DELAWARE
|
36-4324765
|
(State
of Incorporation)
|
(I.R.S.
Employer Identification No.)
|
870
NORTH COMMONS DRIVE
|
60504
|
AURORA,
ILLINOIS
|
(Zip
Code)
|
(Address
of principal executive offices)
|
YES
|
X
|
NO
|
YES
|
NO
|
Large
accelerated filer
|
X
|
Accelerated filer
|
Non-accelerated filer
|
Smaller reporting company
|
YES
|
NO
|
X
|
Part
I. Financial Information
|
Page
|
|
Item
1.
|
||
3 | ||
4 | ||
5 | ||
6
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||
Item
2.
|
19 | |
Item
3.
|
25
|
|
Item
4.
|
26
|
|
Part
II. Other Information
|
||
Item
1.
|
27
|
|
Item
1A.
|
28
|
|
Item
2.
|
32
|
|
Item
6.
|
33
|
|
34
|
Three
Months Ended
|
||||||||
December
31,
|
||||||||
2009
|
2008
|
|||||||
Revenue
|
$ | 97,672 | $ | 63,017 | ||||
Cost
of goods sold
|
47,264 | 34,311 | ||||||
Gross
profit
|
50,408 | 28,706 | ||||||
Operating
expenses:
|
||||||||
Research,
development and technical
|
12,581 | 12,114 | ||||||
Selling
and marketing
|
6,322 | 5,973 | ||||||
General
and administrative
|
11,245 | 11,326 | ||||||
Total
operating expenses
|
30,148 | 29,413 | ||||||
Operating
income (loss)
|
20,260 | (707 | ) | |||||
Other
income, net
|
61 | 876 | ||||||
Income
before income taxes
|
20,321 | 169 | ||||||
Provision
for income taxes
|
7,197 | 53 | ||||||
Net
income
|
$ | 13,124 | $ | 116 | ||||
Basic
earnings per share
|
$ | 0.57 | $ | 0.01 | ||||
Weighted
average basic shares outstanding
|
23,167 | 23,020 | ||||||
Diluted
earnings per share
|
$ | 0.56 | $ | 0.01 | ||||
Weighted
average diluted shares outstanding
|
23,294 | 23,026 |
December 31,
2009
|
September 30, 2009
|
|||||||
ASSETS
|
||||||||
Current
assets:
|
||||||||
Cash
and cash equivalents
|
$ | 224,810 | $ | 199,952 | ||||
Accounts
receivable, less allowance for doubtful accounts of $1,261 at December 31,
2009, and $1,277 at September 30, 2009
|
49,904 | 53,538 | ||||||
Inventories
|
43,970 | 44,940 | ||||||
Prepaid
expenses and other current assets
|
14,301 | 14,428 | ||||||
Deferred
income taxes
|
3,658 | 3,994 | ||||||
Total
current assets
|
336,643 | 316,852 | ||||||
Property,
plant and equipment, net
|
116,493 | 122,782 | ||||||
Goodwill
|
39,742 | 39,732 | ||||||
Other
intangible assets, net
|
18,262 | 18,741 | ||||||
Deferred
income taxes
|
9,399 | 7,953 | ||||||
Other
long-term assets
|
9,050 | 9,084 | ||||||
Total
assets
|
$ | 529,589 | $ | 515,144 | ||||
LIABILITIES
AND STOCKHOLDERS’ EQUITY
|
||||||||
Current
liabilities:
|
||||||||
Accounts
payable
|
$ | 12,505 | $ | 15,182 | ||||
Capital
lease obligations
|
1,231 | 1,210 | ||||||
Accrued
expenses, income taxes payable and other current
liabilities
|
26,079 | 23,144 | ||||||
Total
current liabilities
|
39,815 | 39,536 | ||||||
Capital
lease obligations
|
992 | 1,308 | ||||||
Other
long-term liabilities
|
3,597 | 3,571 | ||||||
Total
liabilities
|
44,404 | 44,415 | ||||||
Commitments
and contingencies (Note 9)
|
||||||||
Stockholders’
equity:
|
||||||||
Common
stock:
|
||||||||
Authorized:
200,000,000 shares, $0.001 par value
|
||||||||
Issued:
26,274,001 shares at December 31, 2009, and 26,143,116 shares at September
30, 2009
|
26 | 26 | ||||||
Capital
in excess of par value of common stock
|
216,441 | 213,031 | ||||||
Retained
earnings
|
347,433 | 334,309 | ||||||
Accumulated
other comprehensive income
|
12,363 | 13,690 | ||||||
Treasury
stock at cost, 2,722,449 shares at December 31, 2009, and 2,698,234 shares
at September 30, 2009
|
(91,078 | ) | (90,327 | ) | ||||
Total
stockholders’ equity
|
485,185 | 470,729 | ||||||
Total
liabilities and stockholders’ equity
|
$ | 529,589 | $ | 515,144 |
Three
Months Ended December 31,
|
||||||||
2009
|
2008
|
|||||||
Cash
flows from operating activities:
|
||||||||
Net
income
|
$ | 13,124 | $ | 116 | ||||
Adjustments
to reconcile net income to net cash provided by operating
activities:
|
||||||||
Depreciation
and amortization
|
6,373 | 6,166 | ||||||
Share-based
compensation expense
|
3,311 | 4,234 | ||||||
Deferred
income tax benefit
|
(368 | ) | (1,292 | ) | ||||
Non-cash
foreign exchange (gain) loss
|
652 | (4,847 | ) | |||||
Loss
on disposal of property, plant and equipment
|
52 | 81 | ||||||
Impairment
of property, plant and equipment
|
- | 81 | ||||||
Other
|
54 | 515 | ||||||
Changes
in operating assets and liabilities:
|
||||||||
Accounts
receivable
|
2,818 | 10,547 | ||||||
Inventories
|
464 | (7,920 | ) | |||||
Prepaid
expenses and other assets
|
90 | 1,150 | ||||||
Accounts
payable
|
(2,644 | ) | (2,956 | ) | ||||
Accrued
expenses, income taxes payable and other liabilities
|
3,266 | (8,488 | ) | |||||
Net
cash provided by (used in) operating activities
|
27,192 | (2,613 | ) | |||||
Cash
flows from investing activities:
|
||||||||
Additions
to property, plant and equipment
|
(833 | ) | (2,341 | ) | ||||
Purchase
of patents
|
(115 | ) | - | |||||
Net
cash used in investing activities
|
(948 | ) | (2,341 | ) | ||||
Cash
flows from financing activities:
|
||||||||
Repurchases
of common stock
|
(751 | ) | (334 | ) | ||||
Net
proceeds from issuance of stock
|
90 | 169 | ||||||
Principal
payments under capital lease obligations
|
(295 | ) | (276 | ) | ||||
Net
cash used in financing activities
|
(956 | ) | (441 | ) | ||||
Effect
of exchange rate changes on cash
|
(430 | ) | 2,076 | |||||
Increase
(decrease) in cash and cash equivalents
|
24,858 | (3,319 | ) | |||||
Cash
and cash equivalents at beginning of period
|
199,952 | 221,467 | ||||||
Cash
and cash equivalents at end of period
|
$ | 224,810 | $ | 218,148 |
Supplemental
disclosure of non-cash investing and financing activities:
|
||||||||
Purchases
of property, plant and equipment in accrued liabilities and accounts
payable at the end of the period
|
$ | 564 | $ | 574 | ||||
Issuance
of restricted stock
|
4,478 | 3,727 |
Current
assets
|
$ | 11,453 | ||
Long-term
assets
|
13,965 | |||
In-process
research and development
|
1,410 | |||
Identified
intangible assets
|
11,510 | |||
Goodwill
|
29,877 | |||
Total
assets acquired
|
68,215 | |||
Total
liabilities assumed
|
1,496 | |||
Net
assets acquired
|
$ | 66,719 |
Three
Months Ended
|
||||
December
31,
|
||||
2008
|
||||
Revenues
|
$ | 66,997 | ||
Net
loss
|
$ | (1,444 | ) | |
Net
loss per share:
|
||||
Basic
|
$ | (0.06 | ) | |
Diluted
|
$ | (0.06 | ) |
Level 1
|
Level 2
|
Level 3
|
Total
Fair Value
|
|||||||||||||
Cash
and cash equivalents
|
$ | 224,810 | $ | - | $ | - | $ | 224,810 | ||||||||
Auction
rate securities (ARS)
|
- | - | 8,116 | 8,116 | ||||||||||||
Total
|
$ | 224,810 | $ | - | $ | 8,116 | $ | 232,926 |
December
31,
|
September
30,
|
|||||||
2009
|
2009
|
|||||||
Raw
materials
|
$ | 17,901 | $ | 20,082 | ||||
Work
in process
|
2,880 | 3,080 | ||||||
Finished
goods
|
23,189 | 21,778 | ||||||
Total
|
$ | 43,970 | $ | 44,940 |
December 31, 2009
|
September 30, 2009
|
|||||||||||||||
Gross
Carrying
|
Accumulated
|
Gross
Carrying
|
Accumulated
|
|||||||||||||
Amount
|
Amortization
|
Amount
|
Amortization
|
|||||||||||||
Other intangible assets subject to
amortization:
|
||||||||||||||||
Product
technology
|
$ | 8,136 | $ | 2,211 | $ | 8,135 | $ | 1,978 | ||||||||
Acquired
patents and licenses
|
8,115 | 5,902 | 8,000 | 5,825 | ||||||||||||
Trade
secrets and know-how
|
2,550 | 2,550 | 2,550 | 2,550 | ||||||||||||
Distribution
rights, customer lists and other
|
11,290 | 2,356 | 11,287 | 2,068 | ||||||||||||
Total
other intangible assets subject to amortization
|
30,091 | 13,019 | 29,972 | 12,421 | ||||||||||||
Total
other intangible assets not subject to amortization*
|
1,190 | 1,190 | ||||||||||||||
Total
other intangible assets
|
$ | 31,281 | $ | 13,019 | $ | 31,162 | $ | 12,421 |
Fiscal Year
|
Estimated
Amortization
Expense
|
|
Remainder
of 2010
|
$ 1,797
|
|
2011
|
2,388
|
|
2012
|
2,388
|
|
2013
|
2,388
|
|
2014
|
2,347
|
December
31,
|
September
30,
|
|||||||
2009
|
2009
|
|||||||
Long-term
investments
|
$ | 8,116 | $ | 8,116 | ||||
Other
long-term assets
|
934 | 968 | ||||||
Total
|
$ | 9,050 | $ | 9,084 |
December
31,
|
September
30,
|
|||||||
2009
|
2009
|
|||||||
Accrued
compensation
|
$ | 9,842 | $ | 8,462 | ||||
Goods
and services received, not yet invoiced
|
3,479 | 2,806 | ||||||
Warranty
accrual
|
315 | 360 | ||||||
Taxes,
other than income taxes
|
1,741 | 1,175 | ||||||
Income
taxes payable
|
1,491 | - | ||||||
Acquisition
related
|
6,600 | 6,600 | ||||||
Other
|
2,611 | 3,741 | ||||||
Total
|
$ | 26,079 | $ | 23,144 |
Asset Derivatives
|
Liability Derivatives
|
||||||||||||||||
Balance
Sheet Location
|
Fair
Value at December 31,
2009
|
Fair
Value at September 30, 2009
|
Fair
Value at December 31,
2009
|
Fair
Value at September 30, 2009
|
|||||||||||||
Derivatives
not designated as hedging instruments
|
|||||||||||||||||
Foreign
exchange contracts
|
Prepaid
expenses and other current assets
|
$ | 765 | $ | - | $ | - | $ | - | ||||||||
Accrued
expenses and other current liabilities
|
$ | - | $ | - | $ | - | $ | 242 |
Gain
(Loss) Recognized in Statement of Income
|
|||||||||
Three Months Ended
|
|||||||||
Statement
of Income (Loss) Location
|
December
31, 2009
|
December
31, 2008
|
|||||||
Derivatives
not designated as hedging instruments
|
|||||||||
Foreign
exchange contracts
|
Other
income, net
|
$ | 490 | $ | (3,710 | ) |
Balance
as of September 30, 2009
|
$ | 360 | ||
Reserve
for product warranty during the reporting period
|
274 | |||
Settlement
of warranty
|
(319 | ) | ||
Balance
as of December 31, 2009
|
$ | 315 |
Three
Months Ended
|
||||||||
December
31,
|
||||||||
Income
statement classifications:
|
2009
|
2008
|
||||||
Cost
of goods sold
|
$ | 248 | $ | 346 | ||||
Research,
development and technical
|
242 | 388 | ||||||
Selling
and marketing
|
301 | 419 | ||||||
General
and administrative
|
2,520 | 3,081 | ||||||
Total
share-based compensation expense
|
3,311 | 4,234 | ||||||
Tax
benefit
|
1,179 | 1,513 | ||||||
Total
share-based compensation expense, net of tax
|
$ | 2,132 | $ | 2,721 |
Three
Months Ended
|
||||||||
December
31,
|
||||||||
2009
|
2008
|
|||||||
Interest
income
|
$ | 44 | $ | 734 | ||||
Interest
expense
|
(71 | ) | (101 | ) | ||||
Other
income (expense)
|
88 | 243 | ||||||
Total
other income, net
|
$ | 61 | $ | 876 |
|
The
components of comprehensive income were as
follows:
|
Three
Months Ended
|
||||||||
December
31,
|
||||||||
2009
|
2008
|
|||||||
Net
income
|
$ | 13,124 | $ | 116 | ||||
Other
comprehensive income:
|
||||||||
Foreign
currency translation adjustment
|
(1,334 | ) | 5,450 | |||||
Minimum
pension liability adjustment
|
7 | 1 | ||||||
Total
comprehensive income
|
$ | 11,797 | $ | 5,567 |
Three
Months Ended
|
||||||||
December
31,
|
||||||||
2009
|
2008
|
|||||||
Numerator:
|
||||||||
Earnings
available to common shares
|
$ | 13,124 | $ | 116 | ||||
Denominator:
|
||||||||
Weighted
average common shares
|
23,167,213 | 23,019,620 | ||||||
(Denominator
for basic calculation)
|
||||||||
Weighted
average effect of dilutive securities:
|
||||||||
Share-based
compensation
|
126,677 | 6,469 | ||||||
Diluted
weighted average common shares
|
23,293,890 | 23,026,089 | ||||||
(Denominator
for diluted calculation)
|
||||||||
Earnings per
share:
|
||||||||
Basic
|
$ | 0.57 | $ | 0.01 | ||||
Diluted
|
$ | 0.56 | $ | 0.01 |
·
|
Research
related to fundamental CMP
technology;
|
·
|
Development
and formulation of new and enhanced CMP consumable products, including
collaborating on joint development projects with our
customers;
|
·
|
Process
development to support rapid and effective commercialization of new
products;
|
·
|
Technical
support of CMP products in our customers’ manufacturing facilities;
and
|
·
|
Evaluation
of new polishing and metrology applications outside of the semiconductor
industry.
|
CONTRACTUAL
OBLIGATIONS
|
Less
Than
|
1-3 | 3-5 |
After
5
|
||||||||||||||||
(In
millions)
|
Total
|
1 Year
|
Years
|
Years
|
Years
|
|||||||||||||||
Purchase
obligations
|
$ | 37.6 | $ | 35.9 | $ | 0.6 | $ | 0.3 | $ | 0.8 | ||||||||||
Acquisition
related
|
6.6 | 6.6 | - | - | - | |||||||||||||||
Capital
lease obligations
|
2.2 | 1.2 | 1.0 | - | - | |||||||||||||||
Operating
leases
|
6.1 | 2.3 | 2.7 | 0.7 | 0.4 | |||||||||||||||
Other
long-term liabilities
|
3.6 | - | - | - | 3.6 | |||||||||||||||
Total
contractual obligations
|
$ | 56.1 | $ | 46.0 | $ | 4.3 | $ | 1.0 | $ | 4.8 |
·
|
The
ability of our customers to pay their obligations to us may be adversely
affected causing a negative impact on our cash flows and our results of
operations as evidenced by the bankruptcy filing of a small number of our
customers in fiscal 2009.
|
·
|
The
carrying value of our goodwill and other intangible assets may decline in
value, which could harm our financial position and results of
operations.
|
·
|
Our
suppliers may not be able to fulfill their obligations to us, which could
harm our production process and our
business.
|
Period
|
Total
Number of Shares Purchased
|
Average
Price Paid Per Share
|
Total
Number of Shares Purchased as Part of Publicly Announced Plans or
Programs
|
Approximate
Dollar Value of Shares that May Yet Be Purchased Under the Plans or
Programs (in thousands)
|
||||
Oct.
1 through
Oct.
