduction is used as repayment of the
loan. If less than 100 percent of a "participant's" vested
interest in his Account (determined without regard to the preceding sentence) is
payable to the "participant's" surviving spouse or other Beneficiary, then the
Account shall be adjusted by first reducing the "participant's" vested interest
in his Account by the amount of the security used as repayment of the loan, and
then determining the benefit payable to the surviving spouse or other
Beneficiary.
Article
10.
In-Service
Withdrawals
.
|
10.01.
|
Availability
of In-Service Withdrawals
.
|
Except as
otherwise permitted under Section 11.02 with respect to Participants who
continue in employment past Normal Retirement Age, or as required under
Section 12.04 with respect to Participants who continue in employment past
their Required Beginning Date, a Participant shall not be permitted to make a
withdrawal from his Account under the Plan prior to retirement or termination of
employment with the Employer and all Related Employers, if any, except as
provided in this Article.
|
10.02.
|
Withdrawal
of Employee Contributions
.
|
a
Participant may elect to withdraw, in cash, up to 100 percent of the amount
then credited to his Employee Contributions Account. Such withdrawals
may be made at any time, unless the Employer elects in
Subsection 1.19(c)(1)(A) of the Adoption Agreement to limit the frequency
of such withdrawals.
|
10.03.
|
Withdrawal
of Rollover Contributions
.
|
A
Participant may elect to withdraw, in cash, up to 100 percent of the amount
then credited to his Rollover Contributions Account. Such withdrawals
may be made at any time.
|
10.04.
|
Age
59 1/2 Withdrawals
.
|
If
so provided by the Employer in Subsection 1.19(b) of the Adoption Agreement
or the In-Service Withdrawals Addendum to the Adoption Agreement, a Participant
who continues in employment as an Employee and who has attained the age of
59 1/2 is permitted to withdraw upon request all or any portion of his
Accounts specified by the Employer in Subsection 1.19(b) of the Adoption
Agreement or the In-Service Withdrawals Addendum to the Adoption Agreement, as
applicable.
|
10.05.
|
Hardship
Withdrawals
.
|
If so
provided by the Employer in Subsection 1.19(a) of the Adoption Agreement, a
Participant who continues in employment as an Employee may apply to the
Administrator for a hardship withdrawal of all or any portion of (a) his
Deferral Contributions Account (excluding any earnings thereon accrued after the
later of December 31, 1988 or the last day of the last Plan Year ending
before July 1, 1989), if elected by the Employer in Subsection
1.19(a)(1)(A) of the Adoption Agreement or (b), if elected by the Employer in
Subsection 1.19(a)(1)(B) of the Adoption Agreement, such Accounts as may be
specified in Section (c) of the In-Service Withdrawals Addendum to the
Adoption Agreement. The minimum amount that a Participant may
withdraw because of hardship is the dollar amount specified by the Employer in
Subsection 1.19(a) of the Adoption Agreement, if any.
For purposes of this
Section 10.05, a withdrawal is made on account of hardship if made on
account of an immediate and heavy financial need of the Participant where such
Participant lacks other available resources. The Administrator shall direct the
Trustee with respect to hardship withdrawals and those withdrawals shall be
based on the following special rules:
(a)
The
following are the only financial needs considered immediate and
heavy:
(1)
expenses
incurred or necessary for medical care (that would be deductible under Code
Section 213(d), determined without regard to whether the expenses exceed
any applicable income limit) of the Participant, the Participant's spouse,
children, or dependents;
(2)
costs
directly related to the purchase (excluding mortgage payments) of a principal
residence for the Participant;
(3)
payment
of tuition, related educational fees, and room and board for the next
12 months of post-secondary education for the Participant, the
Participant's spouse, children or dependents (as defined in Code Section 152,
without regard to subsections (b)(1), (b)(2), and (d)(1)(B)
thereof);
(4)
payments
necessary to prevent the eviction of the Participant from, or a foreclosure on
the mortgage on, the Participant's principal residence;
(5)
payments
for funeral or burial expenses for the Participant's deceased parent, spouse,
child, or dependent (as defined in Code Section 152, without regard to
subsection (d)(1)(B) thereof);
(6)
expenses
for the repair of damage to the Participant's principal residence that would
qualify for a casualty loss deduction under Code Section 165 (determined without
regard to whether the loss exceeds any applicable income limit); or
(7)
any other
financial need determined to be immediate and heavy under rules and regulations
issued by the Secretary of the Treasury or his delegate; provided, however, that
any such financial need shall constitute an immediate and heavy need under this
paragraph (7) no sooner than administratively practicable following the date
such rule or regulation is issued.
(b)
A
distribution shall be considered as necessary to satisfy an immediate and heavy
financial need of the Participant only if:
(1)
The
Participant has obtained all distributions, other than the hardship withdrawal,
and all nontaxable (at the time of the loan) loans currently available under all
plans maintained by the Employer or any Related Employer;
(2)
The
Participant suspends Deferral Contributions and Employee Contributions to the
Plan for the 6-month period following receipt of his hardship withdrawal. The
suspension must also apply to all elective contributions and employee
contributions to all other qualified plans and non-qualified plans maintained by
the Employer or any Related Employer, other than any mandatory employee
contribution portion of a defined benefit plan, including stock option, stock
purchase, and other similar plans, but not including health and welfare benefit
plans (other than the cash or deferred arrangement portion of a cafeteria plan);
and
(3)
The
withdrawal amount is not in excess of the amount of an immediate and heavy
financial need (including amounts necessary to pay any Federal, state or local
income taxes or penalties reasonably anticipated to result from the
distribution).
|
10.06.
|
Preservation
of Prior Plan In-Service Withdrawal Rules
.
|
As
indicated by the Employer in Subsection 1.19(d) of the Adoption Agreement,
to the extent required under Code Section 411(d)(6), in-service withdrawals
that were available under a prior plan shall be available under the
Plan.
(a)
The
following provisions shall apply to preserve prior in-service withdrawal
provisions.
(1)
If the
Plan is an amendment and restatement of a prior plan document or is a transferee
plan of a prior plan that provided for in-service withdrawals from a
Participant's vested interest in his Matching Employer and/or Nonelective
Employer Contributions Accounts of amounts that have been held in such Accounts
for a specified period of time, a Participant shall be entitled to withdraw at
any time prior to his termination of employment, any vested interest in amounts
attributable to such Employer Contributions held in such Accounts for the period
of time specified by the Employer in Subsection 1.19(d)(1)(A) of the
Adoption Agreement. Any such withdrawal shall be subject to any
restrictions applicable under the prior plan or document that the Employer
elects in Subsection 1.19(d)(1)(A)(i) of the Adoption Agreement to continue
under the Plan as amended and restated hereunder (other than any mandatory
suspension of contributions restriction).
(2)
If the
Plan is an amendment and restatement of a prior plan document or is a transferee
plan of a prior plan that provided for in-service withdrawals from a
Participant's vested interest in his Matching Employer and/or Nonelective
Employer Contributions Accounts by Participants with at least 60 months of
participation, a Participant with at least 60 months of participation shall
be entitled to withdraw at any time prior to his termination of employment, his
vested interest held in such Accounts. Any such withdrawal
shall be subject to any restrictions applicable under the prior plan or document
that the Employer elects in Subsection 1.19(d)(1)(B)(i) of the Adoption
Agreement to continue under the Plan as amended and restated hereunder (other
than any mandatory suspension of contributions restriction).
(3)
If the
Plan is an amendment and restatement of a prior plan document or is a transferee
plan of a prior plan that provided for in-service withdrawals from a
Participant's vested interest in his Matching Employer and/or Nonelective
Employer Contributions Accounts under any other circumstances, a Participant who
has met any applicable requirements, as set forth in the In-Service Withdrawals
Addendum to the Adoption Agreement, shall be entitled to withdraw at any time
prior to his termination of employment his vested interest held in such
Accounts. Any such withdrawal shall be subject to any restrictions applicable
under the prior plan or document that the Employer elects to continue under the
Plan as amended and restated hereunder, as set forth in the In-Service
Withdrawal Addendum to the Adoption Agreement.
(b)
If the
Plan is a transferee plan of a prior profit sharing plan that provided for
in-service withdrawals from any portion of a Participant's Account other than
his Employee Contributions and/or Rollover Contributions Accounts, a Participant
who has met any applicable requirements, as set forth in the In-Service
Withdrawals Addendum to the Adoption Agreement, shall be entitled to withdraw at
any time prior to his termination of employment his vested interest in amounts
attributable to such prior profit sharing accounts, subject to any restrictions
applicable under the prior plan that the Employer elects to continue under the
Plan as amended and restated hereunder (other than any mandatory suspension of
contributions restriction), as set forth in the In-Service Withdrawals Addendum
to the Adoption Agreement.
|
10.07.
|
Restrictions
on In-Service Withdrawals
.
|
The
following restrictions apply to any in-service withdrawal made from a
Participant's Account under this Article:
(a)
If the
provisions of Section 14.04 apply to a Participant's Account, the
Participant must obtain the consent of his spouse, if any, to obtain an
in-service withdrawal.
(b)
In-service
withdrawals under this Article shall be made in a lump sum payment, except that
if the provisions of Section 14.04 apply to a Participant's Account, the
Participant shall receive the in-service withdrawal in the form of a "qualified
joint and survivor annuity", as defined in Subsection 14.01(a), unless the
consent rules in Section 14.05 are satisfied.
(c)
Notwithstanding
any other provision of the Plan to the contrary other than the provisions of
Section 11.02 or 12.04, a Participant shall not be permitted to make an
in-service withdrawal from his Account of amounts attributable to contributions
made to a money purchase pension plan, except employee and/or rollover
contributions that were held in a separate account(s) under such
plan.
Article
11.
Right to
Benefits
.
|
11.01.
|
Normal
or Early Retirement
.
|
Each
Participant who continues in employment as an Employee until his Normal
Retirement Age or, if so provided by the Employer in Subsection 1.14(b) of
the Adoption Agreement, Early Retirement Age, shall have a vested interest in
his Account of 100 percent regardless of any vesting schedule elected in
Section 1.16 of the Adoption Agreement. If a Participant retires
upon the attainment of Normal or Early Retirement Age, such retirement is
referred to as a normal retirement.
If a
Participant continues in employment as an Employee after his Normal Retirement
Age, he shall continue to have a 100 percent vested interest in his Account and
shall continue to participate in the Plan until the date he establishes with the
Employer for his late retirement. Until he retires, he has a
continuing right to elect to receive distribution of all or any portion of his
Account in accordance with the provisions of Articles 12 and 13; provided,
however, that a Participant may not receive any portion of his Deferral
Contributions, Qualified Nonelective Employer Contributions, Qualified Matching
Employer Contributions, 401(k) Safe Harbor Matching Employer Contributions, or
401(k) Safe Harbor Nonelective Employer Contributions Accounts prior to his
attainment of age 59 1/2.
|
11.03.
|
Disability
Retirement
.
|
If so
provided by the Employer in Subsection 1.14(c) of the Adoption Agreement, a
Participant who becomes disabled while employed as an Employee shall have a
100 percent vested interest in his Account regardless of any vesting
schedule elected in Section 1.16 of the Adoption Agreement. An
Employee is considered disabled if he satisfies any of the requirements for
disability retirement selected by the Employer in Section 1.15 of the
Adoption Agreement and terminates his employment with the
Employer. Such termination of employment is referred to as a
disability retirement.
A
Participant who dies while employed as an Employee shall have a 100 percent
vested interest in his Account and his designated Beneficiary shall be entitled
to receive the balance of his Account, plus any amounts thereafter credited to
his Account. If a Participant whose employment as an Employee has
terminated dies, his designated Beneficiary shall be entitled to receive the
Participant's vested interest in his Account.
A copy of the death notice or other
sufficient documentation must be filed with and approved by the
Administrator. If upon the death of the Participant there is, in the
opinion of the Administrator, no designated Beneficiary for part or all of the
Participant's Account, such amount shall be paid to his surviving spouse or, if
none, to his estate (such spouse or estate shall be deemed to be the Beneficiary
for purposes of the Plan). If a Beneficiary dies after benefits to
such Beneficiary have commenced, but before they have been completed, and, in
the opinion of the Administrator, no person has been designated to receive such
remaining benefits, then such benefits shall be paid in a lump sum to the
deceased Beneficiary's estate.
Subject to the requirements of
Section 14.04, a Participant may designate a Beneficiary, or change any
prior designation of Beneficiary by giving notice to the Administrator using
procedures established by the Administrator. If more than one person
is designated as the Beneficiary, their respective interests shall be as
indicated on the designation form. In the case of a married
Participant, the Participant's spouse shall be deemed to be the designated
Beneficiary unless the Participant's spouse has consented to another designation
in the manner described in Section 14.06. Notwithstanding the
foregoing, if a Participant’s Account is subject to the requirements of Section
14.04 and the Employer has specified in Subsection 1.20(c)(2)(B)(ii) of the
Adoption Agreement that less than 100 percent of the Participant’s Account that
is subject to Section 14.04 shall be used to purchase the “qualified
preretirement survivor annuity”, as defined in Section 14.01, the Participant
may designate a Beneficiary other than his spouse for the portion of his Account
that would not be used to purchase the “qualified preretirement survivor
annuity,” regardless of whether the spouse consents to such
designation.
|
11.05.
|
Other
Termination of Employment
.
|
If a
Participant terminates his employment with the Employer and all Related
Employers, if any, for any reason other than death or normal, late, or
disability retirement, he shall be entitled to a termination benefit equal to
the sum of (a) his vested interest in the balance of his Matching Employer
and/or Nonelective Employer Contributions Account(s), other than the balance
attributable to 401(k) Safe Harbor Matching Employer and/or 401(k) Safe Harbor
Nonelective Employer Contributions, such vested interest to be determined in
accordance with the vesting schedule(s) selected by the Employer in
Section 1.16 of the Adoption Agreement, and (b) the balance of his
Deferral, Employee, Qualified Nonelective Employer, 401(k) Safe Harbor
Nonelective Employer, Qualified Matching Employer, 401(k) Safe Harbor Matching
Employer, and Rollover Contributions Accounts.
|
11.06.
|
Application
for Distribution
.
|
Except as
provided in Subsection 1.21(a) of the Adoption Agreement or Section 13.02,
a Participant (or his Beneficiary, if the Participant has died) who is entitled
to a distribution hereunder must make application, using procedures established
by the Administrator, for a distribution from his Account and no such
distribution shall be made without proper application.
|
11.07.
|
Application
of Vesting Schedule Following Partial Distribution
.
|
If a
distribution from a Participant's Matching Employer and/or Nonelective Employer
Contributions Account has been made to him at a time when his vested interest in
such Account balance is less than 100 percent, the vesting schedule(s) in
Section 1.16 of the Adoption Agreement shall thereafter apply only to the
balance of his Account attributable to Matching Employer and/or Nonelective
Employer Contributions allocated after such distribution. The balance
of the Account from which such distribution was made shall be transferred to a
separate account immediately following such distribution.
At any
relevant time prior to a forfeiture of any portion thereof under
Section 11.08, a Participant's vested interest in such separate account
shall be equal to P(AB+(RxD))-(RxD), where P is the Participant's vested
interest expressed as a percentage at the relevant time determined under
Section 11.05; AB is the account balance of the separate account at the
relevant time; D is the amount of the distribution; and R is the ratio of the
account balance at the relevant time to the account balance after
distribution. Following a forfeiture of any portion of such separate
account under Section 11.08 below, the Participant's vested interest in any
balance in such separate account shall remain 100 percent.
If a
Participant terminates his employment with the Employer and all Related
Employers before his vested interest in his Matching Employer and/or Nonelective
Employer Contributions Accounts is 100 percent, the non-vested portion of his
Account (including any amounts credited after his termination of employment)
shall be forfeited by him as follows:
(a)
If the
Inactive Participant elects to receive distribution of his entire vested
interest in his Account, the non-vested portion of his Account shall be
forfeited upon the complete distribution of such vested interest, subject to the
possibility of reinstatement as provided in Section 11.10. For
purposes of this Subsection, if the value of an Employee's vested interest in
his Account balance is zero, the Employee shall be deemed to have received a
distribution of his vested interest immediately following termination of
employment.
(b)
If the
Inactive Participant elects not to receive distribution of his vested interest
in his Account following his termination of employment, the non-vested portion
of his Account shall be forfeited after the Participant has incurred five
consecutive Breaks in Vesting Service.
No forfeitures shall occur solely as a
result of a Participant's withdrawal of Employee Contributions.
|
11.09.
|
Application
of Forfeitures
.
|
Any
forfeitures occurring during a Plan Year shall be applied to reduce the
contributions of the Employer, unless the Employer has elected in
Subsection 1.16(f)(1) of the Adoption Agreement that such remaining
forfeitures shall be allocated among the Accounts of Active Participants who are
eligible to receive allocations of Nonelective Employer Contributions for the
Plan Year in which the forfeiture occurs. Forfeitures that are
allocated among the Accounts of eligible Active Participants shall be allocated
as provided in the Adoption Agreement. Notwithstanding any other
provision of the Plan to the contrary, forfeitures shall first be used to pay
administrative expenses under the Plan, if so directed by the Employer. To the
extent that forfeitures are not used to reduce administrative expenses under the
Plan, as directed by the Employer, forfeitures will be applied in accordance
with this Section 11.09.
Pending
application, forfeitures shall be held in the Permissible Investment selected by
the Employer for such purpose.
Notwithstanding
any other provision of the Plan to the contrary, in no event may forfeitures be
used to reduce the Employer's obligation to remit to the Trust (or other
appropriate Plan funding vehicle) loan repayments made pursuant to Article 9,
Deferral Contributions or Employee Contributions.
|
11.10.
|
Reinstatement
of Forfeitures
.
|
If a
Participant forfeits any portion of his Account under Subsection 11.08(a)
because of distribution of his complete vested interest in his Account, but
again becomes an Eligible Employee, then the amount so forfeited, without any
adjustment for the earnings, expenses, losses, or gains of the assets credited
to his Account since the date forfeited, shall be recredited to his Account (or
to a separate account as described in Section 11.07, if applicable) if he
repays the entire amount of his distribution not attributable to Employee
Contributions before the earlier of:
(a)
his
incurring five-consecutive Breaks in Vesting Service following the date complete
distribution of his vested interest was made to him; or
(b)
five
years after his Reemployment Date.
If an
Employee is deemed to have received distribution of his complete vested interest
as provided in Section 11.08, the Employee shall be deemed to have repaid
such distribution on his Reemployment Date.
Upon such an actual or deemed
repayment, the provisions of the Plan (including Section 11.07) shall
thereafter apply as if no forfeiture had occurred. The amount to be
recredited pursuant to this paragraph shall be derived first from the
forfeitures, if any, which as of the date of recrediting have yet to be applied
as provided in Section 11.09 and, to the extent such forfeitures are
insufficient, from a special contribution to be made by the
Employer.
|
11.11.
|
Adjustment
for Investment Experience
.
|
If any
distribution under this Article 11 is not made in a single payment, the
amount retained by the Trustee after the distribution shall be subject to
adjustment until distributed to reflect the income and gain or loss on the
investments in which such amount is invested and any expenses properly charged
under the Plan and Trust to such amounts.
Article
12.
Distributions
.
|
12.01.
|
Restrictions
on Distributions
.
|
(a)
Severance from Employment
Rule
. A Participant, or his Beneficiary, may not receive a
distribution from the Participant's Deferral Contributions, Qualified
Nonelective Employer Contributions, Qualified Matching Employer Contributions,
401(k) Safe Harbor Matching Employer Contributions or 401(k) Safe Harbor
Nonelective Employer Contributions Accounts earlier than upon the Participant's
severance from employment with the Employer and all Related Employers, death, or
disability, except as otherwise provided in Article 10, Section 11.02 or Section
12.04. If the Employer elected
Subsection 1.21(c) of
the Adoption Agreement, distribution from the Participant's Deferral
Contributions, Qualified Nonelective Employer Contributions, Qualified Matching
Employer Contributions, 401(k) Safe Harbor Matching Employer Contributions or
401(k) Safe Harbor Nonelective Employer Contributions Accounts may be further
postponed in accordance with the provisions of Subsection 12.01(b)
below.
(b)
Same Desk
Rule
. If elected by the Employer in Subsection 1.21(c) of the
Adoption Agreement, a Participant, or his Beneficiary, may not receive a
distribution from the Participant's Deferral Contributions, Qualified
Nonelective Employer Contributions, Qualified Matching Employer Contributions,
401(k) Safe Harbor Matching Employer Contributions or 401(k) Safe Harbor
Nonelective Employer Contributions Accounts earlier than upon the Participant's
separation from service with the Employer and all Related Employers, death, or
disability, except as otherwise provided in Article 10, Section 11.02 or
Section 12.04. Notwithstanding the foregoing, amounts may also be
distributed from such Accounts, in the form of a lump sum only,
upon
(1)
The
disposition by a corporation to an unrelated corporation of substantially all of
the assets (within the meaning of Code Section 409(d)(2)) used in a trade
or business of such corporation if such corporation continues to maintain the
Plan with respect to the Participant after the disposition, but only with
respect to former Employees who continue employment with the corporation
acquiring such assets.
(2)
The
disposition by a corporation to an unrelated entity of such corporation's
interest in a subsidiary (within the meaning of Code Section 409(d)(3)) if
such corporation continues to maintain the Plan with respect to the Participant,
but only with respect to former Employees who continue employment with such
subsidiary.
