HEWLETT PACKARD ENTERPRISE
401(k) PLAN
Originally Effective November 1, 2015
Amended and Restated Effective January 1, 2019 (unless specified otherwise)
TABLE OF CONTENTS
HEWLETT PACKARD ENTERPRISE 401(k) PLAN
Originally Effective as of November 1, 2015
Amended and Restated Effective as of January 1, 2019 (unless specified otherwise)
SECTION 1.ESTABLISHMENT AND PURPOSE OF THE PLAN.
In connection with the distribution by HP Inc. (the “Distribution”) to its shareholders of its interest in Hewlett Packard Enterprise Company (the “Company”) on or about November 1, 2015 (the “Distribution Date”), the Company established the Hewlett Packard Enterprise 401(k) Plan (the “Plan”), effective as of the Distribution Date. As of the Distribution Date, assets and liabilities attributable to the accounts of certain participants (each, a “Former HP Participant”) in the HPI 401(k) Plan, formerly known as the Hewlett-Packard Company 401(k) Plan (the “HPI Plan”) whose employment was transferred to the Company in connection with the Distribution were transferred to the Plan.
The purposes of the Plan are to provide a convenient way for Eligible Employees to share in the ownership, earnings and growth of the Company, thereby offering the Eligible Employees an additional incentive to continue their careers with the Participating Companies and to provide the Eligible Employees an opportunity for regular savings for their retirement. The Plan together with the Trust established hereunder is intended to qualify as a stock bonus plan under section 401(a) of the Code and as an individual account plan which permits each Participant to exercise control over certain assets of the Plan pursuant to section 404(c) of ERISA. Certain rules which will become effective only if the Plan becomes a “top-heavy plan” (as defined in section 416 of the Code) are set forth in Appendix A to the Plan. The rules regarding the administration of the discrimination tests under sections 401(k) and 401(m) of the Code are set forth in Appendix B to the Plan. Any special rules applicable to Accounts which, in whole or in part, derive from the plan of an entity acquired or disposed of by the Company may be set forth in a separate appendix
to the Plan. In addition, the options that were in effect for distributions elected before June 1, 2019, are set forth in Appendix D. Each Appendix will indicate whether its provisions are supplemental to or exclusive of the other provisions of the Plan.
Any and all decisions involving the interpretation of the Plan’s provisions, including but not limited to, eligibility, contributions, vesting, investments, valuations, distributions, withdrawals and loans, shall be made by the Plan Committee or the IRC, as applicable, each in its sole discretion, and shall be conclusive and binding on all persons.
Notwithstanding any other provisions of the Plan, portions of the Plan are also intended to constitute an employee stock ownership plan under section 4975(e)(7) of the Code (the “ESOP”). The portions of the Plan that constitute the ESOP are the Stock Fund and all other portions of the Plan necessary to meet the requirements of section 4975(e)(7) of the Code. The portions of the Plan that constitute the ESOP shall be treated as such for all purposes including but not limited to sections 404(a)(9), 404(k) and 415(c) of the Code.
The Company restated the Plan in its entirety to incorporate all of the amendments to date thereunder, effective as of January 1, 2019, and simultaneously amended the Plan to make certain modifications, including to conform to the Treasury Regulations addressing hardship distributions. In addition, the amended and restated Plan adds traditional employee after-tax contributions, an in-Plan Roth rollover feature, and in-service withdrawal options, effective as of March 1, 2019. The amended and restated Plan also expands the distribution options, effective as of June 1, 2019.
SECTION 2.ELIGIBILITY AND PARTICIPATION.
(a)Eligibility and Commencement of Participation. Any Former HP Participant shall be immediately eligible to participate in accordance with the terms of the Plan. Each other
Employee may commence participation in the Plan as soon as administratively practicable on or following the date he or she becomes an Eligible Employee.
(b)Suspension. A Participant’s participation in the Plan shall be suspended for any period during which he or she:
(i)Is on a formal leave of absence without pay authorized by the Company;
(ii)Is on military leave, in accordance with the Company’s policy with respect to such leave and subject to Section 15(o); or
(iii)Ceases to qualify as an Eligible Employee but remains an Employee.
Notwithstanding any other provision of the Plan to the contrary except Section 15(o), a Participant shall neither make any Deferred Contributions nor receive any allocation of Matching Contributions with respect to any period of suspension. However, during any such period, the Participant’s Accounts shall continue to share in the income, gains, losses and expenses of the Trust Fund, and such Participant may continue to make investment directions pursuant to Section 9 hereof.
(c)Termination of Participation. An individual shall cease to be a Participant as of the date he or she ceases to be an Employee, unless the individual is entitled to benefits hereunder, in which event he or she shall cease to be a Participant on the earlier of the date of his or her death or the date no further amount is payable to the individual hereunder.
SECTION 3.DEFERRED AND EMPLOYEE AFTER-TAX CONTRIBUTIONS.
(a)Rate of Contributions. Subject to the limitations of Appendix B and in accordance with the administrative procedures established from time to time by the Plan Committee, each Participant whose participation is not suspended may elect to make Deferred Contributions to the Plan at a rate equal to any percentage of the Participant’s Eligible
Compensation during a payroll period not to exceed fifty percent (50%) and separately elect to make Employee After-Tax Contributions to the Plan at a rate equal to any percentage of the Participant’s Eligible Compensation during a payroll period not to exceed fifty percent (50%); provided, however, that the maximum rate of Employee After-Tax Contributions will be reduced as necessary or appropriate to comply with the hierarchy for payroll deduction obligations established by the Plan Committee (including, without limitation, any cafeteria plan, employee stock purchase plan and other non-Plan employee benefit payroll deductions elected by, or on behalf of, the Participant). Notwithstanding the foregoing, the Plan Committee may elect from time to time to change the percentage of Eligible Compensation that Participants may contribute to the Plan or to further reduce the maximum percentage or dollar amount permitted for any or all Participants, as described in paragraph 3(e) below. All Deferred Contributions shall be deemed to be Employer contributions to the Plan and a Participant’s election to commence making Deferred Contributions shall constitute an election (for Federal tax purposes and, wherever permitted, for state and local tax purposes) to have his or her taxable Eligible Compensation reduced by the amount of all Deferred Contributions. All Employee After-Tax Contributions shall be deemed to be non-deductible employee contributions to the Plan and a Participant’s election to commence making Employee After-Tax Contributions shall constitute an election to have his or her Total Compensation reduced by the amount of all Employee After-Tax Contributions. Notwithstanding the foregoing, the Deferred Contributions and Employee After-Tax Contributions of each Employee that are taken into account under the Plan for any twelve (12) month Plan Year shall not exceed the limit prescribed under section 401(a)(17) of the Code (as adjusted by the Commissioner of Internal Revenue for increases in the cost of living in accordance with sections 401(a)(17) and 415(d) of the Code and to the extent required by
applicable law). If a Plan Year consists of less than twelve (12) months, then the annual Deferred Contributions and Employee After-Tax Contributions limit shall be adjusted to an amount equal to the otherwise applicable limit for such Plan Year multiplied by a fraction, the numerator of which is the number of months in the short Plan Year and the denominator of which is twelve (12).
A Participant may cause an election to make Deferred Contributions or Employee After-Tax Contributions to be made by one of the two following methods:
(i)Upon initially becoming an Eligible Employee (other than in connection with the initial establishment of the Plan as of the Distribution Date), and by failing to make an affirmative election or any other election to the contrary, a Participant shall be deemed to elect to make Pre-Tax Contributions at the rate of three percent (3%) of the Participant’s subsequently earned Eligible Compensation (and have those Deferred Contributions invested in the default fund as then designated by the IRC, unless and until an alternative investment election is received and takes effect), effective as soon as administratively practicable after such individual becomes an Eligible Employee; or
(ii)A Participant may elect in the manner prescribed by the Plan Committee, to make no Deferred Contributions; or to make Deferred Contributions (either Pre-Tax Contributions or Roth Contributions) at a different rate (including not to make any such contributions) (subject to the limitations set forth above) or to make Employee After-Tax Contributions; or to elect a different Fund(s).
In the case of a Former HP Participant whose Account was transferred to this Plan from the HPI Plan, the Participant’s deferral election in effect under the HPI Plan immediately prior to
such transfer shall apply for purposes of this Plan and shall remain in effect unless and until changed in accordance with Section 3(b)(i).
If a former Participant is reemployed by a Participating Company as an Eligible Employee or if an Employee is in a suspension status described in Section 2(b) on the date he or she would otherwise recommence participation in the Plan, he or she shall first elect to make Deferred Contributions or Employee After-Tax Contributions as soon as administratively practicable on or after the day he or she is rehired or is no longer in suspension status, as applicable, in accordance with the above Sections 3(a)(i) and (ii).
(b)Revocation and Change in Election.
(i)Each Participant may elect to revoke or change the elections described in Section 3(a) by giving notice to the Plan Committee in the form, time and manner prescribed by the Plan Committee. Such election shall take effect as of the first day of a payroll period as soon as administratively practicable following the date the notice is received.
(ii)In addition, any Participant who commenced participation in the Plan pursuant to Section 3(a)(i) may elect, in the form, time and manner prescribed by the Plan Committee, to receive a refund of those Pre-Tax Contributions which he or she was deemed to have elected to defer under Section 3(a)(i), adjusted for income, gains or losses, so long as such refund election is made no later than ninety (90) days after the date that such Participant commenced participation in the Plan under Section 3(a)(i). If such Participant elects a refund pursuant to this subparagraph (b)(ii), any Matching Contributions adjusted for income, gains or losses, attributable to such refunded Pre-Tax Contributions shall be forfeited.
(c)Suspension of Contributions.
(i)Subsequent to the election described in Section 3(a), a Participant may suspend all Deferred Contributions and Employee After-Tax Contributions at any time by giving notice to the Plan Committee in the form, time and manner prescribed by the Plan Committee. Such suspension shall take effect as of the first day of a payroll period as soon as administratively practicable following the date the notice is received.
(ii)A Participant who has voluntarily suspended Deferred Contributions and/or Employee After-Tax Contributions may resume Deferred Contributions and/or Employee After-Tax Contributions by giving notice to the Plan in the form, time and manner prescribed by the Plan Committee. Such contributions shall take effect as soon as administratively practicable following the date the notice is received.
(iii)A Participant’s Deferred Contributions and Employee After-Tax Contributions shall automatically terminate upon the termination of the Participant’s employment with the Affiliated Group.
(d)Time and Form of Contribution.
Deferred Contributions and Employee After-Tax Contributions shall be withheld from the Participant’s Eligible Compensation through regular payroll deductions. All Deferred Contributions and Employee After-Tax Contributions shall be paid to the Trustee and invested pursuant to Section 9 as soon as reasonably practicable following the date on which they are withheld. The Participating Companies shall make Deferred Contributions and Employee After-Tax Contributions in cash.
(e)Compliance with Other Contribution Limitations.
Notwithstanding the foregoing provisions of this Section 3, the Plan shall be administered in accordance with Section 7 and Appendix B. In order to maintain the tax-qualified status of the Plan under section 401(a) of the Code, or to preserve the status of Deferred Contributions as employer contributions under section 401(k) of the Code or to pass the Actual Contribution test related to the Employee After-Tax Contributions, at any time in a Plan Year the Plan Committee may reduce the maximum percentage at which Deferred Contributions will be made and/or the maximum percentage or annual dollar limit at which Employee After-Tax Contributions may be made to the Plan by a Participant during the remainder of the Plan Year, or the Plan Committee may require that such a Participant discontinue all Deferred Contributions and/or Employee After-Tax Contributions for the remainder of the Plan Year. Such a reduction or discontinuance of Deferred Contributions or Employee After-Tax Contributions may be applied selectively to individual Participants or to particular classes of Participants, as the Plan Committee may determine. Upon the close of each Plan Year, or on such earlier date as the Plan Committee may determine, any reduction or discontinuance made pursuant to this Section 3(e) shall cease to apply to the Participant until the Plan Committee again determines that a reduction or discontinuance of Deferred Contributions or Employee After-Tax Contributions is necessary or appropriate for the Participant.
In addition to requiring a prospective reduction or discontinuance of Deferred Contributions or Employee After-Tax Contributions, the Plan Committee may distribute to any Participant his or her Deferred Contributions or Employee After-Tax Contributions, if any, that are determined to be “Excess Contributions,” “Excess Aggregate Contributions,” or “Excess Deferrals” (as defined in Section 1 of Appendix B) and any income, gains or losses attributable thereto in the manner set forth in Section 2 of Appendix B.
(f)Catch-up Contributions. Each Eligible Employee who will attain age 50 before the close of the Plan Year shall be eligible to make Catch-up Contributions in accordance with, and subject to the limitations of, section 414(v) of the Code. Catch-up Contributions are Deferred Contributions made to the Plan that are in excess of an otherwise applicable Plan limit and that are made by Participants who are age 50 or over by the end of their taxable years. An otherwise applicable Plan limit is a limit in the Plan that applies to Deferred Contributions without regard to Catch-up Contributions, such as the limits on annual additions, the dollar limitation on Deferred Contributions under section 402(g) of the Code (excluding Catch-up Contributions) and the limit imposed by the Actual Deferral Percentage test under section 401(k)(3) of the Code. Catch-up Contributions for a Participant for a taxable year may not exceed the dollar limit on Catch-up Contributions under section 414(v)(2)(B)(i) of the Code for the taxable year, as adjusted by the Secretary of the Treasury for cost-of-living increases under section 414(v)(2)(C) of the Code. Catch-up Contributions are not eligible for Matching Contributions under Section 5. Catch-up Contributions are not subject to the limits on annual additions under Section 7, are not counted in the Average Deferral Percentage test, and are not counted in determining the minimum allocation under section 416 of the Code (but Catch-up Contributions made in prior years are counted in determining whether the Plan is top-heavy).
SECTION 4.ROTH CONTRIBUTIONS AND IN-PLAN ROTH ROLLOVERS.
(a)General Application. The Plan shall accept Roth Contributions made on behalf of Participants. A Participant’s Roth Contributions shall be allocated to a separate account maintained for such deferrals as described in Section 4(b). Unless specifically stated otherwise, Roth Contributions shall be treated as Deferred Contributions for all purposes under the Plan.
(b)Separate Accounting. Roth Contributions shall be subject to the following accounting rules:
(i)Contributions and withdrawals of Roth Contributions shall be credited and debited to the Roth Contribution Account maintained for each Participant.
(ii)The Plan Committee shall maintain a record of the amount of Roth Contributions in each Participant’s Account.
(iii)Income, gains, losses, expenses and other credits or charges must be separately allocated to each Participant’s Roth Contribution Account and the Participant’s other Accounts under the Plan.
(iv)No contributions other than Roth Contributions and properly attributable income, gains, losses or expenses shall be credited to each Participant’s Roth Contribution Account.
(c)Direct Rollovers. Roth Contributions shall be subject to the following rollover rules:
(i)Notwithstanding Section 12(d), a direct rollover of a distribution from a Roth Contribution Account under the Plan shall only be made to another Roth elective deferral account under an applicable retirement plan described in section 402A(e)(1) of the Code or to a Roth IRA described in section 408A of the Code, and only to the extent the rollover is permitted under the rules of section 402(c) of the Code.
(ii)Notwithstanding Sections 15(k) and 15(l), the Plan shall accept a rollover contribution to a Roth Contribution Account: (A) if it a direct rollover from another Roth elective deferral account under an applicable retirement plan described in section
402A(e)(1) of the Code, or it qualifies as an in-Plan Roth rollover under paragraph (f) below, and (B) such rollover is permitted under section 402(c) of the Code.
(iii)Any distribution from a Participant’s Roth Contribution Account is not taken into account in determining whether distributions from a Participant’s other Accounts are reasonably expected to total less than $200 during a year. However, eligible rollover distributions from a Participant’s Roth Contribution Account are taken into account in determining whether the total amount of the Participant’s Account balances under the Plan exceeds $1,000 for purposes of mandatory distributions from the Plan under Section 12(e)(i).
(d)Correction of Excess Contributions.