31, 2009
|
-
|
-
|
-
|
$50,003
|
||||
Nov.
1 through
Nov.
30, 2009
|
6,612
|
$30.59
|
-
|
$50,003
|
||||
Dec.
1 through
Dec.
31, 2009
|
17,603
|
$31.13
|
-
|
$50,003
|
||||
Total
|
24,215
|
$30.99
|
-
|
$50,003
|
|
The
exhibit numbers in the following list correspond to the number assigned to
such exhibits in the Exhibit Table of Item 601 of Regulation
S-K:
|
Exhibit
Number
|
Description
|
10.15
|
Cabot
Microelectronics Corporation 2007 Employee Stock Purchase Plan, as Amended
and Restated January 1, 2010.
|
10.22
|
Cabot
Microelectronics Corporation 401(k) Plan, as amended.
|
10.57
|
Adoption
Agreement, as amended January 1, 2010, of Cabot Microelectronics
Corporation 401(k) Plan.
|
31.1
|
Certification
of Chief Executive Officer pursuant to Rule 13a-14(a) and 15d-14(a) of the
Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
|
31.2
|
Certification
of Chief Financial Officer pursuant to Rule 13a-14(a) and 15d-14(a) of the
Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
|
32.1
|
Certification
pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of
the Sarbanes-Oxley Act of 2002.
|
CABOT
MICROELECTRONICS CORPORATION
|
|
Date:
February 8, 2010
|
/s/ WILLIAM S. JOHNSON
|
William
S. Johnson
|
|
Vice
President and Chief Financial Officer
|
|
[Principal
Financial Officer]
|
|
Date:
February 8, 2010
|
/s/ THOMAS S. ROMAN
|
Thomas
S. Roman
|
|
Corporate
Controller
|
|
[Principal
Accounting Officer]
|
1.01
|
Purpose
. The
purpose of the Cabot Microelectronics Corporation Employee Stock Purchase
Plan (the “Plan”) is to provide employees of Cabot Microelectronics
Corporation (the “Company”) and its Designated Subsidiary Corporations
with an opportunity to purchase Common Stock of the Company through
accumulated payroll deductions.
|
1.02
|
Rules of
Interpretation
. It is the intention of the Company to
have the Plan qualify as an “employee stock purchase plan” under Section
423 of the Internal Revenue Code of 1986, as amended (the “Code”), and the
provisions of the Plan, accordingly, shall be construed so as to extend
and limit participation in a manner consistent with the requirements of
that section of the Code; provided, however, that the Committee shall have
the discretion to cause the options granted in one or more Offering
Periods under the Plan to be options to which Section 423 of the Code does
not apply.
|
2.01
|
“
Board
” shall
mean the Board of Directors of the
Company.
|
2.02
|
“Change in
Capitalization”
shall mean any increase or reduction in the number
of shares of Common Stock, or any change (including, but not limited to,
in the case of a spin-off, dividend or other distribution in respect of
shares of Common Stock, a change in value) in the shares of Common Stock
or exchange of shares of Common Stock for a different number or kind of
shares, other equity interests or other property of the Company or another
entity, by reason of a reclassification, recapitalization, merger,
consolidation, reorganization, spin-off, split-up, issuance of warrants or
rights or debentures, stock dividend, stock split or reverse stock split,
cash dividend, property dividend, combination or exchange of shares,
repurchase of shares, change in corporate structure or
otherwise.
|
2.03
|
“
Change in
Control
” shall be as defined in Appendix
A.
|
2.04
|
“
Code
” shall
mean the Internal Revenue Code of 1986, as
amended.
|
2.05
|
”
Common Stock
”
shall mean the Common Stock of the
Company.
|
2.06
|
“
Company
” shall
mean Cabot Microelectronics Corporation, a Delaware
corporation.
|
2.07
|
“
Compensation
”
shall mean the gross cash compensation (including base salary, shift
premium, overtime earnings and cash bonuses exclusive of relocation and
sign-on bonuses) paid by the Company or a Designated Subsidiary
Corporation in accordance with the terms of employment, but excluding all
bonus payments, expense allowances and compensation paid in a form other
than cash.
|
2.08
|
“
Committee
”
shall mean the committee described in Article
XI.
|
2.09
|
“
Designated Subsidiary
Corporation
” shall mean any Subsidiary of the Company which has
been designated by the Committee from time to time in its sole discretion
as eligible to participate in the
Plan.
|
2.10
|
“
Employee
” shall
mean any individual who is a common law employee of the Company or a
Designated Subsidiary Corporation for tax purposes whose customary
employment with the Company is at least twenty (20) hours per week and
more than five (5) months in any calendar
year.
|
2.11
|
“
Enrollment
Date
” shall mean the first day of each Offering
Period.
|
2.12
|
“
Exercise Date
”
shall mean the last day of each Offering
Period.
|
2.13
|
“
Fair Market
Value
” shall mean, as of any date, the value of a share of Common
Stock determined as follows:
|
2.13.1
|
If
the Common Stock is listed on any established stock exchange or a national
market system, including without limitation the Nasdaq National Market or
The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market
Value shall be the closing sales price for a share of Common Stock (or the
closing bid, if no sales were reported) as quoted on such exchange or
system on the date of such determination, as reported in
The Wall Street Journal
or such other source as the Committee deems reliable,
or
|
2.13.2
|
If
the Common Stock is regularly quoted by a recognized securities dealer but
selling prices are not reported, its Fair Market Value shall be the mean
of the closing bid and asked prices for a share of the Common Stock on the
date of such determination, as reported in
The Wall Street Journal
or such other source as the Committee deems reliable,
or
|
2.13.3
|
In
the absence of an established market for the Common Stock, the Fair Market
Value of a share thereof shall be determined in good faith by the
Committee.
|
2.14
|
“
Offering
Period
” shall mean a period of approximately six (6) months
commencing on the first Trading Day on or after January 1
st
and terminating on the last Trading Day in the period ending the following
June 30
th
,
or commencing on the first Trading Day on or after July 1
st
and terminating on the last Trading Day in the period ending the following
December 31
st
,
provided, however, that the first Offering Period under the Plan shall
commence on the first date on which quotations are available for the
Common Stock on any established stock exchange or a national market system
and shall end on a Trading Day selected by the Committee consistent with
Section 423 of the Code. The duration of Offering Periods may
be changed pursuant to Sections 13.05 and
13.06.
|
2.15
|
“
Plan
Representative
” shall mean any person designated from time to time
by the Committee to receive certain notices and take certain other
administrative actions relating to participation in the
Plan.
|
2.16
|
“
Plan
” shall
mean the Cabot Microelectronics Corporation Employee Stock Purchase
Plan.
|
2.17
|
"
Prior Plan
"
shall mean the Cabot Microelectronics Corporation Employee Stock Purchase
Plan, effective March 24, 2000.
|
2.18
|
“
Purchase Price
”
shall mean an amount set by the Committee, but not less than the lesser of
85% of the Fair Market Value of a share of Common Stock on the Enrollment
Date or on the Exercise Date, whichever is lower; provided, however, that
the Purchase Price may be adjusted by the Board pursuant to Section
13.06.
|
2.19
|
“
Subsidiary
”
shall mean a corporation, domestic or foreign, of which not less than 50%
of the voting shares are held by the Company or a Subsidiary, whether or
not such corporation now exists or is hereafter organized or acquired by
the Company or a Subsidiary.
|
2.20
|
“
Trading Day
”
shall mean a day on which national stock exchanges and the Nasdaq System
are open for trading.
|
|
ARTICLE
III
|
|
ELIGIBILITY
AND PARTICIPATION
|
3.01
|
Eligibility
. Each
Employee on an Enrollment Date of an Offering Period shall be eligible to
participate in such Offering Period. Persons who are not
Employees shall not be eligible to participate in such Offering
Period. Employees of Cabot Corporation and its subsidiaries,
other than the Company and its Designated Subsidiary Corporations, are not
eligible to participate in the
Plan.
|
3.02
|
Restrictions on
Participation
. Notwithstanding any provision of the Plan
to the contrary, no Employee shall be granted an option to purchase shares
of Common Stock under the Plan:
|
3.02.1
|
If,
immediately after the grant, such Employee would own stock and/or hold
outstanding options to purchase stock possessing 5% or more of the total
combined voting power or value of all classes of stock of the Company (for
purposes of this paragraph, the rules of Section 424(d) of the Code shall
apply in determining stock ownership of any Employee);
or
|
3.02.2
|
If
such Employee’s rights to purchase stock under all employee stock purchase
plans of the Company accrue at a rate which exceeds $25,000 of Fair Market
Value of the stock (determined at the time such option is granted) for
each calendar year in which such option is outstanding at any
time.
|
3.03
|
Commencement of
Participation
. An Employee may become a participant by
completing an authorization for payroll deductions on the form provided by
the Company and filing the completed form with the Plan Representative on
or before the filing date set therefor by the Committee, which date shall
be prior to the next Enrollment Date. Payroll deductions for a
participant shall commence on the next following Enrollment Date after the
Employee’s authorization for payroll deductions becomes effective and
shall continue until termination of the Plan, the participant’s earlier
termination of participation in the Plan, or the participant’s change in
payroll deductions pursuant to Section 5.03. Each participant
in the Plan shall be deemed to continue participation until termination of
the Plan or such participant’s earlier termination of participation in the
Plan pursuant to Article VIII
below.
|
|
ARTICLE
IV
|
|
STOCK
SUBJECT TO THE PLAN AND OFFERINGS
|
4.01
|
Stock Subject to the
Plan
. Subject to the provisions of Section 13.03 of the
Plan, the Board shall reserve for issuance under the Plan an amount equal
to the sum of (i) five hundred thousand (500,000) shares of the Company’s
Common Stock, and (ii) the number of shares of the Company’s Common Stock
previously reserved for issuance under the Prior Plan but not issued
before the adoption of this Plan, which shares shall be authorized but
unissued shares of Common Stock, treasury shares, or shares of Common
Stock purchased by the Company or the Plan on an established stock
exchange or a national market
system.
|
4.02
|
Offerings
. The
Plan will be implemented by two annual offerings of the Company’s Common
Stock each calendar year. Each offering will be outstanding
during the applicable Offering
Period.
|
|
ARTICLE
V
|
|
PAYROLL
DEDUCTIONS
|
5.01
|
Amount of
Deduction
. The form described in Section 3.03 will
permit a participant to elect payroll deductions of any whole percentage
from one percent (1%) through ten percent (10%), or any whole dollar
amount that equates to from one percent (1%) through ten percent (10%), of
such participant’s Compensation for each pay period during an Offering
Period.
|
5.02
|
Participant’s
Account
. All payroll deductions made for a participant
shall be credited to an account established for such participant under the
Plan. A participant may not make any separate cash payment into
such account.
|
5.03
|
Changes in Payroll
Deductions
. A participant may reduce or increase future
payroll deductions (within the limits described in Section 5.01) by filing
with the Plan Representative a form provided by the Company for such
purpose. The effective date of any increase or reduction in
future payroll deductions will be the next following payroll period
succeeding processing of the change
form.
|
|
ARTICLE
VI
|
|
GRANTING
OF OPTION
|
6.01
|
Number of Option
Shares
. On an Enrollment Date each participant shall be
deemed to have been granted an option to purchase a number of shares of
Common Stock determined by dividing the participant’s accumulated payroll
deductions on the Exercise Date by the lower of (i) 85% of the Fair Market
Value of a share of Common Stock on the Enrollment Date or (ii) 85% of the
Fair Market Value of a share of Common Stock on the Exercise Date;
subject, however, to any applicable limitations contained in this
Plan. In addition, the maximum number of shares a participant
may purchase with respect to any Offering Period is that number of shares
determined by dividing $12,500 by the Fair Market Value of a share of
Common Stock on the Enrollment Date; provided, however, the maximum number
of shares a participant may purchase with respect to the first Offering
Period is that number of shares determined by dividing $25,000 by the Fair
Market Value of a share of Common Stock on the Enrollment
Date.
|
|
ARTICLE
VII
|
|
EXERCISE
OF OPTION
|
7.01
|
Automatic
Exercise
. Subject to the next following sentence, each
Plan participant’s option for the purchase of stock with payroll
deductions made during any Offering Period will be exercised automatically
on the applicable Exercise Date for the purchase of the number of full and
deemed fractional shares of Common Stock that the accumulated payroll
deductions in the participant’s account at the time will purchase at the
Purchase Price (but not in excess of the maximum number of shares
determined pursuant to Section 6.01). The Committee shall have
the discretion to reduce the number of shares of Common Stock to be
purchased by participants with respect to an Offering Period and to
allocate such reduced number of shares of Common Stock among participants
in such Offering Period, so long as such reduction and allocation is done
in a manner consistent with Section 423 of the Code. Any
payroll deductions not applied to the purchase of shares of Common Stock
by reason of the limitations of or reduction pursuant to this Section 7.01
shall be promptly refunded to participants after the Exercise Date of the
Offering Period to which such reduction
applies.
|
7.02
|
Withdrawal of
Account
. No participant in the Plan shall be entitled to
withdraw any amount from the accumulated payroll deductions in his or her
account; provided, however, that a participant’s accumulated payroll
deductions shall be refunded to the participant as and to the extent
specified in Section 8.01 below upon termination of such participant’s
participation in the Plan.
|
7.03
|
Fractional
Shares
. Fractional shares of Common Stock will not be
delivered under Section 7.5 of the Plan. Any deemed fractional
share of Common Stock purchased by a Participant pursuant to Section 7.01
hereof will be combined with any deemed fractional shares purchased by the
Participant in subsequent Offering Periods and whole shares of Common
Stock then issued therefor. The Fair Market Value of all deemed
fractional shares shall be paid in
cash.
|
7.04
|
Exercise of
Options
. During a participant’s lifetime, options held
by such participant shall be exercisable only by such
participant.
|
7.05
|
Delivery of
Stock
. As promptly as practicable after each Exercise
Date, the Company will deliver to each participant the shares of Common
Stock purchased upon exercise of such participant’s option. The
Company may deliver such shares in certificated or book entry form, at the
Company’s sole election.
|
|
ARTICLE
VIII
|
|
WITHDRAWAL
|
8.01
|
In
General
. A participant may stop participating in the
Plan at any time by giving written notice to the Plan
Representative. Upon processing of any such written notice, no
further payroll deductions will be made from the participant’s
Compensation during such Offering Period or thereafter, unless and until
such participant elects to resume participation in the Plan by providing
written notice to the Plan Representative pursuant to Section 3.03
above. Such participant’s payroll deductions accumulated prior
to processing of such notice shall be applied toward purchasing full and
deemed fractional shares of Common Stock in the then-current Offering
Period as provided in Section 7.01 above unless the participant requests
in writing to have the accumulated payroll deductions and cash in lieu of
deemed fractional shares returned to him or
her.
|
8.02
|
Effect on Subsequent
Participation
. A participant’s withdrawal from any
Offering Period will not have any effect upon such participant’s
eligibility to participate in any succeeding Offering Period or in any
similar plan which may hereafter be adopted by the Company and for which
such participant is otherwise
eligible.
|
8.03
|
Termination of
Employment
. Upon termination of a participant’s
employment with the Company or any Designated Subsidiary Corporation (as
the case may be) for any reason, including retirement but excluding death,
the participant’s payroll deductions accumulated prior to such
termination, if any, shall be applied toward purchasing full and deemed
fractional shares of Common Stock in the then-current Offering Period so
long as the Exercise Date with respect to such Offering Period occurs on
or within three months following such termination; provided, however, that
(1) the participant may request in writing to have the accumulated payroll
deductions and cash in lieu of deemed fractional shares returned to him or
her, and (2) upon termination of a participant’s employment with the
Company or any Designated Subsidiary Corporation (as the case may be) as a
result of the participant’s death, the participant’s payroll deductions
accumulated prior to such termination and cash in lieu of deemed
fractional shares shall be paid to his or her
estate.
|
9.01
|
Payment of
Interest
. No interest will be paid or allowed on any
money paid into the Plan or credited to the account of or distributed to
any participant.
|
10.01
|
Participant’s Interest
in Option Stock
. No participant will have any interest
in shares of Common Stock covered by any option held by such participant
until such option has been exercised as provided in Section 7.01
above.
|
10.02
|
Registration of
Stock
. Shares of Common Stock purchased by a participant
under the Plan will be recorded in the name of the participant, or, if the
participant so directs by written notice to the Plan Representative prior
to the applicable Exercise Date, in the names of the participant and the
participant’s spouse as joint tenants with rights of survivorship or as
tenants by the entireties, to the extent permitted by applicable
law.