In
addition to the distribution events described in paragraph (a) or (b) above, as
applicable, such amounts may also be distributed upon the termination of the
Plan provided that the Employer does not maintain another defined contribution
plan (other than an employee stock ownership plan as defined in Code Section
4975(e)(7) or 409(a), a simplified employee pension plan as defined in Code
Section 408(k), a SIMPLE IRA plan as defined in Code Section 408(p), a plan or
contract described in Code Section 403(b) or a plan described in Code Section
457(b) or (f)) at any time during the period beginning on the date of plan
termination and ending 12 months after all assets have been distributed from the
Plan. Subject to Section 14.04, such a distribution must be made in a lump
sum.
|
12.02.
|
Timing
of Distribution Following Retirement or Termination of
Employment
.
|
Except as
otherwise elected by the Employer in Subsection 1.21(b) of the Adoption
Agreement and provided in the Postponed Distribution Addendum to the Adoption
Agreement, the balance of a Participant's vested interest in his Account shall
be distributable upon his termination of employment with the Employer and all
Related Employers, if any, because of death, normal, early, or disability
retirement (as permitted under the Plan), or other termination of
employment. Notwithstanding the foregoing, a Participant may elect to
postpone distribution of his Account until the date in Subsection 1.21(a)
of the Adoption Agreement, unless the Employer has elected in Subsection
1.20(e)(1) of the Adoption Agreement to cash out de minimus Accounts and the
Participant's vested interest in his Account does not exceed the amount subject
to automatic distribution pursuant to Section 13.02. A Participant
who elects to postpone distribution has a continuing election to receive such
distribution prior to the date as of which distribution is required, unless such
Participant is reemployed as an Employee.
|
12.03.
|
Participant
Consent to Distribution
.
|
No
distribution shall be made to the Participant before he reaches his Normal
Retirement Age (or age 62, if later) without the Participant's consent,
unless the Employer has elected in
Subsection
1.20(e)(1) of the Adoption Agreement to cash out de minimus Accounts and the
Participant's vested interest in his Account does not exceed the amount subject
to automatic distribution pursuant to Section 13.02. Such consent
shall be made within the 90-day period ending on the Participant's Annuity
Starting Date.
If a Participant's vested interest in
his Account exceeds the maximum cash out limit permitted under Code Section
411(a)(11)(A) ($5,000 as of January 1, 2005), the consent of the Participant's
spouse must also be obtained if the Participant's Account is subject to the
provisions of Section 14.04, unless the distribution shall be made in the
form of a "qualified joint and survivor annuity" or "qualified preretirement
survivor annuity" as those terms are defined in Section 14.01. A
spouse's consent to early distribution, if required, must satisfy the
requirements of Section 14.06.
Neither
the consent of the Participant nor the Participant's spouse shall be required to
the extent that a distribution is required to satisfy Code
Section 401(a)(9) or Code Section 415. In addition, upon
termination of the Plan if it does not offer an annuity option (purchased from a
commercial provider) and if the Employer or any Related Employer does not
maintain another defined contribution plan (other than an employee stock
ownership plan as defined in Code Section 4975(e)(7)) the Participant's
Account shall, without the Participant's consent, be distributed to the
Participant. However, if any Related Employer maintains another
defined contribution plan (other than an employee stock ownership plan as
defined in Code Section 4975(e)(7)) then the Participant's Account shall be
transferred, without the Participant's consent, to the other plan if the
Participant does not consent to an immediate distribution.
|
12.04.
|
Required
Commencement of Distribution to
Participants
.
|
In no
event shall distribution to a Participant commence later than the date in
Section 1.21(a) of the Adoption Agreement, which date shall not be later
than the earlier of the dates described in (a) and (b) below:
(a)
unless
the Participant (and his spouse, if appropriate) elects otherwise, the 60th day
after the close of the Plan Year in which occurs the latest of (i) the date
on which the Participant attains Normal Retirement Age, or age 65, if
earlier, (ii) the date on which the Participant's employment with the
Employer and all Related Employers ceases, or (iii) the 10th anniversary of
the year in which the Participant commenced participation in the Plan;
and
(b)
the
Participant's Required Beginning Date.
Notwithstanding the provisions of
Subsection 12.04(a) above, the failure of a Participant (and the
Participant's spouse, if applicable) to consent to a distribution shall be
deemed to be an election to defer commencement of payment as provided in
Section 12.02 above.
|
12.05.
|
Required
Commencement of Distribution to Beneficiaries
.
|
Subject
to the requirements of Subsection 12.05(a) below, if a Participant dies before
his Annuity Starting Date, the Participant’s Beneficiary shall receive
distribution of the Participant’s vested interest in his Account in the form
provided under Article 13 or 14, as applicable, beginning as soon as
reasonably practicable following the date the Beneficiary’s application for
distribution is filed with the Administrator. If distribution is to
be made to a Participant’s spouse, it shall be made available within a
reasonable period of time after the Participant’s death that is no less
favorable than the period of time applicable to other
distributions.
(a)
Death of Participant Before
Distributions Begin
. If the Participant dies before distributions begin,
the Participant’s entire vested interest will be distributed, or begin to be
distributed, no later than as follows:
(1)
If the
Participant’s surviving spouse is the Participant’s sole “designated
beneficiary,” then, except as otherwise elected under Subsection 12.05(b),
minimum distributions, as described in Section 13.03, will begin to the
surviving spouse by December 31 of the calendar year immediately following the
calendar year in which the Participant died, or by December 31 of the calendar
year in which the Participant would have attained age 70 ½, if
later.
(2)
If the
Participant’s surviving spouse is not the Participant’s sole “designated
beneficiary,” then, except as otherwise elected under Subsection 12.05(b),
minimum distributions, as described in Section 13.03, will begin to the
“designated beneficiary” by December 31 of the calendar year immediately
following the calendar year in which the Participant died.
(3)
If there
is no “designated beneficiary” as of September 30 of the year following the year
of the Participant’s death, the Participant’s entire vested interest will be
distributed by December 31 of the calendar year containing the fifth anniversary
of the Participant’s death.
(4)
If the
Participant’s surviving spouse is the Participant’s sole “designated
beneficiary” and the surviving spouse dies after the Participant but before
distributions to the surviving spouse begin, this Subsection 12.05(a), other
than Subsection 12.05(a)(1), will apply as if the surviving spouse were the
Participant.
For
purposes of this Subsection 12.05(a), unless Subsection 12.05(a)(4) applies,
distributions are considered to begin on the Participant’s Required Beginning
Date. If Subsection 12.05(a)(4) applies, distributions are considered
to begin on the date distributions are required to begin to the surviving spouse
under Subsection 12.05(a)(1). If distributions under an annuity
purchased from an insurance company irrevocably commence to the Participant
before the Participant’s Required Beginning Date (or to the Participant’s
surviving spouse before the date distributions are required to begin to the
surviving spouse under Subsection 12.05(a)(1)), the date distributions are
considered to begin is the date distributions actually commence.
(b)
Election of 5-Year
Rule
. Participants or Beneficiaries may elect on an individual
basis whether the 5-year rule described in Subsection 12.05(a)(3) or the minimum
distribution rule described in Section 13.03 applies to distributions after the
death of a Participant who has a “designated beneficiary.” The
election must be made no later than the earlier of September 30 of the calendar
year in which distribution would be required to begin under Subsection 12.05(a),
or by September 30 of the calendar year which contains the fifth anniversary of
the Participant’s (or, if applicable, the surviving spouse’s)
death. If neither the Participant nor the Beneficiary makes an
election under this Subsection 12.05(b), distributions will be made in
accordance with Subsection 12.05(a) and Section 13.03.
Subject
to the requirements of Subsection 12.05(a) above, if a Participant dies on or
after his Annuity Starting Date, but before his entire vested interest in his
Account is distributed, his Beneficiary shall receive distribution of the
remainder of the Participant’s vested interest in his Account beginning as soon
as reasonably practicable following the Participant’s date of death in a form
that provides for distribution at least as rapidly as under the form in which
the Participant was receiving distribution.
For
purposes of this Section 12.05, “designated beneficiary” is as defined in
Subsection 13.03(c)(1).
|
12.06.
|
Whereabouts
of Participants and Beneficiaries
.
|
The
Administrator shall at all times be responsible for determining the whereabouts
of each Participant or Beneficiary who may be entitled to benefits under the
Plan and shall direct the Trustee as to the maintenance of a current address of
each such Participant or Beneficiary. The Trustee shall be under no duty to make
any distributions other than those for which it has received satisfactory
direction from the Administrator.
Notwithstanding the foregoing, if the
Trustee attempts to make a distribution in accordance with the Administrator's
instructions but is unable to make such distribution because the whereabouts of
the distributee is unknown, the Trustee shall notify the Administrator of such
situation and thereafter the Trustee shall be under no duty to make any further
distributions to such distributee until it receives further written instructions
from the Administrator.
If the Administrator is unable after
diligent attempts to locate a Participant or Beneficiary who is entitled to a
benefit under the Plan, the benefit otherwise payable to such Participant or
Beneficiary shall be forfeited and applied as provided in
Section 11.09. If a benefit is forfeited because the
Administrator determines that the Participant or Beneficiary cannot be found,
such benefit shall be reinstated by the Employer if a claim is filed by the
Participant or Beneficiary with the Administrator and the Administrator confirms
the claim to the Employer. Notwithstanding the above, forfeiture of a
Participant's or Beneficiary's benefit may occur only if a distribution could be
made to the Participant or Beneficiary without obtaining the Participant's or
Beneficiary's consent in accordance with the requirements of Section 1.411(a)-11
of the Treasury Regulations.
Article
13.
Form of
Distribution
.
|
13.01.
|
Normal
Form of Distribution Under Profit Sharing Plan
.
|
Unless a
Participant's Account is subject to the requirements of Section 14.03 or
14.04, distributions to a Participant or to the Beneficiary of the Participant
shall be made in a lump sum in cash or, if elected by the Participant (or the
Participant's Beneficiary, if applicable) and provided by the Employer in
Section 1.20 of the Adoption Agreement, under a systematic withdrawal plan
(installments). A Participant (or the Participant's Beneficiary, if
applicable) who is receiving distribution under a systematic withdrawal plan may
elect to accelerate installment payments or to receive a lump sum distribution
of the remainder of his Account balance.
Notwithstanding anything herein to the
contrary, if distribution to a Participant commences on the Participant's
Required Beginning Date as determined under Subsection 2.01(tt), the Participant
may elect to receive distributions under a systematic withdrawal plan that
provides the minimum distributions required under Code Section 401(a)(9), as
described in Section 13.03.
Distributions shall be made in cash,
except that distributions may be made in Fund Shares of marketable securities
(as defined in Code Section 731(c)(2)), other than Fund Shares of Employer
Stock as defined in Section 20.12, at the election of the Participant, pursuant
to the qualifying rollover of such distribution to a Fidelity Investments®
individual retirement account.
|
13.02.
|
Cash
Out Of Small Accounts
.
|
Notwithstanding
any other provision of the Plan to the contrary, if the Employer elected to cash
out small Accounts as provided in Subsection 1.20(e)(1) of the Adoption
Agreement, and a Participant's vested interest in his Account does not exceed
$1,000 the Participant's vested interest in his Account shall be
distributed in a lump sum following the Participant's termination of employment
because of retirement, disability, or other termination of
employment. If elected by the Employer in Subsection 1.20(e)(1)(A) of
the Adoption Agreement, if a mandatory distribution greater than $1,000 is made
to a Participant in accordance with the provisions of this Section prior to the
Participant's Normal Retirement Age (or age 62, if later) and the Participant
does not elect to have such distribution paid directly to an eligible retirement
plan specified by the Participant in a direct rollover or to receive such
distribution directly, then the Administrator will pay the distribution in a
direct rollover to an individual retirement plan designated by the
Administrator. For purposes of determining whether an amount being distributed
pursuant to this Section 13.02 will be subject to a direct rollover by the
Administrator, a Participant's Roth 401(k) Contributions Account will be
considered separately from the amount within the Participant's non-Roth
Account.
If the Employer elected to cash out
small Accounts as provided in Subsection 1.20(e)(1) of the Adoption Agreement
and if distribution is to be made to a Participant's Beneficiary following the
death of the Participant and the Beneficiary's vested interest in the
Participant's Account does not exceed the maximum cash out limit permitted under
Code Section 411(a)(11)(A) ($5,000 as of January 1, 2005), distribution shall be
made to the Beneficiary in a lump sum following the Participant's
death.
|
13.03.
|
Minimum
Distributions
.
|
Unless a
Participant’s vested interest in his Account is distributed in the form of an
annuity purchased from an insurance company or in a single sum on or before the
Participant’s Required Beginning Date, as of the first “distribution calendar
year” distributions will be made in accordance with this Section. If
the Participant’s vested interest in his Account is distributed in the form of
an annuity purchased from an insurance company, distributions thereunder will be
made in accordance with the requirements of Code Section 401(a)(9) and the
Treasury Regulations issued thereunder.
Notwithstanding
the foregoing or any other provisions of this Section, distributions may be made
under a designation made before January 1, 1984, in accordance with Section
242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and the
provisions of Subsection 13.03(d) below.
(a)
Required Minimum
Distributions During a Participant’s Lifetime
. During a
Participant’s lifetime, the minimum amount that will be distributed for each
“distribution calendar year” is the lesser of:
(1)
the
quotient obtained by dividing the Participant’s “account balance” by the
distribution period in the Uniform Lifetime Table set forth in Section
1.401(a)(9)-9 of the Treasury Regulations, using the Participant’s age as of the
Participant’s birthday in the “distribution calendar year”; or
(2)
if the
Participant’s sole “designated beneficiary” for the “distribution calendar year”
is the Participant’s spouse, the quotient obtained by dividing the Participant’s
“account balance” by the number in the Joint and Last Survivor Table set forth
in Section 1.401(a)(9)-9 of the Treasury Regulations, using the Participant’s
and spouse’s attained ages as of the Participant’s and spouse’s birthdays in the
“distribution calendar year.”
Required
minimum distributions will be determined under this Subsection 13.03(a)
beginning with the first “distribution calendar year” and up to and including
the “distribution calendar year” that includes the Participant’s date of
death.
(b)
Required Minimum
Distributions After Participant’s Death
.
(1)
If a
Participant dies on or after the date distributions begin and there is a
“designated beneficiary,” the minimum amount that will be distributed for each
“distribution calendar year” after the year of the Participant’s death is the
quotient obtained by dividing the Participant’s “account balance” by the longer
of the remaining “life expectancy” of the Participant or the remaining “life
expectancy” of the Participant’s “designated beneficiary,” determined as
follows:
(A)
The
Participant’s remaining “life expectancy” is calculated using the age of the
Participant in the year of death, reduced by one for each subsequent
year.
(B)
If the
Participant’s surviving spouse is the Participant’s sole “designated
beneficiary,” the remaining life expectancy of the surviving spouse is
calculated for each distribution calendar year after the year of the
Participant’s death using the surviving spouse’s age as of the spouse’s birthday
in that year. For “distribution calendar years” after the year of the
surviving spouse’s death, the remaining “life expectancy” of the surviving
spouse is calculated using the age of the surviving spouse as of the spouse’s
birthday in the calendar year of the spouse’s death, reduced by one for each
subsequent calendar year.
(C)
If the
Participant’s surviving spouse is not the Participant’s sole “designated
beneficiary,” the “designated beneficiary’s” remaining “life expectancy” is
calculated using the age of the “designated beneficiary” in the year following
the year of the Participant’s death, reduced by one for each subsequent
year.
(2)
If the
Participant dies on or after the date distributions begin and there is no
“designated beneficiary” as of September 30 of the year after the year of the
Participant’s death, the minimum amount that will be distributed for each
“distribution calendar year” after the year of the Participant’s death is the
quotient obtained by dividing the Participant’s “account balance” by the
Participant’s remaining “life expectancy” calculated using the age of the
Participant in the year of death, reduced by one for each subsequent
year.
(3)
Unless
the Participant or Beneficiary elects otherwise in accordance with Subsection
12.05(b), if the Participant dies before the date distributions begin and there
is a “designated beneficiary,” the minimum amount that will be distributed for
each “distribution calendar year” after the year of the Participant’s death is
the quotient obtained by dividing the Participant’s “account balance” by the
remaining “life expectancy” of the Participant’s “designated beneficiary,”
determined as provided in Subsection 13.03(b)(1).
(4)
If the
Participant dies before the date distributions begin and there is no “designated
beneficiary” as of September 30 of the year following the year of the
Participant’s death, distribution of the Participant’s full vested interest in
his Account will be completed by December 31 of the calendar year containing the
fifth anniversary of the Participant’s death.
(5)
If the
Participant dies before the date distributions begin, the Participant’s
surviving spouse is the Participant’s sole “designated beneficiary,” and the
surviving spouse dies before distributions are required to begin to the
surviving spouse under Subsection 12.05(a)(1), Subsections 13.03(b)(3) and (4)
will apply as if the surviving spouse were the Participant.
For
purposes of this Subsection 13.03(b), unless Subsection 13.03(b)(5) applies,
distributions are considered to begin on the Participant’s Required Beginning
Date. If Subsection 13.03(b)(5) applies, distributions are considered
to begin on the date distributions are required to begin to the surviving spouse
under Subsection 12.05(a)(1). If distributions under an annuity
purchased from an insurance company irrevocably commence to the Participant
before the Participant’s Required Beginning Date (or to the Participant’s
surviving spouse before the date distributions are required to begin to the
surviving spouse under Subsection 12.05(a)(1)), the date distributions are
considered to begin is the date distributions actually commence.
(c)
Definitions
. For
purposes of this Section 13.03, the following special definitions shall
apply:
(1)
“
Designated beneficiary
” means
the individual who is the Participant’s Beneficiary as defined under Section
2.01(g) and is the designated beneficiary under Code Section 401(a)(9) and
Section 1.401(a)(9)-4 of the Treasury Regulations.
(2)
“
Distribution calendar year
”
means a calendar year for which a minimum distribution is
required. For distributions beginning before the Participant’s death,
the first “distribution calendar year” is the calendar year immediately
preceding the calendar year which contains the Participant’s Required Beginning
Date. For distributions beginning after the Participant’s death, the
first “distribution calendar year” is the calendar year in which distributions
are required to begin under Subsection 12.05(a). The required minimum
distribution for the Participant’s first “distribution calendar year” will be
made on or before the Participant’s Required Beginning Date. The
required minimum distribution for other “distribution calendar years,” including
the required minimum distribution for the “distribution calendar year” in which
the Participant’s Required Beginning Date occurs, will be made on or before
December 31 of that “distribution calendar year.”
(3)
“
Life expectancy
” means life
expectancy as computed by use of the Single Life Table in Section 1.401(a)(9)-9
of the Treasury Regulations.
(4)
A
Participant’s “
account
balance
” means the balance of the Participant's vested interest in his
Account as of the last valuation date in the calendar year immediately preceding
the “distribution calendar year” (valuation calendar year) increased by the
amount of any contributions made and allocated or forfeitures allocated to the
Account as of dates in the valuation calendar year after the valuation date and
decreased by distributions made in the valuation calendar year after the
valuation date. The “account balance” for the valuation calendar year
includes any amounts rolled over or transferred to the Plan either in the
valuation calendar year or in the “distribution calendar year” if distributed or
transferred in the valuation calendar year.
(d)
Section 242(b)(2)
Elections
. Notwithstanding any other provisions of this
Section and subject to the requirements of Article 14, if applicable,
distribution on behalf of a Participant, including a five-percent owner, may be
made pursuant to an election under Section 242(b)(2) of the Tax Equity and
Fiscal Responsibility Act of 1982 and in accordance with all of the following
requirements:
(1)
The
distribution is one which would not have disqualified the Trust under Code
Section 401(a)(9), if applicable, or any other provisions of Code Section
401(a), as in effect prior to the effective date of Section 242(a) of the Tax
Equity and Fiscal Responsibility Act of 1982.
(2)
The
distribution is in accordance with a method of distribution elected by the
Participant whose vested interest in his Account is being distributed or, if the
Participant is deceased, by a Beneficiary of such Participant.
(3)
Such
election was in writing, was signed by the Participant or the Beneficiary, and
was made before January 1, 1984.
(4)
The
Participant had accrued a benefit under the Plan as of December 31,
1983.
(5)
The
method of distribution elected by the Participant or the Beneficiary specifies
the form of the distribution, the time at which distribution will commence, the
period over which distribution will be made, and in the case of any distribution
upon the Participant's death, the Beneficiaries of the Participant listed in
order of priority.
A
distribution upon death shall not be made under this Subsection 13.03(d) unless
the information in the election contains the required information described
above with respect to the distributions to be made upon the death of the
Participant. For any distribution which commences before January 1,
1984, but continues after December 31, 1983, the Participant or the Beneficiary
to whom such distribution is being made will be presumed to have designated the
method of distribution under which the distribution is being made, if this
method of distribution was specified in writing and the distribution satisfies
the requirements in Subsections 13.03(d)(1) and (5). If an election
is revoked, any subsequent distribution will be in accordance with the other
provisions of the Plan. Any changes in the election will be
considered to be a revocation of the election. However, the mere
substitution or addition of another Beneficiary (one not designated as a
Beneficiary in the election), under the election will not be considered to be a
revocation of the election, so long as such substitution or addition does not
alter the period over which distributions are to be made under the election
directly, or indirectly (for example, by altering the relevant measuring
life).