(i)In the case of a distribution of Excess Contributions (as defined in Section 1 of Appendix B), a Highly Compensated Employee (as defined in Section 1 of Appendix B) may designate the extent to which the excess amount is composed of Pre-Tax Contributions, Employee After-Tax Contributions, and/or Roth Contributions but only to the extent such types of deferrals were made for the year.
(ii)If the Highly Compensated Employee does not designate which type of elective deferral is to be distributed, the Plan shall first distribute Employee After-Tax Contributions, next Pre-Tax Contributions, and finally Roth Contributions.
(e)Distributions. For purposes of Plan distributions, to the extent permitted by law and administratively practicable, the Participant may designate the extent to which the payment is composed of Pre-Tax Contributions, Employee After-Tax Contributions and Roth Contributions.
(f)In-Plan Roth Rollover. Effective as of March 1, 2019, pursuant to section 402A(c)(4) of the Code, a Participant may make an irrevocable election, at the time, form, frequency, source, and in the manner prescribed by the Plan Committee, to have any vested portion of his or her Accounts including income, gains or losses thereon contributed to a Roth Contribution Account under the Plan for the benefit of such Participant; provided, however, such contributions shall exclude the following (if applicable): (i) pre-existing Roth Contributions, (ii) qualified nonelective contributions, and (iii) any portion of any such permitted Account(s) that is invested in the Stock Fund or self-directed brokerage option at such time. Any such contribution shall be accounted for separately from any Roth Contributions that do not result from such in-Plan Roth rollover as otherwise made pursuant to this Section 4. Furthermore, any such in-Plan Roth rollover shall remain subject to the distribution restrictions that were applicable to such amount before the in-Plan Roth rollover.
SECTION 5.MATCHING CONTRIBUTIONS.
(a)Quarterly Matching Contributions. The Participating Companies shall make Matching Contributions at a rate equal to one hundred percent (100%) of the Deferred Contributions made by the Participant up to the first four percent (4%) of Eligible Compensation; provided, however, that in no case shall Matching Contributions be made with respect to Catch-up Contributions or Employee After-Tax Contributions. The amount of each Participant’s Matching Contribution shall be determined for each payroll period, based on the amount of the Participant’s Deferred Contributions each payroll period, and credited to each Participant’s Matching Contribution Account at the time and in the manner described in Section 5(b). In order to receive a Matching Contribution with respect to a Calendar Quarter, a Participant must either be an Employee as of the last day of such Calendar Quarter or have terminated employment from
the Affiliated Group during such Calendar Quarter as a result of one of the following: (i) such employee’s death, or (ii) in connection with a sale or other disposition by the Company of the business unit in which such Participant had been employed that results in the Participant being employed with the successor to that business unit immediately following the sale or other disposition (collectively, such termination events in (i)-(ii) above shall be referred to as “Approved Termination Events”). Notwithstanding anything to the contrary in the foregoing, each Participant who: (i) is an Eligible Employee on the last day of the Plan Year, or (ii) who terminates employment during such Plan Year as a result of an Approved Termination Event shall be entitled to have his or her Matching Contribution “trued-up” in an amount equal to the difference, if any, between (i) one hundred percent (100%) of the Deferred Contributions (excluding Catch-Up Contributions) made by the Participant during such Plan Year up to the first four percent (4%) of Eligible Compensation, and (ii) the sum of the Matching Contributions contributed (or that are scheduled to be contributed for the final Calendar Quarter of the Plan Year in accordance with Section 5(b)) on behalf of such Participant for each Calendar Quarter during the Plan Year.
(b)Time and Form of Matching Contributions. Matching Contributions shall be made by the Participating Companies in cash only, and shall be paid to the Trustee and invested pursuant to Section 9 within the time prescribed by law for filing the Participating Companies’ federal income tax return, including extensions, for the Participating Companies’ tax return with which or within which the Plan Year ends, but in no event later than the end of the twelve (12)-month period immediately following the Plan Year to which the contributions relate or, with respect to any Matching Contribution attributable to a “true-up” after the end of the Plan Year.
SECTION 6.MINIMUM COMPANY CONTRIBUTIONS.
For any Plan Year, the Company shall make qualified nonelective contributions to the Plan, only as required in accordance with Appendix B.
SECTION 7.LIMITATION ON CONTRIBUTIONS.
(a)General Limitation. In no event shall the Annual Additions allocated to any Participant for any Limitation Year exceed the lesser of:
(i)Fifty-six thousand dollars ($56,000) (as adjusted by the Commissioner of Internal Revenue for increases subsequent to 2019 in the cost of living in accordance with section 415(d) of the Code); or
(ii)One hundred percent (100%) of the Participant’s Total Compensation for such Limitation Year. This compensation limit shall not apply to any contribution for medical benefits after separation from service (within the meaning of sections 401(h) or 419A(f)(2) of the Code) which is otherwise treated as an annual addition.
(b)Effect of Limitation. If the limitations described in Section 7(a) above would be exceeded with respect to any Participant for any Limitation Year, the Annual Additions allocated to the Participant for such Limitation Year shall be reduced by reducing the components of such Annual Additions, as necessary, in the order in which they are listed in the definition of Annual Additions.
(c)Deemed 125. For the purposes of the definition of Total Compensation and Eligible Compensation, including compensation defined under Section (c)(vi) of Appendix A, Section 1(x) of Appendix B, and Section 1(aa) of Appendix B, amounts under section 125 of the Code include any amounts not available to a Participant in cash in lieu of group health coverage because the Participant is unable to certify that he or she has other health coverage. An amount
will be treated as an amount under section 125 of the Code in accordance with the prior sentence only if the Company (or Participating Company, if applicable) does not request or collect information regarding the Participant’s other health care coverage as part of the enrollment process for the health plan.
SECTION 8.ACCOUNTS AND VALUATION.
(a)Accounts. The following Accounts, as appropriate, shall be maintained for a Participant:
(i)A “Matching Contribution Account” consisting of each Participant’s share of Matching Contributions and the realized or unrealized investment income, gains, losses and expenses allocable thereto;
(ii)A “Deferred Contribution Account” consisting of each Participant’s share of Deferred Contributions (including separately, a Pre-Tax Contribution Account and a Roth Contribution Account (which shall also include in-Plan Roth rollovers that shall be accounted for separately)), and Catch-up Contributions and the realized or unrealized investment income, gains, losses and expenses allocable thereto;
(iii)An “Employee After-Tax Contribution Account,” effective as of March 1, 2019, consisting of each Participant’s share of Employee After-Tax Contributions and realized or unrealized investment income, gains, losses and expenses allocable thereto; and
(iv)A “Rollover Contribution Account” consisting of each Participant’s share of Rollover Contributions and the realized or unrealized investment income, gains, losses and expenses allocable thereto.
(b)Valuation of Accounts. A Participant’s interest in each Account shall be represented by units of participation. Each Account shall be adjusted as of each Valuation Date by the Trustee to reflect any change in the unit value of the Account since the immediately preceding Valuation Date. The unit value of the Account shall be based on the fair market value of the Account, appropriately adjusted by the Trustee for any realized or unrealized investment income, gains, losses and expenses. A Participant’s number of units shall be adjusted to reflect any installment payments, withdrawals or loans pursuant to Section 12, 13 or 14, or the establishment of an account for an alternate payee as defined in section 414(p) of the Code (an “Alternate Payee”) pursuant to Section 15(b), from the Participant’s Accounts. The valuation of units of participation will be based on values as of the close of business on each Valuation Date, and all transactions under the Plan will be based on this valuation, subject to any adjustments due to unusual circumstances, as may be determined by the IRC.
SECTION 9.INVESTMENT OF ACCOUNTS.
(a)Investment Funds. Except as provided in Section 9(b) with respect to the Stock Fund and Section 9(g) with respect to the HPI Stock Fund, the Trust Fund shall be composed of such Funds as the IRC shall determine to make available from time to time and the IRC may change the available Funds at any time by adding, removing, or replacing one or more Funds.
(b)The Stock Fund. The Stock Fund shall be invested and reinvested primarily in Stock, except that a specified amount of cash within a target range established from time to time by the Stock Fund Fiduciary (or, if none, the IRC) in conjunction with the Trustee for purposes of available liquidity will be held in the Stock Fund and may be invested and reinvested in interest-bearing short-term debt obligations, money market instruments, savings accounts or similar investments. The Stock Fund shall consist of all Stock Fund investments held by the
Trustee and all cash held by the Trustee which is derived from dividends, interest or other income, gains or losses attributable to the Stock Fund, Deferred Contributions, Employee After-Tax Contributions, Matching Contributions and Rollover Contributions to be invested in the Stock Fund, and proceeds from the sale or redemption of Stock Fund investments. The cash shall be invested as provided in this Section 9(b). The Trustee shall, subject to the provisions of the Trust Agreement (including, without limitation, parameters as may be established by the Stock Fund Fiduciary from time to time), purchase or liquidate investments held under the Stock Fund.
(c)Investment Directions. A Participant may direct the investment of the Participant’s combined Deferred Contributions, Employee After-Tax Contributions, Matching Contributions and Rollover Contributions among the Funds, in the manner prescribed by the Plan Committee at the time of enrollment or reenrollment. A Participant may also be asked for a new investment direction as to balances or contributions for which he or she has earlier provided an affirmative election. The Participant may make changes on a daily basis and effective as soon as administratively practicable subject to the Participant’s investment directions for his or her combined Deferred Contributions, Employee After-Tax Contributions, Matching Contributions and Rollover Contributions by instructing the Trustee in the manner prescribed by the Plan Committee. Following enrollment or reenrollment in the manner prescribed by the Plan Committee, a Participant shall specify the percentage of the Participant’s combined Deferred Contributions, Employee After-Tax Contributions, Matching Contributions and Rollover Contributions to be invested in such Funds. Investment elections shall be in such minimum percentage amounts with respect to each Fund, as permitted by the Plan Committee and the Stock Fund Fiduciary, as applicable, and subject to the terms of the Trust Agreement.
Notwithstanding any provision in the Plan to the contrary, a Participant’s investment in the Stock Fund shall be subject to the limitations described in this paragraph. A Participant may direct the investment of no more than twenty percent (20%) of his or her combined Deferred Contributions, Employee After-Tax Contributions, Matching Contributions and Rollover Contributions and loan repayments into the Stock Fund; provided, however, that the Stock Fund Fiduciary may impose further limitations and restrictions on the investment of Participant Accounts in the Stock Fund. A Participant shall not be permitted to direct the reinvestment of his combined Rollover Contribution Account, Deferred Contribution Account, Employee After-Tax Contribution Account and Matching Contribution Account if such reinvestment would cause the value of the Participant’s interest in the Stock Fund to exceed twenty percent (20%) of the total value of all of the Participant’s Accounts. If a Participant makes an investment direction using a “rebalancing” feature offered under the Plan at a time when the value of the Participant’s interest in the Stock Fund exceeds twenty percent (20%) of the total value of all of the Participant’s Accounts, then the Participant’s investments shall automatically be adjusted such that the Participant’s interest in the Stock Fund does not exceed twenty percent (20%) of the total value of all of the Participant’s Accounts.
(d)Reinvestment Directions. A Participant, on a daily basis and effective as soon as administratively practicable, may direct the reinvestment of the Participant’s combined Rollover Contribution Account, Deferred Contribution Account, Employee After-Tax Contribution Account and Matching Contribution Account among the Funds by instructing the Trustee, in the manner prescribed by the Plan Committee. A Participant shall specify the reinvestment amounts of the Participant’s combined Rollover Account, Deferred Contribution Account, Employee After-Tax Contribution Account and Matching Contribution Account to be invested in such
Funds. Reinvestment directions shall be in such minimum dollar or percentage amounts as permitted by the Plan Committee and subject to the terms of the Trust Agreement.
(e)No Investment Directions. In the event that a Participant fails to direct his or her investment or fails to affirmatively respond to the Plan Committee’s request for a new investment direction (as to new or existing balances or contributions), such Participant shall be presumed to have directed that his or her account or contributions be invested in the investment option identified for that purpose, as designated by the IRC from time to time.
(f)Restrictions on Trading. Notwithstanding any provision in the Plan to the contrary, the IRC, as it deems appropriate and in its sole discretion, is authorized to impose from time to time any restrictions or limitations on any or all Participants’ ability to direct the investment of his, her or their Accounts into or out of a certain Fund or Funds.
(g)The HPI Stock Fund. Effective on or about November 1, 2016, the HPI Stock Fund (as defined below) was liquidated and invested in one or more other then-available Investment Funds under the Plan, in accordance with procedures adopted by the IRC. Accordingly, the HPI Stock Fund was eliminated as an Investment Fund under the Plan. The HPI Stock Fund was primarily comprised of shares of HP Inc. stock (“HPI Stock”), along with a specified amount of cash.
SECTION 10.EMPLOYEE STOCK OWNERSHIP PLAN.
(a)Establishment and Purpose. The Stock Fund and those portions of the Plan necessary to meet the requirements of section 4975(e)(7) of the Code are established, effective as of the Distribution Date, for all Dividend Payment Dates occurring thereafter, as an employee stock ownership plan under section 4975(e)(7) of the Code (the “ESOP”). As of such date, the purpose of the ESOP is to permit the current dividends paid on Stock held in the ESOP to be
passed through directly to ESOP Participants. The ESOP is designed to invest primarily in qualifying employer securities, which consist of the following: (i) common stock issued by the Company, or by a corporation within the same controlled group, which is readily tradeable on an established securities market (which requires that sales of the stock take place regularly and consistently based on the facts and circumstances), (ii) if there is no readily tradeable common stock, closely held common stock of the Company which has a combination of voting power and dividend rights equal to or in excess of the class of common stock of the Company having the greatest dividend rights and greatest voting power, or (iii) noncallable preferred stock if the stock is convertible into stock which meets the requirements of (i) or (ii) above, and if the conversion price is reasonable as of the date the ESOP acquired the preferred stock.
(b)Participant Elections.
(i)Each ESOP Participant may elect, in the manner provided by the Plan Committee, whether dividends payable on the Stock held by the ESOP Participant shall be paid directly in cash to the ESOP Participant or paid to the Stock Fund and reinvested in Stock. If an ESOP Participant does not make the election set forth in the preceding sentence, dividends on Stock held in the Stock Fund by the ESOP Participant shall be automatically reinvested in Stock. Any payment in cash pursuant to this Section 10(b)(i) shall be paid to the ESOP Participant no later than 90 days following the close of the Plan Year with respect to which the dividends are paid.
(ii)Each ESOP Participant shall have a reasonable period of time prior to the Dividend Payment Date to make the foregoing election pursuant to this Section 10.
(iii)Any election or automatic reinvestment in Stock made pursuant to Section 10(b)(i) shall become irrevocable as of the tenth business day preceding the applicable
Dividend Payment date with respect to all dividends payable under the ESOP on such applicable Dividend Payment Date. Any such election or automatic reinvestment shall remain in effect for all subsequent Dividend Payment Dates until changed in accordance with the terms of Section 10(b)(iv).
(iv)Each ESOP Participant may change his or her election in the manner provided by the Plan Committee subject to the provisions set forth in Sections 10(b)(i), (ii) and (iii) above.
(v)Notwithstanding any other provision of this Section 10(b), to the extent provided in Notice 2002-2 issued by the Internal Revenue Service or any successor notice or publication, an ESOP Participant who has elected a hardship withdrawal pursuant to the Plan must elect to receive dividends to the extent currently available to the ESOP Participant under the ESOP, provided however, that the foregoing requirement shall not apply as of the date permitted pursuant to any future guidance by the Internal Revenue Service.
(c)Vesting. ESOP Participants shall be fully vested at all times in all Applicable Dividends paid on applicable employer securities held by the ESOP.
(d)Compliance with the Code and Regulations. The ESOP shall meet the applicable requirements of section 4975(e)(7) of the Code and the Treasury Regulations promulgated thereunder, including but not limited to the following:
(i)The right of an ESOP Participant to demand that his or her benefits under the ESOP shall be distributed in the form of employer securities.