|
10.03
|
Restrictions on
Exercise
. The Board may, in its discretion, require as
conditions to the exercise of any option that the shares of Common Stock
reserved for issuance upon the exercise of such option shall have been
duly listed, upon official notice of issuance, upon a stock exchange or
market, and that either:
|
|
10.03.1
|
a
registration statement under the Securities Act of 1933, as amended, with
respect to said shares shall be effective,
or
|
10.03.2
|
the
participant shall have represented at the time of purchase, in form and
substance satisfactory to the Company, that it is his or her intention to
purchase the shares for investment and not for resale or
distribution.
|
|
ARTICLE
XI
|
|
ADMINISTRATION
|
11.01
|
Appointment of
Committee
. The Plan shall be administered by the Board
or a Committee of members of the Board appointed by the
Board. The Board or its Committee shall have full and exclusive
discretionary authority to construe, interpret and apply the terms of the
Plan, to determine eligibility and to adjudicate all disputed claims filed
under the Plan. Every finding, decision and determination made
by the Board or its Committee shall, to the full extent permitted by law,
be final and binding upon all
parties.
|
11.02
|
Authority of
Committee
. Subject to the express provisions of the
Plan, the Committee shall have plenary authority in its discretion to
interpret and construe any and all provisions of the Plan, to adopt rules
and regulations for administering the Plan, and to make all other
determinations deemed necessary or advisable for administering the
Plan. The Committee’s determination of the foregoing matters
shall be conclusive. Except as otherwise prohibited by
applicable law, the Committee may delegate some or all of its authority
specified herein to the Plan
Representative.
|
11.03
|
Rules Governing the
Administration of the Committee
. The Board may from time
to time appoint members of the Committee in substitution for or in
addition to members previously appointed and may fill vacancies, however
caused, in the Committee. The Committee may select one of its
members as its chairman, shall hold its meetings at such times and places
as it shall deem advisable, and may hold telephonic
meetings. All determinations of the Committee shall be made by
a majority of its members. A decision or determination reduced
to writing and signed by a majority of the members of the Committee shall
be as fully effective as if it had been made by a majority vote at a
meeting duly called and held. The Committee may appoint a
secretary and shall make such rules and regulations for the conduct of its
business as it shall deem
advisable.
|
11.04
|
Rules and Procedures
Applicable to Offering Periods
. The Committee shall have
the authority and discretion to adopt rules and procedures applicable to
one or more Offering Periods under the Plan. Any such rules and
procedures shall be established by the Committee and communicated to
participants in advance of any Offering Period to which they
apply. Such rules and procedures may, in the discretion of the
Committee, cause the options granted under any such Offering Period to be
options to which Section 423 of the Code does not
apply.
|
|
ARTICLE
XII
|
|
FOREIGN
JURISDICTIONS
|
13.01
|
Transferability
. Neither
payroll deductions credited to any participant’s account nor any option or
other rights with regard to the exercise of an option to receive Common
Stock under the Plan may be assigned, transferred, pledged, or otherwise
disposed of in any way by the participant other than by will or the laws
of descent and distribution. Any such attempted assignment,
transfer, pledge or other disposition shall be without effect except that
the Company may, in its discretion, treat such act as an election to
withdraw from participation in the Plan in accordance with Section
8.01.
|
13.02
|
Use of
Funds
. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate
purpose. The Company shall not segregate such payroll
deductions.
|
13.03
|
Adjustment Upon
Changes in Capitalization; Change in
Control.
|
13.03.1
|
Changes in
Capitalization
. Subject to any required action by the
stockholders of the Company, the Reserves, the maximum number of shares
each participant may purchase per Offering Period (pursuant to Section
6.01), as well as the Purchase Price and the number of shares of Common
Stock covered by each option under the Plan which has not yet been
exercised shall be proportionately adjusted for any Change in
Capitalization. Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by
the Company of shares of stock of any class shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Purchase Price of shares of Common Stock subject to an
option.
|
13.03.2
|
Change in
Control.
In the event of a Change in Control, the
Offering Period during which the Change in Control would otherwise occur
shall be accelerated and shall end on the last payroll date immediately
preceding the Change in Control.
|
13.04
|
Amendment or
Termination
. The Board shall have complete power and authority to
terminate or amend the Plan; provided, however, that the Board shall not,
without the approval of the shareholders of the Company, alter (i) the
aggregate number of shares of Common Stock which may be issued under the
Plan (except pursuant to Section 13.03 above), or (ii) the class of
Employees eligible to receive options under the Plan, other than to
designate Subsidiaries as Designated Subsidiary Corporations; and provided
further, however, that, subject to Section 13.05 no termination,
modification, or amendment of the Plan may, without the consent of an
Employee then having an option under the Plan to purchase shares of Common
Stock, adversely affect the rights of such Employee under such
option. In addition, and notwithstanding anything contained in
this Plan to the contrary, to the extent necessary under Section 423 of
the Internal Revenue Code (or any successor rule or provision or any
applicable law or regulation), the Company shall obtain stockholder
approval in such a manner and to such a degree as so
required.
|
13.05
|
The
Committee shall be entitled to change the Offering Periods, limit the
frequency and/or number of changes in the amount withheld during an
Offering Period, establish the exchange ratio applicable to amounts
withheld in a currency other than U.S. dollars, permit payroll withholding
in excess of the amount designated by a participant in order to adjust for
delays or mistakes in the Company’s processing of properly completed
withholding elections, establish reasonable waiting and adjustment periods
and/or accounting and crediting procedures to ensure that amounts applied
toward the purchase of Common Stock for each participant properly
correspond with amounts withheld from the participant’s Compensation, and
establish such other limitations or procedures as the Board (or its
committee) determines in its sole discretion advisable which are
consistent with the Plan, in each case so long as any such action is
consistent with Section 423 of the Code. None of the foregoing
actions shall be considered to have adversely affected any right of any
participant.
|
13.06
|
In
the event that the Committee determines that the ongoing operation of the
Plan may result in unfavorable financial accounting consequences, the
Committee may, in its discretion and, to the extent necessary or
desirable, modify or amend the Plan to reduce or eliminate such accounting
consequence including, but not limited
to:
|
13.06.1
|
changing
the Purchase Price for any Offering Period including an Offering Period
underway at the time of the change in Purchase
Price;
|
13.06.2
|
shortening
any Offering Period so that the Offering Period ends on a new Exercise
Date, including an Offering Period underway at the time of such action;
and
|
13.06.3
|
allocating
shares of Common Stock to participants pursuant to Section 7.01
hereof.
|
13.07
|
Notices
. All
notices or other communications by a participant to the Company under or
in connection with the Plan shall be deemed to have been duly given when
received in the form specified by the Company by the Plan
Representative.
|
13.08
|
Conditions Upon
Issuance of Shares
. Shares shall not be issued with
respect to an option unless the exercise of such option and the issuance
and delivery of such shares pursuant thereto shall comply with all
applicable provisions of law, domestic or foreign, including, without
limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the
shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance. As a
condition to the exercise of an option, the Company may require the person
exercising such option to represent and warrant at the time of any such
exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by
any of the aforementioned applicable provisions of
law.
|
13.09
|
Effective
Date
. The Plan shall become effective as of its adoption
by the Board, subject to approval by the holders of a majority of the
shares of Common Stock, and shall continue in effect until the shares of
Common Stock reserved for issuance under the Plan have been depleted,
unless sooner terminated under Section 13.04 hereof. If the
Plan is not so approved, the Plan shall not become
effective.
|
13.10
|
No Employment
Rights
. The Plan does not, directly or indirectly,
create in any person any right with respect to employment or continuation
of employment by the Company or any Subsidiary, and it shall not be deemed
to interfere in any way with the Company’s or any Subsidiary’s right to
terminate, or otherwise modify, any Employee’s employment at any
time.
|
13.11
|
Effect of
Plan
. The provisions of the Plan shall, in accordance
with its terms, be binding upon, and inure to the benefit of, all
successors of each Employee participating in the Plan, including, without
limitation, such Employee’s estate and the executors, administrators or
trustees thereof, heirs and legatees, and any receiver, trustee in
bankruptcy or representative of creditors of such
Employee.
|
13.12
|
Governing
Law
. The law of the State of Delaware will govern all
matters relating to this Plan except to the extent superseded by the
federal laws of the United States.
|
|
|
|
|
|
|
|
|
2.01.
|
Definitions
.
|
2.02.
|
Interpretation and
Construction of Terms
.
|
2.03.
|
Special
Effective Dates
.
|
3.01.
|
Crediting
of Eligibility Service
.
|
3.02.
|
Re-Crediting
of Eligibility Service Following Termination of Employment
.
|
3.03.
|
Crediting
of Vesting Service
.
|
3.04.
|
Application
of Vesting Service to a Participant's Account Following a Break in Vesting
Service
.
|
3.05.
|
Service
with Predecessor Employer
.
|
3.06.
|
Change
in Service Crediting
.
|
4.01.
|
Date
of Participation
.
|
4.02.
|
Transfers
Out of Covered Employment
.
|
4.03.
|
Transfers
Into Covered Employment
.
|
4.04.
|
Resumption
of Participation Following Reemployment
.
|
5.01.
|
Contributions
Subject to Limitations
.
|
5.02.
|
Compensation
Taken into Account in Determining Contributions
.
|
5.03.
|
Deferral
Contributions
.
|
5.04.
|
Employee
Contributions
.
|
5.05.
|
No
Deductible Employee Contributions
.
|
5.06.
|
Rollover
Contributions
.
|
(a)
|
any
rollover of after-tax employee contributions that is not made by a direct
rollover;
|
5.07.
|
Qualified
Nonelective Employer Contributions
.
|
5.08.
|
Matching
Employer Contributions
.
|
5.09.
|
Qualified
Matching Employer Contributions
.
|
5.10.
|
Nonelective
Employer Contributions
.
|
5.11.
|
Vested
Interest in Contributions
.
|
(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.
|
5.12.
|
Time
for Making Contributions
.
|
5.13.
|
Return
of Employer Contributions
.
|
5.14.
|
Frozen
Plan
.
|
6.01.
|
Special
Definitions
.
|
(1)
|
"Contribution
percentage amounts" include the
following:
|
(A)
|
any
Employee Contributions made by an "eligible participant" to the
Plan;
|
(1)
|
"Includable
contributions" include the
following:
|
(2)
|
"Includable
contributions" shall not include the
following:
|
6.02.
|
Code
Section 402(g) Limit on Deferral Contributions
.
|
6.03.
|
Additional
Limit on Deferral Contributions ("ADP" Test)
.
|
6.04.
|
Allocation
and Distribution of "Excess Contributions"
.
|
6.05.
|
Reductions
in Deferral Contributions to Meet Code Requirements
.
|
6.06.
|
Limit
on Matching Employer Contributions and Employee Contributions ("ACP"
Test)
.
|
6.07.
|
Allocation,
Distribution, and Forfeiture of "Excess Aggregate
Contributions"
.
|
6.08.
|
Income
or Loss on Distributable Contributions
.
|
6.09.
|
Deemed
Satisfaction of "ADP" Test
.
|
6.10.
|
Deemed
Satisfaction of "ACP" Test With Respect to Matching Employer
Contributions
.
|
6.11.
|
Changing
Testing Methods
.
|
6.12.
|
Code
Section 415 Limitations
.
|
7.01.
|
Individual
Accounts
.
|
7.02.
|
Valuation
of Accounts
.
|
8.01.
|
Manner
of Investment
.
|
8.02.
|
Investment
Decisions
.
|
8.03.
|
Participant
Directions to Trustee
.
|
9.01.
|
Special
Definition
.
|
9.02.
|
Participant
Loans
.
|
9.03.
|
Separate
Loan Procedures
.
|
9.04.
|
Availability
of Loans
.
|
9.05.
|
Limitation
on Loan Amount
.
|
9.06.
|
Interest
Rate
.
|
9.07.
|
Level
Amortization
.
|
9.08.
|
Security
.
|
9.09.
|
Loan
Repayments
.
|
9.10.
|
Default
.
|
9.11.
|
Effect
of Termination Where Participant has Outstanding Loan Balance
.
|
9.12.
|
Deemed
Distributions Under Code Section 72(p)
.
|
9.13.
|
Determination
of Vested Interest Upon Distribution Where Plan Loan is
Outstanding
.
|
10.01.
|
Availability
of In-Service Withdrawals
.
|
10.02.
|
Withdrawal
of Employee Contributions
.
|
10.03.
|
Withdrawal
of Rollover Contributions
.
|
10.04.
|
Age
59 1/2 Withdrawals
.
|
10.05.
|
Hardship
Withdrawals
.
|
10.06.
|
Preservation
of Prior Plan In-Service Withdrawal Rules
.
|
10.07.
|
Restrictions
on In-Service Withdrawals
.
|
11.01.
|
Normal
or Early Retirement
.
|
11.02.
|
Late
Retirement
.
|
11.03.
|
Disability
Retirement
.
|
11.04.
|
Death
.
|
11.05.
|
Other
Termination of Employment
.
|
11.06.
|
Application
for Distribution
.
|
11.07.
|
Application
of Vesting Schedule Following Partial Distribution
.
|
11.08.
|
Forfeitures
.
|
11.09.
|
Application
of Forfeitures
.
|
11.10.
|
Reinstatement
of Forfeitures
.
|
11.11.
|
Adjustment
for Investment Experience
.
|
12.01.
|
Restrictions
on Distributions
.
|
12.02.
|
Timing
of Distribution Following Retirement or Termination of
Employment
.
|
12.03.
|
Participant
Consent to Distribution
.
|
12.04.
|
Required
Commencement of Distribution to
Participants
.
|
12.05.
|
Required
Commencement of Distribution to Beneficiaries
.
|
12.06.
|
Whereabouts
of Participants and Beneficiaries
.
|
13.01.
|
Normal
Form of Distribution Under Profit Sharing Plan
.
|
13.02.
|
Cash
Out Of Small Accounts
.
|
13.03.
|
Minimum
Distributions
.
|
13.04.
|
Direct
Rollovers
.
|
13.05.
|
Notice
Regarding Timing and Form of Distribution
.
|
13.06.
|
Determination
of Method of Distribution
.
|
13.07.
|
Notice
to Trustee
.
|
14.01.
|
Special
Definitions
.
|
14.02.
|
Applicability
.
|
14.03.
|
Annuity
Form of Payment
.
|
14.04.
|
"Qualified
Joint and Survivor Annuity" and "Qualified Preretirement Survivor Annuity"
Requirements
.
|
14.05.
|
Waiver
of the "Qualified Joint and Survivor Annuity" and/or "Qualified
Preretirement Survivor Annuity" Rights
.
|
14.06.
|
Spouse's
Consent to Waiver
.
|
14.07.
|
Notice
Regarding "Qualified Joint and Survivor Annuity"
.
|
14.08.
|
Notice
Regarding "Qualified Preretirement Survivor Annuity"
.
|
14.09.
|
Former
Spouse
.
|
15.01.
|
Definitions
.
|
15.02.
|
Application
.
|
15.03.
|
Minimum
Contribution
.
|
15.04.
|
Determination
of Minimum Required Contribution
.
|
15.05.
|
Accelerated
Vesting
.
|
15.06.
|
Exclusion
of Collectively-Bargained Employees
.
|
16.01.
|
Amendments
by the Employer that do Not Affect Volume submitter Status
.
|
16.02.
|
Amendments
by the Employer Adopting Provisions not Included in Volume Submitter
Specimen Plan
.
|
16.03.
|
Amendment
by the Volume Submitter Sponsor
.
|
16.04.
|
Amendments
Affecting Vested Interest and/or Accrued Benefits
.
|
16.05.
|
Retroactive
Amendments made by Volume Submitter Sponsor
.
|
16.06.
|
Termination
and Discontinuation of Contributions
.
|
16.07.
|
Distribution
upon Termination of the Plan
.
|
16.08.
|
Merger
or Consolidation of Plan; Transfer of Plan Assets
.
|
17.01.
|
Amendment
and Continuation of Prior Plan
.
|
17.02.
|
Transfer
of Funds from an Existing Plan
.
|
(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));
|
(b)
|
(1) The
transfer satisfies the requirements of subsection (a)(1) of this
Section 17.02;
|
17.03.
|
Acceptance
of Assets by Trustee
.
|
17.04.
|
Transfer
of Assets from Trust
.
|
(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));
|
(2)
|
(i) The
transfer satisfies the requirements of subsection (1)(i) of this
Section 17.04;
|
18.01.
|
Communication
to Participants
.
|
18.02.
|
Limitation
of Rights
.
|
18.03.
|
Nonalienability
of Benefits
.
|
18.04.
|
Qualified
Domestic Relations Orders Procedures
.
|
18.05.