The
Administrator shall direct the Trustee regarding distributions necessary to
comply with the minimum distribution rules set forth in this
Section 13.03.
|
13.04.
|
Direct
Rollovers
.
|
Notwithstanding
any other provision of the Plan to the contrary, a "distributee" may elect, at
the time and in the manner prescribed by the Administrator, to have any portion
or all of an "eligible rollover distribution" paid directly to an "eligible
retirement plan" specified by the "distributee" in a direct rollover; provided,
however, that a "distributee" may not elect a direct rollover with respect to a
portion of an "eligible rollover distribution" if such portion totals less than
$500. In applying the $500 minimum on rollovers of a portion of a distribution,
any "eligible rollover distribution" from a Participant's Roth 401(k)
Contributions Account will be considered separately from any "eligible rollover
distribution" from the Participant's non-Roth Account.
The portion of any "eligible rollover
distribution" consisting of Employee Contributions may only be rolled over to an
individual retirement account or annuity described in Code Section 408(a) or (b)
or to a qualified defined contribution plan described in Code Section 401(a) or
403(a) that provides for separate accounting with respect to such accounts,
including separate accounting for the portion of such "eligible rollover
distribution" that is includible in income and the portion that is not
includible in income. That portion of any "eligible rollover distribution"
consisting of Roth 401(k) Contributions, may only be rolled over to another
designated Roth account established for the individual under an applicable
retirement plan described in Code Section 402A(e)(1) that provides for
"designated Roth contributions", as defined in Section 6.01, or to a Roth
individual retirement account described in Code Section 408A, subject to the
rules of Code Section 402(c).
For
purposes of this Section 13.04, the following definitions shall
apply:
(a)
"Distributee"
means a Participant, the Participant's surviving spouse, and the Participant's
spouse or former spouse who is the alternate payee under a qualified domestic
relations order, who is entitled to receive a distribution from the
Participant's vested interest in his Account.
(b)
"Eligible
retirement plan" means an individual retirement account described in Code
Section 408(a), an individual retirement annuity described in Code
Section 408(b), an annuity plan described in Code Section 403(a), a
qualified defined contribution plan described in Code Section 401(a), an
annuity contract described in Code Section 403(b), an eligible deferred
compensation plan described in Code Section 457(b) that is maintained by a
state, political subdivision of a state, or any agency or instrumentality of a
state or political subdivision of a state, provided that such 457 plan provides
for separate accounting with respect to such rolled over amounts, that accepts
"eligible rollover distributions", or a Roth individual retirement account
described in Code Section 408A.
(c)
"Eligible
rollover distribution" means any distribution of all or any portion of the
balance to the credit of the "distributee", except that an "eligible rollover
distribution" does not include the following:
(1)
any
distribution that is one of a series of substantially equal periodic payments
(not less frequently than annually) made for the life (or life expectancy) of
the "distributee" or the joint lives (or joint life expectancies) of the
"distributee" and the "distributee's" designated beneficiary, or for a specified
period of ten years or more;
(2)
any
distribution to the extent such distribution is required under Code
Section 401(a)(9); or
(3)
any
hardship withdrawal made in accordance with the provisions of Section 10.05
or the In-Service Withdrawals Addendum to the Adoption Agreement.
|
13.05.
|
Notice
Regarding Timing and Form of Distribution
.
|
Within
the period beginning 90 days before a Participant's Annuity Starting Date
and ending 30 days before such date, the Administrator shall provide such
Participant with written notice containing a general description of the material
features of each form of distribution available under the Plan and an
explanation of the financial effect of electing each form of distribution
available under the Plan. The notice shall also inform the Participant of his
right to defer receipt of the distribution until the date in
Subsection 1.21(a) of the Adoption Agreement and his right to make a direct
rollover.
Distribution may commence fewer than 30
days after such notice is given, provided that:
(a)
the
Administrator clearly informs the Participant that the Participant has a right
to a period of at least 30 days after receiving the notice to consider the
decision of whether or not to elect a distribution (and, if applicable, a
particular distribution option);
(b)
the
Participant, after receiving the notice, affirmatively elects a distribution,
with his spouse's written consent, if necessary;
(c)
if the
Participant's Account is subject to the requirements of Section 14.04, the
following additional requirements apply:
(1)
the
Participant is permitted to revoke his affirmative distribution
election at any time prior to the later of (A) his Annuity
Starting Date or (B) the expiration of the seven-day period beginning the
day after such notice is provided to him; and
(2)
distribution
does not begin to such Participant until such revocation period
ends.
|
13.06.
|
Determination
of Method of Distribution
.
|
Subject
to Section 13.02, the Participant shall determine the method of
distribution of benefits to himself and may determine the method of distribution
to his Beneficiary. If the Participant does not determine the method
of distribution to his Beneficiary or if the Participant permits his Beneficiary
to override his determination, the Beneficiary, in the event of the
Participant's death, shall determine the method of distribution of benefits to
himself as if he were the Participant. A determination by the
Beneficiary must be made no later than the close of the calendar year in which
distribution would be required to begin under Section 12.05 or, if earlier,
the close of the calendar year in which the fifth anniversary of the death of
the Participant occurs.
|
13.07.
|
Notice
to Trustee
.
|
The
Administrator shall notify the Trustee in any medium acceptable to the Trustee,
which may be specified in the Service Agreement, whenever any Participant or
Beneficiary is entitled to receive benefits under the Plan. The
Administrator's notice shall indicate the form of payment of benefits that such
Participant or Beneficiary shall receive, (in the case of distributions to a
Participant) the name of any designated Beneficiary or Beneficiaries, and such
other information as the Trustee shall require.
Article
14.
Superseding Annuity
Distribution Provisions
.
|
14.01.
|
Special
Definitions
.
|
For
purposes of this Article, the following special definitions shall
apply:
(a)
"Qualified joint and survivor
annuity"
means (1) if the Participant is not married on his Annuity
Starting Date, an immediate annuity payable for the life of the Participant or
(2) if the Participant is married on his Annuity Starting Date, an
immediate annuity for the life of the Participant with a survivor annuity for
the life of the Participant's spouse (to whom the Participant was married on the
Annuity Starting Date) equal to 50 percent (or the percentage designated in
Subsection 1.20(c)(2)(A)(i)(I) or 1.20(c)(2)(B)(i), as applicable, of the
Adoption Agreement) of the amount of the annuity which is payable during the
joint lives of the Participant and such spouse, provided that the survivor
annuity shall not be payable to a Participant's spouse if such spouse is not the
same spouse to whom the Participant was married on his Annuity Starting
Date.
(b)
"Qualified preretirement survivor
annuity"
means an annuity purchased with at least 50 percent of a
Participant's vested interest in his Account that is payable for the life of a
Participant's surviving spouse. The Employer shall specify that
portion of a Participant's vested interest in his Account that is to be used to
purchase the "qualified preretirement survivor annuity" in Section 1.20 of
the Adoption Agreement.
The
provisions of this Article shall apply to a Participant's Account
if:
(a)
the Plan
includes assets transferred from a money purchase pension plan;
(b)
the Plan
is an amendment and restatement of a plan that provided an annuity form of
payment and such form of payment has
not
been
eliminated pursuant to Subsection 1.20(d) of the Adoption
Agreement;
(c)
the Plan
is an amendment and restatement of a plan that provided an annuity form of
payment and such form of payment
has
been
eliminated pursuant to Subsection 1.20(d) of the Adoption Agreement, but
the Participant elected a life annuity form of payment before the effective date
of the elimination;
(d)
the
Participant's Account contains assets attributable to amounts directly or
indirectly transferred from a plan that provided an annuity form of payment and
such form of payment has
not
been
eliminated pursuant to Subsection 1.20(d) of the Adoption
Agreement;
(e) the
Participant's Account contains assets attributable to amounts directly or
indirectly transferred from a plan that provided an annuity form of payment and
such form of payment
has
been
eliminated pursuant to Subsection 1.20(d) of the Adoption Agreement, but
the Participant elected a life annuity form of payment before the effective date
of the elimination.
|
14.03.
|
Annuity
Form of Payment
.
|
To the
extent provided in Section 1.20 of the Adoption Agreement, a Participant
may elect distributions made in whole or in part in the form of an annuity
contract. Any annuity contract distributed under the Plan shall be
subject to the provisions of this Section 14.03 and, to the extent provided
therein, Sections 14.04 through 14.09.
(a)
At the
direction of the Administrator, the Trustee shall purchase the annuity contract
on behalf of a Participant or Beneficiary from an insurance
company. Such annuity contract shall be nontransferable.
(b)
The terms
of the annuity contract shall comply with the requirements of the Plan and
distributions under such contract shall be made in accordance with Code
Section 401(a)(9) and the Treasury Regulations issued
thereunder.
(c)
The
annuity contract may provide for payment over the life of the Participant and,
upon the death of the Participant, may provide a survivor annuity continuing for
the life of the Participant's designated Beneficiary. Such an annuity
may provide for an annuity certain feature for a period not exceeding the life
expectancy of the Participant or, if the annuity is payable to the Participant
and a designated Beneficiary, the joint life and last survivor expectancy of the
Participant and such Beneficiary. If the Participant dies prior to
his Annuity Starting Date, the annuity contract distributed to the Participant's
Beneficiary may provide for payment over the life of the Beneficiary, and may
provide for an annuity certain feature for a period not exceeding the life
expectancy of the Beneficiary. The types of annuity contracts
provided under the Plan shall be limited to the types of annuities described in
Section 1.20 of the Adoption Agreement and the Forms of Payment Addendum to
the Adoption Agreement.
(d)
The
annuity contract must provide for nonincreasing payments.
|
14.04.
|
"Qualified
Joint and Survivor Annuity" and "Qualified Preretirement Survivor Annuity"
Requirements
.
|
The
requirements of this Section 14.04 apply to a Participant's Account
if:
(a)
the Plan
includes assets transferred from a money purchase pension plan;
(b)
the
Employer has selected in Subsection 1.20(c)(2)(B) of the Adoption Agreement
that distribution in the form of a life annuity is the normal form of
distribution with respect to such Participant's Account; or
(c)
the
Employer has selected in Subsection 1.20(c)(2)(A) of the Adoption Agreement that
distribution in the form of a life annuity is an optional form of distribution
with respect to such Participant's Account and the Participant is permitted to
elect and has elected distribution in the form of an annuity contract payable
over the life of the Participant.
If a
Participant's Account is subject to the requirements of this Section 14.04,
distribution shall be made to the Participant with respect to such Account in
the form of a "qualified joint and survivor annuity" (with a survivor annuity in
the percentage amount specified by the Employer in Subsection 1.20 of the
Adoption Agreement) in the amount that can be purchased with such Account unless
the Participant waives the "qualified joint and survivor annuity" as provided in
Section 14.05. If the Participant dies prior to his Annuity
Starting Date, distribution shall be made to the Participant's surviving spouse,
if any, in the form of a "qualified preretirement survivor annuity" in the
amount that can be purchased with such Account unless the Participant waives the
"qualified preretirement survivor annuity" as provided in Section 14.05, or
the Participant's surviving spouse elects in writing to receive distribution in
one of the other forms of payment provided under the Plan. A
Participant's Account that is subject to the requirements of this Section 14.04
shall be used to purchase the "qualified preretirement survivor annuity" and the
balance of the Participant's vested interest in his Account that is not used to
purchase the "qualified preretirement survivor annuity" shall be distributed to
the Participant's designated Beneficiary in accordance with the provisions of
Sections 11.04 and 12.05.
|
14.05.
|
Waiver
of the "Qualified Joint and Survivor Annuity" and/or "Qualified
Preretirement Survivor Annuity" Rights
.
|
A
Participant may waive the "qualified joint and survivor annuity" described in
Section 14.04 and elect another form of distribution permitted under the
Plan at any time during the 90-day period ending on his Annuity Starting Date;
provided, however, that if the Participant is married, his spouse must consent
in writing to such election as provided in Section 14.06.
A
Participant may waive the "qualified preretirement survivor annuity" and
designate a non-spouse Beneficiary at any time during the "applicable election
period"; provided, however, that the Participant's spouse must consent in
writing to such election as provided in Section 14.06. The
"applicable election period" begins on the later of (1) the date the
Participant's Account becomes subject to the requirements of Section 14.04
or (2) the first day of the Plan Year in which the Participant attains
age 35 or, if he terminates employment prior to such date, the date he
terminates employment with the Employer and all Related
Employers. The "applicable election period" ends on the earlier of
the Participant's Annuity Starting Date or the date of the Participant's
death. A Participant whose employment has not terminated may elect to
waive the "qualified preretirement survivor annuity" prior to the Plan Year in
which he attains age 35, provided that any such waiver shall cease to be
effective as of the first day of the Plan Year in which the Participant attains
age 35.
A Participant's waiver of the
"qualified joint and survivor annuity" or "qualified preretirement survivor
annuity" shall be valid only if the applicable notice described in
Section 14.07 or 14.08 has been provided to the Participant.
|
14.06.
|
Spouse's
Consent to Waiver
.
|
A
spouse's written consent to a Participant's waiver of the "qualified joint and
survivor annuity" or "qualified preretirement survivor annuity" forms of
distribution must acknowledge the effect of the Participant's election and must
be witnessed by a Plan representative or a notary public. In
addition, the spouse's written consent must either (a) specify the form of
distribution elected instead of the "qualified joint and survivor annuity", if
applicable, and that such form may not be changed (except to a "qualified joint
and survivor annuity") without written spousal consent and specify any
non-spouse Beneficiary designated by the Participant, if applicable, and that
such designation may not be changed without written spousal consent or
(b) acknowledge that the spouse has the right to limit consent as provided
in clause (a) above, but permit the Participant to change the form of
distribution elected or the designated Beneficiary without the spouse's further
consent.
A Participant's spouse shall be deemed
to have given written consent to a Participant's waiver if the Participant
establishes to the satisfaction of a Plan representative that spousal consent
cannot be obtained because the spouse cannot be located or because of other
circumstances set forth in Code Section 401(a)(11) and Treasury Regulations
issued thereunder.
Any written consent given or deemed to
have been given by a Participant's spouse hereunder shall be irrevocable and
shall be effective only with respect to such spouse and not with respect to any
subsequent spouse.
A spouse's consent to a Participant's
waiver shall be valid only if the applicable notice described in
Section 14.07 or 14.08 has been provided to the Participant.
|
14.07.
|
Notice
Regarding "Qualified Joint and Survivor Annuity"
.
|
The
notice provided to a Participant under Section 14.05 shall include a
written explanation of (a) the terms and conditions of the "qualified joint
and survivor annuity" provided herein, (b) the financial effect of
receiving payment under the "qualified joint and survivor annuity", (c) the
Participant's right to make, and the effect of, an election to waive the
"qualified joint and survivor annuity", (d) the rights of the Participant's
spouse under Section 14.06, and (e) the Participant's right to revoke
an election to waive the "qualified joint and survivor annuity" prior to his
Annuity Starting Date.
|
14.08.
|
Notice
Regarding "Qualified Preretirement Survivor Annuity"
.
|
If a
Participant's Account is subject to the requirements of Section 14.04, the
Participant shall be provided with a written explanation of the "qualified
preretirement survivor annuity" comparable to the written explanation provided
with respect to the "qualified joint and survivor annuity", as described in
Section 14.07. Such explanation shall be furnished within
whichever of the following periods ends last:
(a)
the
period beginning with the first day of the Plan Year in which the Participant
reaches age 32 and ending with the end of the Plan Year preceding the Plan
Year in which he reaches age 35;
(b)
a
reasonable period ending after the Employee becomes an Active
Participant;
(c)
a
reasonable period ending after Section 14.04 first becomes applicable to
the Participant's Account; or
(d)
in the
case of a Participant who separates from service before age 35, a
reasonable period ending after such separation from service.
For purposes of the preceding sentence,
the two-year period beginning one year prior to the date of the event described
in Subsection 14.08(b), (c) or (d) above, whichever is applicable, and
ending one year after such date shall be considered reasonable, provided, that
in the case of a Participant who separates from service under
Subsection 14.08(d) above and subsequently recommences employment with the
Employer, the applicable period for such Participant shall be redetermined in
accordance with this Section 14.08.
For
purposes of this Article, a former spouse of a Participant shall be treated as
the spouse or surviving spouse of the Participant, and a current spouse shall
not be so treated, to the extent required under a qualified domestic relations
order, as defined in Code Section 414(p).
Article
15.
Top-Heavy
Provisions
.
For
purposes of this Article, the following special definitions shall
apply:
(a)
"
Determination date
" means, for
any Plan Year subsequent to the first Plan Year, the last day of the preceding
Plan Year. For the first Plan Year of the Plan, "determination date"
means the last day of that Plan Year.
(b)
"
Determination period
" means
the Plan Year containing the "determination date".
(c)
"
Distribution period
" means (i)
for any distribution made to an employee on account of severance from
employment, death, disability, or termination of a plan which would have been
part of the “required aggregation group” had it not been terminated, the
one-year period ending on the "determination date" and (ii) for any other
distribution, the five-year period ending on the "determination
date".
(d)
"
Key employee
" means any
Employee or former Employee (including any deceased Employee) who at any time
during the "determination period" was (1) an officer of the Employer or a
Related Employer having annual Compensation greater than the dollar amount
specified in Code Section 416(i)(1)(A)(I) adjusted under Code Section 416(i)(1)
for Plan Years beginning after December 31, 2002 (e.g., $135,000 for Plan Years
beginning in 2005), (2) a five-percent owner of the Employer or a Related
Employer, or (3) a one-percent owner of the Employer or a Related Employer
having annual Compensation of more than $150,000. The determination
of who is a "key employee" shall be made in accordance with Code
Section 416(i)(1) and any applicable guidance or regulations issued
thereunder.
(e)
"
Permissive aggregation group
"
means the "required aggregation group" plus any other qualified plans of the
Employer or a Related Employer which, when considered as a group with the
"required aggregation group", would continue to satisfy the requirements of Code
Sections 401(a)(4) and 410.
(f)
"
Required aggregation group
"
means:
(1)
Each
qualified plan of the Employer or Related Employer in which at least one "key
employee" participates, or has participated at any time during the
"determination period" or, unless and until modified by future Treasury
guidance, any of the four preceding Plan Years (regardless of whether
the plan has terminated), and
(2)
any other
qualified plan of the Employer or Related Employer which enables a plan
described in Subsection 15.01(f)(1) above to meet the requirements of Code
Section 401(a)(4) or 410.
(g)
"
Top-heavy plan
" means a plan
in which any of the following conditions exists:
(1)
the
"top-heavy ratio" for the plan exceeds 60 percent and the plan is not part
of any "required aggregation group" or "permissive aggregation
group";
(2)
the plan
is a part of a "required aggregation group" but not part of a "permissive
aggregation group" and the "top-heavy ratio" for the "required aggregation
group" exceeds 60 percent; or
(3)
the plan
is a part of a "required aggregation group" and a "permissive aggregation group"
and the "top-heavy ratio" for both groups exceeds 60 percent.
Notwithstanding
the foregoing, a plan is not a "top-heavy plan" for a Plan Year if it consists
solely of a cash or deferred arrangement that satisfies the nondiscrimination
requirements under Code Section 401(k) by application of Code Section 401(k)(12)
and, if matching contributions are provided under such plan, satisfies the
nondiscrimination requirements under Code Section 401(m) by application of Code
Section 401(m)(11).
(h)
"Top-heavy ratio"
means:
(1)
With
respect to the Plan, or with respect to any "required aggregation group" or
"permissive aggregation group" that consists solely of defined contribution
plans (including any simplified employee pension, as defined in Code
Section 408(k)), a fraction, the numerator of which is the sum of the
account balances of all "key employees" under the plans as of the "determination
date" (including any part of any account balance distributed during the
"distribution period"), and the denominator of which is the sum of all account
balances (including any part of any account balance distributed during the
"distribution period") of all participants under the plans as of the
"determination date". Both the numerator and denominator of the
"top-heavy ratio" shall be increased, to the extent required by Code
Section 416, to reflect any contribution which is due but unpaid as of the
"determination date".
(2)
With
respect to any "required aggregation group" or "permissive aggregation group"
that includes one or more defined benefit plans which, during the "determination
period", has covered or could cover an Active Participant in the Plan, a
fraction, the numerator of which is the sum of the account balances under the
defined contribution plans for all "key employees" and the present value of
accrued benefits under the defined benefit plans for all "key employees", and
the denominator of which is the sum of the account balances under the defined
contribution plans for all participants and the present value of accrued
benefits under the defined benefit plans for all participants. Both
the numerator and denominator of the "top-heavy ratio" shall be increased for
any distribution of an account balance or an accrued benefit made during the
"distribution period" and any contribution due but unpaid as of the
"determination date".
For purposes of
Subsections 15.01(h)(1) and (2) above, the value of accounts shall be
determined as of the most recent "determination date" and the present value of
accrued benefits shall be determined as of the date used for computing plan
costs for minimum funding that falls within 12 months of the most recent
"determination date", except as provided in Code Section 416 and the
regulations issued thereunder for the first and second plan years of a defined
benefit plan. When aggregating plans, the value of accounts and
accrued benefits shall be calculated with reference to the "determination dates"
that fall within the same calendar year.