(ii)Section 409(o) of the Code relating to distribution of the ESOP Participant’s Account.
(iii)Section 409(e) of the Code relating to the voting rights of ESOP Participants.
(iv)The ESOP shall not be directly or indirectly integrated with Social Security in compliance with section 54.4975-11(a)(7)(ii) of the Treasury Regulations.
(v)The ESOP shall comply with section 54.4975(e)(7)-11(d)(1) of the Treasury Regulations requiring that a definite formula be provided for the allocation of contributions and forfeitures and that securities acquired by the ESOP shall be accounted for as in other defined contribution plans. For this purpose, valuations must be determined as of the most recent Valuation Date under the Plan. However, for a transaction between the Plan and a disqualified person, value must be determined as of the date of the transaction.
(vi)The ESOP cannot obligate itself to acquire securities from a particular security holder at an indefinite time determined upon the happening of an event such as the death of the holder in compliance with section 54.4975-11(a)(7)(i) of the Treasury Regulations.
(e)Compliance with Notice 2002-2 and Successor Guidance. The ESOP is intended to comply with Notice 2002-2 issued by the Internal Revenue Service, and any successor notice or publication.
(f)Compliance with Section 409(n) of the Code. The ESOP shall comply with the nonallocation rules of section 409(n) of the Code, as applicable, to Plan assets attributable to (or allocable in lieu of) Stock acquired by the Plan in a transaction in which gain was not recognized pursuant to section 1042 of the Code (such transaction being a “1042 Transaction” and such assets being “1042 Assets”).
(i)No portion of the Stock Fund attributable to (or allocable in lieu of) 1042 Assets may accrue or be allocated directly or indirectly under any plan meeting the requirements of section 401(a) of the Code maintained by the Affiliated Group:
(A)during the nonallocation period (as defined below) for the benefit of:
(1)Any taxpayer who makes an election under section 1042(a) of the Code with respect to Stock or other employer securities,
(2)Any individual who is related to such taxpayer (within the meaning of section 267(b) of the Code); or
(B)For the benefit of any other person who owns (after application of section 318(a) of the Code, applied without regard to the employee trust exception provided in subparagraph (2)(B)(i) thereof) more than twenty-five percent (25%) of:
(1)Any class of outstanding stock of the Affiliated Group, or
(2)The total value of any class of outstanding stock of a member of the Affiliated Group.
(ii)Subparagraph (i)(A)(1) above shall not apply to lineal descendants of the taxpayer, provided that the aggregate amount allocated to the benefit of all such lineal descendants during the nonallocation period (as defined below) does not exceed more than five percent (5%) of the Stock (or amounts allocated in lieu thereof) held by the Plan which are attributable to a sale to the Plan by any person related to such descendants (within the meaning of section 267(c)(4) of the Code) in a 1042 Transaction.
(iii)A person shall be treated as failing to meet the stock ownership limitation under subparagraph (i)(B), above, if such person fails such limitation:
(A)At any time during the one-year period ending on the date of the 1042 Transaction, or
(B)On the date as of which the 1042 Assets are allocated to Participants in the Plan.
(iv)For purposes of this Section, “nonallocation period” means the period beginning on the date of the sale of the Stock and ending on the later of:
(A)The date which is ten years after the 1042 Transaction, or
(B)The date of the Plan allocation attributable to the final payment of an exempt loan incurred in connection with such sale.
(v)Notwithstanding any provision of this Section 10(f) to the contrary, a 1042 Transaction shall not be permitted during the period in which the Employer has elected to be an S corporation under section 1362(a) of the Code.
SECTION 11.VESTING.
(a)Vesting in Deferred Contribution, Employee-After Tax Contribution and Rollover Accounts
.
A Participant’s interest in his or her own Deferred Contribution Account, Employee After-Tax Contribution Account and Rollover Account (plus income, gains and losses on such Accounts) will be fully vested at all times.
(b)Vesting in Matching Contributions. A Participant will be 100% vested in his or her Matching Contribution Account upon the earliest to occur of his or her (a) being credited
with three years of Vesting Service, (b) attainment of age 65, (c) death before termination of employment, and (d) becoming eligible for disability benefits under the Company’s long-term disability benefits program. In addition, a Participant shall be 100% vested in his or her Matching Contribution Account if he or she terminates employment from the Affiliated Group in connection with a sale or other disposition by the Company of the business unit in which the Participant had been employed that results in the Participant being employed with the successor to that business unit immediately following the sale or other disposition.
(c)Periods Counted as Vesting Service.
(i)Periods of Service. A Participant is credited with Vesting Service for each Period of Service under the “adjusted employment commencement date” method described and permitted under section 1.410(a)-7(a)(3)(i)(B) of the Treasury Regulations. A “Period of Service” means any period beginning with a Participant’s Employment Commencement Date or Reemployment Commencement Date and ending on the date of the Participant’s next Severance from Service. Notwithstanding the foregoing, a (i) (A) Former HP Participant or (B) Employee who provided services to HP pursuant to the FN-05 service schedule under the TSA and begins employment with the Company in accordance with the terms of such service schedule, is credited with Vesting Service for each Period of Service earned while employed by HP and (ii) Employee who was an active employee of Aruba Networks, Inc. (“Aruba”) on May 18, 2015, the date Aruba was acquired by HP (the “Closing Date”), is credited with Vesting Service under the Plan equal to the service that was or would have been credited to such Employee if the Employee had an active account balance under the Aruba Networks 401(k) Retirement
Plan as of the Closing Date; provided that, the Employee was in active employment with the Company on November 1, 2015.
(ii)Total Service and Aggregation Rules. All Periods of Service shall be aggregated to determine years of Vesting Service. Partial years of service will be aggregated based on a 365-day year, and no more than one year of Vesting Service may be earned in any 365-day period.
(iii)Service with the Affiliated Group. Only Periods of Service with a member of the Affiliated Group are counted for Vesting Service. Service with an employer before it becomes a member of the Affiliated Group (or after it stops being a member of the Affiliated Group) is not counted. Notwithstanding the preceding sentence, (A) service with an employer before it becomes a member of the Affiliated Group shall be counted as Vesting Service if the purchase, merger or similar agreement by which the employer becomes part of the Affiliated Group requires that service with such employer be counted as Vesting Service under this Plan, and (B) service as a Leased Employee counts as Vesting Service, but only to the extent required by section 414(n) of the Code. In addition, service with an employer from whom a group of employees is hired pursuant to an outsourcing contract or similar agreement shall be counted as Vesting Service if the contract by which such group of employees become employees of the Company requires that such prior service be counted as Vesting Service, or if the Plan Committee otherwise approves of such prior employer service counting as Vesting Service with respect to a designated group of employees.
(iv)Military Leaves. A Participant who returns to employment with the Affiliated Group following a Military Leave while his or her employment rights remain
protected by the federal veterans reemployment rights statute will be credited with Vesting Service for any Period of Severance (or portion thereof) attributable to the Military Leave; provided, however, that such crediting shall not duplicate any period credited under other parts of this Article.
(d)Forfeitures and Buybacks. This subsection only applies to Participants who are not 100% vested in Matching Contributions when they incur a Severance from Service.
(e)Forfeitures. A Participant will immediately forfeit any unvested Matching Contributions (A) upon receiving a distribution of the entire vested portion of his or her Account during a Period of Severance, or (B) upon incurring a five-year Period of Severance.
(f)Restorations. Contributions forfeited under Section 11(e) will be restored (without interest or earnings) upon reemployment by the Affiliated Group only if the Participant repays the full amount of the distribution to the Plan, and only if repayment is made before the earlier of: (A) five years after the Participant’s Reemployment Commencement Date; and (B) the date that the Participant incurs a five-year Period of Severance after receiving the distribution.
(g)Use of Forfeitures. Amounts forfeited under this Section may be used to reduce employer contributions, to restore benefits previously forfeited, to pay Plan expenses, or for any other permitted use.
SECTION 12.DISTRIBUTION OF PLAN BENEFITS.
(a)Valuation of Distribution. A Participant’s Plan Benefit with respect to his or her Accounts, if any, shall be valued on the Valuation Date on or following the date the Trustee receives a claim pursuant to Section 18 or, in the event of no claim, on the Valuation Date as of which the Trustee processes the distribution of the Participant’s Plan Benefit.
(b)Form of Distribution. A Participant’s Plan Benefit shall be payable in cash, except that a Participant (or, if applicable, his or her Beneficiary) may elect to have his or her Plan Benefit attributable to the Stock Fund paid in whole shares of Stock, plus cash for any fractional shares, as valued in accordance with Section 12(a) above. Notwithstanding the foregoing, if a Participant (or, if applicable, his or her Beneficiary) fails to elect the form of payment for his or her distribution(s), the entire Plan Benefit shall be payable in cash.
(c)Form of Benefit. Subject to Sections 12(d) and (e) below, a Plan Benefit shall be payable: (i) as set forth in Appendix D for distributions elected on or before May 31, 2019; or (ii) as set forth herein for distributions elected on or after June 1, 2019:
(i)Normal Form of Benefit. Unless the Participant elects otherwise pursuant to Section 12(c)(ii) below, the Participant (or in the event the Participant is deceased, the Participant’s Beneficiary) shall receive a lump sum distribution in accordance with the payment form specified in Section 12(b) above.
(ii)Optional Forms of Benefit. If the amount of the Participant’s Plan Benefit exceeds $5,000 (valued as set forth in Section 12(a)), the Participant during his or her lifetime may elect, in the manner prescribed by the Plan Committee, the following forms of distribution:
(A)periodic installments of a substantially-equal amount or percentage of the Participant’s specified Account(s) over a specified period; or
(B)a non-periodic amount or percentage of the Participant’s specified Account(s) in any amount that is at least $1,000, or, if less, the entire value of such Participant’s Plan Benefit; or
(C)any administratively practicable combination of the distribution forms described in subparagraphs (A) and (B) above;
(D)provided, however, that if a Participant has elected and is receiving a distribution in a form described in subparagraph (A) and, at such time, he or she also elects and receives any non-periodic distribution described in subparagraph (B), then the remaining installments due under subparagraph (A) shall be proportionately reduced to take into account the non-periodic distribution.
Notwithstanding the foregoing or any other provision of Plan to the contrary, once installment payments have begun, the Participant may elect at any time, in the manner prescribed by the Plan Committee, to have the entire remaining Plan Benefit distributed in a lump sum distribution in accordance with the value as set forth in Section 12(a) and the payment form as set forth in Section 12(b) above. Subject to Section 12(e), once installment payments have begun, the Participant may elect at any time, in the manner prescribed by the Plan Committee, to discontinue the remaining scheduled installment payments.
The Participant’s Account(s) shall be liquidated on a pro rata basis as necessary to fund the installment payments, unless specified otherwise by such Participant.
(iii)Death Benefits. Upon the death of a Participant, the Beneficiary shall receive the Plan Benefit in a lump sum distribution in accordance with the payment form set forth in Section 12(b) above; provided, however, that if the Participant had commenced or was receiving periodic installment distributions in accordance with subparagraph 12(c)(ii)(A) or (C) at the time of his or her death, then his or her
Beneficiary may elect to receive the remainder of the Plan Benefit in installments pursuant to Section 12(c), but not to exceed the period specified in Section 12(e)(ii).
(d)Direct Transfer. A Distributee may elect, subject to the conditions and administrative procedures prescribed by the Plan Committee, to have all or a portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specified by the Distributee in a Direct Rollover. A Participant or Spouse Beneficiary may also elect, to the extent administratively practicable, to have his or her entire Plan Benefit (or a portion thereof) distributed in-kind in the form of a direct transfer to an individual retirement account maintained by the Trustee, subject to the establishment of an individual retirement account with the Trustee.
(e)Time of Distribution.
(i)Subject to the requirements of this Article, following a Participant’s Severance From Service, his or her Plan Benefit shall be distributed in accordance with the Plan Committee’s then-existing procedures, and shall be subject to the foregoing during the Participant’s lifetime; provided, however, that such Participant’s Plan Benefit is not otherwise being distributed in substantially equal periodic installments at such time (as set forth in Section 12(c)(ii)(A) above):
(A)If the amount of the Participant’s Plan Benefit does not exceed $1,000 (determined as of the date distribution commences), the Participant’s entire Plan Benefit shall be distributed in a lump sum distribution as soon as reasonably practicable after the Participant ceases to be an Employee, unless the Participant makes an earlier election to have such Plan Benefit rolled into an Eligible Retirement Plan.
(B)If the amount of the Participant’s Plan Benefit is more than $1,000 but does not exceed $5,000 (determined as of the date distribution commences), the Participant’s entire Plan Benefit shall be distributed in a direct rollover to an individual retirement account designated by the Plan Committee as soon as reasonably practicable after the Participant ceases to be an Employee, unless the Participant makes an earlier election to have such Plan Benefit paid directly to him or her as a lump sum distribution or rolled into another Eligible Retirement Plan.
(C)If the amount of the Participant’s Plan Benefit exceeds $5,000 (determined as of the date distribution commences), the Participant’s Plan Benefit shall not be distributed until he or she ceases to be an Employee and has elected to receive the Plan Benefit pursuant to Section 12, but in no event shall a Participant’s Plan Benefit be distributed (or commence being distributed) later than the Participant’s Required Beginning Date.
(ii)Upon the death of a Participant, the Participant’s Plan Benefit shall be distributed to his or her Beneficiary (or, if applicable, Alternate Payee) in a lump-sum as soon as reasonably practicable after the Participant’s death, unless the Beneficiary (or, if applicable, the Alternate Payee) makes an earlier election to have such Plan Benefit rolled into an Eligible Retirement Plan. Notwithstanding the foregoing, if the Participant was receiving periodic installments at the time of his or her death, then his or her Beneficiary (or, if applicable, Alternate Payee) may elect to continue to receive the Participant’s Plan Benefit in installments (in accordance with Section 12(c)); provided, however, that such installments shall be distributed at least as rapidly as was in effect
prior to the Participant’s death, but in no event later than December 31st of the calendar year containing the fifth (5th) anniversary of the Participant’s death and the Plan Benefit shall exceed $5,000 (determined as of the date distribution commences).
(f)Latest Commencement Permitted. Notwithstanding any other provision of the Plan to the contrary, distribution of a Participant’s Plan Benefit shall be made or begin not later than the Participant’s Required Beginning Date and all distributions will be made in accordance with the requirements of section 401(a)(9) of the Code and the final Treasury Regulations thereunder and the minimum distribution incidental benefit requirement of section 401(a)(9)(G) of the Code.
SECTION 13.WITHDRAWALS.
(a)Age Fifty-Nine and One-Half. Upon giving notice in the manner prescribed by the Plan Committee and satisfying the requirements of this Section 13(a), a Participant who is an Employee may, in accordance with the distribution options for the Plan Benefits specified in Section 12(c), withdraw from his or her Matching Contribution Account and Deferred Contribution Account an amount in cash which is not more than the value of the Participant’s Accounts as of the date the withdrawal is made, only if the Participant will have attained age fifty-nine and one-half (59½) at the time the withdrawal is to be made. All withdrawals pursuant to this Section 13(a) shall be in a minimum amount of one thousand dollars ($1,000.00), or, if less, the entire value (adjusted as provided in Section 8(b)) of the Participant’s Matching Contribution Account and Deferred Contribution Account as of the date the withdrawal is made. A Participant may direct the order of liquidation of the Funds in his or her Accounts to fund the withdrawal in the manner prescribed by the Plan Committee. Otherwise, the Funds in a Participant’s Accounts shall be liquidated in the following order to fund the withdrawal: (i) the
vested Matching Contributions Account, (ii) the Pre-Tax Contributions Account, and (iii) the Roth Contributions Account.