|
Application
of Plan Provisions for Multiple Employer Plans
.
|
18.06.
|
Veterans
Reemployment Rights
.
|
18.07.
|
Facility
of Payment
.
|
18.08.
|
Information
between Employer and/or Administrator and Trustee
.
|
18.09.
|
Effect
of Failure to Qualify Under Code
.
|
18.10.
|
Directions,
Notices and Disclosure
.
|
18.11.
|
Governing
Law
.
|
18.12.
|
Discharge
of Duties by Fiduciaries
.
|
19.01.
|
Powers and
Responsibilities of the
Administrator
.
|
19.02.
|
Nondiscriminatory
Exercise of Authority
.
|
19.03.
|
Claims
and Review Procedures
.
|
19.04.
|
Named
Fiduciary
.
|
19.05.
|
Costs
of Administration
.
|
20.01.
|
Acceptance
of Trust Responsibilities
.
|
20.02.
|
Establishment
of Trust Fund
.
|
20.03.
|
Exclusive
Benefit
.
|
20.04.
|
Powers
of Trustee
.
|
20.05.
|
Accounts
.
|
20.06.
|
Approval
of Accounts
.
|
20.07.
|
Distribution
from Trust Fund
.
|
20.08.
|
Transfer
of Amounts from Qualified Plan
.
|
20.09.
|
Transfer
of Assets from Trust
.
|
20.10.
|
Separate
Trust or Fund for Existing Plan Assets
.
|
20.11.
|
Self-Directed
Brokerage Option
.
|
20.12.
|
Employer
Stock Investment Option
.
|
20.13.
|
Voting;
Delivery of Information
.
|
20.14.
|
Compensation
and Expenses of Trustee
.
|
20.15.
|
Reliance
by Trustee on Other Persons
.
|
20.16.
|
Indemnification
by Employer
.
|
20.17.
|
Consultation
by Trustee with Counsel
.
|
20.18.
|
Persons
Dealing with the Trustee
.
|
20.19.
|
Resignation
or Removal of Trustee
.
|
20.20.
|
Fiscal
Year of the Trust
.
|
20.21.
|
Amendment
.
|
20.22.
|
Plan
Termination
.
|
20.23.
|
Permitted
Reversion of Funds to Employer
.
|
20.24.
|
Governing
Law
.
|
20.25.
|
Assignment
and Successors
.
|
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:
|
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:
|
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.
|
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.
|
Effective
August 25, 2005, a new Section 10.08 is added at the end of Article 10 to
provide as follows:
|
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).
|
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—
|
(a)
|
The
later of—
|
(i)
|
January
1, 2008, 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)
|
January
1, 2009.
|
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.
|
(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).
|
(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.
|
|
(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
|
1.01
|
plan
information
|
(a)
|
Name of
Plan
:
|
(b)
|
Type of
Plan
:
|
(1)
|
¨
401(k)
Only
|
(2)
|
þ
401(k)
and Profit Sharing
|
(3)
|
¨
Profit
Sharing Only
|
(c)
|
Administrator
Name (if not the Employer):
|
(d)
|
Plan Year
End
(month/day)
:
12/31
|
(e)
|
Three Digit
Plan
Number
:
001
|
(f)
|
Limitation
Year
(check one):
|
(1)
|
¨
Calendar
Year
|
(2)
|
þ
Plan
Year
|
(3)
|
¨
Other:
|
(g)
|
Plan Status
(check appropriate box(es)):
|
(1)
|
Adoption
Agreement Effective
Date:
01/01/2010
|
(2)
|
The
Adoption Agreement Effective Date
is:
|
(i)
|
¨
an
amendment and restatement of this Basic Plan Document No. 14 and its
Adoption Agreement previously executed by the
Employer;
|
(ii)
|
þ
a
conversion from Fidelity Basic Plan Document No. 02 and its Adoption
Agreement to Basic Plan Document No. 14 and its Adoption Agreement;
or
|
(iii)
|
¨
a
conversion to Basic Plan Document No. 14 and its Adoption
Agreement.
|
|
The
original effective date of the Plan:
5/1/2000
|
(3)
|
þ
Special Effective
Dates.
Certain
provisions of the Plan shall be effective as of a date other than the date
specified in Subsection 1.01(g)(1) above. Please complete the
Special Effective Dates Addendum to the Adoption Agreement indicating the
affected provisions and their effective
dates.
|
(4)
|
¨
Plan Merger Effective
Dates
.
Certain
plan(s) were merged into the Plan on or after the date specified in
Subsection 1.01(g)(1) above. The merged plans are listed in the Plan
Mergers Addendum. Please complete the appropriate subsection(s)
of the Plan Mergers Addendum to the Adoption Agreement indicating the
plan(s) that have merged into the Plan and the effective date(s) of such
merger(s).
|
(5)
|
¨
Frozen Plan.
The Plan is
currently frozen. Unless the Plan is amended in the future to provide
otherwise, no further contributions shall be made to the
Plan. Plan assets will continue to be held on behalf of
Participants and their Beneficiaries until distributed in accordance with
the Plan terms.
(If this
provision is selected, it will override any conflicting provision selected
in the Adoption Agreement.)
|
1.02
|
employer
|
(a)
|
Employer
Name
:
Cabot Microelectronics
Corporation
|
(b)
|
The term
"Employer" includes the following participating employers
(choose one)
:
|
(1)
|
¨
No
other employers participate in the
Plan.
|
(2)
|
þ
Certain
other employers participate in the Plan. Please complete the
Participating Employers Addendum.
|
1.03
|
trustee
|
(a)
|
Trustee
Name
:
Fidelity Management Trust
Company
|
1.04
|
coverage
|
(a)
|
Age Requirement
(check
one):
|
(1)
|
¨
no
age requirement.
|
(2)
|
þ
must
have attained age:
21
(not to exceed
21).
|
(b)
|
Eligibility
Service Requirement(s) -
There shall be no eligibility service
requirements for contributions to the Plan unless selected below
(check
one):
|
(1)
|
¨
(
not to exceed 365
) days
of Eligibility Service requirement (no minimum Hours of Service can be
required)
|
(2)
|
¨
(
not to exceed 12
) months
of Eligibility Service requirement (no minimum Hours of Service can be
required)
|
(3)
|
¨
one
year of Eligibility Service requirement (at least
(not to exceed 1,000)
Hours of Service are required during the Eligibility Computation
Period
)
|
(4)
|
¨
two
years of Eligibility Service requirement (at least
(not to exceed 1,000)
Hours of Service are required during each Eligibility Computation
Period)
(If Option
1.07(a) is elected, only one year of Eligibility Service is required for
Deferral Contributions
.)
|
(5)
|
¨
Hours of Service Crediting.
Hours of Service will be credited in accordance with the
equivalency selected in the Hours of Service Equivalencies Addendum rather
than in accordance with the equivalency described in Subsection 2.01(dd)
of the Basic Plan Document. Please complete the Hours of Service
Equivalencies Addendum.
|
(c)
|
Eligibility
Computation Period
- The Eligibility Computation Period is the
12-consecutive-month period beginning on an Employee's Employment
Commencement Date and each 12-consecutive-month period beginning on an
anniversary of his Employment Commencement
Date.
|
(d)
|
Eligible
Class of Employees
:
|
(1)
|
Generally,
the Employees eligible to participate in the Plan are (choose
one):
|
(A)
|
þ
all
Employees of the Employer.
|
(B)
|
¨
only
Employees of the Employer who are covered by (choose
one):
|
(i)
|
¨
any
collective bargaining agreement with the Employer, provided that the
agreement requires the employees to be included under the Plan
.
|
(ii)
|
¨
the
following collective bargaining agreement(s) with the
Employer:
|
(2)
|
þ
Notwithstanding
the selection in Subsection 1.04(d)(1) above, certain Employees of the
Employer are excluded from participation in the Plan (check the
appropriate box(es)):
|
(A)
|
þ
employees
covered by a collective bargaining agreement, unless the agreement
requires the employees to be included under the Plan.
(Do not
choose if Option 1.04(d)(1)(B) is selected above
.)
|
(B)
|
¨
Highly
Compensated Employees as defined in Subsection 2.01(cc) of the Basic
Plan Document.
|
(C)
|
þ
Leased
Employees as defined in Subsection 2.01(ff) of the Basic Plan
Document.
|
(D)
|
þ
nonresident
aliens who do not receive any earned income from the Employer which
constitutes United States source
income.
|
(E)
|
¨
other:
|
(i)
|
¨
Notwithstanding
this exclusion, any Employee who is excluded from participation solely
because he is in a group described below shall become an Eligible Employee
eligible to participate in the Plan on the Entry Date coinciding with or
immediately following the date on which he first satisfies the following
requirements: (I) he attains age 21 and (II) he completes at least 1,000
Hours of Service during an Eligibility Computation Period. This Subsection
1.04(d)(2)(E)(i) applies to the following excluded Employees
(Must
choose if an exclusion in (E) above directly or indirectly imposes an age
and/or service requirement for participation, for example by excluding
part-time or temporary
employees):
|
(e)
|
Entry
Date(s) -
The Entry Date(s) shall be
(check
one):
|
(1)
|
¨
the
first day of each Plan Year and the first day of the seventh month of each
Plan Year
|
(2)
|
¨
the
first day of each Plan Year and the first day of the fourth, seventh, and
tenth months of each Plan Year
|
(3)
|
¨
the
first day of each month
|
(4)
|
þ
immediate
upon meeting the eligibility requirements specified in Subsections 1.04(a)
and 1.04(b)
|
(5)
|
¨
the
first day of each Plan Year (Do not select if there is an Eligibility
Service requirement of more than six months in Subsection 1.04(b) for the
type(s) of contribution or if there is an age requirement of more than 20
1/2 in Subsection 1.04(a) for the type(s) of
contribution.)
|
(f)
|
Date of
Initial Participation
- An Employee shall become a Participant
unless excluded by Subsection 1.04(d) above on the Entry Date coinciding
with or immediately following the date the Employee completes the service
and age requirement(s) in Subsections 1.04(a) and (b), if any, except
(check one):
|
(1)
|
þ
no
exceptions.
|
(2)
|
¨
Employees
employed on
(insert
date)
shall become Participants on that
date.
|
(3)
|
¨
Employees
who meet the age and service requirement(s) of Subsections 1.04(a) and (b)
on
(insert
date)
shall become Participants on that
date.
|
1.05
|
compensation
|
(a)
|
Compensation
Exclusions
-
Compensation shall exclude the item(s) selected
below.
|
(1)
|
¨
No
exclusions.
|
(2)
|
¨
Overtime
pay.
|
(3)
|
¨
Bonuses.
|
(4)
|
¨
Commissions.
|
(5)
|
¨
The
value of restricted stock or of a qualified or a non-qualified stock
option granted to an Employee by the Employer to the extent such value is
includable in the Employee's taxable
income.
|
(6)
|
¨
Severance
pay received prior to termination of employment.
(Severance pay received
following termination of employment is always excluded for purposes of
contributions
.)
|
(7)
|
þ
see
Additional Provisions Addendum
.
|
(b)
|
Compensation
for the First Year of Participation
- Contributions for the Plan
Year in which an Employee first becomes a Participant shall be determined
based on the Employee's Compensation as provided below. (Complete by
checking the appropriate boxes.)
|
(1)
|
¨
Compensation
for the entire Plan Year. (Complete (A) below, if applicable,
with regard to the initial Plan Year of the
Plan.)
|
(A)
|
¨
For
purposes of determining the amount of Nonelective Employer Contributions,
other than 401(k) Safe Harbor Nonelective Employer Contributions, for all
Employees who become Active Participants during the initial Plan Year,
Compensation for the 12-month period ending on the last day of the initial
Plan Year shall be used.
|
(2)
|
þ
Only
Compensation for the portion of the Plan Year in which the Employee is
eligible to participate in the Plan. (Complete (A) below, if
applicable, with regard to the initial Plan Year of the
Plan.)
|
(A)
|
¨
For
purposes of determining the amount of Nonelective Employer Contributions,
other than 401(k) Safe Harbor Nonelective Employer Contributions, for
those Employees who become Active Participants on the Effective Date of
the Plan, Compensation for the 12-month period ending on the last day of
the initial Plan Year shall be used. For all other Employees, only
Compensation for the period in which they are eligible shall be
used.
|
1.06
|
testing
rules
|
(a)
|
ADP/ACP
Present Testing Method -
The testing method for purposes of
applying the "ADP" and "ACP" tests described in Sections 6.03 and
6.06 of the Basic Plan Document shall be the (check
one):
|
(1)
|
þ
Current Year Testing Method
-
The "ADP" or "ACP" of Highly Compensated Employees for the Plan
Year shall be compared to the "ADP" or "ACP" of Non-Highly Compensated
Employees for the same Plan Year.
(Must
choose if Option 1.11(a)(3), 401(k) Safe Harbor Matching Employer
Contributions, or Option 1.12(a)(3), 401(k) Safe Harbor Formula, with
respect to Nonelective Employer Contributions is
checked.)
|
(2)
|
¨
Prior Year Testing Method -
The "ADP" or "ACP" of Highly Compensated Employees for the Plan
Year shall be compared to the "ADP" or "ACP" of Non-Highly Compensated
Employees for the immediately preceding Plan Year.
(Do
not
choose if
Option 1.10(a)(1), alternative allocation formula for Qualified
Nonelective Contributions.
)
|
(3)
|
¨
Not
applicable.
(Only if
Option 1.01(b)(3), Profit Sharing Only, is checked and Option 1.08(a)(1),
Future Employee Contributions, and Option 1.11(a), Matching Employer
Contributions, are
not
checked or
Option 1.04(d)(2)(B), excluding all Highly Compensated Employees from the
eligible class of Employees, is
checked.)
|
(b)
|
First Year
Testing Method -
If the first Plan Year that the Plan, other than a
successor plan, permits Deferral Contributions or provides for either
Employee or Matching Employer Contributions, occurs on or after the
Effective Date specified in Subsection 1.01(g), the "ADP" and/or
"ACP" test for such first Plan Year shall be applied using the actual
"ADP" and/or "ACP" of Non-Highly Compensated Employees for such first Plan
Year, unless otherwise provided
below.
|
(1)
|
¨
The
"ADP" and/or "ACP" test for the first Plan Year that the Plan permits
Deferral Contributions or provides for either Employee or Matching
Employer Contributions shall be applied assuming a 3% "ADP" and/or "ACP"
for Non-Highly Compensated Employees.
(Do not
choose unless Plan uses prior year testing method described in
Subsection 1.06(a)(2).)
|
(c)
|
HCE
Determinations: Look Back Year -
The look back year for
purposes of determining which Employees are Highly Compensated Employees
shall be the 12-consecutive-month period preceding the Plan Year unless
otherwise provided below.
|
(1)
|
¨
Calendar Year Determination
-
The look back year shall be the calendar year beginning within
the preceding Plan Year.
(Do not
choose if the Plan Year is the calendar year
.)
|
(d)
|
HCE
Determinations: Top Paid Group Election -
All Employees
with Compensation exceeding 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)
shall
be considered Highly Compensated Employees, unless Top Paid Group Election
below is checked.
|
(1)
|
þ
Top Paid Group Election
-
Employees with Compensation exceeding 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 shall be considered Highly Compensated Employees
only if they are in the top paid group (the top 20% of Employees ranked by
Compensation).
|
1.07
|
deferral
contributions
|
(a)
|
þ
Deferral
Contributions -
Participants may elect to have a portion of their
Compensation contributed to the Plan on a before-tax basis pursuant to
Code Section 401(k). Pursuant to Subsection 5.03(a) of the Basic Plan
Document, if Catch-Up Contributions are selected below, the Plan’s
deferral limit is 75%, unless the Employer elects an alternative deferral
limit in Subsection 1.07(a)(1)(A) below. If Catch-Up
Contributions are selected below, and the Employer has specified a
percentage in Subsection 1.07(a)(1)(A) that is less than 75%, a
Participant eligible to make Catch-Up Contributions shall (subject to the
statutory limits in Treasury Regulation Section 1.414-1(v)(1)(i)) in any
event be permitted to contribute in excess of the specified deferral limit
up to 100% of the Participant's "effectively available Compensation"
(
i.e.,
Compensation available after other withholding), as required by Treasury
Regulation Section
1.414(v)-1(e)(1)(ii)(B).
|
(1)
|
Regular Contributions -
The Employer shall make a Deferral Contribution in accordance with
Section 5.03 of the Basic Plan Document on behalf of each Participant
who has an executed salary reduction agreement in effect with the Employer
for the payroll period in question. Such Deferral Contribution shall not
exceed the deferral limit specified in Subsection 5.03(a) of the Basic
Plan Document or in Subsection 1.07(a)(1)(A) below, as applicable. Check
and complete the appropriate box(es), if
any.
|
(A)
|
þ
The
deferral limit is
60
%
(must be a
whole number multiple of one percent)
of
Compensation.