The accounts and accrued benefits of a
Participant who is not a "key employee" but who was a "key employee" in a prior
year, or who has not performed services for the Employer or any Related Employer
at any time during the one-year period ending on the "determination date", shall
be disregarded. The calculation of the "top-heavy ratio", and the
extent to which distributions, rollovers, and transfers are taken into account,
shall be made in accordance with Code Section 416 and the regulations
issued thereunder. Deductible employee contributions shall not be
taken into account for purposes of computing the "top-heavy ratio".
For
purposes of determining if the Plan, or any other plan included in a "required
aggregation group" of which the Plan is a part, is a "top-heavy plan", the
accrued benefit in a defined benefit plan of an Employee other than a "key
employee" shall be determined under the method, if any, that uniformly applies
for accrual purposes under all plans maintained by the Employer or a Related
Employer, or, if there is no such method, as if such benefit accrued not more
rapidly than the slowest accrual rate permitted under the fractional accrual
rate of Code Section 411(b)(1)(C).
If the
Plan is or becomes a "top-heavy plan" in any Plan Year or is automatically
deemed to be a "top-heavy plan" in accordance with the Employer's selection in
Subsection 1.22(a)(1) of the Adoption Agreement, the provisions of this
Article shall apply and shall supersede any conflicting provision in the
Plan. Notwithstanding the foregoing, the provisions of this Article
shall not apply if Subsection 1.22(a)(3) of the Adoption Agreement is
selected.
|
15.03.
|
Minimum
Contribution
.
|
Except as
otherwise specifically provided in this Section 15.03, the Nonelective
Employer Contributions made for the Plan Year on behalf of any Active
Participant who is not a "key employee", when combined with the Matching
Employer Contributions made on behalf of such Active Participant for the Plan
Year, shall not be less than the lesser of three percent (or five percent, if
selected by the Employer in Subsection 1.22(b) of the Adoption Agreement)
of such Participant's Compensation for the Plan Year or, in the case where
neither the Employer nor any Related Employer maintains a defined benefit plan
which uses the Plan to satisfy Code Section 401(a)(4) or 410, the largest
percentage of Employer contributions made on behalf of any "key employee" for
the Plan Year, expressed as a percentage of the "key employee's" Compensation
for the Plan Year. Catch-Up Contributions made on behalf of a "key employee" for
the Plan Year shall not be taken into account for purposes of determining the
amount of the minimum contribution required hereunder.
If an
Active Participant is entitled to receive a minimum contribution under another
qualified plan maintained by the Employer or a Related Employer that is a
"top-heavy plan", no minimum contribution shall be made hereunder unless the
Employer has provided in Subsection 1.22(b)(1) of the Adoption Agreement that
the minimum contribution shall be made under this Plan in any event. If the
Employer has provided in Subsection 1.22(b)(2) that an alternative means shall
be used to satisfy the minimum contribution requirements where an Active
Participant is covered under multiple plans that are "top-heavy plans", no
minimum contribution shall be required under this Section, except as provided
under the 416 Contributions Addendum to the Adoption Agreement. If a minimum
contribution is required to be made under the Plan for the Plan Year on behalf
of an Active Participant who is not a "key employee" and who is a participant in
a defined benefit plan maintained by the Employer or a Related Employer that is
aggregated with the Plan, the minimum contribution shall not be less than five
percent of such Participant's Compensation for the Plan Year.
The minimum contribution required under
this Section 15.03 shall be made to the Account of an Active Participant
even though, under other Plan provisions, the Active Participant would not
otherwise be entitled to receive a contribution, or would have received a lesser
contribution for the Plan Year, because (a) the Active Participant failed
to complete the Hours of Service requirement selected by the Employer in
Subsection 1.11(e)
or 1.12(d) of the Adoption Agreement, or (b) the Participant's Compensation
was less than a stated amount; provided, however, that no minimum contribution
shall be made for a Plan Year to the Account of an Active Participant who is not
employed by the Employer or a Related Employer on the last day of the Plan
Year.
That portion of a Participant's Account
that is attributable to minimum contributions required under this
Section 15.03, to the extent required to be nonforfeitable under Code
Section 416(b), may not be forfeited under Code
Section 411(a)(3)(B).
|
15.04.
|
Determination
of Minimum Required Contribution
.
|
For
purposes of determining the amount of any minimum contribution required to be
made on behalf of a Participant who is not a "key employee" for a Plan Year, the
Matching Employer Contributions made on behalf of such Participant and the
Nonelective Employer Contributions allocated to such Participant for the Plan
Year shall be aggregated. If the aggregate amount of such contributions, when
expressed as a percentage of such Participant's Compensation for the Plan Year,
is less than the minimum contribution required to be made to such Participant
under Section 15.03, the Employer shall make an additional contribution on
behalf of such Participant in an amount that, when aggregated with the Matching
Employer Contributions and Nonelective Employer Contributions previously
allocated to such Participant, will equal the minimum contribution required to
be made to such Participant under Section 15.03.
|
15.05.
|
Accelerated
Vesting
.
|
For any
Plan Year in which the Plan is or is deemed to be a "top-heavy plan" and all
Plan Years thereafter, the top-heavy vesting schedule provided in
Subsection 1.22(c) of the Adoption Agreement shall automatically apply to
the Plan. The top-heavy vesting schedule applies to all benefits
within the meaning of Code Section 411(a)(7) except those already subject
to a vesting schedule which vests at least as rapidly in all cases as the
schedule elected in Subsection 1.22(c) of the Adoption Agreement, including
benefits accrued before the Plan becomes a "top-heavy
plan". Notwithstanding the foregoing provisions of this
Section 15.05, the top-heavy vesting schedule does not apply to the Account
of any Participant who does not have an Hour of Service after the Plan initially
becomes or is deemed to have become a "top-heavy plan" and such Employee's
Account attributable to Employer Contributions shall be determined without
regard to this Section 15.05.
|
15.06.
|
Exclusion
of Collectively-Bargained Employees
.
|
Notwithstanding
any other provision of this Article 15, Employees who are included in a
unit covered by an agreement which the Secretary of Labor finds to be a
collective bargaining agreement between employee representatives and one or more
employers shall not be included in determining whether or not the Plan is a
"top-heavy plan". In addition, such Employees shall not be entitled
to a minimum contribution under Section 15.03 or accelerated vesting under
Section 15.05, unless otherwise provided in the collective bargaining
agreement.
Article
16.
Amendment and
Termination
.
|
16.01.
|
Amendments
by the Employer that do Not Affect Volume submitter Status
.
|
The
Employer reserves the authority through a board of directors' resolution or
similar action, subject to the provisions of Article 1 and
Section 16.04, to amend the Plan as provided herein, and such amendment
shall not affect the status of the Plan as a volume submitter plan.
(a)
The
Employer may amend the Adoption Agreement to make a change or changes in the
provisions previously elected by it. Such amendment may be made
either by (1) completing an amended Adoption Agreement, or
(2) adopting an amendment in the form provided by the Volume Submitter
Sponsor. Any such amendment must be filed with the Trustee.
(b)
The
Employer may adopt certain model amendments published by the Internal Revenue
Service which specifically provide that their adoption shall not cause the Plan
to be treated as an individually designed plan.
|
16.02.
|
Amendments
by the Employer Adopting Provisions not Included in Volume Submitter
Specimen Plan
.
|
The
Employer reserves the authority, subject to the provisions of
Section 16.04, to amend the Plan by adopting provisions that are not
included in the Volume Submitter Sponsor's specimen plan. Any such amendment
shall be made through use of the Superseding Provisions Addendum to the Adoption
Agreement. Any such amendment may affect the Plan's status as a volume submitter
adopter.
|
16.03.
|
Amendment
by the Volume Submitter Sponsor
.
|
Effective
as of the date the Volume Submitter Sponsor receives approval from the Internal
Revenue Service of its Volume Submitter specimen plan, the Volume Submitter
Sponsor may in its discretion amend the volume submitter plan at any time, which
amendment may also apply to the Plan maintained by the Employer. The Volume
Submitter Sponsor shall satisfy any recordkeeping and notice requirements
imposed by the Internal Revenue Service in order to maintain its amendment
authority. The Volume Submitter Sponsor shall provide a copy of any such
amendment to each Employer adopting its volume submitter plan at the Employer's
last known address as shown on the books maintained by the Volume Submitter
Sponsor or its affiliates.
Notwithstanding the above, the Volume
Submitter Sponsor will no longer have the authority to amend the Plan on behalf
of an adopting Employer as of the earlier of (a) the date the Internal Revenue
Service requires the Employer to file Form 5300 as an individually-designed plan
as a result of an Employer amendment to the Plan to incorporate a type of plan
that is not allowable in the Volume Submitter program, as described in Section
16.02 of Rev. Proc. 2005-16 (or the successor thereto), or (b) the date the
Employer's Plan is otherwise considered an individually-designed plan due to the
nature and extent of amendments, as described in Section 24.03 of Rev. Proc.
2005-16 (or the successor thereto).
|
16.04.
|
Amendments
Affecting Vested Interest and/or Accrued Benefits
.
|
Except as
permitted by Section 16.05, Section 1.20(d) of the Adoption Agreement,
and/or Code Section 411(d)(6) and regulations issued thereunder, no
amendment to the Plan shall be effective to the extent that it has the effect of
decreasing a Participant's Account or eliminating an optional form of benefit
with respect to benefits attributable to service before the
amendment. Furthermore, if the vesting schedule of the Plan is
amended, the nonforfeitable interest of a Participant in his Account, determined
as of the later of the date the amendment is adopted or the date it becomes
effective, shall not be less than the Participant's nonforfeitable interest in
his Account determined without regard to such amendment.
If the Plan's vesting schedule is
amended because of a change to "top-heavy plan" status, as described in
Subsection 15.01(g), the accelerated vesting provisions of
Section 15.05 shall continue to apply for all Plan Years thereafter,
regardless of whether the Plan is a "top-heavy plan" for such Plan
Year.
If the Plan's vesting schedule is
amended and an Active Participant's vested interest, as calculated by using the
amended vesting schedule, is less in any year than the Active Participant's
vested interest calculated under the Plan's vesting schedule immediately prior
to the amendment, the amended vesting schedule shall apply only to Employees
first hired on or after the effective date of the change in vesting
schedule.
|
16.05.
|
Retroactive
Amendments made by Volume Submitter Sponsor
.
|
An
amendment made by the Volume Submitter Sponsor in accordance with
Section 16.03 may be made effective on a date prior to the first day of the
Plan Year in which it is adopted if, in published guidance, the Internal Revenue
Service either permits or requires such an amendment to be made to enable the
Plan and Trust to satisfy the applicable requirements of the Code and all
requirements for the retroactive amendment are satisfied.
|
16.06.
|
Termination
and Discontinuation of Contributions
.
|
The
Employer has adopted the Plan with the intention and expectation that assets
shall continue to be held under the Plan on behalf of Participants and their
Beneficiaries indefinitely and, unless the Plan is a frozen plan as provided in
Subsection 1.01(g)(5) of the Adoption Agreement, that contributions under the
Plan shall be continued indefinitely. However, said Employer has no
obligation or liability whatsoever to maintain the Plan for any length of time
and may amend the Plan to discontinue contributions under the Plan or terminate
the Plan at any time without any liability hereunder for any such discontinuance
or termination.
If the Plan is not already a frozen
plan, the Employer may amend the Plan to discontinue further contributions to
the Plan by selecting Subsection 1.01(g)(5) of the Adoption Agreement. An
Employer that has selected in Subsection 1.01(g)(5) of the Adoption Agreement
may change its selection and provide for contributions under the Plan to
recommence with the intention that such contributions continue indefinitely, as
provided in the preceding paragraph.
The
Employer may terminate the Plan by written notice delivered to the Trustee.
Notwithstanding the effective date of the termination of the Plan, loan payments
being made pursuant to Section 9.07 shall continue to be remitted to the Trust
until the loan has been defaulted or distributed pursuant to Sections 9.10 and
9.11 or Section 9.13, respectively.
|
16.07.
|
Distribution
upon Termination of the Plan
.
|
Upon
termination or partial termination of the Plan or complete discontinuance of
contributions thereunder, each Participant (including a terminated Participant
with respect to amounts not previously forfeited by him) who is affected by such
termination or partial termination or discontinuance shall have a vested
interest in his Account of 100 percent. Subject to
Section 12.01 and Article 14, upon receipt of instructions from the
Administrator, the Trustee shall distribute to each Participant or other person
entitled to distribution the balance of the Participant's Account in a single
lump sum payment. In the absence of such instructions, the Trustee
shall notify the Administrator of such situation and the Trustee shall be under
no duty to make any distributions under the Plan until it receives instructions
from the Administrator. Upon the completion of such distributions,
the Trust shall terminate, the Trustee shall be relieved from all liability
under the Trust, and no Participant or other person shall have any claims
thereunder, except as required by applicable law.
If distribution is to be made to a
Participant or Beneficiary who cannot be located, following the Administrator’s
completion of such search methods as described in applicable Department of Labor
guidance, the Administrator shall give instructions to the Trustee to roll over
the distribution to an individual retirement account established by the
Administrator in the name of the missing Participant or Beneficiary, which
account shall satisfy the requirements of the Department of Labor automatic
rollover safe harbor generally applicable to amounts less than or equal to the
maximum cashout amount specified in Code Section 401(a)(31)(B)(ii) ($5,000 as of
January 1, 2005) that are mandatorily distributed from the Plan. In the absence
of such instructions, the Trustee shall make no distribution to the
distributee.
|
16.08.
|
Merger
or Consolidation of Plan; Transfer of Plan Assets
.
|
In case
of any merger or consolidation of the Plan with, or transfer of assets and
liabilities of the Plan to, any other plan, provision must be made so that each
Participant would, if the Plan then terminated, receive a benefit immediately
after the merger, consolidation or transfer which is equal to or greater than
the benefit he would have been entitled to receive immediately before the
merger, consolidation or transfer if the Plan had then terminated.
Article
17.
Amendment and Continuation
of Prior Plan; Transfer of Funds to or from Other Qualified
Plans
.
|
17.01.
|
Amendment
and Continuation of Prior Plan
.
|
In the
event the Employer has previously established a plan (the "prior plan") which is
a defined contribution plan under the Code and which on the date of adoption of
the Plan meets the applicable requirements of Code Section 401(a), the
Employer may, in accordance with the provisions of the prior plan, amend and
restate the prior plan in the form of the Plan and become the Employer
hereunder, subject to the following:
(a)
Subject
to the provisions of the Plan, each individual who was a Participant in the
prior plan immediately prior to the effective date of such amendment and
restatement shall become a Participant in the Plan on the effective date of the
amendment and restatement, provided he is an Eligible Employee as of that
date.
(b)
Except as
provided in Section 16.04, no election may be made under the vesting
provisions of the Adoption Agreement if such election would reduce the benefits
of a Participant under the Plan to less than the benefits to which he would have
been entitled if he voluntarily separated from the service of the Employer
immediately prior to such amendment and restatement.
(c)
No
amendment to the Plan shall decrease a Participant's accrued benefit or
eliminate an optional form of benefit, except as permitted under
Subsection 1.20(d) of the Adoption Agreement.
(d)
The
amounts standing to the credit of a Participant's account immediately prior to
such amendment and restatement which represent the amounts properly attributable
to (1) contributions by the Participant and (2) contributions by the
Employer and forfeitures shall constitute the opening balance of his Account or
Accounts under the Plan.
(e)
Amounts
being paid to an Inactive Participant or to a Beneficiary in accordance with the
provisions of the prior plan shall continue to be paid in accordance with such
provisions.
(f)
Any
election and waiver of the "qualified preretirement survivor annuity", as
defined in Section 14.01, in effect after August 23, 1984, under the
prior plan immediately before such amendment and restatement shall be deemed a
valid election and waiver of Beneficiary under Section 14.04 if such
designation satisfies the requirements of Sections 14.05 and 14.06, unless
and until the Participant revokes such election and waiver under the
Plan.
(g)
All
assets of the predecessor trust shall be invested by the Trustee as soon as
reasonably practicable pursuant to Article 8. The Employer agrees to
assist the Trustee in any way requested by the Trustee in order to facilitate
the transfer of assets from the predecessor trust to the Trust
Fund.
|
17.02.
|
Transfer
of Funds from an Existing Plan
.
|
The
Employer may from time to time direct the Trustee, in accordance with such rules
as the Trustee may establish, to accept cash, allowable Fund Shares or
participant loan promissory notes transferred for the benefit of Participants
from a trust forming part of another qualified plan under the Code, provided
such plan is a defined contribution plan. Such transferred assets
shall become assets of the Trust as of the date they are received by the
Trustee. Such transferred assets shall be credited to Participants'
Accounts in accordance with their respective interests immediately upon receipt
by the Trustee. A Participant's vested interest under the Plan in
transferred assets which were fully vested and nonforfeitable under the
transferring plan or which were transferred to the Plan in a manner intended to
satisfy the requirements of subsection (b) of this Section 17.02 shall
be fully vested and nonforfeitable at all times. A Participant's
interest under the Plan in transferred assets which were transferred to the Plan
in a manner intended to satisfy the requirements of subsection (a) of this
Section 17.02 shall be determined in accordance with the terms of the Plan,
but applying the Plan's vesting schedule or the transferor plan's vesting
schedule, whichever is more favorable, for each year of Vesting Service
completed by the Participant. Such transferred assets shall be
invested by the Trustee in accordance with the provisions of
Subsection 17.01(g) as if such assets were transferred from a prior plan,
as defined in Section 17.01. Except as otherwise provided below, no
transfer of assets in accordance with this Section 17.02 may cause a loss
of an accrued or optional form of benefit protected by Code
Section 411(d)(6).
The terms of the Plan as in effect at
the time of the transfer shall apply to the amounts transferred regardless of
whether such application would have the effect of eliminating or reducing an
optional form of benefit protected by Code Section 411(d)(6) which was
previously available with respect to any amount transferred to the Plan pursuant
to this Section 17.02, provided that such transfer satisfies the
requirements set forth in either (a) or (b):
|
(a)
|
(1) The
transfer is conditioned upon a voluntary, fully informed election by the
Participant to transfer his entire account balance to the
Plan. As an alternative to the transfer, the Participant is
offered the opportunity to retain the form of benefit previously available
to him (or, if the transferor plan is terminated, to receive any optional
form of benefit for which the participant is eligible under the transferor
plan as required by Code
Section 411(d)(6));
|
(2) If
the defined contribution plan from which the transfer is made includes a
qualified cash or deferred arrangement, the Plan includes a cash or deferred
arrangement;
(3) The
defined contribution plan from which the transfer is made is not a money
purchase pension plan and
(4) The
transfer is made either in connection with an asset or stock acquisition, merger
or other similar transaction involving a change in employer of the employees of
a trade or business (i.e., an acquisition or disposition within the meaning of
Section 1.410(b)-2(f) of the Treasury Regulations) or in connection with
the participant's change in employment status such that the participant is not
entitled to additional allocations under the transferor plan.
|
(b)
|
(1) The
transfer satisfies the requirements of subsection (a)(1) of this
Section 17.02;
|
(2) The
transfer occurs at a time when the Participant is eligible, under the terms of
the transferor plan, to receive an immediate distribution of his
account;
(3) The
transfer occurs at a time when the participant is not eligible to receive an
immediate distribution of his entire nonforfeitable account balance in a single
sum distribution that would consist entirely of an eligible rollover
distribution within the meaning of Code Section 401(a)(31)(C);
and
(4) The
amount transferred, together with the amount of any contemporaneous Code
Section 401(a)(31) direct rollover to the Plan, equals the entire
nonforfeitable account of the participant whose account is being
transferred.
It is the Employer's obligation to
ensure that all assets of the Plan, other than those maintained in a separate
trust or fund pursuant to the provisions of Section 20.10, are transferred
to the Trustee. The Trustee shall have no liability for and no duty
to inquire into the administration of such transferred assets for periods prior
to the transfer.
|
17.03.
|
Acceptance
of Assets by Trustee
.
|
The
Trustee shall not accept assets which are not either in a medium proper for
investment under the Plan, as set forth in the Plan and the Service Agreement,
or in cash. Such assets shall be accompanied by instructions in
writing (or such other medium as may be acceptable to the Trustee) showing
separately the respective contributions by the prior employer and by the
Participant, and identifying the assets attributable to such
contributions. The Trustee shall establish such accounts as may be
necessary or appropriate to reflect such contributions under the
Plan. The Trustee shall hold such assets for investment in accordance
with the provisions of Article 8, and shall in accordance with the
instructions of the Employer make appropriate credits to the Accounts of the
Participants for whose benefit assets have been transferred.
|
17.04.
|
Transfer
of Assets from Trust
.
|
The
Employer may direct the Trustee to transfer all or a specified portion of the
Trust assets to any other plan or plans maintained by the Employer or the
employer or employers of an Inactive Participant or Participants, provided that
the Trustee has received evidence satisfactory to it that such other plan meets
all applicable requirements of the Code, subject to the following:
(a)
The
assets so transferred shall be accompanied by instructions from the Employer
naming the persons for whose benefit such assets have been transferred, showing
separately the respective contributions by the Employer and by each Inactive
Participant, if any, and identifying the assets attributable to the various
contributions. The Trustee shall not transfer assets hereunder until
all applicable filing requirements are met. The Trustee shall have no
further liabilities with respect to assets so transferred.