(b)Hardship Withdrawals. Notwithstanding Section 13(a), a Participant who is an Employee may in the event of a financial hardship, request a hardship withdrawal in the manner prescribed by the Plan Committee. Such withdrawal shall be a cash amount of not less than one thousand dollars ($1,000) or one hundred percent (100%) of the limit in the immediately succeeding sentence if less than one thousand dollars ($1,000). Hardship withdrawals shall be limited to the value (adjusted as provided in Section 8(b)) of the Participant’s Deferred Contribution Account and Matching Contribution Account as of the date the withdrawal was made, but shall not include, with respect to the period after December 31, 1988, Matching Contributions or earnings thereon. A Participant may direct the order of liquidation of the Funds in his or her Accounts to fund the withdrawal in the manner prescribed by the Plan Committee. Otherwise, the Funds in a Participant’s Accounts shall be liquidated in the following order to fund the withdrawal, to the extent applicable to a Participant’s Accounts: (i) any Catch-up Contributions that were made on a pre-tax basis, (ii) any other Pre-Tax Contributions, (iii) any vested Matching Contributions for years prior to 2007 or for 2007 that were made in accordance with Section 5(a) of the HPI Plan, (iv) any vested Matching Contributions (other than those described in (iv) above), (v) any Roth Catch-up Contributions, and (vi) any other Roth Contributions.
A distribution shall be on account of a financial hardship only if the distribution is made on account of an immediate and heavy financial need and is necessary to satisfy such financial need (as described below). The Plan Committee shall make its determination regarding the
propriety of specific hardship withdrawals based on the Participant’s representations made in the manner prescribed by the Plan Committee.
(i)The following shall constitute an immediate and heavy financial need:
(A)Deductible medical expenses, within the meaning of section 213(d) of the Code, determined without regard to whether the expenses exceed 7.5% of adjusted gross income, as well as medical expenses that would be deductible under section 213(d) of the Code by the Participant, the Participant’s Spouse or any dependent of the Participant (as described in section 152 of the Code, without regard to sections 152(b)(1), 152(b)(2) and 152(d)(1)(B)), except that they are incurred (or are to be incurred) by the Participant’s domestic partner (the person with whom the Participant has signed and filed a notarized declaration of domestic partnership form as prescribed by the Company), provided that the domestic partner is the Participant’s designated Beneficiary;
(B)The purchase (excluding mortgage payments) of a principal residence for the Participant;
(C)The payment of tuition, related educational fees, and room and board expenses for up to the next 12 months of post-secondary education for the Participant, the Participant’s Spouse or child or any dependent of the Participant (as defined in section 152 of the Code, without regard to sections 152(b)(1), 152(b)(2), and 152(d)(1)(B));
(D)The need to prevent the eviction of the Participant from, or a foreclosure on the mortgage of, the Participant’s principal residence;
(E)The payment for burial or funeral expenses for the Participant’s deceased parents, Spouse, children or dependents (as defined in section 152 of the Code, without regard to section 152(d)(1)(B) of the Code);
(F)Expenses for the repair of damage to the Participant’s principal residence that would qualify for the casualty deduction under section 165 of the Code, determined without regard to whether the loss exceeds 10% of adjusted gross income;
(G)Expenses and losses (including loss of income) incurred by the Participant on account of a disaster declared by the Federal Emergency Management Agency (“FEMA”) under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 100-707, provided that the Participant’s principal residence or principal place of employment at the time of such disaster was located in an area designated by FEMA for individual assistance with respect to such disaster; or
(H)Any other financial need that has been identified as a deemed immediate and heavy financial need in a ruling, notice, or other document of general applicability issued under the authority of the Commissioner of Internal Revenue.
A distribution to meet an immediate and heavy financial need may include amounts necessary to pay federal, state and local income taxes and penalties reasonably anticipated to result from the hardship distribution.
(ii)A distribution on account of an immediate and heavy financial need shall be deemed necessary to satisfy such need only if:
(A)The amount withdrawn does not exceed the amount of the immediate and heavy financial need; or
(B)The Participant has obtained all distributions, other than hardship distributions, currently available under all plans maintained by the Affiliated Group to the extent required by applicable law.
(iii)Any previously-implemented automatic suspension of a Participant’s contributions to the Plan due to a hardship distribution shall be removed, effective as of January 1, 2019.
(c)Rollover Contribution Account Withdrawals. A Participant may at any time withdraw all or a portion of his or her Rollover Contribution Account, in accordance with the procedures established by the Plan Committee.
(d)Employee After-Tax Contribution Account Withdrawals. A Participant may withdraw all or a portion of his or her Employee After-Tax Contribution Account and any prior plan after-tax contributions, in accordance with the procedures established by the Plan Committee. All withdrawals pursuant to this Section 13(d) shall be in a minimum amount of one thousand dollars ($1,000.00) or, if less, the entire value (adjusted as provided in Section 8(b)) of the Participant’s Employee After-Tax Contribution Account as of the date the withdrawal is made.
(e)Military Leave Withdrawals. A Participant who is approved for a military leave of absence which extends for longer than thirty (30) days may, in accordance with rules established by the Plan Committee, withdraw from his or her Deferred Contribution Account an amount in cash which is not more than the value of the Participant’s Account as of the date the withdrawal is made. A Participant may direct the order of liquidation of the Funds in his or her
Account to fund the withdrawal in the manner prescribed by the Plan Committee; otherwise, the Funds in the Participant’s Account shall be liquidated in the following order to fund the withdrawal, to the extent applicable to a Participant’s Accounts (i) the Pre-Tax Contributions Account and (ii) the Roth Contributions Account.. A Participant who effects a withdrawal under this Section 13(e) shall be prohibited from making any additional contributions to the Plan for 6 months after the date of the withdrawal.
(f)Disability Withdrawals. Effective on and after March 1, 2019, upon giving notice in the manner prescribed by the Plan Committee and satisfying the requirements of this Section 13(f), a Participant who is an Employee may, with such frequency as may be established by the Plan Committee, withdraw from his or her Matching Contribution Account and Deferred Contribution Account an amount in cash which is not more than the value of the Participant’s Accounts as of the date the withdrawal is made, only if he or she is deemed disabled at the time that the withdrawal is to be made in accordance with the following: (i) he or she satisfies the requirements for benefits under the Company’s long-term disability benefits program, or (ii) he or she satisfies the requirements for Social Security disability benefits. All withdrawals pursuant to this Section 13(f) shall be in a minimum amount of one thousand dollars ($1,000.00) or, if less, the entire value (adjusted as provided in Section 8(b)) of the Participant’s Matching Contribution Account and Deferred Contribution Account as of the date the withdrawal is made. A Participant may direct the order of liquidation of the Funds in his or her Accounts to fund the withdrawal in the manner prescribed by the Plan Committee. Otherwise, the Funds in a Participant’s Accounts shall be liquidated in the following order to fund the withdrawal: (i) the vested Matching Contributions Account, (ii) the Pre-Tax Contributions Account, and (iii) the Roth Contributions Account.
SECTION 14.LOANS.
Loans shall be available to Participants in accordance with section 2550.408b-1 of the Department of Labor Regulations, and with the written requirements set forth in separate procedures. Such requirements shall apply equally to loans transferred to this Plan from the HPI Plan.
SECTION 15.GENERAL PROVISIONS.
(a)No Assignment of Rights. The interest and property rights of any person in the Plan, in the Trust Fund or in any distribution to be made under the Plan shall not be subject to option nor be assignable, either by voluntary or involuntary assignment or by operation of law, including (without limitation) bankruptcy, garnishment, attachment or other creditor’s process, and any act in violation hereof shall be void, except as otherwise permitted under ERISA and the Code.
(b)Qualified Domestic Relations Orders. For all purposes under the Plan except Section 7, the value of a Participant’s Accounts shall not include the amount payable to an Alternate Payee pursuant to a qualified domestic relations order. A separate account shall be established for an Alternate Payee consistent with an approved qualified domestic relations order at such time as the Plan Committee instructs the Trustee to establish such an account, after which the Alternate Payee shall have reinvestment direction rights provided in Section 9(c).
If requested, the Plan Committee shall make payment to an Alternate Payee pursuant to a qualified domestic relations order even if the Participant has not attained the “earliest retirement age” (within the meaning of section 414(p) of the Code). Any payment to an Alternate Payee shall be valued pursuant to Section 12(a).
Notwithstanding any other provision of the Plan, an Alternate Payee shall be treated as having the same rights as a Participant but only to the extent required under applicable law and then only to the extent provided in the approved qualified domestic relations order applying to such Participant and Alternate Payee.
(c)Plan Mergers. Except as may be permitted under regulations issued by the Secretary of the Treasury, the Plan shall not merge or consolidate with, nor transfer assets or liabilities to, any other plan unless each Participant would receive a benefit under the Plan immediately after the merger, consolidation or transfer (if the Plan then terminated) which is equal to or greater than the benefit which he or she would have been entitled to receive immediately before the merger, consolidation or transfer (if the Plan had then terminated).
(d)No Right in Trust Fund or to Employment. No person shall have any rights in or to the Trust Fund, or any part thereof, or under the Plan, except as, and only to the extent, expressly provided for in the Plan. The establishment of the Plan, the granting of benefits and any action of any member of the Affiliated Group or any other person shall not be held or construed to confer upon any person any right to be continued as an Employee nor, upon dismissal, to confer any right or interest in the Trust Fund other than as provided herein. No provision of the Plan shall restrict the right of any member of the Affiliated Group to discharge any Employee at any time and for any reason.
(e)Competency to Handle Benefits. If, in the opinion of the Plan Committee, any person is unable to properly handle any property distributable to such person under the Plan, the Plan Committee may make any reasonable arrangement for the distribution of Plan Benefits on such person’s behalf that it determines will be beneficial to such person, including (without
limitation) distribution to the person’s guardian, conservator, Spouse, dependent or parent, and such payment shall completely discharge all liability with respect to the amount so paid.
(f)False or Erroneous Statements. If any person makes any statement which is false or erroneous, fails to state or furnish any material fact or information or fails to correct any such information which has been previously furnished to the Trustee, the Company or any other Participating Company, the benefits payable with respect to such person shall be adjusted, if necessary, upon the discovery of the accurate information. The amount of any payments theretofore made in reliance on incorrect information shall be recalculated, if necessary, and reasonable steps shall be taken to recover any overpayment (including, but not limited to, a reduction of succeeding payments), as the Plan Committee may determine. If any incorrect benefit is paid for any reason, reasonable steps shall be taken to correct such incorrect benefit (including, but not limited to, a reduction of succeeding payments in the amount of overpayment), as the Plan Committee may determine.
(g)Effect of Re-Employment on Payment of Plan Benefit. If a Participant is reemployed by any member of the Affiliated Group, then distribution of his or her then-existing Plan Benefit under Section 12 shall not be made prior to the termination of his or her employment following re-employment (unless he or she is otherwise eligible for a distribution under the Plan); provided, however, if he or she has in effect at the time of re-employment a periodic distribution of his or her Plan Benefit under Section 12(c), then such distribution shall continue as set forth in that Section.
(h)Governing Law. This Plan shall be construed, administered and governed in all respects in accordance with ERISA, the Code and other pertinent Federal laws and, to the extent
not preempted by ERISA, in accordance with the laws of the State of Delaware (irrespective of the choice of law principles of the State of Delaware as to all matters).
(i)Beneficiary. Each Participant shall, in the form and manner prescribed by the Plan, designate a person(s) or entity (estate or trust) to be such Participant’s “Beneficiary” to receive amounts payable under the Plan in the event of the death of the Participant. A designation must be received by the Plan prior to the Participant’s death to be a valid designation. Any designation by a married Participant of a person other than his or her Spouse as primary Beneficiary shall be effective only if his or her Spouse consents in writing to such designation. Such consent shall acknowledge the effect of such designation and shall be witnessed by a representative of the Company (if available) or a notary public. The Spouse may revoke such consent only in the event that the Participant changes his or her Beneficiary designation. Subject to the foregoing, a Participant may change his or her Beneficiary from time to time in accordance with procedures established by the Plan Committee. If the Participant has not designated a Beneficiary, or if the designated Beneficiary (or Beneficiaries) are not living at the time any payment is to be made hereunder, then (i) the Spouse of the deceased Participant shall be his or her Beneficiary; or (ii) if the Participant has no Spouse living at the time of such payment, his or her then living children shall be his or her Beneficiaries, in equal shares; or (iii) if the Participant has neither a Spouse nor children living at the time of such payment, his or her then living parents shall be his or her Beneficiaries, in equal shares; or (iv) if the Participant has neither a Spouse nor children nor parents living at the time of such payment, his or her then living brothers and sisters shall be his or her Beneficiaries, in equal shares; or (v) if none of the individuals described in (i) through (iv) are living at the time of such payment, his or her estate shall be his or her Beneficiary. Solely for purposes of the immediately preceding sentence, the
term “Spouse” shall include domestic partners. For such purpose, a “domestic partner” shall mean the person with whom the Participant has signed and filed a notarized declaration of domestic partnership form as prescribed by the Company.
In the case of a Former HP Participant whose Account was transferred to this Plan from the HPI Plan, the beneficiary designation shall remain in effect, and any consent to a non-Spouse Beneficiary shall remain a valid consent, unless and until changed in accordance with the procedures established by the Plan Committee.
A Beneficiary who makes a “qualified disclaimer” (as such term is defined in section 2518(b) of the Code) that meets the requirements of section 2518(b) of the Code and that is valid under applicable state law shall be treated as dying before the Participant, provided that such disclaimer is actually received by the Plan Committee (or its delegate) prior to the payment of any death benefit under the Plan, including full vesting.
(j)Lost Participant or Beneficiary. If the Plan Committee is unable to locate a Participant or Beneficiary who is entitled to receive any property which constitutes all or part of a Plan Benefit, then the Plan Committee may (but need not) reallocate such property among other Participants. In the event that such Participant or Beneficiary thereafter makes a claim for such property, the Plan Committee shall reinstate such property (without income, gains or other adjustment) by making a special contribution to the Plan as soon as reasonably practicable after such claim is made. However, if any property which constitutes all or part of a Plan Benefit would have been lost by reason of escheat, then such property shall not be subject to reinstatement by the Plan Committee.
(k)Rollover From Eligible Retirement Plan. With the consent of the Plan Committee, and in the form and manner prescribed by the Plan, an Eligible Employee may
contribute all or any part of an “eligible rollover distribution” within the meaning of section 402(f)(2)(A) of the Code to the Plan, through a rollover in accordance with section 402(c), 403(a)(4), 403(b)(8)(A), or 457(e)(16)(A) of the Code, including a direct transfer in accordance with section 401(a)(31) of the Code and the Treasury Regulations thereunder. In addition, a Participant who has ceased to be an Employee under the 2014 U.S. Phased Retirement Program, and who has not reached his or her Required Beginning Date, may contribute all or any part of an ‘eligible rollover distribution’ within the meaning of section 402(c)(4) of the Code to the Plan through a direct transfer (in accordance with section 401(a)(31) of the Code and the Treasury Regulations thereunder) from the Hewlett-Packard Company Deferred Profit Sharing Plan or the Hewlett-Packard Company Pension Plan.
(l)Rollover From IRA. With the consent of the Plan Committee, and in the form and manner prescribed by the Plan Committee, an Eligible Employee may contribute to the Plan all or any portion of a distribution from an individual retirement account or annuity which meets the requirements of section 408(a) or 408(b) of the Code that is eligible to be rolled over and would otherwise be includible in gross income.
(m)Return of Contributions. Each contribution to the Plan by the Participating Companies is expressly conditioned on its deductibility under section 404 of the Code. In the event a deduction for such contributions is disallowed in whole or in part, the amount disallowed (reduced by any losses incurred with respect to such amount) shall be returned to the Participating Companies within one (1) year after the date of the disallowance of the deduction. In addition, if a Participating Company makes any contribution because of a mistake of fact, then the amount contributed because of the mistake (reduced by any losses incurred with respect to
such amount) may be returned to such Participating Company within one (1) year after the date the mistaken contribution was made.
(n)Voting Rights. Voting rights of Participants with respect to Stock shall be governed by the terms of the Trust Agreement and Section 10.