(Unless a
different deferral limit is specified, the deferral limit shall be 75%. If
Option 1.07(a)(4), Catch-Up Contributions, is selected below, complete
only if deferral limit is other than
75%.)
|
(B)
|
þ
Instead
of specifying a percentage of Compensation, a Participant's salary
reduction agreement may specify a dollar amount to be contributed each
payroll period, provided such dollar amount does not exceed the maximum
percentage of Compensation specified in Subsection 5.03(a) of the Basic
Plan Document or in Subsection 1.07(a)(1)(A) above, as
applicable.
|
(C)
|
A
Participant may increase or decrease, on a prospective basis, his salary
reduction agreement percentage or, if Roth 401(k) Contributions are
selected in Subsection 1.07(a)(5) below, the portion of his Deferral
Contributions designated as Roth 401(k) Contributions (check
one):
|
(i)
|
þ
as
of the beginning of each payroll
period.
|
(ii)
|
¨
as
of the first day of each month.
|
(iii)
|
¨
as
of each Entry Date
.
(Do not
select if immediate entry is elected with respect to Deferral
Contributions in
Subsection 1.04(e).)
|
(iv)
|
¨
as
of the first day of each calendar
quarter.
|
(v)
|
¨
as
of the first day of each Plan Year.
|
(vi)
|
¨
other. (Specify,
but must be at least once per Plan
Year).
|
(D)
|
A
Participant may revoke, on a prospective basis, a salary reduction
agreement at any time upon proper notice to the Administrator but in such
case may not file a new salary reduction agreement until (check
one):
|
(i)
|
þ
the
beginning of the next payroll
period.
|
(ii)
|
¨
the
first day of the next month.
|
(iii)
|
¨
the
next Entry Date
.
(Do not
select if immediate entry is elected with respect to Deferral
Contributions in
Subsection 1.04(e).)
|
(iv)
|
¨
as
of the first day of each calendar
quarter.
|
(v)
|
¨
as
of the first day of each Plan Year.
|
(vi)
|
¨
other. (Specify,
but must be at least once per Plan
Year).
|
(2)
|
¨
Additional Deferral
Contributions -
The Employer shall allow
a Participant upon
proper notice and approval to enter into a special salary reduction
agreement to make additional Deferral Contributions in an amount up to
100% of their effectively available Compensation for the payroll period(s)
designated by the Employer.
|
(3)
|
¨
Bonus Contributions -
The Employer shall allow a Participant upon proper notice and approval to
enter into a special salary reduction agreement to make Deferral
Contributions in an amount up to 100% of any Employer paid cash bonuses
designated by the Employer on a uniform and nondiscriminatory basis that
are made for such Participants during the Plan Year. The
Compensation definition elected by the Employer in Subsection 1.05(a)
must include bonuses if bonus contributions are permitted. Unless a
Participant has entered into a special salary reduction agreement with
respect to bonuses, the percentage deferred from any Employer paid cash
bonus shall be (check (A) or (B)
below):
|
(A)
|
¨
Zero.
|
(B)
|
¨
The
same percentage elected by the Participant for his regular contributions
in accordance with Subsection 1.07(a)(1) above or deemed to have been
elected by the Participant in accordance with Option 1.07(a)(6)
below.
|
(4)
|
þ
Catch-Up Contributions -
The following Participants who have attained or are expected to attain age
50 before the close of the calendar year will be permitted to make
Catch-Up Contributions to the Plan, as described in Subsection 5.03(a) of
the Basic Plan Document:
|
(A)
|
þ
All
such Participants.
|
(B)
|
¨
All
such Participants except those covered by a collective-bargaining
agreement under which retirement benefits were a subject of good faith
bargaining unless the bargaining agreement specifically provides for
Catch-Up Contributions to be made on behalf of such
Participants.
|
(5)
|
¨
Roth 401(k)
Contributions.
Participants
shall be permitted to irrevocably designate pursuant to Subsection 5.03(b)
of the Basic Plan Document that a portion or all of the Deferral
Contributions made under this Subsection 1.07(a) are Roth 401(k)
Contributions that are includable in the Participant's gross income at the
time deferred
.
|
(6)
|
þ
Automatic
Enrollment Contributions.
Beginning on the effective date of this
paragraph (6) (the "Automatic Enrollment Effective Date") and subject to
the remainder of this paragraph (6), unless an Eligible Employee
affirmatively elects otherwise, his Compensation will be reduced by
4
% (the
"Automatic Enrollment Rate"), such percentage to be increased in
accordance with Option 1.07(b) (if applicable), for each payroll period in
which he is an Active Participant, beginning as indicated in Subsection
1.07(a)(6)(A) below, and the Employer will make a pre-tax
Deferral Contribution in such amount on the Participant's behalf in
accordance with the provisions of Subsection 5.03(c) of the Basic
Plan Document (an "Automatic Enrollment
Contribution").
|
(A)
|
With
respect to an affected Participant, Automatic Enrollment Contributions
will begin as soon as administratively feasible on or after (check
one):
|
(i)
|
¨
The
Participant's Entry Date.
|
(ii)
|
þ
30
(minimum of
30) days following the Participant's date of hire, but no sooner than the
Participant's Entry Date.
|
(B)
|
¨
Additionally,
subject to the Note below, unless such affected Participant affirmatively
elects otherwise within the reasonable period established by the Plan
Administrator, Automatic Enrollment Contributions will be made with
respect to the Employees described below. (Check all that
apply.)
|
(i)
|
¨
Inclusion of
Previously Hired Employees
. On the later of the date
specified in Subsection 1.07(a)(6)(A) with regard to such Eligible
Employee or as soon as administratively feasible on or after the 30th day
following the Notification Date specified in Subsection
1.07(a)(6)(B)(i)(I) below, Automatic Enrollment Contributions will begin
for the following Eligible Employees who were hired before the Automatic
Enrollment Effective Date and have not had a Reemployment Commencement
Date. (Complete (I), check (II) or (III), and complete (IV), if
applicable.)
|
(I)
|
Notification
Date: _____________. (Date must be on or after the Automatic
Enrollment Effective Date.)
|
(II)
|
¨
Unless
otherwise elected in Subsection 1.07(a)(6)(B)(i)(IV) below, all such
Employees who have never had a Deferral Contribution election in
place.
|
(III)
|
¨
Unless
otherwise elected in Subsection 1.07(a)(6)(B)(i)(IV) below, all such
Employees who have never had a Deferral Contribution election in place and
were hired by the Employer before the Automatic Enrollment Effective Date,
but on or after the following date:
.
|
(IV)
|
¨
In
addition to the group of Employees elected in Subsection
1.07(a)(6)(B)(i)(II) or (III) above, any Employee described in Subsection
1.07(a)(6)(B)(i)(II) or (III) above, as applicable, even if he has had a
Deferral Contribution election in place previously, provided he is not
suspended from making Deferral Contributions pursuant to the Plan and has
a deferral rate of zero on the Notification
Date.
|
(ii)
|
¨
Inclusion of Rehired
Employees
. Unless otherwise stated herein, each Eligible Employee
having a Reemployment Commencement Date on the date indicated in
Subsection 1.07(a)(6)(A) above. If Subsection
1.07(a)(6)(B)(i)(III) is selected, only such Employees with a Reemployment
Commencement on or after the date specified in Subsection
1.07(a)(6)(B)(i)(III) will be automatically enrolled. If
Subsection 1.07(a)(6)(B)(i) is not selected, only such Employees with a
Reemployment Commencement on or after the Automatic Enrollment Effective
Date will be automatically enrolled. If Subsection 1.07(a)(6)(A)(ii) has
been elected above, for purposes of Subsection 1.07(a)(6)(A) only, such
Employee’s Reemployment Commencement Date will be treated as his date of
hire.
|
(b)
|
¨
Automatic
Deferral Increase: (Choose only if Automatic Enrollment Contributions are
selected in Option 1.07(a)(6) above) -
Unless an Eligible Employee
affirmatively elects otherwise after receiving appropriate notice,
Deferral Contributions for each Active Participant having Automatic
Enrollment Contributions made on his behalf
shall
be increased annually by the whole percentage of Compensation stated in
Subsection 1.07(b)(1) below until the deferral percentage stated in
Subsection 1.07(a)(1) is reached (except that the increase will be limited
to only the percentage needed to reach the limit stated in Subsection
1.07(a)(1), if applying the percentage in Subsection 1.07(b)(1) would
exceed the limit stated in Subsection 1.07(a)(1)), unless the Employer has
elected a lower percentage limit in Subsection 1.07(b)(2)
below.
|
(1)
|
Increase
by _____%
(not to exceed
10%)
of Compensation. Such increased Deferral
Contributions shall be pre-tax Deferral
Contributions.
|
(2)
|
¨
Limited
to
% of
Compensation
(not to
exceed the percentage indicated in Subsection
1.07(a)(1)).
|
(3)
|
Notwithstanding
the above, the automatic deferral increase shall not apply to a
Participant within the first six months following the date upon which
Automatic Enrollment Contributions begin for such
Participant.
|
1.08
|
employee contributions
(after tax-contributions)
|
(a)
|
¨
Future
Employee Contributions -
Participants may
make voluntary, non-deductible, after-tax Employee Contributions pursuant
to Section 5.04 of the Basic Plan Document. The Employee Contribution made
on behalf of an Active Participant each payroll period shall not exceed
the contribution limit specified in Subsection 1.08(a)(1)
below.
|
(1)
|
The
contribution limit is _____%
(must be a
whole number multiple of one percent)
of
Compensation.
|
(b)
|
¨
Frozen
Employee Contributions
-
Participants may not
currently make after-tax Employee Contributions to the Plan, but the
Employer does maintain frozen Employee Contributions
Accounts.
|
1.09
|
rollover
contributions
|
(a)
|
þ
Rollover
Contributions -
Employees may roll over eligible amounts from other
qualified plans to the Plan subject to the additional following
requirements:
|
(1)
|
þ
The
Plan will not accept rollovers of after-tax employee
contributions.
|
(2)
|
þ
The
Plan will not accept rollovers of designated Roth contributions.
(Must be
selected if Roth 401(k) Contributions are not elected in Subsection
1.07(a)(5).)
|
1.10
|
qualified nonelective
employer contributions
|
(a)
|
Qualified
Nonelective Employer Contributions –
If any of the following
Options is checked: 1.07(a), Deferral Contributions,
1.08(a)(1), Future Employee Contributions or 1.11(a), Matching Employer
Contributions, the Employer may contribute an amount which it designates
as a Qualified Nonelective Employer Contribution to be included in the
"ADP" or "ACP" test. Unless otherwise provided below, Qualified
Nonelective Employer Contributions shall be allocated to all Participants
who were eligible to participate in the Plan at any time during the Plan
Year and are Non-Highly Compensated Employees in the ratio which each such
Participant's "testing compensation", as defined in Subsection 6.01(r) of
the Basic Plan Document, for the Plan Year bears to the total of all such
Participants' "testing compensation" for the Plan
Year.
|
(1)
|
þ
Qualified
Nonelective Employer Contributions shall be allocated only among those
Participants who are Non-Highly Compensated Employees and are designated
by the Employer as eligible to receive a Qualified Nonelective Employer
Contribution for the Plan Year. The amount of the Qualified
Nonelective Employer Contribution allocated to each such Participant shall
be as designated by the Employer, but not in excess of the "regulatory
maximum." The "regulatory maximum" means 5% (10% for Qualified Nonelective
Contributions made in connection with the Employer's obligation to pay
prevailing wages under the Davis-Bacon Act) of the "testing compensation"
for such Participant for the Plan Year. The "regulatory maximum" shall
apply separately with respect to Qualified Nonelective Contributions to be
included in the "ADP" test and Qualified Nonelective Contributions to be
included in the "ACP" test.
(Cannot be
selected if the Employer has elected prior year testing in Subsection
1.06(a)(2).)
|
1.11
|
matching employer
contributions
|
(a)
|
þ
Matching
Employer Contributions
- The Employer shall make Matching Employer
Contributions on behalf of each of its "eligible" Participants as provided
in this Section 1.11. For purposes of this Section 1.11, an "eligible"
Participant means any Participant who is an Active Participant during the
Contribution Period and who satisfies the requirements of Subsection
1.11(e) or Section 1.13. (Check
one):
|
(1)
|
þ
Non-Discretionary Matching
Employer Contributions -
The Employer shall make a Matching
Employer Contribution on behalf of each "eligible" Participant in an
amount equal to the following percentage of the eligible contributions
made by the "eligible" Participant during the Contribution Period
(complete all that apply):
|
(A)
|
¨
Flat
Percentage Match
:
|
(i)
|
%
to all “eligible”
Participants.
|
(B)
|
þ
Tiered
Match: 100.00% of the first 4% of the “eligible” Participant's
Compensation contributed to the
Plan,
|
(C)
|
¨
Limit
on Non-Discretionary Matching Employer Contributions (check the
appropriate box(es)):
|
(i)
|
¨
Contributions
in excess of
%
of the "eligible" Participant's Compensation for the Contribution Period
shall not be considered for non-discretionary Matching Employer
Contributions.
|
(ii)
|
¨
Matching
Employer Contributions for each "eligible" Participant for each Plan Year
shall be limited to $
.
|
(2)
|
¨
Discretionary Matching Employer
Contributions -
The Employer may make a discretionary Matching
Employer Contribution on behalf of each "eligible" Participant in
accordance with Section 5.08 of the Basic Plan Document in an amount equal
to a percentage of the eligible contributions made by each "eligible"
Participant during the Contribution Period. Discretionary Matching
Employer Contributions may be limited to match only contributions up to a
specified percentage of Compensation or limit the amount of the match to a
specified dollar amount.
|
(A)
|
¨
4%
Limitation on Discretionary Matching Employer Contributions for Deemed
Satisfaction of "ACP" Test - In no event may the dollar amount of the
discretionary Matching Employer Contribution made on an "eligible"
Participant's behalf for the Plan Year exceed 4% of the "eligible"
Participant's Compensation for the Plan Year.
(Only if
Option 1.12(a)(3), 401(k) Safe Harbor Formula, with respect to Nonelective
Employer Contributions is
checked.)
|
(3)
|
¨
401(k) Safe Harbor Matching
Employer Contributions -
If the Employer elects one of the safe
harbor formula Options provided in the 401(k) Safe Harbor Matching
Employer Contributions Addendum to the Adoption Agreement and provides
written notice each Plan Year to all Active Participants of their rights
and obligations under the Plan, the Plan shall be deemed to satisfy the
"ADP" test and, under certain circumstances, the "ACP" test.
(Only if
Option 1.07(a), Deferral Contributions is
checked.)
|
(b)
|
¨
Additional
Matching Employer Contributions -
The Employer may at Plan Year end
make an additional Matching Employer Contribution on behalf of each
"eligible" Participant in an amount equal to a percentage of the eligible
contributions made by each "eligible" Participant during the Plan
Year.
(Only if
Option 1.11(a)(1) or (3) is checked.)
The additional Matching
Employer Contribution may be limited to match only contributions up to a
specified percentage of Compensation or limit the amount of the match to a
specified dollar amount.
|
(1)
|
¨
4% Limitation on additional
Matching Employer Contributions for Deemed Satisfaction of "ACP" Test
-
In no event may the dollar amount of the additional Matching
Employer Contribution made on an "eligible" Participant's behalf for the
Plan Year exceed 4% of the "eligible" Participant's Compensation for the
Plan Year
.