(b)
A
transfer of assets made pursuant to this Section 17.04 may result in the
elimination or reduction of an optional form of benefit protected by Code
Section 411(d)(6), provided that the transfer satisfies the requirements
set forth in either (1) or (2):
|
(1)
|
(i) The
transfer is conditioned upon a voluntary, fully informed election by the
Participant to transfer his entire Account to the other defined
contribution plan. As an alternative to the transfer, the
Participant is offered the opportunity to retain the form of benefit
previously available to him (or, if the Plan is terminated, to receive any
optional form of benefit for which the Participant is eligible under the
Plan as required by Code
Section 411(d)(6));
|
(ii) If
the Plan includes a qualified cash or deferred arrangement under Code
Section 401(k), the defined contribution plan to which the transfer is made
must include a qualified cash or deferred arrangement; and
(iii) The
transfer is made either in connection with an asset or stock acquisition, merger
or other similar transaction involving a change in employer of the employees of
a trade or business (i.e., an acquisition or disposition within the meaning of
Section 1.410(b)-2(f) of the Treasury Regulations) or in connection with
the Participant's change in employment status such that the Participant becomes
an Inactive Participant.
|
(2)
|
(i) The
transfer satisfies the requirements of subsection (1)(i) of this
Section 17.04;
|
(ii) The
transfer occurs at a time when the Participant is eligible, under the terms of
the Plan, to receive an immediate distribution of his benefit;
(iii) The
transfer occurs at a time when the Participant is not eligible to receive an
immediate distribution of his entire nonforfeitable Account in a single sum
distribution that would consist entirely of an eligible rollover distribution
within the meaning of Code Section 401(a)(31)(C);
(iv) The
Participant is fully vested in the transferred amount in the transferee plan;
and
(v) The
amount transferred, together with the amount of any contemporaneous Code
Section 401(a)(31) direct rollover to the transferee plan, equals the
entire nonforfeitable Account of the Participant whose Account is being
transferred.
Article
18.
Miscellaneous
.
|
18.01.
|
Communication
to Participants
.
|
The Plan
shall be communicated to all Eligible Employees by the Employer promptly after
the Plan is adopted.
|
18.02.
|
Limitation
of Rights
.
|
Neither
the establishment of the Plan and the Trust, nor any amendment thereof, nor the
creation of any fund or account, nor the payment of any benefits, shall be
construed as giving to any Participant or other person any legal or equitable
right against the Employer, Administrator or Trustee, except as provided herein;
and in no event shall the terms of employment or service of any Participant be
modified or in any way affected hereby. It is a condition of the
Plan, and each Participant expressly agrees by his participation herein, that
each Participant shall look solely to the assets held in the Trust for the
payment of any benefit to which he is entitled under the Plan.
|
18.03.
|
Nonalienability
of Benefits
.
|
Except as
provided in Code Sections 401(a)(13)(C) and (D) (relating to offsets
ordered or required under a criminal conviction involving the Plan, a civil
judgment in connection with a violation or alleged violation of fiduciary
responsibilities under ERISA, or a settlement agreement between the Participant
and the Department of Labor in connection with a violation or alleged violation
of fiduciary responsibilities under ERISA), Section 1.401(a)-13(b)(2) of
the Treasury Regulations (relating to Federal tax levies), or as otherwise
required by law, the benefits provided hereunder shall not be subject to
alienation, assignment, garnishment, attachment, execution or levy of any kind,
either voluntarily or involuntarily, and any attempt to cause such benefits to
be so subjected shall not be recognized. The preceding sentence shall
also apply to the creation, assignment, or recognition of a right to any benefit
payable with respect to a Participant pursuant to a domestic relations order,
unless such order is determined in accordance with procedures established by the
Administrator to be a qualified domestic relations order, as defined in Code
Section 414(p), or any domestic relations order entered before
January 1, 1985.
|
18.04.
|
Qualified
Domestic Relations Orders Procedures
.
|
The
Administrator must establish reasonable procedures to determine the qualified
status of a domestic relations order. Upon receiving a domestic
relations order, the Participant and any alternate payee named in the order
shall be notified, in writing, of the receipt of the order and the Plan's
procedures for determining the qualified status of the order. Within
a reasonable period of time after receiving the domestic relations order, the
Administrator must determine the qualified status of the order. The Participant
and each alternate payee shall be provided notice of such determination by
mailing to the individual's address specified in the domestic relations order,
or in a manner consistent with the Department of Labor regulations.
If any portion of the Participant's
Account is payable during the period the Administrator is making its
determination of the qualified status of the domestic relations order, the
Administrator must make a separate accounting of the amounts
payable. If the Administrator determines the order is a qualified
domestic relations order within 18 months of the date amounts first are
payable following receipt of the order, the Administrator shall direct the
Trustee to distribute the payable amounts in accordance with the
order. If the determination of the qualified status of the order is
not made within the 18-month determination period, the Administrator shall
direct the Trustee to distribute the payable amounts in the manner the Plan
would distribute if the order did not exist and shall apply the order
prospectively if the Administrator later determines that the order is a
qualified domestic relations order.
The Trustee shall set up segregated
accounts for each alternate payee as directed by the Administrator.
A
domestic relations order shall not fail to be deemed a qualified domestic
relations order merely because it permits distribution or requires segregation
of all or part of a Participant's Account with respect to an alternate payee
prior to the Participant's earliest retirement age (as defined in Code
Section 414(p)) under the Plan. A distribution to an alternate
payee prior to the Participant's attainment of the earliest retirement age is
available only if the order provides for distribution at that time and the
alternate payee consents to a distribution occurring prior to the Participant's
attainment of earliest retirement age.
Notwithstanding
any other provisions of this Section or of a domestic relations order, if the
Employer has elected to cash out small Accounts as provided in Subsection
1.20(e)(1) of the Adoption Agreement and the alternate payee's benefits under
the Plan do not exceed the maximum cash out limit permitted under Code Section
411(a)(11)(A) ($5,000 as of January 1, 2005), distribution shall be made to the
alternate payee in a lump sum as soon as practicable following the
Administrator's determination that the order is a qualified domestic relations
order.
|
18.05.
|
Application
of Plan Provisions for Multiple Employer Plans
.
|
Notwithstanding
any other provision of the Plan to the contrary, if one of the Employers
designated in Subsection 1.02(b) of the Adoption Agreement is or ceases to be a
Related Employer (hereinafter "un-Related Employer"), the Plan shall be treated
as a multiple employer plan (as defined in Code Section 413(c)) in accordance
with applicable guidance.
For the period, if any, that the Plan
is a multiple employer plan, each un-Related Employer shall be treated as a
separate Employer for purposes of contributions, application of the "ADP" and
"ACP" tests described in Sections 6.03 and 6.06, top-heavy determinations and
application of the top-heavy requirements under Article 15, and application of
such other Plan provisions as the Employers determine to be
appropriate. For any such period, the Volume Submitter Sponsor shall
continue to treat the Employer as participating in this volume submitter plan
arrangement for purposes of notice or other communications in connection with
the Plan, and other Plan-related services. The Administrator shall be
responsible for administering the Plan as a multiple employer plan.
|
18.06.
|
Veterans
Reemployment Rights
.
|
Notwithstanding
any other provision of the Plan to the contrary, contributions, benefits, and
service credit with respect to qualified military service shall be provided in
accordance with Code Section 414(u) and the regulations
thereunder. The Administrator shall notify the Trustee of any
Participant with respect to whom additional contributions are made because of
qualified military service. Additional contributions made to the Plan pursuant
to Code Section 414(u) shall be treated as Deferral Contributions (if
Option
1.07(a)(5) is
selected in the Adoption Agreement, including, to the extent designated by the
Participant, Roth 401(k) Contributions), Employee Contributions, Matching
Employer Contributions, Qualified Matching Employer Contributions, Qualified
Nonelective Employer Contributions, or Nonelective Employer Contributions based
on the character of the contribution they are intended to replace; provided,
however, that the Plan shall not be treated as failing to meet the requirements
of Code Section 401(a)(4), 401(k)(3), 401(k)(12), 401(m), 410(b), or 416 by
reason of the making of or the right to make such contribution.
|
18.07.
|
Facility
of Payment
.
|
In the
event the Administrator determines, on the basis of medical reports or other
evidence satisfactory to the Administrator, that the recipient of any benefit
payments under the Plan is incapable of handling his affairs by reason of
minority, illness, infirmity or other incapacity, the Administrator may direct
the Trustee to disburse such payments to a person or institution designated by a
court which has jurisdiction over such recipient or a person or institution
otherwise having the legal authority under state law for the care and control of
such recipient. The receipt by such person or institution of any such
payments shall be complete acquittance therefore, and any such payment to the
extent thereof, shall discharge the liability of the Trust for the payment of
benefits hereunder to such recipient.
|
18.08.
|
Information
between Employer and/or Administrator and Trustee
.
|
The
Employer and/or Administrator will furnish the Trustee, and the Trustee will
furnish the Employer and/or Administrator, with such information relating to the
Plan and Trust as may be required by the other in order to carry out their
respective duties hereunder, including without limitation information required
under the Code and any regulations issued or forms adopted by the Treasury
Department thereunder or under the provisions of ERISA and any regulations
issued or forms adopted by the Department of Labor thereunder.
|
18.09.
|
Effect
of Failure to Qualify Under Code
.
|
Notwithstanding
any other provision contained herein, if the Employer's plan fails to be a
qualified plan under the Code, such plan can no longer participate in this
volume submitter plan arrangement and shall be considered an individually
designed plan.
|
18.10.
|
Directions,
Notices and Disclosure
.
|
Any
notice or other communication in connection with this Plan shall be deemed
delivered in writing if addressed as follows and if either actually delivered at
said address or, in the case of a letter, three business days shall have elapsed
after the same shall have been deposited in the United States mail, first-class
postage prepaid and registered or certified:
(a)
If to the
Employer or Administrator, to it at the address as the Administrator shall
direct pursuant to the Service Agreement;
(b)
If to the
Trustee, to it at the address set forth in Subsection 1.03(a) of the
Adoption Agreement;
or, in
each case at such other address as the addressee shall have specified by written
notice delivered in accordance with the foregoing to the addressor's then
effective notice address.
Any direction, notice or other
communication provided to the Employer, the Administrator or the Trustee by
another party which is stipulated to be in written form under the provisions of
this Plan may also be provided in any medium which is permitted under applicable
law or regulation. Any written communication or disclosure to
Participants required under the provisions of this Plan may be provided in any
other medium (electronic, telephone or otherwise) that is permitted under
applicable law or regulation.
The Plan
and the accompanying Adoption Agreement shall be construed, administered and
enforced according to ERISA, and to the extent not preempted thereby, the laws
of the Commonwealth of Massachusetts.
|
18.12.
|
Discharge
of Duties by Fiduciaries
.
|
The
Trustee, the Employer and any other fiduciary shall discharge their duties under
the Plan in accordance with the requirements of ERISA solely in the interests of
Participants and their Beneficiaries and with the care, skill, prudence, and
diligence under the applicable circumstances that a prudent man acting in a like
capacity and familiar with such matters would use in conducting an enterprise of
like character with like aims.
Article
19.
Plan
Administration
.
|
19.01.
|
Powers and
Responsibilities of the
Administrator
.
|
The
Administrator has the full power and the full responsibility to administer the
Plan in all of its details, subject, however, to the requirements of
ERISA. The Administrator is the agent for service of legal process
for the Plan. In addition to the powers and authorities expressly conferred upon
it in the Plan, the Administrator shall have all such powers and authorities as
may be necessary to carry out the provisions of the Plan, including the
discretionary power and authority to interpret and construe the provisions of
the Plan, such interpretation to be final and conclusive on all persons claiming
benefits under the Plan; to make benefit determinations; to utilize the
correction programs or systems established by the Internal Revenue Service (such
as the Employee Plans Compliance and Resolution System) or the Department of
Labor; and to resolve any disputes arising under the Plan. The
Administrator may, by written instrument, allocate and delegate its fiduciary
responsibilities in accordance with ERISA Section 405, including allocation
of such responsibilities to an administrative committee formed to administer the
Plan.
|
19.02.
|
Nondiscriminatory
Exercise of Authority
.
|
Whenever,
in the administration of the Plan, any discretionary action by the Administrator
is required, the Administrator shall exercise its authority in a
nondiscriminatory manner so that all persons similarly situated shall receive
substantially the same treatment.
|
19.03.
|
Claims
and Review Procedures
.
|
As
required under Section 2560.503-1(b)(2) of Regulations issued by the Department
of Labor, the claims and review procedures are described in detail in the
Summary Plan Description for the Plan.
The
Administrator is a "named fiduciary" for purposes of ERISA
Section 402(a)(1) and has the powers and responsibilities with respect to
the management and operation of the Plan described herein.
|
19.05.
|
Costs
of Administration
.
|
Unless
paid by the Employer, all reasonable costs and expenses (including legal,
accounting, and employee communication fees) incurred by the Administrator and
the Trustee in administering the Plan and Trust may be paid from the forfeitures
(if any) resulting under Section 11.08, or from the remaining Trust
Fund. All such costs and expenses paid from the Trust Fund shall,
unless allocable to the Accounts of particular Participants, be charged against
the Accounts of all Participants as provided in the Service
Agreement.
Article
20.
Trust
Agreement
.
|
20.01.
|
Acceptance
of Trust Responsibilities
.
|
By
executing the Adoption Agreement, the Employer establishes a trust to hold the
assets of the Plan that are invested in Permissible Investments. By
executing the Adoption Agreement, the Trustee agrees to accept the rights,
duties and responsibilities set forth in this Article. If the Plan is
an amendment and restatement of a prior plan, the Trustee shall have no
liability for and no duty to inquire into the administration of the assets of
the Plan for periods prior to the date such assets are transferred to the
Trust.
|
20.02.
|
Establishment
of Trust Fund
.
|
A trust
is hereby established under the Plan. The Trustee shall open and
maintain a trust account for the Plan and, as part thereof, Accounts for such
individuals as the Employer shall from time to time notify the Trustee are
Participants in the Plan. The Trustee shall accept and hold in the
Trust Fund such contributions on behalf of Participants as it may receive from
time to time from the Employer. The Trust Fund shall be fully
invested and reinvested in accordance with the applicable provisions of the Plan
in Fund Shares or as otherwise provided in Section 20.10.
|
20.03.
|
Exclusive
Benefit
.
|
The
Trustee shall hold the assets of the Trust Fund for the exclusive purpose of
providing benefits to Participants and Beneficiaries and defraying the
reasonable expenses of administering the Plan. No assets of the Plan
shall revert to the Employer except as specifically permitted by the terms of
the Plan.
|
20.04.
|
Powers
of Trustee
.
|
The
Trustee shall have no discretion or authority with respect to the investment of
the Trust Fund but shall act solely as a directed trustee of the funds
contributed to it. In addition to and not in limitation of such
powers as the Trustee has by law or under any other provisions of the Plan, the
Trustee shall have the following powers, each of which the Trustee exercises
solely as a directed trustee in accordance with the written direction of the
Employer except to the extent a Plan asset is subject to Participant direction
of investment and provided that no such power shall be exercised in any manner
inconsistent with the provisions of ERISA:
(a)
to deal
with all or any part of the Trust Fund and to invest all or a part of the Trust
Fund in Permissible Investments, without regard to the law of any state
regarding proper investment;
(b)
to
transfer to and invest all or any part of the Trust in any collective investment
trust which is then maintained by a bank or trust company (or any affiliate) and
which is tax-exempt pursuant to Code Section 501(a) and Rev.
Rul. 81-100; provided that such collective investment trust is a
Permissible Investment; and provided, further, that the instrument establishing
such collective investment trust, as amended from time to time, shall govern any
investment therein, and is hereby made a part of the Plan and this Trust
Agreement to the extent of such investment therein;
(c)
to retain
uninvested such cash as the Named Fiduciary or Administrator may, from time to
time, direct;
(d)
to sell,
lease, convert, redeem, exchange, or otherwise dispose of all or any part of the
assets constituting the Trust Fund;
(e)
to borrow
funds from a bank or other financial institution not affiliated with the Trustee
in order to provide sufficient liquidity to process Plan transactions in a
timely fashion, provided that the cost of borrowing shall be allocated in a
reasonable fashion to the Permissible Investment(s) in need of
liquidity;
(f)
to
enforce by suit or otherwise, or to waive, its rights on behalf of the Trust,
and to defend claims asserted against it or the Trust, provided that the Trustee
is indemnified to its satisfaction against liability and expenses;
(g)
to employ
legal, accounting, clerical, and other assistance to carry out the provisions of
this Trust and to pay the reasonable expenses of such employment, including
compensation, from the Trust if not paid by the Employer;
(h)
to
compromise, adjust and settle any and all claims against or in favor of it or
the Trust;
(i)
to
oppose, or participate in and consent to the reorganization, merger,
consolidation, or readjustment of the finances of any enterprise, to pay
assessments and expenses in connection therewith, and to deposit securities
under deposit agreements;
(j)
to apply
for or purchase annuity contracts in accordance with
Article 14;
(k)
to hold
securities unregistered, or to register them in its own name or in the name of
nominees in accordance with the provisions of Section 2550.403a-1(b) of
Department of Labor Regulations;
(l)
to
appoint custodians to hold investments within the jurisdiction of the district
courts of the United States and to deposit securities with stock clearing
corporations or depositories or similar organizations;
(m)
to make,
execute, acknowledge and deliver any and all instruments that it deems necessary
or appropriate to carry out the powers herein granted;
(n)
generally
to exercise any of the powers of an owner with respect to all or any part of the
Trust Fund; and
(o)
to take
all such actions as may be necessary under the Trust Agreement, to the extent
consistent with applicable law.
The Employer specifically acknowledges
and authorizes that affiliates of the Trustee may act as its agent in the
performance of ministerial, nonfiduciary duties under the Trust.
The Trustee shall provide the Employer
with reasonable notice of any claim filed against the Plan or Trust or with
regard to any related matter, or of any claim filed by the Trustee on behalf of
the Plan or Trust or with regard to any related matter.
The
Trustee shall keep full accounts of all receipts and disbursements and other
transactions hereunder. Within 120 days after the close of each
Plan Year and at such other times as may be appropriate, the Trustee shall
determine the then net fair market value of the Trust Fund as of the close of
the Plan Year, as of the termination of the Trust, or as of such other time,
whichever is applicable, and shall render to the Employer and Administrator an
account of its administration of the Trust during the period since the last such
accounting, including all allocations made by it during such
period.
|
20.06.
|
Approval
of Accounts
.
|
To the
extent permitted by law, the written approval of any account by the Employer or
Administrator shall be final and binding, as to all matters and transactions
stated or shown therein, upon the Employer, Administrator, Participants and all
persons who then are or thereafter become interested in the
Trust. The failure of the Employer or Administrator to notify the
Trustee within six months after the receipt of any account of its objection to
the account shall, to the extent permitted by law, be the equivalent of written
approval. If the Employer or Administrator files any objections
within such six month period with respect to any matters or transactions stated
or shown in the account, and the Employer or Administrator and the Trustee
cannot amicably settle the question raised by such objections, the Trustee shall
have the right to have such questions settled by judicial
proceedings. Nothing herein contained shall be construed so as to
deprive the Trustee of the right to have judicial settlement of its
accounts. In any proceeding for a judicial settlement of any account
or for instructions, the only necessary parties shall be the Trustee, the
Employer and the Administrator.
|
20.07.
|
Distribution
from Trust Fund
.
|
The
Trustee shall make such distributions from the Trust Fund as the Employer or
Administrator may direct (in writing or such other medium as may be acceptable
to the Trustee), consistent with the terms of the Plan and either for the
exclusive benefit of Participants or their Beneficiaries, or for the payment of
expenses of administering the Plan.
|
20.08.
|
Transfer
of Amounts from Qualified Plan
.
|
If
amounts are to be transferred to the Plan from another qualified plan or trust
under Code Section 401(a), such transfer shall be made in accordance with
the provisions of the Plan and with such rules as may be established by the
Trustee. The Trustee shall only accept assets which are in a medium
proper for investment under this Trust Agreement or in cash, and that are
accompanied in a timely manner, as agreed to by the Administrator and the
Trustee, by instructions in writing (or such other medium as may be acceptable
to the Trustee) showing separately the respective contributions by the prior
employer and the transferring Employee, the records relating to such
contributions, and identifying the assets attributable to such
contributions. The Trustee shall hold such assets for investment in
accordance with the provisions of this Trust Agreement.
|
20.09.
|
Transfer
of Assets from Trust
.
|
Subject
to the provisions of the Plan, the Employer may direct the Trustee to transfer
all or a specified portion of the Trust assets to any other plan or plans
maintained by the Employer or the employer or employers of an Inactive
Participant or Participants, provided that the Trustee has received evidence
satisfactory to it that such other plan meets all applicable requirements of the
Code. The assets so transferred shall be accompanied by written
instructions from the Employer naming the persons for whose benefit such assets
have been transferred, showing separately the respective contributions by the
Employer and by each Participant, if any, and identifying the assets
attributable to the various contributions. The Trustee shall have no
further liabilities with respect to assets so transferred.
|
20.10.
|
Separate
Trust or Fund for Existing Plan Assets
.
|
With the
consent of the Trustee, the Employer may maintain a trust or fund (including a
group annuity contract) under this volume submitter plan document separate from
the Trust Fund for Plan assets which are not Permissible Investments listed in
the Service Agreement and which (i) are purchased prior to the adoption of this
volume submitter plan document or (ii) are transferred to the Plan in connection
with the merger of another plan into the Plan, provided that such transferred
assets were acquired by such other plan prior to the merger date specified for
such other plan in the Plan Mergers Addendum to the Adoption
Agreement. The Trustee shall have no authority and no responsibility
for the Plan assets held in such separate trust or fund. The Employer
shall be responsible for assuring that such separate trust or fund is maintained
pursuant to a separate trust agreement signed by the Employer and a
trustee. The duties and responsibilities of the trustee of a separate
trust shall be provided by the separate trust agreement, between the Employer
and the trustee of the separate trust. Notwithstanding any other provision of
the Plan to the contrary, in the event such separate trust contains illiquid
assets, to the extent a Participant’s account is invested in such illiquid
assets and Plan loans are otherwise available, such illiquid assets shall be
disregarded in determining the amount available as a loan from the Plan and
shall in no event be included in a Plan loan.