(o)Compliance With USERRA. Notwithstanding any other provision of the Plan to the contrary, with regard to an Employee who after serving in the uniformed services is reemployed on or after December 12, 1994, within the time required by the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended (“USERRA”), contributions, benefits and service credit shall be provided under the Plan with respect to his or her qualified military service (as defined in section 414(u)(5) of the Code) in accordance with section 414(u) of the Code. With respect to an Eligible Employee who continues to participate in the Plan during a period of qualifying military service, (1) as permitted by section 414(u)(7) of the Code, for purposes of determining such Employee’s rate of Deferred Contributions and Employee After-Tax Contributions, Eligible Compensation may be treated as the pay rate that would have been received by the Employee but for the period of qualifying military service; and (2) an Employee may elect to suspend his or her loan repayments during such period of qualifying military service without having such suspension treated as extending the term of such loan, as permitted by section 414(u)(4) of the Code. In the case of a Participant who dies while performing qualified military service (as defined in section 414(u)(5) of the Code), the survivors of such Participant are entitled to any additional benefits (other than benefit accruals relating to the period of qualified military service) provided under the Plan had the Participant resumed and then terminated employment on account of death, including full vesting.
(p)Unpaid Amounts. If any payment due to a person (that is, a Participant or Beneficiary) remains unpaid at his or her death, the payment will be made pursuant to the hierarchy specified in Section 15(i).
SECTION 16.FIDUCIARY RESPONSIBILITIES AND PLAN ADMINISTRATION.
(a)Named Fiduciary for Plan Administration. The Company is the “sponsor” of the Plan. The Plan Committee shall be the named fiduciary and plan administrator under ERISA with respect to operation and administration of the Plan. The Plan Committee shall make such rules, regulations and computations and shall take such other actions to administer the Plan as it may deem necessary or appropriate, in its sole discretion. In administering the Plan, the Plan Committee shall act in a nondiscriminatory manner to the extent required by section 401 and related sections of the Code and shall at all times discharge its duties with respect to the Plan in accordance with the standards set forth in section 404(a)(1) of ERISA. The Plan Committee shall have sole discretion to interpret the terms of the Plan and to determine eligibility for benefits pursuant to the objective criteria set forth in the Plan, and its rules, regulations, interpretations, computations and actions shall be conclusive and binding on all persons.
(b)Named Fiduciary for Management of Plan Assets. The IRC is the named fiduciary with respect to the control and management of the assets of the Plan. The IRC may assign or delegate, in its sole discretion, any or all of its responsibilities relating to the control and management of the Plan assets, including, without limitation, the Stock Fund and the HPI Stock Fund held under the Plan and related Trust. Accordingly, the IRC retained an independent fiduciary with regard to the Stock Fund and the HPI Stock Fund (collectively, the “Stock Fund Fiduciary”). The IRC and the Stock Fund Fiduciary entered into an agreement that specifies the terms and conditions under which the Stock Fund Fiduciary shall provide its independent
fiduciary services. Notwithstanding the foregoing, each Participant is the named fiduciary for purposes of directing the investment of his or her own Accounts.
(c)Service Providers. Each of the Plan Committee and the IRC may each engage the services of such persons or organizations to render advice or perform services with respect to its duties and responsibilities under the Plan as it may determine, in its sole discretion, to be necessary or appropriate. Such persons or organizations may include, but shall not be limited to, actuaries, attorneys, accountants, administrators and consultants.
(d)Service in Several Fiduciary Capacities. Nothing herein shall prohibit any committee or person or group of persons from serving in more than one fiduciary capacity with respect to the Plan (including serving both as Plan administrator and trustee).
(e)Delegation or Assignment of Fiduciary Responsibilities.
(i)Plan Administration. The Plan Committee may delegate or assign any of its fiduciary responsibilities with respect to Plan administration to any other entity, person or persons, including, but not limited to, the Trustee, Company Affiliates, directors, officers and/or employees, or a committee or committees consisting of such persons. Any such delegation or assignment shall be terminable upon such notice as the Plan Committee, in its sole discretion, deems reasonable and prudent under the circumstances.
(ii)Management of Plan Assets. The IRC may delegate or assign any of its fiduciary responsibilities with respect to the control and management of the assets of the Plan to any other entity, person or persons, including, but not limited to, the Trustee, Company Affiliates, directors, officers and/or employees, or a committee or committees consisting of such persons. Any such delegation or assignment shall be terminable upon
such notice as the IRC, in its sole discretion, deems reasonable and prudent under the circumstances.
(iii)Re-Delegation or Re-Assignment. To the extent permitted under the charter of each of the Plan Committee and the IRC, each delegated or assigned authority may be re-delegated or re-assigned.
SECTION 17.FUNDING POLICY AND METHOD.
(a)Contributions. The Company shall cause the Participating Companies to make Deferred Contributions, Employee After-Tax Contributions, and Matching Contributions required pursuant to Sections 3, 4 and 5.
(b)Expenses of the Plan and Trust. The reasonable expenses of administering the Plan and Trust shall be charged to and paid out of the Trust pursuant to directions of the IRC and as may be provided in the Trust Agreement and the Plan, to the extent permitted by applicable law, unless in the Company’s discretion such expenses are paid by the Participating Companies. The Company and the IRC, as applicable, shall have complete and unfettered discretion to determine whether an expense of the Plan or Trust shall be paid by the Participating Companies or out of the Trust Fund, and this Section shall not be construed to require the Participating Companies to pay any portion of the expenses of the Plan and Trust that are to be paid from the Trust Fund. The IRC’s discretion and authority to direct the Trust Fund to pay any reasonable expenses of the Plan and Trust shall not be limited in any way by any prior decision or act, whether repeated or sporadic, by the Company and other Participating Companies to pay any or all expenses of the Plan and Trust.
(c)Cash Requirements. If determined necessary, from time to time, the Company shall estimate the benefits and administrative expenses to be paid out of the Trust Fund during
the period for which such estimate is made and shall also estimate the Deferred Contributions, Employee After-Tax Contributions, and Matching Contributions to be made to the Plan during such period by the Participating Companies. The Company shall inform the Trustee and the IRC of the estimated cash needs of the Plan during the period for which such estimates are made. Such estimates shall be made on an annual, quarterly, monthly or other basis as the Company shall determine.
SECTION 18.CLAIMS PROCEDURE.
(a)Claims for Benefits.
Except for the cash-out of Plan Benefits pursuant to Sections 12(e)or as required under section 401(a)(9) of the Code, no Plan Benefit will be paid to or on behalf of a Participant under the Plan until the Participant (or the Participant’s Beneficiary or an Alternate Payee) has filed a claim for benefits which contains all information which the Plan Committee may need to determine the amount and form of any payment due hereunder. Such information may include, without limitation: the Participant’s date of birth; the Participant’s marital status; the name, address and birth date of the Participant’s Beneficiary, if any; and copies of such proof of age or marital status as the Plan Committee may request.
All claims for benefits under the Plan must be made in the manner prescribed by the Plan Committee and as described more fully in the summary plan description for the Plan.
The Plan Committee has full discretion and final authority to interpret the terms of the Plan and to decide all questions involving claims submitted under the Plan.
(b)Denial of Claim. In the event any claim for benefits is denied, in whole or in part, the Plan Committee shall notify the claimant (or his or her representative who is authorized to act on his or her behalf for purpose of the claim (referred to collectively, as “Claimant”)) of such
denial in writing and shall advise the Claimant of his or her right to appeal the denial. Such written notice shall set forth, in a manner calculated to be understood by the Claimant, specific reasons for the denial, specific references to the Plan provisions on which the denial is based, a description of any information or material necessary for the Claimant to perfect his or her claim, an explanation of why such material is necessary and an explanation of the Plan’s review procedure and the time limits applicable to such procedures, including a statement of the Claimant’s right to bring a civil action under section 502(a) of ERISA following denial on appeal. Such written notice shall be given to the Claimant within 90 days after the Plan Committee receives his or her claim, unless special circumstances require additional time for processing. If additional time for processing is required, written notice shall be furnished to the Claimant prior to the termination of the initial 90-day period. Such notice shall indicate the special circumstances requiring the extension of time and the date by which the Plan Committee expects to render its decision on the claim for benefits. In no event shall the decision of the Plan Committee (or its designee) be rendered more than 180 days after the claim is received.
SECTION 19.APPEAL PROCEDURES.
(a)Plan Administrator Discretion. The Plan Committee has full discretion and final authority to interpret the terms of the Plan and to decide all questions involving appeals submitted under the Plan.
(b)Right To Appeal. Any Claimant whose claim for benefits is denied, in whole or in part, may appeal from the denial by submitting a written request for review of the claim to the Plan Committee within 60 days after receiving written notice of the denial. The Plan Committee shall give the Claimant an opportunity to review pertinent documents in preparing a request for review. The Claimant will be provided with an opportunity to submit written comments,
documents, records and other information relating to the claim for benefits. The Claimant will be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to the Claimant’s claim for benefits (that is not privileged or protected). On appeal, the Plan Committee will take into account all comments, documents, records, and other information submitted by the Claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination.
(c)Form of Request for Review. A request for review must be made in writing and shall be addressed as follows: “Plan Committee, Hewlett Packard Enterprise 401(k) Plan, 6280 America Center Drive, San Jose, CA, 95002.” A request for review shall set forth all of the grounds upon which it is based, all facts in support thereof and any other matters which the Claimant deems pertinent. The Plan Committee may require the Claimant to submit such additional facts, documents or other material as it may deem necessary or appropriate in making its review.
(d)Time for Plan Administrator Action. The Plan Committee shall act upon each request no later than the date of the regularly-scheduled quarterly meeting of the Plan Committee that immediately follows the Plan’s receipt of a request for review, unless the request for review is filed within 30 days preceding the date of such meeting or unless such meeting is otherwise canceled or delayed. In such case, a benefit determination will be made no later than the date of the next regularly-scheduled quarterly meeting following the Plan’s receipt of the request for review. If special circumstances require an extension (or further extension) of time for processing, a benefit determination shall be made not later than the third regularly-scheduled quarterly meeting of the Plan Committee following the Plan’s receipt of the request for review, and written notice shall be furnished to the Claimant prior to such extension, indicating the date
by which the Plan Committee expects to make its decision on the request for review and the special circumstances requiring the extension of time. The Plan Committee will render its decision to the Claimant no later than five days after the determination has been made.
(e)Decision on Review. Within the time prescribed by Section 19(d), the Plan Committee shall give written notice of its decision to the Claimant. In the event the Plan Committee confirms the denial of the claim for benefits, in whole or in part, such notice shall set forth, in a manner calculated to be understood by the Claimant, specific reasons for such denial and specific references to the Plan provisions on which the decision was based. The notice will also include a statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the Claimant’s claim (that is not privileged or protected), and a statement of the Claimant’s right to bring an action under section 502(a) of ERISA. In the event that the Plan Committee determines that the claim for benefits should not have been denied, in whole or in part, appropriate remedial action shall be taken as soon as reasonably practicable after receiving notice of the Plan Committee’s decision.
(f)Rules and Procedures. The Plan Committee may establish such rules and procedures, consistent with the Plan and with ERISA, as it may deem necessary or appropriate in carrying out its responsibilities under this Section 19. The Plan Committee may require a Claimant who wishes to submit additional information in connection with an appeal from the denial of benefits to do so at his or her own expense.
(g)Exhaustion of Remedies. No legal or equitable action for benefits under the Plan shall be brought unless and until the Claimant: (i) has submitted a claim (in the manner prescribed by the Plan Committee) for benefits; (ii) has been notified that the claim is denied;
(iii) has filed a written request for a review of the claim in accordance with this Section 19; and (iv) has been notified in writing that the Plan Committee has affirmed the denial of the claim.
(h)Legal Actions. No action in law or equity for benefits under the Plan shall be commenced no later than the later of (i) one year following the satisfaction of the exhaustion requirements of Section 19(g), or (ii) two years from the date that the facts or events giving rise to the action, claims or allegations first occurred.
SECTION 20.AMENDMENT AND TERMINATION OF THE PLAN.
(a)Amendment and Termination. Although the Company expects to continue the Plan indefinitely, the Company reserves the right to amend or terminate the Plan at any time by written action of the Company’s board of directors, its delegates, or the Plan Committee. No amendment, however, shall (i) reduce the Plan Benefits of any Participant accrued as of the date the amendment is adopted, except to the extent that a reduction in accrued benefits may be permitted by ERISA and the Code, nor (ii) divert any part of the assets of the Trust Fund to purposes other than the exclusive purposes of providing benefits to the Participants, and Beneficiaries who have an interest in the Plan and defraying the reasonable expenses of administering the Plan.
(b)Termination of the Plan. Upon the termination of the Plan (or upon the complete discontinuance of Deferred Contributions, Employee After-Tax Contributions and Matching Contributions to the Plan), (i) no part of the Trust Fund shall revert to the Participating Companies nor be used for or diverted to purposes other than the exclusive purposes of providing benefits to Participants and Beneficiaries who have an interest in the Plan and defraying the reasonable expenses of administering the Plan, and (ii) the Trust shall continue until the Trust Fund has been distributed to the affected Participants as provided in Section 20(c), and (iii) the
Participating Companies shall have no obligation to continue making Deferred Contributions, Employee After-Tax Contributions or Matching Contributions to the Plan after the termination thereof. Except as otherwise provided in ERISA, neither a Participating Company, the Trustee, nor any other person shall have any liability or obligation to provide benefits hereunder after such termination. Upon the termination of the Plan, Participants and Beneficiaries shall obtain benefits solely from the Trust Fund. Upon any termination or partial termination of the Plan or the complete discontinuance of contributions thereto (within the meaning of section 411(d)(3) of the Code) the interest of each affected Participant, Beneficiary and Alternate Payee under a qualified domestic relations order in his or her Account at the date of such termination, partial termination, or discontinuance shall be nonforfeitable.
(c)Allocation of Trust Fund Upon Termination of the Plan. Upon the termination of the Plan (or upon the complete discontinuance of Deferred Contributions, Employee After-Tax Contributions, and Matching Contributions to the Plan), the Plan Benefit of each Participant shall be distributed, as the Company shall direct, to or on behalf of the Participant or his or her Beneficiary or continued in Trust until distributed in accordance with the terms of the Plan; provided, however, that the assets of the Trust Fund shall be allocated in accordance with section 403(d)(1) of ERISA.
Upon a partial termination of the Plan, this Section 20 shall apply only with respect to those Participants and Beneficiaries who are affected by such partial termination.
SECTION 21.DEFINITIONS.
(a)“Accounts” means, to the extent applicable to a Participant, one or more of the accounts set forth in Section 8(a). Separate accounts shall be established to maintain any
qualified nonelective contributions transferred to the Plan for the purpose of satisfying and complying with the rules of such contributions under the applicable federal laws and regulations.
(b)“Affiliate” means any entity (whether corporation, partnership, joint venture or other entity) a substantial percentage of the equity interest of which is owned by the Company, by one or more Subsidiaries, or by the Company together with one or more Subsidiaries and which has been designated by the Company as an Affiliate for purposes of the Plan.
(c)“Affiliated Group” means the Company, each Subsidiary and each Affiliate which, along with the Company, is a member of the same controlled group of corporations, trades or businesses under common control, or affiliated service group (within the meaning of sections 414(b), (c), and (m) of the Code), or which is required to be aggregated with the Company in accordance with section 414(o) of the Code and the Treasury Regulations thereunder.
(d)“Annual Additions” means the sum of the following:
(i)Employee After-Tax Contributions allocated to a Participant’s Employee After-Tax Contribution Account for a Limitation Year;
(ii)Deferred Contributions allocated to a Participant’s Deferred Contribution Account for a Limitation Year;
(iii)Matching Contributions allocated to a Participant’s Matching Contribution Account for a Limitation Year; plus
(iv)Any employer contributions or forfeitures allocated to the Participant for the Limitation Year under any other defined contribution plan of the Company or a Subsidiary.
(e)“Applicable Dividends” shall have the meaning that term has under section 404(k)(2)(A) of the Code.
(f)“Beneficiary” means the person or persons described in Section 15(i).
(g)“Catch-up Contributions” means a voluntary contribution made by a Participant to the Plan pursuant to an election under Section 3(f).