(
Only if
Option 1.11(a)(3), 401(k) Safe Harbor Matching Employer Contributions, or
Option 1.12(a)(3), 401(k) Safe Harbor Formula, with respect to Nonelective
Employer Contributions is
checked.)
|
(c)
|
Contributions
Matched -
The Employer matches the following contributions (check
appropriate box(es)):
|
(1)
|
Deferral Contributions -
Deferral Contributions made to the Plan are matched at the rate specified
in this Section 1.11. Catch-Up Contributions are not matched unless
the Employer elects Option 1.11(c)(1)(A)
below.
|
(A)
|
¨
Catch-Up
Contributions made to the Plan pursuant to Subsection 1.07(a)(4) are
matched at the rates specified in this Section
1.11.
|
(d)
|
Contribution
Period for Matching Employer Contributions -
The Contribution
Period for purposes of calculating the amount of Matching Employer
Contributions is:
|
(1)
|
¨
each
calendar month.
|
(2)
|
¨
each
Plan Year quarter.
|
(3)
|
¨
each
Plan Year.
|
(4)
|
þ
each
payroll period.
|
(e)
|
Continuing
Eligibility Requirement(s) -
A Participant who is an Active
Participant during a Contribution Period and makes eligible contributions
during the Contribution Period shall only be entitled to receive Matching
Employer Contributions under Section 1.11 for that Contribution
Period if the Participant satisfies the following requirement(s) (Check
the appropriate box(es). Options (3) and (4) may not be
elected together; Option (5) may not be elected with Option (2), (3),
or (4); Options (2), (3), (4), (5), and (7) may not be elected with
respect to Matching Employer Contributions if Option 1.11(a)(3),
401(k) Safe Harbor Matching Employer Contributions, is checked or if
Option 1.12(a)(3), 401(k) Safe Harbor Formula, with respect to Nonelective
Employer Contributions is checked and the Employer intends to satisfy the
Code Section 401(m)(11) safe harbor with respect to Matching Employer
Contributions):
|
(1)
|
þ
No
requirements.
|
(2)
|
¨
Is
employed by the Employer or a Related Employer on the last day of the
Contribution Period.
|
(3)
|
¨
Earns
at least 501 Hours of Service during the Plan Year.
(Only if
the Contribution Period is the Plan
Year.)
|
(4)
|
¨
Earns
at least
(not to exceed
1,000)
Hours of Service during the Plan Year.
(Only if
the Contribution Period is the Plan
Year.)
|
(5)
|
¨
Either
earns at least 501 Hours of Service during the Plan Year or is employed by
the Employer or a Related Employer on the last day of the Plan Year.
(Only if
the Contribution Period is the Plan
Year.)
|
(6)
|
¨
Is
not a Highly Compensated Employee for the Plan
Year.
|
(7)
|
¨
Is
not a partner or a member of the Employer, if the Employer is a
partnership or an entity taxed as a
partnership.
|
(8)
|
¨
Special
continuing eligibility requirement(s) for additional Matching Employer
Contributions.
(Only if Option 1.11(b),
Additional Matching Employer Contributions, is
checked.)
|
(A)
|
The
continuing eligibility requirement(s) for additional Matching Employer
Contributions is/are:
(Fill in
number of applicable eligibility requirement(s) from
above. Options (2), (3), (4), (5), and (7) may not be elected
with respect to additional Matching Employer Contributions if Option
1.11(a)(3), 401(k) Safe Harbor Matching Employer Contributions, is checked
or if Option 1.12(a)(3), 401(k) Safe Harbor Formula, with respect to
Nonelective Employer Contributions is checked and the Employer intends to
satisfy the Code Section 401(m)(11) safe harbor with respect to Matching
Employer Contributions.)
|
(f)
|
¨
Qualified
Matching Employer Contributions -
Prior to making any Matching
Employer Contribution hereunder (other than a 401(k) Safe Harbor Matching
Employer Contribution), the Employer may designate all or a portion of
such Matching Employer Contribution as a Qualified Matching Employer
Contribution that may be used to satisfy the "ADP" test on Deferral
Contributions and excluded in applying the "ACP" test on Employee and
Matching Employer Contributions. Unless the additional
eligibility requirement is selected below, Qualified Matching Employer
Contributions shall be allocated to
all
Participants who
were Active Participants during the Contribution Period and who meet the
continuing eligibility requirement(s) described in Subsection 1.11(e)
above for the type of Matching Employer Contribution being characterized
as a Qualified Matching Employer
Contribution.
|
(1)
|
¨
To
receive an allocation of Qualified Matching Employer Contributions a
Participant must also be a Non-Highly Compensated Employee for the Plan
Year.
|
1.12
|
nonelective employer
contributions
|
(1)
|
¨
Fixed Percentage Employer
Contribution -
For each Contribution Period, the Employer shall
contribute for each "eligible" Participant a percentage of such "eligible"
Participant's Compensation equal
to):
|
(A)
|
%
(not to exceed 25%)
to all “eligible” Participants
.
|
(2)
|
¨
Fixed Flat Dollar Employer
Contribution -
The Employer shall contribute for each "eligible"
Participant an amount equal to:
|
(A)
|
$
to all
“eligible” Participants. (Complete (i)
below).
|
(i)
|
The
contribution amount is based on an "eligible" Participant's service for
the following period (check one of the
following):
|
(I)
|
¨
Each
paid hour.
|
(II)
|
¨
Each
Plan Year.
|
(III)
|
¨
Other:
(must
be a period within the Plan Year that does not exceed one week and is
uniform with respect to all "eligible"
Participants).
|
(3)
|
þ
401(k) Safe Harbor Formula
-
The Nonelective Employer Contribution specified in the 401(k)
Safe Harbor Nonelective Employer Contributions Addendum is intended to
satisfy the safe harbor contribution requirements under Sections 401(k)
and 401(m) of the Code such that the "ADP" test (and, under certain
circumstances, the "ACP" test) is deemed satisfied. Please
complete the 401(k) Safe Harbor Nonelective Employer Contributions
Addendum to the Adoption Agreement.
(Choose
only if Option 1.07(a), Deferral Contributions is
checked.)
|
(b)
|
¨
Discretionary
Formula -
The Employer may decide each Contribution Period whether
to make a discretionary Nonelective Employer Contribution on behalf of
"eligible" Participants in accordance with Section 5.10 of the Basic
Plan Document.
|
(1)
|
¨
Non-Integrated Allocation
Formula -
In the ratio that each "eligible" Participant's
Compensation bears to the total Compensation paid to all "eligible"
Participants for the Contribution
Period.
|
(2)
|
¨
Integrated Allocation Formula
-
As (1) a percentage of each "eligible" Participant's
Compensation plus (2) a percentage of each "eligible" Participant's
Compensation in excess of the "integration level" as defined
below. The percentage of Compensation in excess of the
"integration level" shall be equal to the lesser of the percentage of the
"eligible" Participant's Compensation allocated under (1) above or the
"permitted disparity limit" as defined below
.
|
(A)
|
"Integration
level" means the Social Security taxable wage base for the Plan Year,
unless the Employer elects a lesser amount in (i) or (ii)
below.
|
(i)
|
%
(not to exceed
100%)
of the Social Security taxable wage base for the Plan Year,
or
|
(ii)
|
$
(not to exceed the Social
Security taxable wage base)
.
|
The
"Integration Level"
is
___% of the
Taxable
Wage Base
|
The
"Permitted
Disparity
Limit"
is
|
20%
or less
|
5.7%
|
More
than 20%, but not more than 80%
|
4.3%
|
More
than 80%, but less than 100%
|
5.4%
|
100%
|
5.7%
|
(c)
|
Contribution
Period for Nonelective Employer Contributions -
The Contribution
Period for purposes of calculating the amount of Nonelective Employer
Contributions is the Plan Year, unless the Employer elects another
Contribution Period below. Regardless of any selection made below, the
Contribution Period for 401(k) Safe Harbor Nonelective Employer
Contributions under Option 1.12(a)(3) or Nonelective Employer
Contributions allocated under an integrated formula selected under Option
1.12(b)(2) is the Plan Year.
|
(1)
|
¨
each
calendar month.
|
(2)
|
¨
each
Plan Year quarter.
|
(3)
|
¨
each
payroll period.
|
(d)
|
Continuing
Eligibility Requirement(s) -
A Participant shall only be entitled
to receive Nonelective Employer Contributions for a Plan Year under this
Section 1.12 if the Participant is an Active Participant during the
Plan Year and satisfies the following requirement(s) (Check the
appropriate box(es) - Options (3) and (4) may not be elected together;
Option (5) may not be elected with Option (2), (3), or (4); Options (2),
(3), (4), (5), and (7) may not be elected with respect to Nonelective
Employer Contributions under the fixed formula if Option 1.12(a)(3),
401(k) Safe Harbor Formula, is
checked):
|
(1)
|
þ
No
requirements.
|
(2)
|
¨
Is
employed by the Employer or a Related Employer on the last day of the
Contribution Period.
|
(3)
|
¨
Earns
at least 501 Hours of Service during the Plan Year.
(Only if
the Contribution Period is the Plan
Year.)
|
(4)
|
¨
Earns
at least
(not to exceed
1,000)
Hours of Service during the Plan Year.
(Only if
the Contribution Period is the Plan
Year.)
|
(5)
|
¨
Either
earns at least 501 Hours of Service during the Plan Year or is
employed by the Employer or a Related Employer on the last day of the Plan
Year. (
Only if the Contribution Period is
the Plan Year.)
|
(6)
|
¨
Is
not a Highly Compensated Employee for the Plan
Year.
|
(7)
|
¨
Is
not a partner or a member of the Employer, if the Employer is a
partnership or an entity taxed as a
partnership.
|
(8)
|
¨
Special
continuing eligibility requirement(s) for discretionary Nonelective
Employer Contributions. (Only if both Options 1.12(a) and (b) are
checked.)
|
(A)
|
The
continuing eligibility requirement(s) for discretionary Nonelective
Employer Contributions is/are: _____(Fill in number of applicable
eligibility requirement(s) from
above.)
|
1.13
|
exceptions to
continuing eligibility
requirements
|
|
¨
|
Death, Disability, and
Retirement Exceptions -
All Participants who become disabled, as
defined in Section 1.15, retire, as provided in Subsection 1.14(a), (b),
or (c), or die are excepted from any last day or Hours of Service
requirement
.
|
1.14
|
retirement
|
(a)
|
The Normal
Retirement Age under the Plan is
(check
one):
|
|
(1)
|
þ
|
age
65.
|
|
(2)
|
¨
|
age
(specify between 55 and 64).
|
|
(3)
|
¨
|
later
of age
(not to exceed 65)
or
the
(not to exceed 5th)
anniversary of the Participant's Employment Commencement
Date.
|
(b)
|
þ
The Early
Retirement Age is the date the Participant attains age
55.0
(specify
55 or greater) and completes
0.0
years of
Vesting Service.
|
(c)
|
þ
A Participant who becomes
disabled, as defined in Section 1.15, is eligible for disability
retirement.
|
1.15
|
definition of
disabled
|
(a)
|
þ
The
Participant satisfies the requirements for benefits under the Employer's
long-term disability plan.
|
(b)
|
¨
The
Participant satisfies the requirements for Social Security disability
benefits.
|
(c)
|
¨
The
Participant is determined to be disabled by a physician approved by the
Employer.
|
1.16
|
vesting
|
(a)
|
When
years of Vesting Service are determined, the elapsed time method shall be
used.
|
(b)
|
¨
Years of
Vesting Service shall exclude service prior to the Plan's original
Effective Date as listed in Subsection 1.01(g)(1) or Subsection
1.01(g)(2), as applicable
.
|
(c)
|
Vesting
Schedule(s)
|
(1)
Nonelective Employer
Contributions
(check one):
(A)
¨
N/A
- No Nonelective Employer Contributions other than 401(k) Safe Harbor
Nonelective Employer Contributions
(B)
¨
100%
Vesting immediately
(C)
¨
3
year cliff (see
C
below)
(D)
¨
6
year graduated (see
D
below)
(E)
¨
Other
vesting (complete
E1
below)
|
(2)
Matching Employer Contributions
(check one):
(A)
¨
N/A
– No Matching Employer Contributions other than 401(k) Safe Harbor
Matching Employer Contributions
(B)
þ
100%
Vesting immediately
(C)
¨
3
year cliff (see
C
below)
(D)
¨
6
year graduated (see
D
below)
(E)
¨
Other
vesting (complete
E2
below)
|
Years
of Vesting Service
|
Applicable
Vesting Schedule(s)
|
|||
C
|
D
|
E1
|
E2
|
|
0
|
0%
|
0%
|
%
|
%
|
1
|
0%
|
0%
|
%
|
%
|
2
|
0%
|
20%
|
%
|
%
|
3
|
100%
|
40%
|
%
|
%
|
4
|
100%
|
60%
|
%
|
%
|
5
|
100%
|
80%
|
%
|
%
|
6
or more
|
100%
|
100%
|
%
|
100%
|
(d)
|
¨
A less
favorable vesting schedule than the vesting schedule selected in
1.16(c)(2) above applies to Matching Employer Contributions made for Plan
Years beginning before the EGTRRA effective date.
Please
complete Section (a) of the Vesting Schedule Addendum to the Adoption
Agreement.
|
(e)
|
þ
A vesting
schedule or schedules different from the vesting schedule(s) selected
above applies to certain Participants.
Please complete
Section (b) of the Vesting Schedule Addendum to the Adoption
Agreement.
|
(f)
|
Application
of Forfeitures -
If a Participant forfeits any portion of his
non-vested Account balance as provided in Section 6.02, 6.04, 6.07, or
11.08 of the Basic Plan Document, any portion of such forfeitures not used
to pay Plan administrative expenses in accordance with Section 11.09 of
the Basic Plan Document shall be applied to reduce Employer Contributions
unless otherwise specified below:
|
(1)
|
¨
Forfeitures
attributable to the following contributions shall be allocated among the
Accounts of eligible Participants otherwise eligible to receive an
allocation of Nonelective Employer Contributions pursuant to Section 1.12
in the manner described in Section 1.12(b)(1) (regardless of whether the
Employer has selected Option
1.12(b)(1)).
|
(A)
|
¨
Matching
Employer Contributions.
|
(B)
|
¨
Nonelective
Employer Contributions.
|
1.17
|
predecessor employer
service
|
(a)
|
þ
For the following purposes,
the following entities shall be treated as predecessor
employers:
|
(1)
|
þ
Eligibility
Service, as described in Subsection 1.04(b), shall include service with
the following predecessor
employer(s):
|
(2)
|
þ
Vesting
Service, as described in Subsection 1.16(a), shall include service with
the following predecessor
employer(s):
|
1.18
|
participant
loans
|
(a)
|
þ
Participant loans are allowed
in accordance with Article 9 and loan procedures outlined in the
Service Agreement.
|
1.19
|
in-service
withdrawals
|
(a)
|
þ
Hardship
Withdrawals -
Hardship withdrawals shall be allowed in accordance
with Section 10.05 of the Basic Plan Document, subject to a $500
minimum amount.
|
(1)
|
Hardship
withdrawals will be permitted from:
|
(A)
|
þ
A
Participant's Deferral Contributions Account
only.
|
(B)
|
¨
The
Accounts specified in the In-Service Withdrawals Addendum. Please complete
Section (c) of the In-Service Withdrawals
Addendum.
|
(b)
|
þ
Age
59 1/2 -
Participants shall be entitled to receive a
distribution of all or any portion of the following Accounts upon
attainment of age 59
1/2
(check one):
|
(1)
|
¨
Deferral
Contributions Account.
|
(2)
|
þ
All
vested Account balances.
|
(c)
|
Withdrawal
of Employee Contributions and Rollover
Contributions
|
(1)
|
Unless
otherwise provided below, Employee Contributions may be withdrawn in
accordance with Section 10.02 of the Basic Plan Document at any
time.
|
(A)
|
¨
Employees
may not make withdrawals of Employee Contributions more frequently
than:
|
(2)
|
Rollover
Contributions may be withdrawn in accordance with Section 10.03 of
the Basic Plan Document at any
time.
|
(d)
|
¨
Protected
In-Service Withdrawal Provisions -
Check if the Plan was converted
by plan amendment or received transfer contributions from another defined
contribution plan, and benefits under the other defined contribution plan
were payable as (check the appropriate
box(es)):
|
(1)
|
¨
an
in-service withdrawal of vested amounts attributable to Employer
Contributions maintained in a Participant's Account (check (A) and/or
(B)):
|
(A)
|
¨
for
at least
(24 or
more) months.
|
(i)
|
¨
Special
restrictions applied to such in-service withdrawals under the prior plan
that the Employer wishes to continue under the Plan as restated
hereunder. Please complete the In Service Withdrawals Addendum
to the Adoption Agreement identifying the
restrictions.
|
(B)
|
¨
after
the Participant has at least 60 months of
participation.
|
(i)
|
¨
Special
restrictions applied to such in-service withdrawals under the prior plan
that the Employer wishes to continue under the Plan as restated
hereunder. Please complete the In Service Withdrawals Addendum
to the Adoption Agreement identifying the
restrictions.
|
(2)
|
¨
another
in-service withdrawal option that is a "protected benefit" under Code
Section 411(d)(6). Please complete the In-Service
Withdrawals Addendum to the Adoption Agreement identifying the in-service
withdrawal option(s).
|
1.20
|
form of
distributions
|
(a)
|
Lump Sum
Payments -
Lump sum payments are always available under the
Plan.
|
(b)
|
¨
Installment
Payments -
Participants may elect distribution under a systematic
withdrawal plan (installments).
|
(c)
|
¨
Annuities
(Check if the Plan is retaining any annuity form(s) of
payment.)
|
(1)
|
An
annuity form of payment is available under the Plan for the following
reason(s) (check (A) and/or (B), as
applicable):
|
(A)
|
¨
As
a result of the Plan's receipt of a transfer of assets from another
defined contribution plan or pursuant to the Plan terms prior to the
Adoption Agreement Effective Date specified in Subsection 1.01(g)(1),
benefits were previously payable in the form of an annuity that the
Employer elects to continue to be offered as a form of payment under the
Plan.
|
(B)
|
¨
The
Plan received a transfer of assets from a plan that was subject to the
minimum funding requirements of Code Section 412 and therefore an
annuity form of payment is a protected benefit under the Plan in
accordance with Code
Section 411(d)(6).
|
(2)
|
The
normal form of payment under the Plan is (check (A) or
(B)):
|
(A)
|
¨
A
lump sum payment.
|
(i)
|
Optional
annuity forms of payment (check (I) and/or (II), as applicable
).