Notwithstanding the preceding
paragraph, the Trustee or an affiliate of the Trustee may agree in writing to
provide ministerial recordkeeping services for guaranteed investment contracts
held in the separate trust or fund. The guaranteed investment
contract(s) shall be valued as directed by the Employer or the trustee of the
separate trust.
The trustee of the separate trust shall
be the owner of any insurance contract purchased prior to the adoption of this
volume submitter plan document. The insurance contract(s) must
provide that proceeds shall be payable to the trustee of the separate trust;
provided, however, that the trustee of the separate trust shall be required to
pay over all proceeds of the contract(s) to the Participant's designated
Beneficiary in accordance with the distribution provisions of this
Plan. A Participant's spouse shall be the designated Beneficiary of
the proceeds in all circumstances unless a qualified election has been made in
accordance with Article 14. Under no circumstances shall the
trust retain any part of the proceeds. In the event of any conflict
between the terms of the Plan and the terms of any insurance contract purchased
hereunder, the Plan provisions shall control.
Any life insurance contracts held in
the Trust Fund or in the separate trust are subject to the following
limits:
(a) Ordinary
life - For purposes of these incidental insurance provisions, ordinary life
insurance contracts are contracts with both nondecreasing death benefits and
nonincreasing premiums. If such contracts are held, less than 1/2 of
the aggregate employer contributions allocated to any Participant shall be used
to pay the premiums attributable to them.
(b) Term
and universal life - No more than 1/4 of the aggregate employer contributions
allocated to any participant shall be used to pay the premiums on term life
insurance contracts, universal life insurance contracts, and all other life
insurance contracts which are not ordinary life.
(c) Combination
- The sum of 1/2 of the ordinary life insurance premiums and all other life
insurance premiums shall not exceed 1/4 of the aggregate employer contributions
allocated to any Participant.
|
20.11.
|
Self-Directed
Brokerage Option
.
|
If one of
the Permissible Investments under the Plan is Fidelity BrokerageLink®, the
self-directed brokerage option ("BrokerageLink"), the Employer hereby directs
the Trustee to use Fidelity Brokerage Services LLC ("FBSLLC") to purchase or
sell individual securities for each Participant BrokerageLink account ("PBLA")
in accordance with investment directions provided by such
Participant. The Employer directs the Trustee to establish a PBLA
with FBSLLC in the name of the Trustee for each Participant electing to utilize
the BrokerageLink option. Each electing Participant shall be granted
limited trading authority over the PBLA established for such Participant, and
FBSLLC shall accept and act upon instructions from such Participants to buy,
sell, exchange, convert, tender, trade and otherwise acquire and dispose of
securities in the PBLA. The provision of BrokerageLink shall be
subject to the following:
(a)
Each
Participant who elects to utilize the BrokerageLink option must complete a
BrokerageLink Participant Acknowledgement Form which incorporates the provisions
of the BrokerageLink Account Terms and Conditions. Upon acceptance by
FBSLLC of the BrokerageLink Participant Acknowledgement Form, FBSLLC will
establish a PBLA for the Participant. Participant activity in the
PBLA will be governed by the BrokerageLink Participant Acknowledgement Form and
the BrokerageLink Account Terms and Conditions. If the BrokerageLink Participant
Acknowledgement Form or the BrokerageLink Account Terms and Conditions conflicts
with the terms of this Trust, the Plan or an applicable statute or regulation,
the Trust, the Plan or the applicable statute or regulation shall
control.
(b)
Any
successor organization of FBSLLC, through reorganization, consolidation, merger
or similar transactions, shall, upon consummation of such transaction, become
the successor broker in accordance with the terms of this authorization
provision.
(c)
The
Trustee and FBSLLC shall continue to rely on this direction provision until
notified to the contrary. The Employer reserves the right to
terminate this direction upon written notice to FBSLLC (or its successor) and
the Trustee, such termination to be implemented as soon as administratively
feasible. Such notice shall be deemed a direction to terminate
BrokerageLink as an investment option.
(d)
The
Trustee shall provide the Employer with a list of the types of securities which
may not be purchased under BrokerageLink. Administrative procedures
governing investment in and withdrawals from a PBLA will also be provided to the
Employer by the Trustee.
(e)
With
respect to exchanges from the Participant’s Account holding investments outside
of the BrokerageLink option (hereinafter, the "SPO") into the PBLA, the named
fiduciary hereby directs the Trustee to submit for processing all instructions
for purchases into the core account indicated in the BrokerageLink Account Terms
and Conditions (the "BrokerageLink Core Account") received before the close of
the New York Stock Exchange ("NYSE") on a particular date resulting from such
exchange requests the next day that the NYSE is operating.
(f)
A
Participant has the authority to designate an agent to have limited trading
authority over assets in the PBLA established for such
Participant. Such agent as the Participant may designate shall have
the same authority to trade in and otherwise transact business in the PBLA, in
the same manner and to the same extent as the Participant is otherwise empowered
to do hereunder, and FBSLLC shall act upon instructions from the agent as if the
instructions had come from the Participant. Designation of an agent
by the Participant is subject to acceptance by FBSLLC of a completed
BrokerageLink Third Party Limited Trading Authorization Form, the terms of which
shall govern the activity of the Participant and the authorized
agent. In the event that a provision of the BrokerageLink Third Party
Limited Trading Authorization Form conflicts with the terms of the BrokerageLink
Participant Acknowledgement Form, the BrokerageLink Account Terms and
Conditions, this Trust, the Plan or an applicable statute or regulation, the
terms of the BrokerageLink Participant Acknowledgement Form, the Brokerage Link
Account Terms and Conditions, this Trust, the Plan or the applicable statute or
regulation shall control.
(g)
The
Participant shall be solely responsible for receiving and responding to all
trade confirmations, account statements, prospectuses, annual reports, proxies
and other materials that would otherwise be distributed to the owner of the
PBLA. With respect to proxies for securities held in the PBLA, FBSLLC
shall send a copy of the meeting notice and all proxies and proxy solicitation
materials, together with a voting direction form, to the Participant and the
Participant shall have the authority to direct the exercise of all shareholder
rights attributable to those securities. The Trustee shall not
exercise such rights in the absence of direction from the
Participant.
(h)
FBSLLC
shall buy, sell, exchange, convert, tender, trade and otherwise acquire and
dispose of securities in each PBLA, transfer funds to and from the BrokerageLink
Core Account and the SPO default fund, collect any fees or other remuneration
due FBSLLC or any of its affiliates (other than the Fidelity BrokerageLink Plan
related Account Fee, which shall be assessed and collected as described in the
Service Agreement), and make distributions to the Participant, in accordance
with the Service Agreement. No prior notice to or consent from the
Participant is required. In the event of a transfer of the Plan to
another service provider, the directions of the Employer in transferring Plan
assets shall control. Such transfers may be effected without notice
to or consent from the Participant.
(i)
FBSLLC
may accept from the Participant changes to indicative data including, but not
limited to, postal address, email address, and phone number associated with the
PBLA established for the Participant.
|
20.12.
|
Employer
Stock Investment Option
.
|
If one of
the Permissible Investments is equity securities issued by the Employer or a
Related Employer ("Employer Stock"), such Employer Stock must be publicly traded
and "qualifying employer securities" within the meaning of ERISA
Section 407(d)(5). Plan investments in Employer Stock shall be
made via the Employer Stock Investment Fund (the "Stock Fund") which shall
consist of either (i) the shares of Employer Stock held for each
Participant who participates in the Stock Fund (a "Share Accounting Stock
Fund"), or (ii) a combination of shares of Employer Stock and short-term
liquid investments, consisting of mutual fund shares or commingled money market
pool units as agreed to by the Employer and the Trustee, which are necessary to
satisfy the Stock Fund's cash needs for transfers and payments (a "Unitized
Stock Fund"). Dividends received by the Stock Fund are reinvested in
additional shares of Employer Stock or, in the case of a Unitized Stock Fund, in
short-term liquid investments. The determination of whether each
Participant's interest in the Stock Fund is administered on a share-accounting
or a unitized basis shall be determined by the Employer's election in the
Service Agreement.
In the case of a Unitized Stock Fund,
such units shall represent a proportionate interest in all assets of the
Unitized Stock Fund, which includes shares of Employer Stock, short-term
investments, and at times, receivables for dividends and/or Employer Stock sold
and payables for Employer Stock purchased. A net asset value per unit
shall be determined daily for each cash unit outstanding of the Unitized Stock
Fund. The return earned by the Unitized Stock Fund shall represent a
combination of the dividends paid on the shares of Employer Stock held by the
Unitized Stock Fund, gains or losses realized on sales of Employer Stock,
appreciation or depreciation in the market price of those shares owned, and
interest on the short-term investments held by the Unitized Stock
Fund. A target range for the short-term liquid investments shall be
maintained for the Unitized Stock Fund. The named fiduciary shall,
after consultation with the Trustee, establish and communicate to the Trustee in
writing such target range and a drift allowance for such short-term liquid
investments. Such target range and drift allowance may be changed by
the named fiduciary, after consultation with the Trustee, provided any such
change is communicated to the Trustee in writing. The Trustee is
responsible for ensuring that the actual short-term liquid investments held in
the Unitized Stock Fund fall within the agreed upon target range over time,
subject to the Trustee's ability to execute open-market trades in Employer Stock
or to otherwise trade with the Employer.
Investments in Employer Stock shall be
subject to the following limitations:
(a)
Acquisition
Limit
. Pursuant to the Plan, the Trust may be invested in
Employer Stock to the extent necessary to comply with investment directions
under Section 8.02 of the Plan. Notwithstanding the foregoing,
effective for Deferral Contributions made for Plan Years beginning on or after
January 1, 1999, the portion of a Participant's Deferral Contributions that
the Employer may require to be invested in Employer Stock for a Plan Year cannot
exceed one percent of such Participant's Compensation for the Plan
Year.
(b)
Fiduciary Duty of Named
Fiduciary
. The Administrator or any person designated by the
Administrator as a named fiduciary under Section 19.01 (the "named
fiduciary") shall continuously monitor the suitability under the fiduciary duty
rules of ERISA Section 404(a)(1) (as modified by ERISA
Section 404(a)(2)) of acquiring and holding Employer Stock. The
Trustee shall not be liable for any loss, or by reason of any breach, which
arises from the directions of the named fiduciary with respect to the
acquisition and holding of Employer Stock, unless it is clear on their face that
the actions to be taken under those directions would be prohibited by the
foregoing fiduciary duty rules or would be contrary to the terms of the Plan or
this Trust Agreement.
(c)
Execution of Purchases and
Sales
. Purchases and sales of Employer Stock shall be made on
the open market on the date on which the Trustee receives in good order all
information and documentation necessary to accurately effect such purchases and
sales or (i) if later, in the case of purchases, the date on which the
Trustee has received a transfer of the funds necessary to make such purchases,
(ii) as otherwise provided in the Service Agreement, or (iii) as
provided in Subsection (d) below. Such general rules shall not
apply in the following circumstances:
(1)
If the
Trustee is unable to determine the number of shares required to be purchased or
sold on such day;
(2)
If the
Trustee is unable to purchase or sell the total number of shares required to be
purchased or sold on such day as a result of market conditions; or
(3)
If the
Trustee is prohibited by the Securities and Exchange Commission, the New York
Stock Exchange, or any other regulatory body from purchasing or selling any or
all of the shares required to be purchased or sold on such day.
In the event of the occurrence of the
circumstances described in (1), (2), or (3) above, the Trustee shall purchase or
sell such shares as soon as possible thereafter and, in the case of a Share
Accounting Stock Fund, shall determine the price of such purchases or sales to
be the average purchase or sales price of all such shares purchased or sold,
respectively.
(d)
Purchases and Sales from or
to Employer
. If directed by the Employer in writing prior to
the trading date, the Trustee may purchase or sell Employer Stock from or to the
Employer if the purchase or sale is for adequate consideration (within the
meaning of ERISA Section 3(18)) and no commission is charged. If
Employer contributions or contributions made by the Employer on behalf of the
Participants under the Plan are to be invested in Employer Stock, the Employer
may transfer Employer Stock in lieu of cash to the Trust. In such case, the
shares of Employer Stock to be transferred to the Trust will be valued at a
price that constitutes adequate consideration (within the meaning of ERISA
Section 3(18)).
(e)
Use of Broker to Purchase
Employer Stock
. The Employer hereby directs the Trustee to use
Fidelity Capital Markets, Inc., an affiliate of the Trustee, or any other
affiliate or subsidiary of the Trustee (collectively, "Capital Markets"), to
provide brokerage services in connection with all market purchases and sales of
Employer Stock for the Stock Fund, except in circumstances where the Trustee has
determined, in accordance with its standard trading guidelines or pursuant to
Employer direction, to seek expedited settlement of trades. The
Trustee shall provide the Employer with the commission schedule for such
transactions and a copy of Capital Markets' brokerage placement
practices. The following shall apply as well:
(1)
Any
successor organization of Capital Markets through reorganization, consolidation,
merger, or similar transactions, shall, upon consummation of such transaction,
become the successor broker in accordance with the terms of this
provision.
(2)
The
Trustee shall continue to rely on this Employer direction until notified to the
contrary. The Employer reserves the right to terminate this
authorization upon sixty (60) days written notice to Capital Markets (or
its successor) and the Trustee and the Employer and the Trustee shall decide on
a mutually-agreeable alternative procedure for handling brokerage transactions
on behalf of the Stock Fund.
(f)
Securities Law
Reports
. The named fiduciary shall be responsible for filing
all reports required under Federal or state securities laws with respect to the
Trust's ownership of Employer Stock; including, without limitation, any reports
required under Section 13 or 16 of the Securities Exchange Act of 1934 and
shall immediately notify the Trustee in writing of any requirement to stop
purchases or sales of Employer Stock pending the filing of any
report. The Trustee shall provide to the named fiduciary such
information on the Trust's ownership of Employer Stock as the named fiduciary
may reasonably request in order to comply with Federal or state securities
laws.
(g)
Voting and Tender
Offers
. Notwithstanding any other provision of the Trust
Agreement the provisions of this Subsection shall govern the voting and
tendering of Employer Stock. For purposes of this Subsection, each
Participant shall be designated as a named fiduciary under ERISA with respect to
shares of Employer Stock that reflect that portion, if any, of the Participant's
interest in the Stock Fund not acquired at the direction of the Participant in
accordance with ERISA Section 404(c).
The Employer, after consultation with
the Trustee, shall provide and pay for all printing, mailing, tabulation and
other costs associated with the voting and tendering of Employer Stock, except
as required by law. The Trustee, after consultation with the
Employer, shall prepare the necessary documents associated with the voting and
tendering of Employer Stock, unless the Employer directs the Trustee not to do
so.
(1)
Voting
.
(A)
When the
issuer of the Employer Stock prepares for any annual or special meeting, the
Employer shall notify the Trustee thirty (30) days in advance of the
intended record date and shall cause a copy of all proxy solicitation materials
to be sent to the Trustee. If requested by the Trustee, the Employer
shall certify to the Trustee that the aforementioned materials represent the
same information that is distributed to shareholders of Employer
Stock. Based on these materials the Trustee shall prepare a voting
instruction form. At the time of mailing of notice of each annual or
special stockholders' meeting of the issuer of the Employer Stock, the Employer
shall cause a copy of the notice and all proxy solicitation materials to be sent
to each Participant with an interest in Employer Stock held in the Trust,
together with the foregoing voting instruction form to be returned to the
Trustee or its designee. The form shall show the proportional
interest in the number of full and fractional shares of Employer Stock credited
to the Participant's Sub-Accounts held in the Stock Fund. The
Employer shall provide the Trustee with a copy of any materials provided to the
Participants and shall (if the mailing is not handled by the Trustee) notify the
Trustee that the materials have been mailed or otherwise sent to
Participants.
(B)
Each
Participant with an interest in the Stock Fund shall have the right to direct
the Trustee as to the manner in which the Trustee is to vote (including not to
vote) that number of shares of Employer Stock that is credited to his Account,
if the Plan uses share accounting, or, if accounting is by units of
participation, that reflects such Participant's proportional interest in the
Stock Fund (both vested and unvested). Directions from a Participant to the
Trustee concerning the voting of Employer Stock shall be communicated in
writing, or by such other means mutually acceptable to the Trustee and the
Employer. These directions shall be held in confidence by the Trustee
and shall not be divulged to the Employer, or any officer or employee thereof,
or any other person, except to the extent that the consequences of such
directions are reflected in reports regularly communicated to any such persons
in the ordinary course of the performance of the Trustee's services hereunder.
Upon its receipt of the directions, the Trustee shall vote the shares of
Employer Stock that reflect the Participant's interest in the Stock Fund as
directed by the Participant. The Trustee shall not vote shares of
Employer Stock that reflect a Participant's interest in the Stock Fund for which
the Trustee has received no direction from the Participant, except as required
by law; provided, however, that the Employer (acting as named fiduciary) may
direct the Trustee in the Service Agreement to vote shares of Employer Stock
that reflect a Participant's interest in the Stock Fund for which the Trustee
has received no directions from the Participant in the same proportion on each
issue as it votes those shares that reflect all Participants' interests in the
Stock Fund (in the aggregate) for which it received voting instructions from
Participants.
(2)
Tender
Offers
.
(A)
Upon
commencement of a tender offer for any securities held in the Trust that are
Employer Stock, the Employer shall timely notify the Trustee in advance of the
intended tender date and shall cause a copy of all materials to be sent to the
Trustee. The Employer shall certify to the Trustee that the
aforementioned materials represent the same information distributed to
shareholders of Employer Stock. Based on these materials, and after consultation
with the Employer, the Trustee shall prepare a tender instruction form and shall
provide a copy of all tender materials to be sent to each Participant with an
interest in the Stock Fund, together with the foregoing tender instruction form,
to be returned to the Trustee or its designee. The tender instruction form shall
show the number of full and fractional shares of Employer Stock credited to the
Participant's Account, if the Plan uses share accounting, or, if accounting is
by units of participation, that reflect the Participant's proportional interest
in the Stock Fund (both vested and unvested). The Employer shall notify each
Participant with an interest in such Employer Stock of the tender offer and
utilize its best efforts to timely distribute or cause to be distributed to the
Participant the tender materials and the tender instruction form described
herein. The Employer shall provide the Trustee with a copy of any materials
provided to the Participants and shall (if the mailing is not handled by the
Trustee) notify the Trustee that the materials have been mailed or otherwise
sent to Participants.
(B)
Each
Participant with an interest in the Stock Fund shall have the right to direct
the Trustee to tender or not to tender some or all of the shares of Employer
Stock that are credited to his Account, if the Plan uses share accounting, or,
if accounting is by units of participation, that reflect such Participant's
proportional interest in the Stock Fund (both vested and
unvested). Directions from a Participant to the Trustee concerning
the tender of Employer Stock shall be communicated in writing, or by such other
means as is agreed upon by the Trustee and the Employer under the preceding
paragraph. These directions shall be held in confidence by the
Trustee and shall not be divulged to the Employer, or any officer or employee
thereof, or any other person, except to the extent that the consequences of such
directions are reflected in reports regularly communicated to any such persons
in the ordinary course of the performance of the Trustee's services
hereunder. The Trustee shall tender or not tender shares of Employer
Stock as directed by the Participant. Except as otherwise required by law, the
Trustee shall not tender shares of Employer Stock that are credited to a
Participant's Account, if the Plan uses share accounting, or, if accounting is
by units of participation, that reflect a Participant's proportional interest in
the Stock Fund for which the Trustee has received no direction from the
Participant.
(C)
A
Participant who has directed the Trustee to tender some or all of the shares of
Employer Stock that reflect the Participant's proportional interest in the Stock
Fund may, at any time prior to the tender offer withdrawal date, direct the
Trustee to withdraw some or all of such tendered shares, and the Trustee shall
withdraw the directed number of shares from the tender offer prior to the tender
offer withdrawal deadline. A Participant shall not be limited as to
the number of directions to tender or withdraw that the Participant may give to
the Trustee.