(h)“Code” means the Internal Revenue Code of 1986, as amended from time to time.
(i)“Company” means Hewlett Packard Enterprise Company, a Delaware corporation, or its successor.
(j)“Deferred Contributions” means Pre-Tax Contributions, Roth Contributions and Catch-up Contributions and any other amounts contributed to the Plan by the Participating Companies on behalf of Participants pursuant to Sections 3 and 4 excluding Employee After-Tax Contributions.
(k)“Deferred Contribution Account” means the Deferred Contribution Account described in Section 8(a), to which the Deferred Contributions and Catch-up Contributions made on the Participant’s behalf are credited.
(l)“Direct Rollover” means an Eligible Rollover Distribution that is paid by the Plan for the benefit of a Distributee to an Eligible Retirement Plan specified by the Distributee.
(m)“Distributee” means a Participant, a Beneficiary or an Alternate Payee under a qualified domestic relations order (as defined in section 414(p) of the Code) if he or she is the Spouse or former Spouse of the Participant.
(n)“Distribution” means the distribution by HP to its shareholders of its interest in the Company as of the Distribution Date.
(o)“Distribution Date” means on or about November 1, 2015, the date on which the Company ceased to be a member of the Hewlett-Packard Company controlled group of corporations (within the meaning of section 1563(a) of the Code).
(p)“Dividend Payment Date” means the date in on which dividends on Stock are paid.
(q)“Eligible Compensation” means a Participant’s regular wage or salary from a Participating Company (which for alternative work schedule employees shall be determined in accordance with the Plan’s administrative practices), including Deferred Contributions and Employee After-Tax Contributions made pursuant to Sections 3 and 4, deferrals made pursuant to section 125 of the Code under the Hewlett Packard Enterprise Cafeteria Plan and pursuant to sections 132(f)(4) and 457 of the Code. Eligible Compensation also shall include commissions and shift differentials, sick leave, vacation, jury duty, bereavement and other approved paid time off, and other payments classified as Eligible Compensation pursuant to the Company’s payroll practices. Eligible Compensation shall not include any compensation paid to a Participant for periods during which he or she is not an Eligible Employee; nor any compensation paid for periods after the last day of the month in which he or she ceases to be an Employee; nor overtime or other premium pay, compensation for work in excess of the regular work week, bonuses or incentive pay, severance pay, company performance payments, sick leave payments payable as a lump sum, pay received under the Hewlett Packard Enterprise Disability Plan (the “Disability Plan”) that is paid by the Company’s disability claims administrator, on behalf of a Participating Company, to a Participant who is on “transitional return to work status” under the Disability Plan; nor other special compensation of any kind.
Eligible Compensation shall not exceed $280,000 (as adjusted by the Commissioner of Internal Revenue subsequent to 2019 for increases in the cost of living in accordance with sections 401(a)(17) and 415(d) of the Code) for a Plan Year. The cost-of-living adjustment in effect for a calendar year applies to any period, not exceeding 12 months, over which compensation is determined (determination period) beginning in such calendar year. If a determination period consists of fewer than 12 months, the annual compensation limit will be multiplied by a fraction, the numerator of which is the number of months in the determination period, and the denominator of which is 12. Notwithstanding the above, for purposes of this definition, the Plan Committee may elect to restrict the amount of a Participant’s Eligible Compensation in accordance with section 401(a)(17) at the end of a Plan Year, rather than throughout the Plan Year.
(r)“Eligible Employee” means any Employee of a Participating Company, other than: (i) an Employee whose employment is covered by a collective bargaining agreement (unless such agreement expressly provides for participation in the Plan); (ii) an Employee who is eligible for and receiving benefits under the Hewlett Packard Enterprise Disability Plan on account of a period of disability in excess of twenty-six (26) weeks; (iii) an Employee who is a nonresident alien with respect to the United States and who derives no earned income from a United States source (unless such Employee has been designated as an Eligible Employee by the Company); (iv) an Employee who is a United States citizen working outside the United States, unless he or she is on a United States payroll; (v) an Employee who is a resident of Puerto Rico; (vi) an Employee who is deemed to be an employee of a member of the Affiliated Group pursuant to section 414(n) of the Code but who is not in fact a common-law employee of such member of the Affiliated Group; (vii) an Employee who is in a classification of employment
designated by a Participating Company as “temporary” other than an Employee designated as a “Limited Term Employee”; (viii) any individual who is subject to a written agreement that provides that such individual shall not be eligible to participate in the Plan; (ix) any individual who is not classified by a member of the Affiliated Group as an Employee (but, for example, is classified as an “independent contractor”) even if such individual is later determined to be (or have been) an Employee. An Eligible Employee shall be deemed to remain an Eligible Employee throughout any period of military service, if such Employee returns to active employment with a member of the Affiliated Group while his or her reemployment rights are protected by law. An individual’s status as an Eligible Employee shall be determined by the Plan Committee in its sole discretion and such determination shall be conclusive and binding on all persons.
(s)“Eligible Retirement Plan” means an individual retirement account described in section 408(a) of the Code, an individual retirement annuity described in section 408(b) of the Code, a Roth individual retirement account or annuity described in section 408A of the Code, an annuity plan described in section 403(a) of the Code, an annuity contract described in section 403(b) of the Code, an eligible plan under section 457(b) of the Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such plan from this plan, or a qualified trust described in section 401(a) of the Code, that accepts a Distributee’s Eligible Rollover Distribution. The definition of Eligible Retirement Plan shall also apply in the case of a distribution to a Surviving Spouse, or to a Spouse or former Spouse who is the Alternate Payee under a qualified domestic relation order, as defined in section 414(p) of the Code.
If any portion of an Eligible Rollover Distribution is attributable to payments or distributions from a designated Roth Account, an Eligible Retirement Plan with respect to such portion shall include only another designated Roth account of the individual from whose account the payments or distributions were made, or a Roth IRA of such individual. Notwithstanding the foregoing, with respect to a Distributee who is a non-spousal Beneficiary, an “Eligible Retirement Plan” shall mean only an inherited individual retirement account described in section 408(a) of the Code, an individual retirement annuity described in section 408(b) of the Code, or a Roth individual retirement account or annuity described in section 408A of the Code.
(t)“Eligible Rollover Distribution”means a distribution of all or any portion of the balance to the credit of a Distributee, excluding: a distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the Distributee or the joint lives (or joint life expectancies) of the Distributee and the Distributee’s designated Beneficiary, or for a specified period of ten (10) years or more; a distribution to the extent such distribution is required under section 401(a)(9) of the Code; the portion of any distribution that is not includable in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities) other than amounts that are not Employee After-Tax Contributions; a distribution described in section 1.402(c)-2, Q&A 4 of the Treasury Regulations; and any hardship distribution in accordance with Section 13(b).
A portion of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions which are not includible in gross income. However, such portion may be transferred only to an individual retirement account or annuity described in section 408(a) or (b) of the Code, or to a qualified plan described in section
401(a) or 403(a) of the Code that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible.
(u)“Employee” means any individual employed by any member of the Affiliated Group.
(v)“Employee After-Tax Contribution Account” means, effective as of March 1, 2019, the Employee After-Tax Contribution Account described in Section 8(a), to which the Employee After-Tax Contributions made on the Participants behalf are credited, and any prior after-tax contributions that were previously contributed to this Plan.
(w)“Employee After-Tax Contributions” means, effective as of March 1, 2019, an elective deferral that is: (i) designated irrevocably by the Participant at the time of the cash or deferred election as an after-tax non-deductible contribution (and not, for purposes of clarification, a Roth Contribution); and (ii) treated by the Company as includible in the Participant’s income at the time the Participant would have received that amount in cash if the Participant had not made a cash or deferred election.
(x)“Employment Commencement Date” means the first date on which a Participant performs an hour of service, as defined in DOL Reg. § 2530.200b-2(a)(1), for the Affiliated Companies.
(y)“ERISA” means the Employee Retirement Income Security Act of 1974, as it may be amended from time to time.
(z)“ESOP Participant” means a Participant in the Plan who has any portion of his or her Accounts invested in the Stock Fund. For purposes of Section 10 and the ESOP, ESOP
Participants include, as applicable, the Beneficiaries and Alternate Payees of those individuals designated as ESOP Participants in the preceding sentence.
(aa)“Former HP Participant” means a Participant whose employment was transferred to the Company and whose account in the HPI Plan was transferred to the Plan in connection with the Distribution.
(ab)“Funds” means the investment funds made available to Participants pursuant to Section 9(a).
(ac)“HP” means HP Inc., formerly known as the Hewlett-Packard Company.
(ad)“HPI Plan” means the HP Inc. 401(k) Plan, formerly known as the Hewlett-Packard Company 401(k) Plan.
(ae)“Investment Manager”
means a person who is appointed by the IRC or Stock Fund Fiduciary pursuant to Section 16, whether or not such person is an “investment manager” as such term is defined in section 3(38) of ERISA.
(af)“IRC” means the Investment Review Committee of the Company, as constituted from time to time.
(ag)“Limitation Year” means the calendar year.
(ah)“Matching Contribution Account” means the Matching Contribution Account described in Section 8(a), to which the Matching Contributions made on the Participants behalf are credited.
(ai)“Matching Contributions” means amounts contributed to the Plan by the Participating Companies on behalf of Participants pursuant to Section 5.
(aj)“Minimum Company Contributions” means amounts contributed to the Plan by the Company on behalf of Participants in accordance with the provisions of Section 6.
(ak)“Participant” means any individual who is accruing benefits under the Plan or who is receiving or entitled to receive benefits under the Plan.
(al)“Participating Company” means the Company and each member of the Affiliated Group which has been designated as a Participating Company by the Plan Committee from time to time.
(am)“Period of Severance” means the period beginning with a Participant’s Severance from Service and ending on the Participant’s next Reemployment Commencement Date.
(an)“Plan” means the Hewlett Packard Enterprise 401(k) Plan, as set forth herein and as it may be amended from time to time.
(ao)“Plan Benefit” means the benefit payable to a Participant or Beneficiary, determined under Section 12.
(ap)“Plan Committee” means the Plan Committee of the Company, as constituted from time to time.
(aq)“Plan Year” means the calendar year.
(ar)“Pre-Tax Contributions” means Eligible Employee’s contributions to the Plan in accordance with Section 3 that are not subject to taxation when contributed to the Plan.
(as)“Reemployment Commencement Date” means the first date following a Severance from Service on which a Participant performs an hour of service, as defined in DOL Reg. § 2530.200b-2(a)(1), for the Affiliated Group.
(at)“Required Beginning Date” means, with respect to a Participant, the latest date by which Plan Benefits may commence to the Participant. With regard to a Participant who is not a
five-percent (5%) owner, such date shall be the April 1 that next follows the later of (A) the calendar year in which the Participant attains age seventy and one-half (70½), or (B) the calendar year in which the Participant’s employment by the Affiliated Group terminates. With regard to a Participant who is a five-percent (5%) owner, such date shall be the April 1 that next follows the calendar year in which the Participant attains age seventy and one-half (70½).
For purposes of this subsection, a Participant shall be considered a five-percent (5%) owner if the Participant is a five-percent (5%) owner determined in accordance with section 416 of the Code but without regard to whether the Plan is top-heavy and taking into account any modifications under section 401(a)(9) of the Code.
(au)“Rollover Contributions” means amounts contributed to the Plan pursuant to Section 15(k) or 15(l).
(av)“Rollover Contribution Account” means the Rollover Contribution Account described in Section 8(a) established pursuant to Section 15(k) or 15(l), to which the Participant’s Rollover Contributions are credited.
(aw)“Roth Contributions” means an elective deferral that is: (i) designated irrevocably by the Participant at the time of the cash or deferred election as a Roth Contribution that is being made in lieu of all or a portion of the Pre-Tax Contributions the Participant is otherwise eligible to make under the Plan; and (ii) treated by the Company as includible in the Participant’s income at the time the Participant would have received that amount in cash if the Participant had not made a cash or deferred election.
(ax)“Severance From Service” means the date that follows an Employment Commencement Date and is the earlier of (A) the date a Participant quits, is discharged, retires or
dies; or (B) the first anniversary of the date a Participant is absent from service for any other reason (e.g., disability, vacation, leave of absence).
(ay)“Spouse” or “Surviving Spouse” means the individual to whom the Participant is legally married and who is treated as the spouse of such Participant pursuant to the Code, ERISA, and applicable regulations thereunder; or who was legally married to the Participant and so treated as of the date of the Participant’s death in the case of a Surviving Spouse; provided, however, that a former Spouse shall be treated as the Spouse or Surviving Spouse to the extent provided under a Qualified Domestic Relations Order, as described in section 414(p) of the Code and Section 15(b).
(az)“Stock” means the common stock of Hewlett Packard Enterprise Company, par value one cent ($.01), as well as employer securities that are held in the Trust as a result of Company stock-splits, stock dividends, and other similar transactions, that may be for a specified period |as determined by the Company or the IRC, as applicable.
(ba)“Subsidiary” means any corporation with respect to which the Company, one or more Subsidiaries, or the Company together with one or more Subsidiaries own not less than eighty percent (80%) of the total combined voting power of all classes of stock entitled to vote or not less than eighty percent (80%) of the total value of all shares of all classes of stock. For purposes of Section 7, the phrase “more than fifty percent (50%)” shall be substituted for the phrase “not less than eighty percent (80%)” wherever the latter phrase occurs in the preceding sentence.
(bb)“Total Compensation” means the compensation of the Participant from the Company and each Subsidiary for the Limitation Year, determined in accordance with section 1.415(c)-2(d)(4) of the Treasury Regulations, as modified by the non-elective provisions of
section 1.415(c)-2(e), (f) and (g) of the Treasury Regulations as set forth below, including elective deferrals (within the meaning of section 402(g)(3) of the Code) and any amount which is contributed or deferred by the Company or a Subsidiary at the election of the Participant and which is not includible in the gross income of the Participant by reason of sections 125, 132(f)(4) and 457 of the Code.
Total Compensation shall include (1) regular compensation for services that, absent a severance from service, would have been paid to the Participant if the Participant continued in employment with the Company, in accordance with section 1.415(c)-2(e)(3)(ii) of the Treasury Regulations, (2) payments of back pay within the meaning of section 1.415(c)-2(g)(8) of the Treasury Regulations, and (3) “differential wage payments” within the meaning of section 3401(h)(2) of the Code.
Notwithstanding the foregoing, no amount of Total Compensation in excess of the applicable limit under section 401(a)(17) of the Code in effect for the Plan Year shall be considered. This limitation on Total Compensation shall be applied in a manner consistent with the provisions contained in section 1.415(c)-2(f) of the Treasury Regulations.
(bc)“Trust Agreement” means that certain trust agreement dated March 1, 2018, by and between the Company, Plan Committee, IRC and Fidelity Management Trust Company, as it may be amended from time to time, providing for the receipt and investment of contributions under the Plan, and any successor or additional trust agreement between the Company and a Trustee or Trustees. To the extent not inconsistent, the terms of the Trust Agreement are incorporated herein by reference.
(bd)“Trustee”
means the trustee(s) appointed pursuant to the Trust Agreement.
(be)“Trust Fund” means the trust fund established pursuant to the Trust Agreement.
(bf)“Trust” means the trust established by the Trust Agreement.
(bg)“Valuation Date” means each business day the New York Stock Exchange is open.
SECTION 22.EXECUTION.
The Plan, as set forth herein, is hereby amended and restated this 10th day of June, 2019, effective as of January 1, 2019 (unless otherwise noted herein).
HEWLETT PACKARD ENTERPRISE COMPANY
By: /s/ Kristin Major
Kristin Major
Senior Vice President, Deputy General Counsel &
Assistant Secretary
A
APPENDIX A
TOP-HEAVY PROVISIONS
(a) Determination of Top-Heavy Status. Notwithstanding any other provisions of the Plan to the contrary, the following provisions shall become effective for any Plan Year in which the Plan is a “Top-Heavy Plan.” The Plan shall be considered a Top-Heavy Plan for a Plan Year if, as of the Determination Date for such Plan Year, the Top-Heavy Ratio for the Aggregation Group exceeds sixty percent (60%).