(Must check
and complete (I) if a life annuity is one of the optional annuity forms of
payment under the Plan.)
|
(I)
|
¨
A
married Participant who elects an annuity form of payment shall receive a
qualified joint and
%
(at least 50% but not more than
100%)
survivor annuity. An unmarried Participant shall
receive a single life annuity.
|
(II)
|
¨
Other
annuity form(s) of payment. Please complete Section (a) of the
Forms of Payment Addendum describing the other annuity form(s) of payment
available under the Plan.
|
(B)
|
¨
A
life annuity (complete (i) and (ii) and check (iii) if
applicable.)
|
(i)
|
The
normal form for married Participants is a qualified joint and
_____%
(at least 50%
but not more than 100%)
survivor annuity. The normal form for unmarried
Participants is a single life
annuity.
|
(ii)
|
The
qualified preretirement survivor annuity provided to a Participant's
spouse is purchased with
_____% (at least 50%)
of
the Participant's Account.
|
(iii)
|
¨
Other
annuity form(s) of payment. Please complete Subsection (a)
of the Forms of Payment Addendum describing the other annuity form(s) of
payment available under the Plan.
|
(d)
|
¨
Eliminated
Forms of Payment Not Protected Under Code Section 411(d)(6).
Check if benefits were payable in a form of payment that is no longer
being offered after either the Adoption Agreement Effective Date specified
in Subsection 1.01(g)(1) or, if forms of payment are being eliminated by a
separate amendment, the amendment effective date indicated on the
Amendment Execution Page.
|
(e)
|
Cash
Outs and Implementation of Required Rollover
Rule
|
(1)
|
þ
If
the vested Account balance payable to an individual is less than or equal
to the cash out limit utilized for such individual under Section 13.02 of
the Basic Plan Document, such Account will be distributed in accordance
with the provisions of Section 13.02 or 18.04 of the Basic Plan Document.
Unless otherwise elected below, the cash out limit is
$1,000.
|
(A)
|
¨
The
cash out limit utilized for Participants is the maximum cash out limit
permitted under Code Section 411(a)(11)(A) ($5,000 as of January 1, 2005).
Any distribution greater than $1,000 that is made to a Participant without
the Participant's consent before the Participant's Normal Retirement Age
(or age 62, if later) will be rolled over to an individual retirement plan
designated by the Plan
Administrator.
|
1.21
|
timing of
distributions
|
(a)
|
Distribution shall be made to
an eligible Participant from his vested interest in his Account as soon as
reasonably practicable following the date the Participant's application
for distribution is received by the Administrator, but in no event later
than his Required Beginning Date, as defined in Subsection
2.01(tt
).
|
(b)
|
¨
Postponed Distributions
-
Check if the Plan was converted by plan amendment from another
defined contribution plan that provided for the
postponement of certain distributions from the Plan to eligible
Participants and the Employer wants to continue to administer the Plan
using the postponed distribution provisions. Please complete
the Postponed Distribution Addendum to the Adoption Agreement indicating
the types of distributions that are subject to postponement and the period
of postponement.
|
(c)
|
¨
Preservation
of Same Desk Rule -
Check if the Employer wants to continue
application of the same desk rule described in Subsection 12.01(b) of the
Basic Plan Document regarding distribution of Deferral Contributions,
Qualified Nonelective Employer Contributions, Qualified Matching Employer
Contributions, 401(k) Safe Harbor Matching Employer Contributions, and
401(k) Safe Harbor Nonelective Employer Contributions.
(If any of
the above-listed contribution types were previously distributable upon
severance from employment, this Option may not be selected
.
)
|
1.22
|
Top-Heavy
status
|
(a)
|
The Plan
shall be subject to the Top-Heavy Plan requirements of Article 15
(check one):
|
(1)
|
¨
for
each Plan Year, whether or not the Plan is a "top-heavy plan" as defined
in Subsection 15.01(g) of the Basic Plan
Document.
|
(2)
|
þ
for
each Plan Year, if any, for which the Plan is a "top-heavy plan" as
defined in Subsection 15.01(g) of the Basic Plan
Document.
|
(3)
|
¨
Not
applicable.
(Choose
only if (A) Plan covers only employees subject to a collective bargaining
agreement, or (B) Option 1.11(a)(3), 401(k) Safe Harbor Matching Employer
Contributions, or Option 1.12(a)(3), 401(k) Safe Harbor Formula, is
selected,
Option
1.16(f)(1) is not selected, and the Plan does not provide for Employee
Contributions or any other type of Employer Contributions
.)
|
(b)
|
If the Plan
is or is treated as a "top-heavy plan" for a Plan Year, each non-key
Employee shall receive an Employer Contribution of at least
3.0
(3 or 5)%
of Compensation for the Plan Year in accordance with Section 15.03 of
the Basic Plan Document. The minimum Employer Contribution
provided in this Subsection 1.22(b) shall be made under this Plan
only if the Participant is not entitled to such contribution under another
qualified plan of the Employer, unless the Employer elects otherwise
below
:
|
(1)
|
¨
The
minimum Employer Contribution shall be paid under this Plan in any
event.
|
(2)
|
¨
Another
method of satisfying the requirements of Code
Section 416. Please complete the 416 Contributions
Addendum to the Adoption Agreement describing the way in which the minimum
contribution requirements will be satisfied in the event the Plan is or is
treated as a "top-heavy plan”.
|
(3)
|
¨
Not
applicable.
(Choose
only if (A) Plan covers only employees subject to a collective bargaining
agreement, or (B) Option 1.11(a)(3), 401(k) Safe Harbor Matching Employer
Contributions, or Option 1.12(a)(3), 401(k) Safe Harbor Formula, is
selected, Option 1.16(f)(1) is not selected, and the Plan does not provide
for Employee Contributions or any other type of Employer
Contributions
.)
|
(c)
|
If the Plan
is or is treated as a "top-heavy plan" for a Plan Year, the following
vesting schedule shall apply instead of the schedule(s) elected in
Subsection 1.16(c) for such Plan Year and each Plan Year thereafter
(check one):
|
(1)
|
¨
Not
applicable.
(Choose
only if one of the following applies: (A) Plan provides for
Nonelective Employer Contributions and the schedule elected in
Subsection 1.16(c)(1) is at least as favorable in all cases as the
schedules available below, (B) Option 1.11(a)(3), 401(k) Safe Harbor
Matching Employer Contributions, or Option 1.12(a)(3), 401(k) Safe Harbor
Formula, is selected,
Option
1.16(f)(1) is not selected, and the Plan does not provide for Employee
Contributions or any other type of Employer Contributions, or (C) the
Plan covers only employees subject to a collective bargaining
agreement.)
|
(2)
|
þ
100%
vested after
0
(not in excess of
3)
years of Vesting Service.
|
(3)
|
¨
Graded
vesting:
|
Years
of Vesting
Service
|
Vesting
Percentage
|
Must
be
At
Least
|
0
|
0%
|
|
1
|
0%
|
|
2
|
20%
|
|
3
|
40%
|
|
4
|
60%
|
|
5
|
80%
|
|
6
or more
|
100%
|
1.23
|
correction to meet 415
requirements under multiple defined contribution
plans
|
|
¨
|
Other Order
for Limiting Annual Additions
– If the Employer maintains other
defined contribution plans, annual additions to a Participant's Account
shall be limited as provided in Section 6.12 of the Basic Plan
Document to meet the requirements of Code Section 415, unless the
Employer elects this Option and completes the 415 Correction Addendum
describing the order in which annual additions shall be limited among the
plans.
|
1.24
|
investment
direction
|
(a)
|
¨
in
accordance with the investment directions provided to the Trustee by the
Employer
for allocating all Participant Accounts among the Options listed in the
Service Agreement.
|
(b)
|
þ
in
accordance with the investment directions provided to the Trustee by each
Participant
for
allocating his entire Account among the Options listed in the Service
Agreement, except, in the event the Employer contributes shares of
Employer Stock, as defined in Section 20.12 of the Basic Plan Document,
the Participant's election shall be subject to the provisions of (b)(1)
and/or (2), as elected:
|
(1)
|
¨
Nonelective
Employer Contributions shall remain invested in Employer Stock until the
Participant who receives an allocation of such contribution elects to
invest amounts attributable to such contribution in another available
investment option.
|
(2)
|
¨
Matching
Employer Contributions shall remain invested in Employer Stock until the
Participant who receives an allocation of such contribution elects to
invest amounts attributable to such contribution in another available
investment option.
|
(c)
|
¨
in
accordance with the investment directions provided to the Trustee by each
Participant for all contribution sources in his Account, except that the
following sources shall be invested in accordance with the investment
directions provided by the Employer (check (1) and/or
(2)):
|
(1)
|
¨
Nonelective
Employer Contributions
|
(2)
|
¨
Matching
Employer Contributions
|
1.25
|
additional
provisions
|
(a)
|
þ
The
Employer has completed Additional Provisions Addendum to show the
provisions of the Plan which supplement and/or alter provisions of this
Adoption Agreement.
|
1.26
|
superseding
provisions
|
(a)
|
¨
The
Employer has completed Superseding Provisions Addendum to show the
provisions of the Plan which supersede provisions of this Adoption
Agreement and/or the Basic Plan
Document.
|
1.27
|
reliance on advisory
letter
|
1.28
|
electronic signature
and records
|
1.29
|
volume submitter
information
|
(a)
|
þ
Special
Effective Dates for Other Provisions -
The following provisions
(e.g., new eligibility requirements, new contribution formula, etc.) shall
be effective as of the dates specified
herein:
|
(a)
|
þ
Only the following Related
Employers (as defined in Subsection 2.01(ss) of the Basic Plan Document)
participate in the Plan (list each participating Related Employer and its
Employer Tax Identification Number
):
|
(b)
|
¨
All Related Employer(s) as
defined in Subsection 2.01(ss) of the Basic Plan Document participate in
the Plan.
|
|
Note:
Safe Harbor
Nonelective Employer Contributions hereunder shall be made on behalf of
"eligible" Participants, as defined in Section
1.12.
|
(a)
|
401(k)
Safe Harbor Nonelective Employer Contributions
Election
|
(1)
|
þ
For each Plan
Year, the Employer shall contribute for each "eligible" Participant an
amount equal to
4.00
%
(not less than 3% nor more than
25%)
of such "eligible" Participant's Compensation for such Plan
Year.
|
(2)
|
¨
The Employer may
decide each Plan Year whether to amend the Plan by electing and completing
(A) below to provide for a contribution on behalf of each "eligible"
Participant in an amount equal to at least 3% of such "eligible"
Participant's Compensation for such Plan
Year.
|
(A)
|
¨
For the Plan Year
beginning
, the
Employer shall contribute for each "eligible" Participant an amount equal
to
%
(not less than 3% nor more than
25%)
of such "eligible" Participant's Compensation for such Plan
Year.
|
(b)
|
¨
401(k) Safe Harbor
Nonelective Employer Contributions shall
not
be made on
behalf of Highly Compensated
Employees.
|
(c)
|
¨
In conjunction
with its election of the 401(k) safe harbor described above, the Employer
has elected to make Matching Employer Contributions under
Section 1.11 that are intended to meet the requirements for deemed
satisfaction of the "ACP" test with respect to Matching Employer
Contributions.
|
(a)
|
¨
Pre-EGTRRA Vesting Schedule
Applies to Matching Employer Contributions made for Plan Years beginning
before the EGTRRA Effective
Date
|
(1)
|
The
following vesting schedule applies to Matching Employer Contributions made
for Plan Years beginning before the EGTRRA effective date specified in
(a)(2) below:
|
Years
of Vesting Service
|
Vested
Interest
|
(2)
|
The
EGTRRA effective date is:
|
(b)
|
þ
Preserve
Prior Vesting
Schedule
|
(1)
|
A
vesting schedule different from the vesting schedule selected in Section
1.16 applies to the Participants and contributions described
below.
|
(A)
|
The
following vesting schedule applies to the class of Participants described
in (b)(1)(B) and the contributions described in (b)(1)(C)
below:
|
(B)
|
The
vesting schedule specified in (b)(1)(A) above applies to the following
class of Participants:
|
(C)
|
The
vesting schedule specified in (b)(1)(A) above applies to the following
contributions:
|
(a)
|
Additional
Provision(s)
–
The following
provisions supplement and/or, to the degree described herein, supersede
other provisions of this Adoption Agreement in the following
manner:
|
(1)
|
The
following replaces Subsection
1.05(a):
|
(a)
|
Compensation
Exclusions
-
Compensation shall exclude the item(s) selected below for the
indicated types of contributions. (Complete the table below by checking
the appropriate boxes to indicate exclusions for the contributions
listed.)
|
(1)
Deferral
Contributions, Employee Contributions, Qualified
Nonelective Employer Contributions, 401(k) Safe Harbor Matching
Employer Contributions
|
(2)
Nonelective Employer
Contributions - other than 401(k) Safe Harbor Nonelective Employer
Contributions
|
(3)
Matching Employer
Contributions - other than 401(k) Safe Harbor Matching Employer
Contributions
|
(4)
401(k) Safe Harbor
Nonelective Employer Contributions
|
||
(A)
|
X
|
N/A
– not applicable – type of contribution(s) not selected or no
exclusions
|
|||
(B)
|
Overtime
Pay
|
||||
(C)
|
Bonuses
|
||||
(D)
|
Commissions
|
||||
(E)
|
X
|
X
|
The
value of restricted stock or of a qualified or a non-qualified stock
option granted to an Employee by the Employer to the extent such value is
includable in the Employee's taxable income
|
||
(F)
|
X
|
X
|
Severance
pay received prior to termination of employment -
Severance
pay received following termination of employment is always excluded for
purposes of contributions.
|
||
(G)
|
Such
other items as are identified in Section 1.05(a)(5)
below.
|
(A)
|
Compensation
for Deferral Contributions, Employee Contributions, Qualified Nonelective
Employer Contributions, and 401(k) Safe Harbor Matching Employer
Contribution.
The following items are excluded from
Compensation for purposes of determining Deferral Contributions, Employee
Contributions, Qualified Nonelective Employer Contributions, and 401(k)
Safe Harbor Matching Employer Contributions
(Complete
if Subsection 1.05(a)(1)(G) is selected.)
:
|
(B)
|
Compensation
for Nonelective Employer Contributions (other than 401(k) Safe Harbor
Nonelective Employer Contributions).
The following
items are excluded from Compensation for purposes of allocating
Nonelective Employer Contributions other than 401(k) Safe Harbor
Nonelective Employer Contributions and Nonelective Employer Contributions
that are allocated under the Integrated Formula, if elected in Subsection
1.12(a)(3) and/or 1.12(b)(2)
(
Complete if
Subsection 1.05(a)(2)(G) is selected.
):
|
(C)
|
Compensation
for Matching Employer Contributions (other than 401(k) Safe Harbor
Matching Employer Contributions).
The following
items are excluded from Compensation for purposes of allocating Matching
Employer Contributions other than 401(k) Safe Harbor Matching Employer
Contributions
(Complete
if Subsection 1.05(a)(3)(G) is selected.)
:
|
(D)
|
Compensation
for 401(k) Safe Harbor Nonelective Employer Contributions.
The following
items are excluded from Compensation for purposes of allocating 401(k)
Safe Harbor Nonelective Employer Contributions
(Complete
if Subsection 1.05(a)(4)(G) is selected.)