(D)
A
direction by a Participant to the Trustee to tender shares of Employer Stock
that reflect the Participant's proportional interest in the Stock Fund shall not
be considered a written election under the Plan by the Participant to withdraw,
or have distributed, any or all of his withdrawable shares. If the
Plan uses share accounting, the Trustee shall credit to the Participant's
Account the proceeds received by the Trustee in exchange for the shares of
Employer Stock tendered from the Participant's Account. If accounting
is by units of participation, the Trustee shall credit to each proportional
interest of the Participant from which the tendered shares were taken the
proceeds received by the Trustee in exchange for the shares of Employer Stock
tendered from that interest. Pending receipt of direction (through
the Administrator) from the Participant or the named fiduciary, as provided in
the Plan, as to which of the remaining Permissible Investments the proceeds
should be invested in, the Trustee shall invest the proceeds in the Permissible
Investment specified for such purposes in the Service Agreement.
(h)
Shares
Credited
. If accounting with respect to the Stock Fund is by
units of participation, then for all purposes of this Section 20.12, the
number of shares of Employer Stock deemed "reflected" in a Participant's
proportional interest shall be determined as of the last preceding valuation
date. The trade date is the date the transaction is
valued.
(i)
General
. With
respect to all rights other than the right to vote, the right to tender, and the
right to withdraw shares previously tendered, in the case of Employer Stock
credited to a Participant's Account or proportional interest in the Stock Fund,
the Trustee shall follow the directions of the Participant and if no such
directions are received, the directions of the named fiduciary. The
Trustee shall have no duty to solicit directions from Participants. The
Administrator is responsible for ensuring that (i) the procedures established in
accordance with the provisions of Subsection 20.12(g) are sufficient to
safeguard the confidentiality of the information described therein, (ii) such
procedures are being followed, and (iii) an independent fiduciary, as described
in regulations issued under ERISA Section 404(c), is appointed when needed in
accordance with those regulations.
(j)
Conversion
. All
provisions in this Section 20.12 shall also apply to any securities
received as a result of a conversion to Employer Stock.
|
20.13.
|
Voting;
Delivery of Information
.
|
The
Trustee shall deliver, or cause to be executed and delivered, to the Employer or
Administrator all notices, prospectuses, financial statements, proxies and proxy
soliciting materials received by the Trustee relating to securities held by the
Trust or, if applicable, deliver these materials to the appropriate Participant
or the Beneficiary of a deceased Participant. Unless provided
otherwise in the Service Agreement, the Trustee shall vote any securities held
by the Trust in accordance with the instructions of the Participant or the
Beneficiary of a deceased Participant and shall not vote securities for which it
has not received instructions.
|
20.14.
|
Compensation
and Expenses of Trustee
.
|
The
Trustee's fee for performing its duties hereunder shall be such reasonable
amounts as specified in the Service Agreement or any other written agreement
with the Employer. Such fee, any taxes of any kind which may be
levied or assessed upon or with respect to the Trust Fund, and any and all
expenses, including without limitation legal fees and expenses of administrative
and judicial proceedings, reasonably incurred by the Trustee in connection with
its duties and responsibilities hereunder shall, unless some or all have been
paid by said Employer, be paid from the Trust in the method specified in the
Service Agreement.
|
20.15.
|
Reliance
by Trustee on Other Persons
.
|
The
Trustee may rely upon and act upon any writing from any person authorized by the
Employer or the Administrator pursuant to the Service Agreement or any other
written direction to give instructions concerning the Plan and may conclusively
rely upon and be protected in acting upon any written order from the Employer or
the Administrator or upon any other notice, request, consent,
certificate, or other instructions or paper reasonably believed by it to have
been executed by a duly authorized person, so long as it acts in good faith in
taking or omitting to take any such action. The Trustee need not
inquire as to the basis in fact of any statement in writing received from the
Employer or the Administrator.
The Trustee shall be entitled to rely
on the latest certificate it has received from the Employer or the Administrator
as to any person or persons authorized to act for the Employer or the
Administrator hereunder and to sign on behalf of the Employer or the
Administrator any directions or instructions, until it receives from the
Employer or the Administrator written notice that such authority has been
revoked.
Except with respect to instructions
from a Participant as to the Participant's Account that are otherwise authorized
under the Plan, the Trustee shall be under no duty to take any action with
respect to any Participant's Account (other than as specified herein) unless and
until the Employer or the Administrator furnishes the Trustee with written
instructions on a form acceptable to the Trustee, and the Trustee agrees thereto
in writing. The Trustee shall not be liable for any action taken
pursuant to the Employer's or the Administrator's written instructions (nor for
the collection of contributions under the Plan, nor the purpose or propriety of
any distribution made thereunder).
|
20.16.
|
Indemnification
by Employer
.
|
The
Employer shall indemnify and save harmless the Trustee, and all affiliates,
employees, agents and sub-contractors of the Trustee, from and against any and
all liability or expense (including reasonable attorneys' fees) to which the
Trustee, or such other individuals or entities, may be subjected by reason of
any act or conduct being taken in the performance of any Plan-related duties,
including those described in this Trust Agreement and the Service Agreement,
unless such liability or expense results from the Trustee's, or such other
individuals' or entities', negligence or willful misconduct.
|
20.17.
|
Consultation
by Trustee with Counsel
.
|
The
Trustee may consult with legal counsel (who may be but need not be counsel for
the Employer or the Administrator) concerning any question which may arise with
respect to its rights and duties under the Plan and Trust, and the opinion of
such counsel shall, to the extent permitted by law, be full and complete
protection in respect of any action taken or omitted by the Trustee hereunder in
good faith and in accordance with the opinion of such counsel.
|
20.18.
|
Persons
Dealing with the Trustee
.
|
No person
dealing with the Trustee shall be bound to see to the application of any money
or property paid or delivered to the Trustee or to inquire into the validity or
propriety of any transactions.
|
20.19.
|
Resignation
or Removal of Trustee
.
|
The
Trustee may resign at any time by written notice to the Employer, which
resignation shall be effective 60 days after delivery to the
Employer. The Trustee may be removed by the Employer by written
notice to the Trustee, which removal shall be effective 60 days after delivery
to the Trustee or such shorter period as may be mutually agreed upon by the
Employer and the Trustee.
Except in the case of Plan termination,
upon resignation or removal of the Trustee, the Employer shall appoint a
successor trustee. Any such successor trustee shall, upon written
acceptance of his appointment, become vested with the estate, rights, powers,
discretion, duties and obligations of the Trustee hereunder as if he had been
originally named as Trustee in this Agreement.
Upon resignation or removal of the
Trustee, the Employer shall no longer participate in this volume submitter plan
and shall be deemed to have adopted an individually designed plan. In
such event, the Employer shall appoint a successor trustee within said 60-day
period and the Trustee shall transfer the assets of the Trust to the successor
trustee upon receipt of sufficient evidence (such as a determination letter or
opinion letter from the Internal Revenue Service or an opinion of counsel
satisfactory to the Trustee) that such trust shall be a qualified trust under
the Code.
The appointment of a successor trustee
shall be accomplished by delivery to the Trustee of written notice that the
Employer has appointed such successor trustee, and written acceptance of such
appointment by the successor trustee. The Trustee may, upon transfer
and delivery of the Trust Fund to a successor trustee, reserve such reasonable
amount as it shall deem necessary to provide for its fees, compensation, costs
and expenses, or for the payment of any other liabilities chargeable against the
Trust Fund for which it may be liable. The Trustee shall not be
liable for the acts or omissions of any successor trustee.
|
20.20.
|
Fiscal
Year of the Trust
.
|
The
fiscal year of the Trust shall coincide with the Plan Year.
In
accordance with provisions of the Plan, and subject to the limitations set forth
therein, this Trust Agreement may only be amended by an instrument in writing
signed by the Employer and the Trustee. No amendment to this Trust
Agreement shall divert any part of the Trust Fund to any purpose other than as
provided in Section 20.03.
|
20.22.
|
Plan
Termination
.
|
Upon
termination or partial termination of the Plan or complete discontinuance of
contributions thereunder, the Trustee shall make distributions to the
Participants or other persons entitled to distributions as the Employer or
Administrator directs in accordance with the provisions of the
Plan. In the absence of such instructions and unless the Plan
otherwise provides, the Trustee shall notify the Employer or Administrator of
such situation and the Trustee shall be under no duty to make any distributions
under the Plan until it receives written instructions from the Employer or
Administrator. Upon the completion of such distributions, the Trust
shall terminate, the Trustee shall be relieved from all liability under the
Trust, and no Participant or other person shall have any claims thereunder,
except as required by applicable law.
|
20.23.
|
Permitted
Reversion of Funds to Employer
.
|
If it is
determined by the Internal Revenue Service that the Plan does not initially
qualify under Code Section 401, all assets then held under the Plan shall
be returned by the Trustee, as directed by the Administrator, to the Employer,
but only if the application for determination is made by the time prescribed by
law for filing the Employer's return for the taxable year in which the Plan was
adopted or such later date as may be prescribed by regulations. Such
distribution shall be made within one year after the date the initial
qualification is denied. Upon such distribution the Plan shall be
considered to be rescinded and to be of no force or effect.
Contributions under the Plan are
conditioned upon their deductibility under Code Section 404. In
the event the deduction of a contribution made by the Employer is disallowed
under Code Section 404, such contribution (to the extent disallowed) must
be returned to the Employer within one year of the disallowance of the
deduction.
Any contribution made by the Employer
because of a mistake of fact must be returned to the Employer within one year of
the contribution.
This
Trust Agreement shall be construed, administered and enforced according to ERISA
and, to the extent not preempted thereby, the laws of the State or Commonwealth
in which the Trustee has its principal place of business.
|
20.25.
|
Assignment
and Successors
.
|
This
Trust Agreement, and any of its rights and obligations hereunder, may not be
assigned by any party without the prior written consent of the other party(ies),
and such consent may be withheld in any party's sole
discretion. Notwithstanding the foregoing, the Trustee may assign
this Agreement in whole or in part, and any of its rights and obligations
hereunder, to a subsidiary or affiliate of the Trustee without consent of the
Employer. Any successor to the Trustee or successor trustee, either through sale
or transfer of the business or trust department of the Trustee or successor
trustee, or through reorganization, consolidation, or merger, or any similar
transaction of either the Trustee or successor trustee, shall, upon consummation
of the transaction, become the successor trustee under this Agreement. All
provisions in this Trust Agreement shall extend to and be binding upon the
parties hereto and their respective successors and permitted
assigns.
Volume
Submitter Defined Contribution Plan
ADDENDUM
RE: Code
Sections 401(k) and 415 2007 Final Regulations
Katrina
Emergency Tax Relief Act of 2005 and
Gulf
Opportunity Zone Act of 2005
Amendments
for Fidelity Basic Plan Document No. 14
PREAMBLE
Adoption
and Effective Date of Amendment
. This amendment of the Plan is
adopted to reflect the final regulations under Internal Revenue Code (Code)
Sections 401(k) and 415 and to reflect amendments to the Code pursuant to the
Katrina Emergency Tax Relief Act (“KETRA”) and the Gulf Opportunity Zone Act of
2005 (“GOZA”).. This amendment is intended as good faith compliance with the
requirements of Code Sections 401(k) and 415, KETRA, and GOZA and is to be
construed in accordance with guidance issued thereunder. This
amendment shall be effective as described below.
Supersession
of Inconsistent Provisions
. This amendment shall supersede the
provisions of the Plan to the extent those provisions are inconsistent with the
provisions of this amendment.
|
1.
|
Effective
for Plan Years and Limitation Years beginning on and after July 1, 2007,
the first paragraph of Section 2.01(k) is hereby amended in its entirety,
to provide as follows:
|
(k) “
Compensation
” (subject to any
adjustments thereto in Section 5.02, for purposes of determining the amount and
allocation of contributions, or in Section 6.12(c), for purposes of applying the
Code Section 415 limitations) means wages as defined in Code Section 3401(a)
(for purposes of income tax withholding at the source) plus amounts that would
be included in wages but for an election under Code Section 125(a), 132(f)(4),
402(e)(3), 402(h)(1)(B), 402(k), or 457(b) and all other payments of
compensation to an Eligible Employee by the Employer (in the course of the
Employer’s trade or business) for services to the Employer while employed as an
Eligible Employee for which the Employer is required to furnish the Eligible
Employee a written statement under Code Sections 6041(d), 6051(a)(3) and
6052. Compensation must be determined without regard to any rules
under Code Section 3401(a) that limit the remuneration included in wages based
on the nature or location of the employment or the services performed (such as
the exception for agricultural labor in Code Section
3401(a)(2)). Notwithstanding anything to the contrary herein,
however, severance amounts paid after severance from employment shall be
excluded from Compensation.
(1)
For
purposes of this Section 2.01(k), “severance amounts” are any amounts paid after
severance from employment, except a payment of regular compensation for services
during the Eligible Employee’s regular working hours, or compensation for
services outside the Eligible Employee’s regular working hours (such as overtime
or shift differential), commissions, bonuses, or other similar payments provided
such payment would have been made prior to a severance from employment if the
Eligible Employee had continued in employment with the Employer, provided such
amounts are paid by the later of (A) 2-1/2 months after or (B) the end of the
Limitation Year that includes the date of the Eligible Employee’s severance from
employment (as defined in Subsection 2.01(k)(2) below).
(2)
For
purposes of this Section 2.01(k), an Eligible Employee has a “severance from
employment” when (i) the employee ceases to be an employee of an employer
(applying the aggregation rules in Code Section 414) maintaining a plan and (ii)
in connection with a change of employment, the individual’s new employer does
not maintain such plan with respect to the individual. The
determination of whether an Eligible Employee ceases to be an employee of an
employer maintaining a plan is based on all of the relevant facts and
circumstances.
|
2.
|
Effective
for Plan Years and Limitation Years beginning on and after July 1, 2007,
the third paragraph of Section 2.01(k) is hereby amended, in its entirety
to provide as follows:
|
Compensation
shall generally be based on the amount actually paid to the Eligible Employee
during the Plan Year or, for purposes of Article 5, if so elected by the
Employer in Subsection 1.05(b) of the Adoption Agreement, during that portion of
the Plan Year during which the Eligible Employee is an Active
Participant. Notwithstanding the preceding sentence, Compensation for
purposes of Article 15 (Top-Heavy Provisions) shall be based on the amount
actually paid or made available to the Participant during the Plan Year.
Compensation is treated as paid on a date if it is actually paid on that date or
it would have been paid on that date but for an election under Code Section 125,
132(f)(4), 401(k), 403(b), 408(k), 408(p)(2)(A)(i), or 457(b).
|
3.
|
Effective
for Plan Years and Limitation Years beginning on and after July 1, 2007,
Subsections (1), (2), and (3) of Section 2.01(k) are re-numbered as
Subsections (3), (4), and (5).
|
|
4.
|
Effective
for Plan Years beginning on and after July 1, 2007, the first paragraph of
Section 5.02 is hereby amended to provide as
follows:
|
5.02
Compensation
Taken into Account in Determining Contributions
.
In determining
the amount or allocation of any contribution that is based on Compensation, only
Compensation paid to a Participant for services rendered to the Employer while
employed as an Eligible Employee shall be taken into account. Except
as otherwise specifically provided in this Article 5, for purposes of
determining the amount and allocation of contributions under this
Article 5, Compensation shall not include any amounts elected by the
Employer with respect to such contributions in Subsection 1.05(a) or (b),
as applicable, of the Adoption Agreement.
|
5.
|
Effective
for Limitation Years beginning on and after July 1, 2007, Section 6.12 is
hereby amended in its entirety to provide as
follows:
|
6.12.
Code
Section 415 Limitations
.
Notwithstanding
any other provisions of the Plan, the following limitations shall
apply:
(a)
Employer Maintains Single
Plan
: If the "415 employer" does not maintain any other
qualified defined contribution plan or any "welfare benefit fund", "individual
medical benefit account", or "simplified employee pension" in addition to the
Plan, the provisions of this Subsection 6.12(a) shall apply.
(1)
If a
Participant does not participate in, and has never participated in any other
qualified defined contribution plan, "welfare benefit fund", "individual medical
benefit account", or "simplified employee pension" maintained by the
"415 employer", which provides an "annual addition", the amount of "annual
additions" to the Participant's Account for a Limitation Year shall not exceed
the lesser of the "maximum permissible amount" or any other limitation contained
in the Plan. If a contribution that would otherwise be contributed or
allocated to the Participant's Account would cause the "annual additions" for
the Limitation Year to exceed the "maximum permissible amount", the amount
contributed or allocated shall be reduced so that the "annual additions" for the
Limitation Year shall equal the "maximum permissible amount".
(2)
Prior to
the determination of a Participant's actual Compensation for a Limitation Year,
the "maximum permissible amount" may be determined on the basis of a reasonable
estimation of the Participant's Compensation for such Limitation Year, uniformly
determined for all Participants similarly situated. Any Employer
contributions based on estimated annual Compensation shall be reduced by any
"excess 415 amounts" carried over from prior Limitation Years.
(3)
As soon
as is administratively feasible after the end of the Limitation Year, the
"maximum permissible amount" for such Limitation Year shall be determined on the
basis of the Participant's actual Compensation for such Limitation
Year.
(b)
Employer Maintains Multiple
Defined Contribution Type Plans
: Unless the Employer specifies
another method for limiting "annual additions" in the 415 Correction
Addendum to the Adoption Agreement, if the "415 employer" maintains any other
qualified defined contribution plan or any "welfare benefit fund", "individual
medical benefit account", or "simplified employee pension" in addition to the
Plan, the provisions of this Subsection 6.12(b) shall apply.
(1)
If a
Participant is covered under any other qualified defined contribution plan or
any "welfare benefit fund", "individual medical benefit account", or "simplified
employee pension" maintained by the "415 employer", that provides an "annual
addition", the amount of "annual additions" to the Participant's Account for a
Limitation Year shall not exceed the lesser of
(A)
the
"maximum permissible amount", reduced by the sum of any "annual additions" to
the Participant's accounts for the same Limitation Year under such other
qualified defined contribution plans and "welfare benefit funds", "individual
medical benefit accounts", and "simplified employee pensions", or
(B)
any other
limitation contained in the Plan.
If the
"annual additions" with respect to a Participant under other qualified defined
contribution plans, "welfare benefit funds", "individual medical benefit
accounts", and "simplified employee pensions" maintained by the "415 employer"
are less than the "maximum permissible amount" and a contribution that would
otherwise be contributed or allocated to the Participant's Account under the
Plan would cause the "annual additions" for the Limitation Year to exceed the
"maximum permissible amount", the amount to be contributed or allocated shall be
reduced so that the "annual additions" for the Limitation Year shall equal the
"maximum permissible amount". If the "annual additions" with respect
to the Participant under such other qualified defined contribution plans,
"welfare benefit funds", "individual medical benefit accounts", and "simplified
employee pensions" in the aggregate are equal to or greater than the "maximum
permissible amount", no amount shall be contributed or allocated to the
Participant's Account under the Plan for the Limitation Year.
(2)
Prior to
the determination of a Participant's actual Compensation for the Limitation
Year, the amounts referred to in Subsection 6.12(b)(1)(A) above may be
determined on the basis of a reasonable estimation of the Participant's
Compensation for such Limitation Year, uniformly determined for all Participants
similarly situated. Any Employer contribution based on estimated
annual Compensation shall be reduced by any "excess 415 amounts" carried over
from prior Limitation Years.
(3)
As soon
as is administratively feasible after the end of the Limitation Year, the
amounts referred to in Subsection 6.12(b)(1)(A) shall be determined on the
basis of the Participant's actual Compensation for such Limitation
Year.
(c)
Adjustments to
Compensation
: Compensation for purposes of this Section 6.12
shall be subject to the following:
(1)
Compensation
shall be based on compensation for all services to the "415
employer."
(2)
Compensation
shall be based on the amount actually paid or made available to the Participant
(or, if earlier, includible in the gross income of the Participant) during the
Limitation Year.
(3)
An
Eligible Employee's severance from employment, as defined in Section 2.01(k),
shall be applied using the modification to the employer aggregation rules
prescribed in Code Section 415(h).
(4)
Compensation
shall include amounts paid by the later of (A) 2-1/2 months after or (B) the end
of the Limitation Year that includes the date of the Participant’s severance
from employment (as defined in Section 2.01(k), modified as provided
in subparagraph (c)(3) above) if such amounts are either payments for unused
accrued bona fide sick, vacation, or other leave (but only if the Eligible
Employee would have been able to use the leave if employment had continued), or
received by a Participant pursuant to a nonqualified unfunded deferred
compensation plan, but only if the payment would have been paid to the
Participant at the same time if the Participant had not severed employment and
only to the extent that the payment is includible in the Participant’s gross
income.
(5)
Compensation
shall include amounts that otherwise would be excluded as “severance amounts” if
such amounts are paid to an individual who does not currently perform services
for the employer because of qualified military service (as used in Code Section
414(u)(1)) to the extent those amounts do not exceed the amounts the individual
would have received if the individual had continued to perform services for the
employer rather than entering qualified military service or to a Participant who
is permanently and totally disabled.
(6)
Compensation
shall include amounts earned, but not paid during the Limitation Year solely
because of the timing of pay periods and pay dates, provided
(A)
such
amounts are paid during the first few weeks of the next Limitation
Year;
(B)
such
amounts are included on a uniform and consistent basis with respect to all
similarly situated Participants; and
(C)
no such
amounts are included in more than one Limitation Year.