(b) Minimum Allocations. Notwithstanding any other provision of the Plan to the contrary, for any Plan Year during which the Plan is a Top-Heavy Plan, Matching Contributions allocated on behalf of any Participant who is employed on the last day of the Plan Year and who is not a Key Employee shall not be less than a percentage of the Participant’s Total Compensation equal to the lesser of (A) three percent (3%), or (B) the percentage equal to the largest percentage that any Key Employee for that Plan Year receives of Matching Contributions and Deferred Contributions allocated on behalf of that Key Employee’s Total Compensation for that Plan Year. Notwithstanding any other provision of the Plan to the contrary, Matching Contributions allocated on behalf of any Participant who is not a Key Employee that are used to satisfy the minimum allocation requirement of this paragraph (b) shall not be included in such Participant’s Aggregate 401(m) Contributions (as defined in Section 1 of Appendix B).
(c) Definitions. For purposes of this Appendix A, the following definitions shall apply:
(i) “Aggregation Group” means a group of qualified plans consisting of:
(A) Each plan of the Affiliated Group in which a Key Employee participates; and each other plan of the Affiliated Group which enables any plan
in which a Key Employee participates to meet the requirements of section 401(a)(4) or 410 of the Code; or
(B) All plans of the Affiliated Group included under (A) above plus, at the election of the Plan Committee, one or more additional plans of the Affiliated Group that satisfy the requirements of sections 401(a)(4) and 410 of the Code when considered together with the plans included under (A) above.
(ii) “Determination Date” means the last day of the preceding Plan Year. The Valuation Date applicable to such Determination Date shall be the Valuation Date coinciding with or immediately preceding such Determination Date.
(iii) “Key Employee” means a key employee as defined by section 416(i) of the Code and the Treasury Regulations thereunder.
(iv) Reserved.
(v) “Top-Heavy Ratio” means the top-heavy ratio of the Aggregation Group as computed in accordance with section 416(g) of the Code and the Treasury Regulations thereunder.
(vi) “Total Compensation” means Total Compensation as defined under Section 21 of the Plan.
B
APPENDIX B
LIMITATIONS ON CONTRIBUTIONS
TABLE OF CONTENTS
APPENDIX B
LIMITATIONS ON CONTRIBUTIONS
SECTION 1.DEFINITIONS.
(a)“ACP Test” means the Average Contribution Percentage test as described in Section 3(a) of this Appendix B and as set forth in section 401(m)(2) of the Code and section 1.401(m)-2 of the Treasury Regulations.
(b)“Actual Contribution Percentage” means the ratio, expressed as a percentage and computed to the nearest one-hundredth of one percent, of the Participant’s Aggregate 401(m) Contributions for the Plan Year to the Participant’s Section 414(s) Compensation for the Plan Year.
(c)“Actual Deferral Percentage” means the ratio, expressed as a percentage and computed to the nearest one-hundredth of one percent, of the Participant’s Aggregate 401(k) Contributions for the Plan Year to the Participant’s Section 414(s) Compensation for the Plan Year.
(d)“ADP Test” means the Average Deferral Percentage test as described in Section 2(b) of this Appendix B and as set forth in section 401(k)(3) of the Code and section 1.401(k)-2 of the Treasury Regulations.
(e)“Aggregate 401(k) Contributions” means the amount of Participating Company contributions actually paid over to the Trust on behalf of such Participant for the Plan Year. Participating Company contributions on behalf of any Participant shall include Deferred Contributions (other than Catch-up Contributions) made pursuant to the Participant’s deferral election (including Excess Deferrals of Highly Compensated Employees, but shall exclude (a) Excess Deferrals of Nonhighly Compensated Employees that arise solely from Deferred Contributions made under the Plan or plans of the Company or a member of the Affiliated
Group, (b) Deferred Contributions that are taken into account in the ACP Test (provided the ADP Test is satisfied both with and without exclusion of these Deferred Contributions), and (c) Deferred Contributions that are distributed to meet the limit described in Section 7. If the Plan does not satisfy the ADP Test on the basis of Deferred Contributions, Regular Company Contributions shall be taken into account under the ADP Test, but only if the Regular Company Contributions are Qualified Matching Contributions that meet the requirements of section 1.401(k)-2(a)(6) of the Treasury Regulations. If the Plan does not satisfy the ADP Test on the basis of the Deferred Contributions and Regular Company Contributions described in the prior sentences, Qualified Nonelective Contributions shall be taken into account under the ADP Test, but only if the Qualified Nonelective Contributions meet the requirements of section 1.401(k)-2(a)(6) of the Treasury Regulations. An Eligible Employee who would be a Participant but for the failure to make Deferred Contributions shall be treated as a Participant on whose behalf no Deferred Contributions are made.
(f)“Aggregate 401(m) Contributions” means the sum of the Employee After-Tax Contributions (if any) and Regular Matching Contributions (to the extent not taken into account for purposes of the ADP Test) made under the Plan on behalf of a Participant for a Plan Year. Such Aggregate 401(m) Contributions shall not include Regular Matching Contributions that are forfeited either (a) to correct Excess Aggregate Contributions or meet the limit described in Section 7, or (b) because the contributions to which they relate are Excess Deferrals, Excess Aggregate Contributions, Excess Contributions, or contributions that are distributed to meet the limit described in Section 7. Such Aggregate 401(m) Contributions shall include Employee After-Tax Contributions, but shall exclude Employee After-Tax Contributions that are distributed to correct Excess Aggregate Contributions or meet the limit described in Section 7. If
the Plan does not satisfy the ACP Test on the basis of these contributions, Deferred Contributions shall be taken into account under the ACP Test, but only if the ADP Test is met before the Deferred Contributions are used in the ACP Test and continues to be met following the exclusion of the Deferred Contributions that are used to meet the ACP Test. If the Plan does not satisfy the ADP Test on the basis of the contributions described in the prior sentences, Qualified Nonelective Contributions shall be taken into account under the ACP Test, but only if the Qualified Nonelective Contributions meet the requirements of section 1.401(k)-2(a)(6) of the Treasury Regulations. An Eligible Employee who would be a Participant but for the failure to make Deferred Contributions shall be treated as a Participant on whose behalf no Regular Matching Contributions are made.
Notwithstanding the preceding paragraph, a Participant’s Aggregate 401(m) Contributions shall not include (i) Matching Contributions that are forfeited from the Participant’s Account because the Matching Contribution is attributable to Deferred Contributions that are distributed to the Participant to correct Excess Deferrals, Excess Contributions or an excess Annual Addition and (ii) Matching Contributions that are forfeited from the Participant’s Account to correct an excess Annual Addition.
(g)“Annual Deferral Limit” means (except to the extent permitted under Section 3(e) of this Appendix B and section 414(v) of the Code) for any calendar year, the maximum dollar limit in effect under section 402(g) of the Code (as adjusted by the Commissioner of Internal Revenue for increases in the cost of living in accordance with sections 402(g)(5) and 415(d) of the Code), applicable to the sum of a Participant’s Deferred Contributions and other elective deferrals (as defined in section 402(g)(3) of the Code).
(h)“Average Contribution Percentage” means the average, computed to the nearest one-hundredth of one percent, of the Actual Contribution Percentages (including zero percentages) for Participants within the specified group.
(i)“Average Deferral Percentage” means the average, computed to the nearest one-hundredth of one percent, of the Actual Deferral Percentages (including zero percentages) for Participants within the specified group.
(j)“Current Year Testing Method” means, for any Plan Year, the use of the Plan Year’s Average Deferral Percentage for the Plan Year’s NHCE Group for purposes of performing the Plan Year’s ADP Test and/or the use of the Plan Year’s Average Contribution Percentage for the Plan Year’s NHCE Group for purposes of performing the Plan Year’s ACP Test.
(k)“Excess Aggregate Contributions” means the excess of (a) the Aggregate 401(m) Contributions made on behalf of the HCE Group for such Plan Year, over (b) the maximum of such contributions permitted by the ACP Test (determined by hypothetically reducing contributions made on behalf of Highly Compensated Employees in order of their Aggregate 401(m) Contributions beginning with the highest of such percentages). Such determination shall be made after first determining Excess Deferrals and then determining Excess Contributions.
(l)“Excess Contributions” means the excess of (a) the Aggregate 401(m) Contributions made on behalf of the HCE Group for such Plan Year, actually taken into account in computing the Average Deferral Percentage of members of the HCE Group for such Plan Year, over (b) the maximum amount of such contributions permitted by the ADP Test (determined by hypothetically reducing contributions made on behalf of Highly Compensated
Employees in order of the Average Deferral Percentages, beginning with the highest of such percentages).
(m)“Excess Deferrals” means the amount of a Participant’s Deferred Contributions and other elective deferrals (as defined in section 402(g)(3) of the Code) that exceed the Annual Deferral Limit.
(n)“HCE Group” means, for any Plan Year, the group of Highly Compensated Employees who are eligible to contribute or have amounts contributed on their behalf for the respective Plan Year (including a Participant who is otherwise eligible but who may be suspended from making or receiving contributions by reason of withdrawing from his or her Accounts).
(o)“Highly Compensated Employee” means an Employee who:
(i) At any time during the year or the preceding year, was a five-percent (5%) owner (as defined in section 416(i)(1) of the Code taking into account the attribution rules as defined in section 318(a) of the Code); or
(ii) For the preceding year, received Total Compensation of more than $125,000 (as adjusted by the Commissioner of Internal Revenue subsequent to 2019 for increases in the cost of living in accordance with sections 414(q)(1) and 415(d) of the Code).
For this purpose, the particular year of the Plan (the Plan Year) for which a determination is being made is the determination year and the preceding year (the prior Plan Year) is the look-back year.
A former Employee who separated from service (or is deemed to have separated) prior to the determination year, performs no service for a member of the Affiliated Group during the
determination year and was a highly compensated employee, in accordance with section 414(q) of the Code as then in effect, in either his or her separation year or any determination year ending on or after his or her 55th birthday, shall be treated as a Highly Compensated Employee.
The determination of who is a Highly Compensated Employee, including the determinations of the number and identity of Employees in the Top-Paid Group, will be made in accordance with section 414(q) of the Code.
The Company may elect to modify the method described in this Section 1(o) of Appendix B for defining “Highly Compensated Employee” by electing to apply the $125,000 limit described above with regard to whether an Employee is in the Top-Paid Group subject to the consistent application of this election to the extent required by IRS Notice 97-45 or any superseding guidance provided in a ruling, notice, or other document of general applicability issued under the authority of the Commissioner of Internal Revenue.
(p) “NHCE Group” means, for any Plan Year, the group of Nonhighly Compensated Employees who are eligible to contribute or have amounts contributed on their behalf for the respective Plan Year (including a Participant who is otherwise eligible but who may be suspended from making or receiving contributions by reason of withdrawing from his or her Accounts).
(q)“Nonhighly Compensated Employee” means, for any Plan Year, an Employee who is not a Highly Compensated Employee.
(r)“Participant” means, for any Plan Year, an Eligible Employee who is eligible to contribute or have amounts contributed on his or her behalf for the respective Plan Year.
(s)“Plan” means, for purposes of Section 2 of this Appendix B, the 401(k) portion of the Plan and for purposes of Section 3 of this Appendix B, the 401(m) portion of the Plan. Otherwise the term Plan has the meaning set forth in Section 21 of the Plan.
(t)“Plan Coverage Change” means, for any Plan Year, a change in the group of Eligible Employees covered under the Plan by reason of (i) an amendment to the Plan, (ii) a Plan merger, consolidation or spin-off under section 414(l) of the Code, (iii) a change in the way the Plan is aggregated or disaggregated for purposes of performing the ADP Test or ACP Test, or (iv) a combination of any of the foregoing.
(u)“Prior Year Testing Method” means, for any Plan Year, the use of the preceding Plan Year’s Average Deferral Percentage for the preceding Plan Year’s NHCE Group for purposes of performing the Plan Year’s ADP Test and/or the use of the preceding Plan Year’s Average Contribution Percentage for the preceding Plan Year’s NHCE Group for purposes of performing the Plan Year’s ACP Test.
(v)“Qualified Matching Contributions” means matching contributions that are nonforfeitable when made to the Plan and that are distributable only in accordance with the distribution provisions (other than for hardships) applicable to Deferred Contributions.
(w)“Qualified Nonelective Contributions” means contributions (other than Regular Matching Contributions and Qualified Matching Contributions) made by a Participating Company and allocated to Participants’ accounts, that (a) a Participant may not elect to receive in cash until distributed from the Plan, (b) are nonforfeitable when made to the Plan, and (c) are distributable only in accordance with the distribution provisions (other than for hardships) applicable to Deferred Contributions.
(x)“Section 414(s) Compensation” means “wages” as defined in section 3401(a) of the Code for purposes of income tax withholding at the source and all other payments of compensation reportable under sections 6041(d), 6051(a)(3) and 6052 of the Code and the Treasury Regulations thereunder but determined without regard to any rules that limit the remuneration included in wages or reportable compensation based on the nature or location of the employment or the services performed (such as the exception for agricultural labor in section 3401(a)(2) of the Code), and modified, at the election of the Plan Committee, to exclude amounts paid or reimbursed for moving expenses incurred by the Employee, if at the time or payment or reimbursement it is reasonable to believe that the amounts are deductible by the Employee under section 217 of the Code. The definitions set forth in the preceding sentence shall be modified to include an Employee’s elective deferrals (as defined in section 402(g)(3) of the Code) under any plan, contract or arrangement maintained by a member of the Affiliated Group and any amount which is contributed or deferred by a member of the Affiliated Group at the election of the Employee and which is not includible in the gross income of the Employee under sections 125, 132(f)(4) and 457 of the Code.
Section 414(s) Compensation shall be limited to $280,000 per Plan Year (as adjusted by the Commissioner of Internal Revenue for increases subsequent to 2019 in the cost of living in accordance with sections 401(a)(17) and 415(d) of the Code).
Section 414(s) Compensation shall be determined in accordance with section 1.415(c)-2(d)(4) of the Treasury Regulations, as modified by the non-elective provisions of sections 1.415(c)-2(e), (f), and (g) of the Treasury Regulations as set forth herein, including elective deferrals as described above.
It shall include (1) regular compensation for services that, absent a severance from service, would have been paid to the Participant if the Participant continued in employment with the Company, in accordance with section 1.415(c)-2(e)(3)(ii) of the Treasury Regulations, (2) payments of back pay within the meaning of section 1.415(c)-2(g)(8) of the Treasury Regulations, and (3) “differential wage payments” within the meaning of section 3401(h)(2) of the Code.
(y)“Testing Method” means the Current Year Testing Method. The election to use the Current Year Testing Method can be changed to the Prior Year Testing Method only if the Plan has used the Current Year Testing Method for each of the preceding five (5) Plan Years or if, as a result of a merger or acquisition described in section 410(b)(6)(C)(i) of the Code, the Company maintains both a plan using the Prior Year Testing Method and a plan using the Current Year Testing Method and the change is made within the transition period described in section 410(b)(6)(C)(ii) of the Code.
(z)“Top-Paid Group” means, for any Plan Year, the top twenty percent (20%) (in terms of Total Compensation) of all Employees, excluding the following:
(i) Any Employee covered by a collective bargaining agreement except to the extent otherwise provided under section 1.414(q)-1T of the Treasury Regulations;
(ii) Any Employee who is a nonresident alien with respect to the United States and who receives no earned income (within the meaning of section 911(d)(2) of the Code) from a member of the Affiliated Group that constitutes income from sources within the United States (within the meaning of section 861(a)(3) of the Code);
(iii) Any Employee who has not completed at least 500 hours of service during any six-month period by the end of the Plan Year;
(iv) Any Employee who normally works less than 17½ hours per week;
(v) Any Employee who normally works during less than six (6) months during any year; and
(vi) Any Employee who has not attained the age of 21 at the end of the Plan Year.