:
|
effective
dates for interim legal compliance snap off
addendum
|
for
|
(a)
|
EGTRRA
Compliance
- Unless a later date is specified below, the following
changes for compliance with EGTRRA were effective as of the first day of
the first Plan Year beginning on or after January 1,
2002:
|
(1)
|
Code Section 401(a)(17)
Compensation Limit
– The dollar limitation on compensation used to
calculate contributions, apply the limitations in effect under Code
Section 415, apply the ADP and ACP tests, and apply the top-heavy rules
was increased to $200,000, as
adjusted.
|
(2)
|
þ
Catch-Up Contributions –
Unless a later date is specified below, the Plan was amended to
provide for Catch-Up Contributions.
|
(A)
|
¨
Later Effective Date
.
Catch-Up Contributions were permitted after the first day of the first
Plan Year beginning on or after January 1,
2002:
|
(B)
|
o
Discontinuation of Catch-Up
Contributions
. Catch-Up Contributions were discontinued effective
as of: _______________
(month/day/year)
|
(3)
|
Rollovers of After-Tax
Contributions to the Plan
–Unless otherwise specified below, the
Plan accepted direct rollovers of after-tax employee contributions from
plans qualified under Code Section
401(a).
|
(A)
|
þ
Rollovers of After-Tax
Contributions Never Permitted
.
The Plan has never
accepted direct rollovers of after-tax employee
contributions.
|
(B)
|
o
Later Effective Date
.
The Plan did not accept direct rollovers of after-tax employee
contributions until a date later than the first day of the first Plan Year
beginning on or after January 1,
2002:
|
(C)
|
o
Discontinuation of After-Tax
Rollovers
. The Plan ceased to accept direct rollovers of after-tax
employee contributions effective as of: __________
(month/day/year)
|
(4)
|
Rollovers from Other Eligible
Retirement Plans –
Unless otherwise specified below, in addition to
accepting Rollover Contributions from plans qualified under Code Section
401(a) or 403(a), the Plan was amended to accept Rollover Contributions
from annuity contracts described in Code Section 403(b) (excluding
after-tax employee contributions), eligible plans under Code Section
457(b) maintained by a state, political subdivision of a state, or any
agency or instrumentality of a state or political subdivision of a state,
and individual retirement accounts or annuities described in Code Section
408(a) or 408(b).
|
(A)
|
o
The Plan did not
accept Rollover Contributions from annuity contracts described in Code
Section 403(b) (excluding after-tax employee contributions) until a date
later than the first day of the first Plan Year beginning on or after
January 1, 2002:
|
(B)
|
o
The Plan did not
accept Rollover Contributions from an eligible plans under Code Section
457(b) maintained by a state, political subdivision of a state, or any
agency or instrumentality of a state or political subdivision of a state
until a date later than the first day of the first Plan Year beginning on
or after January 1, 2002:
|
(C)
|
o
The Plan did not
accept Rollover Contributions from individual retirement accounts or
annuities described in Code Section 408(a) or 408(b) until a date later
than the first day of the first Plan Year beginning on or after January 1,
2002:
|
(5)
|
Multiple Use Test
– To
the extent applicable, the provisions of the Plan proscribing multiple use
of the alternative limitations under Code Sections 401(k)(3)(A)(ii)(II)
and 401(m)(2)(A)(ii), as provided in Treasury Regulations Section
1.401(m)-2, were deleted.
|
(6)
|
415 Limitations –
The
Plan was amended to reflect the Code Section 415 limitations in effect
under EGTRRA, as described in Section 6.12 of the Basic Plan
Document.
|
(7)
|
¨
Vesting of Matching Employer
Contributions
– Except as otherwise specified below, the Plan was
amended to change the vesting schedule applicable to Matching Employer
Contributions to comply with EGTRRA for Participants who complete an Hour
of Service on or after the effective date. Unless otherwise elected below,
the amended vesting schedule applies to all accrued benefits derived from
Matching Employer Contributions.
|
(A)
|
¨
Delayed Effective Date for
Bargained Plan.
The Plan was maintained pursuant to one or more
collective bargaining agreements ratified by June 1, 2001 and the
effective date of the revised vesting schedule was later than the first
day of the first Plan Year beginning on or after January 1,
2002:
|
(B)
|
¨
Grandfathered Application of
Prior Vesting Schedule.
The vesting schedule in effect before the
amendment continues to apply to the portion of a Participant's accrued
benefit derived from Matching Employer Contributions made to the Plan for
a Plan Year beginning before the effective
date.
|
(8)
|
Loans by Owner-Employees and
Shareholder-Employees
– If the Plan provided for loans to
Participants from Plan assets, the Plan was amended to eliminate the
restriction on loans to owner-employees, as defined in Code Section
401(c)(3), and shareholder-employees, as defined in ERISA Section
408(d)(3).
|
(9)
|
Hardship Withdrawals –
Suspension of Contributions
– Except as otherwise specified below,
if the Plan provided for hardship withdrawals in accordance with the safe
harbor in Treasury Regulations Section 1.401(k)-1(d)(2)(iv)(B), the Plan
was amended to change the suspension period applicable to elective
contributions and employee contributions from 12 months to 6
months.
|
(A)
|
o
Delayed Effective Date.
The change in the suspension period was effective later than the first day
of the first Plan Year beginning on or after January 1,
2002:
|
(10)
|
Hardship Withdrawals –
Elimination of Reduction in 402(g) Limit
– Except as otherwise
specified below, if the Plan provided for hardship withdrawals in
accordance with the safe harbor in Treasury Regulations Section
1.401(k)-1(d)(2)(iv)(B), the Plan was amended to eliminate the reduction
in the Code Section 402(g) limit for calendar years beginning on and after
January 1, 2002 with respect to Participants receiving a hardship
withdrawal on or after January 1,
2001.
|
(A)
|
o
Delayed Effective Date.
The reduction in the 402(g) limit was eliminated for calendar years
beginning on and after January 1,
______________________
(cannot be
later than the year following the date the Plan was restated onto a
Fidelity Prototype or Volume Submitter)
with respect to
Participants receiving a hardship withdrawal on or after January 1st of
the year prior to the year indicated in this Subsection
(a)(10)(A).
|
(11)
|
þ
Distribution Upon Severance
from Employment
– The Plan was amended to permit distribution of
Deferral Contributions, Qualified Nonelective Contributions, Qualified
Matching Contributions, 401(k) Safe Harbor Matching Employer
Contributions, and 401(k) Safe Harbor Nonelective Employer Contributions
upon a Participant's severance from employment rather than requiring a
separation from service.
|
(A)
|
¨
Delayed Effective Date
.
Distribution upon severance from employment was not permitted until after
the first day of the first Plan Year beginning on or after January 1,
2002:
|
(B)
|
¨
Limitation on Rule
.
Distribution upon severance from employment was effective only for
severances occurring after: _______________
(month/day/year)
|
(12)
|
Rollovers Out of the
Plan
– The Plan was amended to permit direct rollovers of "eligible
rollover distributions" (as defined in Subsection 13.04(c) of the Basic
Plan Document) from the Plan by the Participant, the Participant's
surviving spouse, or the Participant's spouse or former spouse who is the
alternate payee under a qualified domestic relations order to any
"eligible retirement plan" (as defined in Subsection 13.04(b) of the Basic
Plan Document).
|
(13)
|
Top-Heavy Modifications
– The Plan was amended to comply the top-heavy provisions with EGTRRA by:
(i) modifying the definition of "key employee" as provided in Subsection
15.01(d) of the Basic Plan Document, (ii) including for purposes of the
top-heavy determination any distribution made to an employee on account of
severance from employment, death, disability, or termination of a plan
during the one-year period ending on the "determination date", as defined
in Subsection 15.01(a) of the Basic Plan Document, and any other
distribution made during the five-year period ending on the "determination
date", (iii) excluding for purposes of the top-heavy determination the
accrued benefits and accounts of any individual who has not performed
services for the 1-year period ending on the "determination date", (iv)
permitting matching contributions to be taken into account for purposes of
satisfying the top-heavy minimum contribution requirement, and (v)
providing that the top-heavy provisions are inapplicable for years in
which a plan consists solely of a cash or deferred arrangement that meets
the requirements of Code Section 401(k(12) and, if applicable, matching
contributions with respect to which the requirements of Code Section
401(m)(11) are met.
|
(14)
|
o
Disregard Rollovers in Applying
Cashout Rules
– The Plan was amended to exclude Rollover
Contributions in determining whether a Participant's Account exceeded the
cashout limit specified in the
Plan.
|
(A)
|
o
Delayed Effective Date
.
Rollover Contributions were not excluded for cashout purposes until after
the first day of the first Plan Year beginning on or after January 1,
2002:
|
(B)
|
Rollover Contributions Included
in Applying Cashout Rules
. The Plan was further amended to include
Rollover Contributions in determining whether a Participant's Account
exceeded the cashout limit specified in the Plan as of the date specified
below:
|
(b)
|
401(a)(9)
Regulations Compliance
- The Plan was amended to comply with
401(a)(9) Regulations as follows:
|
(1)
|
þ
Compliance with Proposed
Regulations
. The Plan was amended to apply the minimum distribution
requirements of Code Section 401(a)(9) in accordance with the regulations
under Code Section 401(a)(9) that were proposed in January 2001 with
respect to distributions made for the following calendar
years:
|
(A)
|
o
2001 calendar
year.
|
(B)
|
þ
2002
calendar year.
|
(2)
|
Compliance with Final
Regulations
. Except as otherwise specified below, the Plan was
amended to apply the minimum distribution requirements of Code Section
401(a)(9) in accordance with the final regulations under Code Section
401(a)(9) that were published in April 2002 with respect to distributions
made for calendar years beginning on or after January 1,
2003.
|
(A)
|
¨
Earlier Effective Date
.
Distributions were made in accordance with the final regulations for
calendar years beginning on or after January 1,
2002.
|
(c)
|
Automatic
Rollover Compliance
- Except as otherwise specified below, if the
Plan provided for cash outs of small benefits, effective as of March 28,
2005, the Plan was amended to comply with the automatic rollover rules of
EGTRRA by reducing the cashout limit applicable to Participants to
$1,000:
|
(1)
|
¨
Instead
of reducing the cashout limit, the Plan was amended to provide that
mandatory distributions greater than $1,000 would be rolled over directly
to an individual retirement plan designated by the
Administrator.
|
(A)
|
o
The Plan was
subsequently amended, as of the date specified below, to reduce the
cashout limit to $1,000:
|
(d)
|
Final
401(k) and 401(m) Regulations Compliance
- Unless a different date
is specified below, the following changes for compliance with the final
401(k) and final 401(m) Regulations were effective as of the first day of
the first Plan Year beginning on or after January 1,
2006:
|
(1)
|
o
Earlier Effective Date
.
The Plan was amended to comply with the final 401(k) and final 401(m)
Regulations effective as of the first day of the following Plan Year:
______________
(cannot be
later than the 2006 Plan
Year)
|
(2)
|
Qualified Nonelective
Contributions
. Unless a later date is specified below, if the Plan
provided for Qualified Nonelective Contributions ("QNECs") to be allocated
pursuant to a "bottoms up" or other formula that could violate the
requirements of Treasury Regulations Section 1.401(k)-2(a)(6)(iv) or
1.401(m)-2(a)(6)(v) (excluding disproportionate QNECs in applying the ADP
and ACP tests), the QNEC allocation formula was amended to comply with
such regulations.
|
(A)
|
o
Later Effective Date
.
The QNEC allocation formula was amended after the general effective date
for compliance with the final 401(k) and final 401(m) Regulations
described above.
|
(3)
|
Gap Period Income
. If
not previously provided under the Plan, the Plan was amended to provide
that for purposes of corrective distributions of "excess deferrals",
"excess contributions", and "excess aggregate contributions", income and
loss on such amounts would be calculated for the gap period between the
end of the "determination year" and the date of
distribution.
|
(4)
|
Hardship Withdrawal
Events
. Unless a later date is specified below, if the Plan
provided for hardship withdrawals upon the occurrence of a deemed
immediate and heavy financial need, as described in Treasury Regulations,
the Plan was amended to add the deemed needs described in Treasury
Regulations Section 1.401(k)-1(d)(3)(iii)(B)(5) and (6) (funeral and
casualty expenses).
|
(A)
|
o
Later Effective Date
.
The additional deemed immediate and heavy financial needs were amended
after the general effective date for compliance with the final 401(k) and
final 401(m) Regulations described
above.
|
(e)
|
¨
Roth 401(k)
Contributions
- Prior to the Adoption Agreement effective date
specified in Subsection 1.01(g)(1), the Plan was amended to provide for
Roth 401(k) Contributions.
|
(1)
|
Effective Date
. Unless a
later effective date is specified below, Roth 401(k) Contributions were
permitted beginning January 1,
2006.
|
(A)
|
Later
effective date ________________
(month/day/year)
(cannot be
prior to January 1, 2006)
|
(2)
|
o
Discontinuation of Roth 401(k)
Contributions
. Roth 401(k) Contributions were discontinued
effective as of: ____________________
(month/day/year)
|
(f)
|
¨
Rollovers
of Roth 401(k) Contributions
- Prior to the Adoption Agreement
effective date specified in Subsection 1.01(g)(1), the Plan was amended to
permit rollovers of Roth Contributions into the
Plan.
|
(1)
|
¨
Direct Rollovers
. Unless
a later effective date is specified below, direct rollovers of Roth
Contributions were permitted to be made to the Plan from an applicable
retirement plan described in Code Section 402A(e)(1), subject to Code
Section 402(c), beginning January 1,
2006.
|
(A)
|
Later
effective date: ________________
(month/day/year)
(cannot be
prior to January 1, 2006)
|
(B)
|
¨
Discontinuation of Direct
Rollovers
. Direct rollovers of Roth Contributions were discontinued
effective as of: _____________
(month/day/year)
|
(2)
|
¨
Participant Rollovers
.
Unless a later effective date is specified below, "participant rollovers"
of the taxable portion of a distribution of Roth Contributions were
permitted to be made to the Plan from an applicable retirement plan
described in Code Section 402A(e)(1). "Participant rollovers" are
rollovers other than direct rollovers, as described in Code Section
401(a)(31).
|
(A)
|
Later
effective date: ________________
(month/day/year)
(cannot be
prior to January 1, 2006)
|
1.
|
I
have reviewed this quarterly report on Form 10-Q of Cabot Microelectronics
Corporation;
|
2.
|
Based
on my knowledge, this report does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
|
3.
|
Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this
report;
|
4.
|
The
registrant’s other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and
have:
|
(a)
|
Designed
such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure
that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being
prepared;
|
(b)
|
Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles;
|
(c)
|
Evaluated
the effectiveness of the registrant’s disclosure controls and procedures
and presented in this report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation;
and
|
(d)
|
Disclosed
in this report any change in the registrant’s internal control over
financial reporting that occurred during the registrant’s most recent
fiscal quarter that has materially affected, or is reasonably likely to
materially affect, the registrant’s internal control over financial
reporting; and
|
5.
|
The
registrant’s other certifying officer and I have disclosed, based on our
most recent evaluation of internal control over financial reporting, to
the registrant’s auditors and the audit committee of registrant’s board of
directors:
|
(a)
|
All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record,
process, summarize and report financial information;
and
|
(b)
|
Any
fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant’s internal control
over financial reporting.
|
Date:
February 8, 2010
|
/s/
WILLIAM P. NOGLOWS
|
William
P. Noglows
|
|
Chief
Executive Officer
|
1.
|
I
have reviewed this quarterly report on Form 10-Q of Cabot Microelectronics
Corporation;
|
2.
|
Based
on my knowledge, this report does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
|
3.
|
Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this
report;
|
4.
|
The
registrant’s other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and
have:
|
(a)
|
Designed
such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure
that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being
prepared;
|
(b)
|
Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles;
|
(c)
|
Evaluated
the effectiveness of the registrant’s disclosure controls and procedures
and presented in this report our conclusions about the effectiveness of
the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation;
and
|
(d)
|
Disclosed
in this report any change in the registrant’s internal control over
financial reporting that occurred during the registrant’s most recent
fiscal quarter that has materially affected, or is reasonably likely to
materially affect, the registrant’s internal control over financial
reporting; and
|
5.
|
The
registrant’s other certifying officer and I have disclosed, based on our
most recent evaluation of internal control over financial reporting, to
the registrant’s auditors and the audit committee of registrant’s board of
directors:
|
(a)
|
All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record,
process, summarize and report financial information;
and
|
(b)
|
Any
fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant’s internal control
over financial reporting.
|
Date:
February 8, 2010
|
/s/
WILLIAM S. JOHNSON
|
William
S. Johnson
|
|
Chief
Financial Officer
|
Date:
February 8, 2010
|
/s/
WILLIAM P. NOGLOWS
|
William
P. Noglows
|
|
Chief
Executive Officer
|
|
Date:
February 8, 2010
|
/s/
WILLIAM S. JOHNSON
|
William
S. Johnson
|
|
Chief
Financial Officer
|