In addition, for Limitation Years
beginning on or after July 1, 2007, Compensation for purposes of this Section
6.12 shall not reflect compensation for a year greater than the limit under Code
Section 401(a)(17) that applies to that year.
(d)
Corrections
: In
correcting an “excess 415 amount” in a Limitation Year beginning on or after
July 1, 2007, the Employer may use any appropriate correction under the Employee
Plans Compliance Resolution System, or any successor thereto.
(e)
Exclusion from Annual
Additions
: Restorative payments allocated to a Participant’s
Account, which include payments made to restore losses to the Plan resulting
from actions (or a failure to act) by a fiduciary for which there is a
reasonable risk of liability under Title I of ERISA or under other applicable
federal or state law, where similarly situated Participants are similarly
treated do not give rise to an “annual addition” for any Limitation
Year.
|
6.
|
Effective
August 25, 2005, a new Section 10.08 is added at the end of Article 10 to
provide as follows:
|
10.08
Qualified Hurricane
Distributions
. Qualified Individuals (as defined in subsection
(b) below) may designate all or a portion of a qualifying distribution as a
Qualified Hurricane Distribution (as defined in subsection (a)
below).
(a)
A
“Qualified Hurricane Distribution” means any distribution made on or after the
QHD Effective Date (as defined in subsection (c) below) and before the QHD
Distribution Date (as defined in subsection (d) below) to a Qualified
Individual, to the extent that such distribution, when aggregated with all other
Qualified Hurricane Distributions to the Qualified Individual made under the
Plan (and under any other plan maintained by the Employer or a Related
Employer), does not exceed $100,000. A Qualified Hurricane
Distribution must be made in accordance with and pursuant to the distribution
provisions of the Plan, except that:
(1)
A
Qualified Hurricane Distribution of amounts attributable to Nonelective Employer
Contributions, Deferral Contributions and Qualified Nonelective Employer
contributions shall be deemed to be made after the occurrence of any
distributable events otherwise applicable under Code section 401(k)(2)(B)(i),
such as termination of employment (and shall be deemed permissible under Section
12.01), and
(2)
The
requirements of Code sections 401(a)(31), 402(f) and 3405 and Section 13.04
shall not apply.
(b)
A
“Qualified Individual” means any individual whose principal place of abode
on
(1)
August
28, 2005, is located in the Hurricane Katrina disaster area (as defined in Code
section 1400M(2))and who has sustained an economic loss by reason of Hurricane
Katrina;
(2)
September
23, 2005, is located in the Hurricane Rita disaster area (as defined in Code
section 1400M(4)) and who has sustained an economic loss by reason of Hurricane
Rita; or
(3)
October
23, 2005, is located in the Hurricane Wilma disaster area (as defined in Code
section 1400M(6)) and who has sustained an economic loss by reason of Hurricane
Wilma.
(c)
The “QHD
Effective Date” means
(1)
August
25, 2005, with respect to a Qualified Individual described in subsection (b)(1)
above;
(2)
September
23, 2005, with respect to a Qualified Individual described in subsection (b)(2)
above; and
(3)
October
23, 2005, with respect to a Qualified Individual described in subsection (b)(3)
above.
(d)
The “QHD
Distribution Date” means
(1)
January
1, 2007, with respect to a Qualified Individual described in subsection (b)(1),
(2), or (3) above.
(e)
If the
Employer elected to provide for Rollover Contributions in
Subsection 1.09(a) of the Adoption Agreement, an Eligible Employee who
received a Qualified Hurricane Distribution, as defined herein, may repay to the
Plan the Qualified Hurricane Distribution, provided the Qualified Hurricane
Distribution is eligible for tax-free rollover treatment. Any such
re-contribution will be treated as having been made in a direct rollover to the
Plan, provided it is made during the three-year period beginning on the day
after the date on which the Qualified Hurricane Distribution was received and
does not exceed the amount of such distribution.
Volume
Submitter Defined Contribution Plan
ADDENDUM
RE:
Compensation Taken into Account
Amendment
for Fidelity Basic Plan Document No. 14
Effective
December 11, 2008, the first paragraph of Section 5.02 is hereby amended to
provide as follows:
5.02
Compensation
Taken into Account in Determining Contributions
.
In determining
the amount or allocation of any contribution that is based on Compensation, only
Compensation paid to a Participant for services rendered to the Employer while
employed as an Eligible Employee shall be taken into account. Except
as otherwise specifically provided in this Article 5, for purposes of
determining the amount and allocation of contributions under this
Article 5, Compensation shall not include reimbursements or other expense
allowances, fringe benefits (cash and non-cash), moving expenses, deferred
compensation, welfare benefits, and any amounts elected by the Employer with
respect to such contributions in Subsection 1.05(a) or (b), as applicable,
of the Adoption Agreement.
Volume
Submitter Defined Contribution Plan
ADDENDUM
RE:
Pension Protection Act of 2006,
The
Heroes Earnings Assistance and Relief Act of 2008,
The
Worker, Retiree and Employee Recovery Act of 2008
And Code
Sections 401(k) and 401(m) 2009 Proposed Regulations
Amendments
for Fidelity Basic Plan Document No. 14
PREAMBLE
Adoption
and Effective Date of Amendment
. This amendment of the Plan is
adopted to reflect statutory changes pursuant to the Pension Protection Act of
2006 (“PPA”) and the Heroes Earnings Assistance and Relief Act of 2008 (“HEART”)
and related guidance. This amendment is intended as good faith
compliance with the requirements of the PPA and HEART and is to be construed in
accordance with guidance issued thereunder.
Except as
provided otherwise below, the amendments contained herein shall be effective for
Plan Years beginning after December 31, 2006.
Supersession
of Inconsistent Provisions
. This amendment shall supersede the
provisions of the Plan to the extent those provisions are inconsistent with the
provisions of this amendment.
Article
1.
Qualified Reservist
Distribution.
If elected by the Employer in Section (g) of the
corresponding Adoption Agreement Addendum, and notwithstanding anything herein
to the contrary, effective September 11, 2001 (or the later effective date
elected by the Employer in such Section (g)), a Participant ordered or called to
active duty for a period in excess of 179 days or for an indefinite period after
September 11, 2001 by reason of being a member of a reserve component (as
defined in section 101 of title 37, United States Code), shall be eligible to
elect to receive a Qualified Reservist Distribution. For purposes of
this Article 1, a “Qualified Reservist Distribution” means a distribution from
the Participant’s Account of amounts attributable to Deferral Contributions,
provided such distribution is made during the period beginning on the date of
the order or call to active duty and ending at the close of the active duty
period.
Article
2.
Direct Rollover
Distributions.
|
2.1
|
Employee
Contributions.
Effective for taxable years beginning
after December 31, 2006, the portion of an “eligible rollover
distribution” consisting of after-tax Employee Contributions that are not
includable in gross income may be rolled over in a direct rollover
distribution to an annuity contract described in Code section 403(b),
provided such contract provides for separate accounting of amounts so
transferred (and earnings thereon).
|
|
2.2
|
Nonspouse Beneficiary
Rollovers.
Effective for distributions after December
31, 2006, a designated beneficiary (as defined in Code section
401(a)(9)(E)) of a Participant who is not the surviving spouse of the
Participant may elect to roll over such distribution to an individual
retirement plan described in clause (i) or (ii) of paragraph (8)(B) of
Code section 402(c) established for the purposes of receiving such
distribution.
|
|
2.3
|
Roth
IRA.
Effective for distributions after December 31,
2007, a Roth IRA described in Code section 408A shall be an “eligible
retirement plan,” as defined in Section
13.04(b).
|
Article
3.
Pre-Normal Retirement Age Pension
Plan Distributions.
If elected by the Employer in Section (a)
of the corresponding Adoption Agreement Addendum, and notwithstanding anything
herein to the contrary, effective for distributions in Plan Years beginning
after December 31, 2006 (or the later effective date elected by the Employer in
such Section (a)), an Active Participant may elect to receive a distribution of
the portion of his Account attributable to pension plan contributions (if
applicable) prior to the Active Participant’s attainment of Normal Retirement
Age, provided such Active Participant has attained at least age 62.
Article
4.
Qualified Optional Survivor
Annuity.
Notwithstanding anything herein to the contrary, if
Article 14 is applicable to the Plan, then, effective for Plan Years beginning
after December 31, 2007 (subject to the effective date applicable in the event
that the Plan is maintained pursuant to a collective bargaining agreement under
certain circumstances, as described in section 4.3, below), the Plan shall also
permit the Participant, subject to the spousal consent rules described in
Section 14.05, to elect a qualified optional survivor annuity, which provides
for a life annuity payable to the Participant and a survivor annuity payable to
the Participant’s beneficiary equal to either 75% or 50% as described in 4.1 or
4.2 below, as applicable.
|
4.1
|
If
the survivor annuity portion of the Plan’s qualified joint and survivor
annuity (as defined in Section 14.01) is less than 75%, then the survivor
annuity portion of the qualified optional survivor annuity shall be
75%.
|
|
4.2
|
If
the survivor annuity portion of the Plan’s qualified joint and survivor
annuity (as defined in Section 14.01) is greater than or equal to 75%,
then the survivor annuity portion of the qualified optional survivor
annuity shall be 50%.
|
|
4.3
|
Notwithstanding
the effective date described above in this Article 4, if the Plan is
maintained pursuant to one or more collective bargaining agreements
between employee representatives and one or more employers ratified on or
before August 17, 2006, then this Article 4 shall be effective for Plan
Years beginning on and after the earlier
of—
|
|
(ii)
|
The
date on which the last of such collective bargaining agreements terminates
(determined without regard to any extension thereof after August 17,
2006), or
|
Article
5.
Transfers to the Pension Benefit
Guarantee Corporation upon Plan Termination.
In the event that
the Employer terminates the Plan, as described in Section 16.06, and, at the
time, the whereabouts of one or more distributees are unknown, as described in
Section 12.06, and the Employer so directs the Trustee, subject to applicable
guidance, the Trustee shall transfer the Accounts of such distributees to the
Pension Benefit Guarantee Corporation.
Article
6.
Modification of rules governing
Hardship Distributions.
On and after August 17, 2006, a
hardship withdrawal described in Section 10.05, if otherwise available under the
Plan, shall be available as a result of the financial needs described in
paragraphs (1), (3) and (5) of subsection 10.05(a) for a primary beneficiary
under the Plan. For this purpose, a “primary beneficiary under the
Plan” is an individual who is named as a beneficiary under the Plan and has an
unconditional right to all or a portion of the Participant’s Account upon the
death of the Participant.
Article
7.
Removal of Gap Period
Income.
Effective for plan years beginning after December 31,
2007, notwithstanding anything in the Basic Plan Document or Adoption Agreement
(including addenda thereto) to the contrary, the calculation of income or loss
allocable to "excess deferrals", "excess contributions", and "excess aggregate
contributions" shall be determined without regard to the period of time elapsing
between the end of the “determination year” and the date of distribution (also
known as the “gap period”).
Article
8.
Notification of a Participant for
purposes of Automatic Enrollment
Contributions.
Notwithstanding anything in the Basic Plan
Document or Adoption Agreement (including addenda thereto) to the contrary, the
Notification Date elected by the Employer in the Adoption Agreement (including
addenda thereto) may precede the Automatic Enrollment Effective
Date.
Article
9.
Modification of Provisions for
QACA.
Effective for plan years beginning after December 31,
2007, except where a different treatment is indicated in this amendment or the
PPA Addendum, any provision of the Plan applying to a 401(k) Safe Harbor
Matching Employer Contribution or a 401(k) Safe Harbor Nonelective Employer
Contribution, respectively, will apply to a QACA Matching Employer Contribution
or a QACA Nonelective Employer Contribution, respectively. In addition,
effective for Plan Years beginning on and after January 1, 2010, the same
constraints and requirements regarding Compensation exclusions applied to QACA
Matching Employer Contributions under the Plan shall apply for determining
default deferral contributions under the QACA pursuant to Section (b)(1) of the
PPA Addendum.
Article
10.
Changing Testing
Methods.
Effective for plan years beginning after December 31,
2007, Section 6.11 is amended by replacing it in its entirety with the
following:
6.11.
Changing
Testing Methods
.
Notwithstanding any other provisions of the Plan, if the Employer elects
to change between the "ADP" testing method and the safe harbor testing method,
the following shall apply:
(a) Except
as otherwise specifically provided in this Section, Section 6.09, or applicable
regulation, the Employer may not change from the "ADP" testing method to the
safe harbor testing method unless Plan provisions adopting the safe harbor
testing method are adopted before the first day of the Plan Year in which they
are to be effective and remain in effect for an entire 12-month Plan
Year.
(b) A
Plan may be amended during a Plan Year to make safe harbor or QACA Nonelective
Employer Contributions to satisfy the testing rules for such Plan Year
if:
(1) The
Employer provides both the initial and subsequent notices described in Section
6. 09 for such Plan Year within the time period prescribed in Section
6.09.
(2) The
Employer amends its Adoption Agreement no later than 30 days prior to the end of
such Plan Year to provide for 401(k) Safe Harbor Nonelective Contribution or
QACA Nonelective Employer Contribution in accordance with the provisions of the
401(k) Safe Harbor Nonelective Employer Contributions Addendum to the Adoption
Agreement or the PPA Addendum to the Adoption Agreement.
(c) Except
as otherwise specifically provided in this Article, a Plan may not be amended
during the Plan Year to discontinue 401(k) Safe Harbor Nonelective Employer
Contributions, 401(k) Safe Harbor Matching Employer Contributions, QACA
Nonelective Employer Contributions, or QACA Matching Employer Contributions and
revert to the "ADP" testing method for such Plan Year.
(d) A
Plan may be amended to reduce or suspend 401(k) Safe Harbor Matching Employer
Contributions or QACA Matching Employer Contributions on future contributions,
or, effective on and after July 1, 2009, for an Employer which has incurred a
substantial business hardship (comparable to a substantial business hardship
described in Code Section 412(c)), 401(k) Safe Harbor Nonelective Employer
Contributions or QACA Nonelective Employer Contributions, during a Plan Year and
revert to the "ADP" testing method for such Plan Year if:
(1) All
Active Participants are provided notice of the reduction or suspension
describing (i) the consequences of the amendment, (ii) the procedures for
changing their salary reduction agreements, and (iii) the effective date of the
reduction or suspension.
(2) The
reduction or suspension of such contributions is no earlier than the later of
(i) 30 days after the date the notice described in paragraph (a) is provided to
Active Participants or (ii) the date the amendment is adopted.
(3) Active
Participants are given a reasonable opportunity before the reduction or
suspension occurs, including a reasonable period after the notice described in
paragraph (a) is provided to Active Participants, to change their salary
reduction agreements elections.
(4) The
Plan satisfies the 401(k) Safe Harbor Matching Employer Contributions or QACA
Matching Employer Contributions provisions of the Adoption Agreement in effect
prior to the amendment with respect to Deferral Contributions made through the
effective date of the amendment.
(5) The
Plan satisfies the 401(k) Safe Harbor Nonelective Employer Contributions or QACA
Nonelective Contributions provisions of the Adoption Agreement in effect prior
to the amendment with respect to the safe harbor compensation (compensation
meeting the requirements of Section 1.401(k)-3(b)(2) of the Treasury
Regulations) paid through the effective date of the amendment.
If the
Employer amends its Plan in accordance with the provisions of this Subsection
(d), the "ADP" test described in Section 6.03 and the “ACP” test described in
Section 6.06 shall be applied as if it had been in effect for the entire Plan
Year using the current year testing method in Subsection 1.06(a)(1) of the
Adoption Agreement.
Article
11.
Eligible Automatic Contribution
Arrangement (EACA).
Effective for plan years beginning after
December 31, 2007, if the Employer has elected in Section (e) of the PPA
Addendum to the Adoption Agreement to have the Plan be an EACA, then references
to “2 ½” months in Sections 6.04 and 6.07 of the Basic Plan Document are hereby
changed to read “6” months. The Employer shall also provide to each
Active Participant covered by the EACA pursuant to Section (f) of the PPA
Addendum to the Adoption Agreement a comprehensive notice, written in a manner
calculated to be understood by the average Active Participant, of the Active
Participant's rights and obligations under the Plan within the time described in
Section 6.09 for a safe harbor contribution notice.
Article
12.
Notice Timing
Adjustment.
Effective for plan years (and the notices issued
therein) beginning after December 31, 2006, references to a period of “90” days
in Sections 12.03, 13.05 and 14.05 are hereby changed to “180” days in the text
of each such section.
Article
13.
Diversification out of Employer
Securities.
Notwithstanding anything herein to the contrary, if one of
the Plan’s Permissible Investments is Employer Securities, the following rules
shall apply:
|
13.1
|
With
respect to the portion of a Participant’s or Beneficiary’s Account
attributable to:
|
|
(a)
|
Matching
and/or Nonelective Employer Contributions and invested in Employer
Securities, the Participant or Beneficiary shall be permitted to exchange
out of Employer Securities into any other Permissible Investment otherwise
available, no later than the date on which either (1) or (2) below is
applicable:
|
|
(1)
|
If
a Participant, the Participant has completed at least three years of
service (as defined in section III.B. of Notice 2006-107, or its
successor), or
|
|
|
(2)
|
If
a Beneficiary, the Beneficiary is the Beneficiary of a Participant who is
either described in (1) above or who is
deceased.
|
|
(b)
|
Deferral,
Employee and/or Rollover Contributions and invested in Employer
Securities, the Participant or Beneficiary shall immediately be permitted
to exchange out of Employer Securities into any other Permissible
Investment otherwise available.
|
|
13.2
|
The
Plan must have no fewer than three Permissible Investments, other than
Employer Securities, each of which must be diversified and have materially
different risk and return characteristics. A Participant or
Beneficiary who is permitted to exchange out of Employer Securities
pursuant to 13.1 above must be permitted to direct the investment of the
proceeds from such an exchange out of Employer Securities into the
Permissible Investments described in this section
13.2. Notwithstanding anything to the contrary in this section
13.2:
|
|
(a)
|
The
Plan shall not be treated as failing to meet the requirements of this
section 13.2 merely because the Plan limits the time for divestment and
reinvestment to periodic, reasonable opportunities occurring no less
frequently than quarterly; and
|
|
(b)
|
Except
as provided in otherwise applicable guidance, the Plan shall not impose
restrictions or conditions with respect to the investment of Employer
Securities that are not imposed on the investment of other assets of the
Plan. This subsection (b) shall not apply to any restrictions
or conditions imposed by reason of the application of securities
laws.
|
13.3 The
following definitions apply for purposes of this Article 13—
|
(a)
|
“Employer
Securities” shall mean publicly traded equity securities issued by the
Employer Corporation, provided
that:
|
|
(1)
|
Except
as provided in otherwise applicable regulations or in paragraph (2) of
this subsection (a), if the Employer Securities are not publicly traded
they shall nevertheless be treated as publicly traded if any Employer
Corporation, or any member of a Controlled Group of Corporations that
includes such Employer Corporation, has issued a class of stock that is a
publicly traded Employer Security.
|
|
(2)
|
Paragraph
(1) shall be inapplicable if no Employer Corporation, or Parent
Corporation of an Employer Corporation, has issued
any—
|
|
(A)
|
Publicly
traded Employer Security, or
|
|
(B)
|
Any
special class of stock that grants particular rights to, or bears
particular risks for, the holder or issuer with respect to the Employer
Corporation or any Parent Corporation of an Employer Corporation that has
issued any Publicly Traded Employer
Security.
|
|
(b)
|
“Controlled
group of Corporations” has the meaning given such term by Code section
1563(a), except that “50 percent” shall be substituted for “80 percent”
each place it appears.
|
|
(c)
|
“Employer Corporation” means a
corporation that is an employer maintaining the
Plan.
|
|
(d)
|
“Parent Corporation” has the
meaning given such term by Code section
424(e).
|
13.4 The
following transition rule applies to Employer Securities:
|
(a)
|
In
the case of the portion of an Account to which subsection 13.1(a) applies
and which consists of Employer Securities acquired in a Plan Year
beginning before January 1, 2007, subsection 13.1(a) shall only apply to
the “applicable percentage” of such securities. This subsection
13.4 (a) shall be applied separately with respect to each class of
Employer Securities.
|
|
(b)
|
Subsection
(a) shall not apply to a Participant who has attained age 55 and completed
at least three years of service (as defined in paragraph 13.1(a)(1) above)
before the first Plan Year beginning after December 31,
2005.
|
|
(c)
|
For
purposes of subsection (a), the “applicable percentage” shall be
determined as follows:
|
|
(1)
|
For
the first Plan Year to which subsection 13.1(a) applies, the applicable
percentage is 33.
|
|
(2)
|
For
the second Plan Year to which subsection 13.1(a) applies, the applicable
percentage is 66.
|
|
(3)
|
For
the third Plan Year to which subsection 13.1(a) applies and following, the
applicable percentage is 100.
|
13.5 Notwithstanding
the effective date of this amendment, if the Plan is maintained pursuant to one
or more collective bargaining agreements between employee representatives and
one or more employers ratified on or before August 17, 2006, then this Article
13 shall be effective for Plan Years beginning after the earlier
of—
(a) The
later of—
|
|
(i)
|
December
31, 2007, or
|
|
|
(ii)
|
The
date on which the last of such collective bargaining agreements terminates
(determined without regard to any extension thereof after August 17,
2006), or
|
(b) December
31, 2008.