The Plan Committee may elect, in a consistent and uniform manner, to apply one or more of the service-and-age-based exclusions in subparagraphs (iii), (iv), (v) and (vi) of this Section 1(z) by substituting a shorter period of service or a younger age or by not excluding Employees on the basis of service or age.
(aa)“Total Compensation” means the “Section 414(s) Compensation” as defined in Section 1(x) of Appendix B received by an Employee during the Plan Year from a member of the Affiliated Group.
SECTION 2.DEFERRAL AND AVERAGE DEFERRAL PERCENTAGE LIMITATIONS.
(a)Maximum Annual Deferral Amount and Correction of Excess Deferrals. A Participant’s Deferred Contributions for a calendar year, together with his or her elective deferrals (as defined in section 402(g)(3) of the Code) under all other plans, contracts or arrangements maintained by a member of the Affiliated Group, shall not exceed the Annual Deferral Limit. In the event a Participant’s Deferred Contributions for a calendar year, together with his or her elective deferrals (as defined in section 402(g)(3) of the Code) under any other plans to which the Participant may, by written notice to the Plan Committee by the following March 1 (or as late as April 15 if allowed by the Plan Committee) notify the Plan Committee that an Excess Deferral has occurred, designate all or a portion of the Excess Deferral as attributable to the Plan and request that the amount be distributed. If the Participant fails to provide timely notice to the Plan Committee, then the Plan Committee shall be deemed to be on notice that an
Excess Deferral has occurred and shall designate one or more of such plans, contracts or arrangements (including the Plan) from which the Excess Deferrals shall be distributed.
To the extent a Participant’s Deferred Contributions are determined to be reduced as described in this Section 2(a) of Appendix B, Deferred Contributions (reduced by Deferred Contributions previously distributed as Excess Contributions to the Participant for the Plan Year beginning with or within the calendar year), adjusted for any income, gains or losses attributable thereto for the calendar year to which the Excess Deferrals relate, shall, no later than April 15 next following the close of the calendar year, be distributed to the Participant. Excess Deferrals distributed shall not be included in the determination of the Participant’s Annual Addition for the year the amounts were contributed.
The Excess Deferrals shall be distributed first from unmatched Deferred Contributions and then from matched Deferred Contributions. Any Matching Contributions attributable to distributed Excess Deferrals as described in this Section 2(a) of Appendix B shall be forfeited and used to reduce future Matching Contributions to be made as soon as administratively practicable.
Income, gains or loss on amounts distributed shall be determined pursuant to section 1.402(g)-1(e)(5) of the Treasury Regulations.
(b)Average Deferral Percentage Limitation. The Average Deferral Percentage of Eligible Employees must satisfy one of the following tests described in section 401(k)(3) of the Code: (1) the Average Deferral Percentage for Eligible Employees who are members of the HCE Group must not exceed the current Plan Year’s Average Deferral Percentage of Eligible Employees who are members of the NHCE Group, multiplied by 1.25; or (2) the Average Deferral Percentage for Eligible Employees who are members of the HCE Group must not
exceed the current Plan Year’s Average Deferral Percentage for Eligible Employees who are members of the NHCE Group, multiplied by 2.0, provided that the Average Deferral Percentage for Eligible Employees who are members of the HCE Group does not exceed the Average Deferral Percentage for Eligible Employees who are members of the NHCE Group by more than two (2) percentage points.
(c)Determination of Maximum Actual Deferral Percentage and Dollar Amount of Excess Contributions. If the ADP Test is not satisfied, the Plan Committee shall determine, no later than the end of the next Plan Year, a maximum permitted Actual Deferral Percentage to be used in place of the calculated Actual Deferral Percentage for each Highly Compensated Employee whose Actual Deferral Percentage is in excess of the maximum permitted and that would thereby reduce the Average Deferral Percentage for the HCE Group by a sufficient amount to satisfy the ADP Test. The maximum Actual Deferral Percentage shall be determined by use of a leveling process, whereby the Highly Compensated Employee with the largest Actual Deferral Percentage shall have his or her Actual Deferral Percentage reduced to a percentage equal to the lesser of the percentage required to satisfy the ADP Test or to cause his or her Actual Deferral Percentage to equal that of the Actual Deferral Percentage of the Highly Compensated Employee with the next largest Actual Deferral Percentage. The leveling process shall be repeated until the ADP Test is satisfied.
With regard to each Highly Compensated Employee whose Actual Deferral Percentage is in excess of the maximum permitted Actual Deferral Percentage, a dollar amount of Excess Contributions shall then be determined by subtracting the product of the maximum permitted Actual Deferral Percentage and the Highly Compensated Employee’s Section 414(s)
Compensation from the Highly Compensated Employee’s Aggregate 401(k) Contributions. The amounts shall then be aggregated to determine the total dollar amount of Excess Contributions.
(d)Allocation of Excess Contributions to Highly Compensated Employees. The Excess Contributions for a Plan Year determined in Section 2(c) of this Appendix B, if any, shall then be allocated to Highly Compensated Employees by use of a leveling process, whereby the Highly Compensated Employee with the largest dollar amount of Aggregate 401(k) Contributions shall have his or her Aggregate 401(k) Contributions reduced in an amount equal to the lesser of the dollar amount of Excess Contributions for all Highly Compensated Employees or the dollar amount that would cause his or her Aggregate 401(k) Contributions to equal that of the Highly Compensated Employee with the next largest dollar amount of Aggregate 401(k) Contributions. The leveling process shall be repeated until all Excess Contributions are allocated to Highly Compensated Employees.
(e)Correction of Excess Contributions. To the extent a Highly Compensated Employee’s Aggregate 401(k) Contributions are determined to be reduced as described in Section 2(d) of this Appendix B, Excess Contributions (reduced by Deferred Contributions previously distributed as Excess Deferrals to the Highly Compensated Employee for the calendar year ending with or within the Plan Year), adjusted for any income, gains or losses attributable thereto for the Plan Year to which the Excess Contributions relate, shall, no later than two and one-half (2½) months following the last day of the Plan Year to which the Excess Contributions relate (in order to avoid a ten percent (10%) excise tax on the amount of the Excess Contributions), and, in no event, later than the last day of the Plan Year following the Plan Year to which the Excess Contributions relate, be distributed (except to the extent such Excess Contributions are classified as Catch-up Contributions) to the Highly Compensated Employee.
To the extent a Highly Compensated Employee has not reached his or her Catch-up Contribution limit under the Plan, Excess Contributions allocated to such Highly Compensated Employee are Catch-up Contributions and will not be treated as excess amounts.
Excess Contributions distributed shall be included in the determination of the Participant’s Annual Addition for the year the amounts were contributed.
The Excess Contributions shall first be distributed from unmatched Deferred Contributions and then from matched Deferred Contributions. Any Matching Contributions attributable to distributed Excess Contributions as described in this Section 2(e) of Appendix B, shall be forfeited and used to reduce future Matching Contributions to be made as soon as administratively practicable.
The Excess Contributions distributed to a Participant with respect to a Plan Year shall be adjusted on a pro-rata basis for income, gains or losses for the Plan Year.
(f)Special Rules. The following special rules shall apply for purposes of applying the limitation described in Section 2(b) of this Appendix B:
(i) The Actual Deferral Percentage for any Highly Compensated Employee who is eligible to have Aggregate 401(k) Contributions allocated to his or her accounts under two or more arrangements described in section 401(k) of the Code that are maintained by the Company or a member of the Affiliated Group, shall be determined as if such elective deferrals (and, if applicable, such qualified non-elective contributions or qualified matching contributions, or both) were made under a single arrangement. If a Highly Compensated Employee participates in two or more cash or deferred arrangements of the Company or a member of the Affiliated Group that have different plan years, all elective deferrals made during the Plan Year under all such arrangements
shall be aggregated. Notwithstanding the foregoing, certain plans shall be treated as separate if mandatorily disaggregated under section 401(k) of the Code and the Treasury Regulations thereunder.
(ii) The Plan may be aggregated with another plan maintained by the Company or a member of the Affiliated Group only if the Plan and each other plan with which it is aggregated have the same plan year and use the same ADP testing method, and provided the plans are not subject to mandatory disaggregation under section 401(k) of the Code and the Treasury Regulations thereunder.
(iii) In the event that this Plan satisfies the requirements of sections 401(k), 401(a)(4), or 410(b) of the Code only if aggregated with one or more other plans, or if one or more other plans satisfy the requirements of such sections of the Code only if aggregated with this Plan, then this Section 2 of Appendix B shall be applied by determining the Actual Deferral Percentages of Employees as if all such plans were a single plan.
(iv) For purposes of determining the Actual Deferral Percentages, Deferral Contributions, Qualified Nonelective Contributions and Qualified Matching Contributions, contributions must be made before the end of the 12-month period immediately following the Plan Year to which the contributions relate.
SECTION 3.AVERAGE CONTRIBUTION PERCENTAGE LIMITATIONS.
(a)Average Contribution Percentage Limitation. The Average Contribution Percentage for Eligible Employees must satisfy one of the following tests described in section 401(m)(2) of the Code: (1) the Average Contribution Percentage of Eligible Employees who are members of the HCE Group must not exceed the current Plan Year’s Average Contribution Percentage for Eligible Employees who are members of the NHCE Group, multiplied by 1.25; or
(2) the Average Contribution Percentage for Eligible Employees who are members of the HCE Group must not exceed the current Plan Year’s Average Contribution Percentage for Eligible Employees who are members of the NHCE Group, multiplied by 2.0, provided that the Average Contribution Percentage for Eligible Employees who are members of the HCE Group does not exceed the Average Contribution Percentage for Eligible Employees who are members of the NHCE Group by more than two (2) percentage points.
(b)Determination of Maximum Actual Contribution Percentage and Dollar Amount of Excess Aggregate Contributions. If the ACP Test is not satisfied, the Plan Committee shall determine, no later than the end of the next Plan Year, a maximum permitted Actual Contribution Percentage to be used in place of the calculated Actual Contribution Percentage for each Highly Compensated Employee whose Actual Contribution Percentage is in excess of the maximum permitted and that would thereby reduce the Average Contribution Percentage for the HCE Group by a sufficient amount to satisfy the ACP Test. The maximum Actual Contribution Percentage shall be determined by use of a leveling process, whereby the Highly Compensated Employee with the largest Actual Contribution Percentage shall have his or her Actual Contribution Percentage reduced to a percentage equal to the lesser of the percentage required to satisfy the ACP Test or to cause his or her Actual Contribution Percentage to equal that of the Actual Contribution Percentage of the Highly Compensated Employee with the next largest Actual Contribution Percentage. The leveling process shall be repeated until the ACP Test is satisfied.
With regard to each Highly Compensated Employee whose Actual Contribution Percentage is in excess of the maximum permitted Actual Contribution Percentage, a dollar amount of Excess Aggregate Contributions shall then be determined by subtracting the product
of the maximum permitted Actual Contribution Percentage and the Highly Compensated Employee’s Section 414(s) Compensation from the Highly Compensated Employee’s Aggregate 401(m) Contributions. The amounts shall then be aggregated to determine the total dollar amount of Excess Aggregate Contributions.
(c)Allocation of Excess Aggregate Contributions to Highly Compensated Employees. The Excess Aggregate Contributions for a Plan Year determined in Section 3(b) of this Appendix B, if any, shall then be allocated to Highly Compensated Employees by use of a leveling process, whereby the Highly Compensated Employee with the largest dollar amount of Aggregate 401(m) Contributions shall have his or her Aggregate 401(m) Contributions reduced in an amount equal to the lesser of the dollar amount of Excess Aggregate Contributions for all Highly Compensated Employees or the dollar amount that would cause his or her Aggregate 401(m) Contributions to equal that of the Highly Compensated Employee with the next largest dollar amount of Aggregate 401(m) Contributions. The leveling process shall be repeated until all Excess Aggregate Contributions are allocated to Highly Compensated Employees.
(d)Correction of Excess Aggregate Contributions. To the extent a Highly Compensated Employee’s Aggregate 401(m) Contributions are determined to be reduced as described in Section 3(c) of this Appendix B, Excess Aggregate Contributions, adjusted for any income, gains or losses attributable thereto for the Plan Year to which the Excess Aggregate Contributions relate, shall, no later than two and one-half (2½) months following the last day of the Plan Year to which the Excess Aggregate Contributions relate (in order to avoid a ten percent (10%) excise tax on the amount of the Excess Aggregate Contributions), and, in no event, later than the last day of the Plan Year following the Plan Year to which the Excess Aggregate Contributions relate, be distributed (except to the extent such Excess Aggregate Contributions
are classified as Catch-up Contributions) to the Highly Compensated Employee. To the extent a Highly Compensated Employee has not reached his or her Catch-up Contribution limit under the Plan, Excess Aggregate Contributions allocated to such Highly Compensated Employee are Catch-up Contributions and will not be treated as excess amounts.
Excess Aggregate Contributions distributed shall be included in the determination of the Participant’s Annual Addition for the year the amounts were contributed.
The Excess Aggregate Contributions shall first be distributed from Employee After-Tax Contributions and, if that is not sufficient, then from Matching Contributions.
The Excess Aggregate Contributions distributed to a Participant with respect to a Plan Year shall be adjusted on a pro-rata basis for income, gains or losses for the Plan Year.
(e)Special Rules. The following special rules shall apply for purposes of applying the limitation described in Section 3(a) of this Appendix B:
(i) The Actual Contribution Percentage for any Highly Compensated Employee who is eligible to have Aggregate 401(m) Contributions allocated to his or her accounts under two or more plans described in section 401(a) of the Code, or arrangements described in section 401(k) of the Code, that are maintained by the Company or a member of the Affiliated Group, shall be determined as if such total Aggregate Contribution Percentages were made under each plan and arrangement. If a Highly Compensated Employee participates in two or more such plans or arrangements of the Company or a member of the Affiliated Group that have different plan years, all Aggregate 401(m) Contributions made during the Plan Year under all such plans and arrangements shall be aggregated. Notwithstanding the foregoing, certain plans shall be
treated as separate if mandatorily disaggregated under regulations under section 401(m) of the Code.
(ii) The Plan may be aggregated with another plan maintained by the Company or a member of the Affiliated Group only if the Plan and each other plan with which it is aggregated have the same plan year and use the same ACP testing method, and provided the plans are not subject to mandatory disaggregation under section 401(m) of the Code and the Treasury Regulations thereunder.
(iii) In the event that this Plan satisfies the requirements of section 401(m), 401(a)(4), or 410(b) of the Code only if aggregated with one or more other plans, or if one or more other plans satisfy the requirements of such sections of the Code only if aggregated with this Plan, then this Section 3 of Appendix B shall be applied by determining the Actual Contribution Percentages of Employees as if all such plans were a single plan.
(iv) For purposes of determining the Actual Contribution Percentages, Employee After-Tax Contributions are considered to have been made in the Plan Year in which contributed to the Trust. Regular Matching Contributions, Qualified Matching Contributions, and Qualified Nonelective Contributions must be made before the end of the twelve (12)-month period immediately following the Plan Year to which the contributions relate.
C
APPENDIX C
SPECIAL RULES FOR ACQUISITIONS AND DISPOSITIONS
SECTION 1. DIGITAL EQUIPMENT CORPORATION SAVINGS AND INVESTMENT PLAN.
This subsection applies to Participants who previously participated in the Digital Equipment Corporation Savings and Investment Plan (the “Digital Plan”) whose Digital Plan account was transferred to the Compaq Plan prior to its merger into the HPI Plan.
(a) A Digital Plan Participant who receives long-term disability benefits under the Company’s Disability Plan for more than 26 consecutive weeks but who has not otherwise separated from service from the Company or an Affiliated Group may make a withdrawal from his Account for any reason, but with such prior notice as the Plan Committee may prescribe. Any such withdrawal shall be in the amount specified by the Participant, up to the value of the Participant’s Compaq Plan account determined as of the Valuation Date next following the Plan Committee’s receipt of notice of the withdrawal. Payment to the Participant shall be made as soon as reasonably practicable after such Valuation Date.
(b) The Plan’s rules on distributions and withdrawals shall apply to the extent they are not inconsistent with this Appendix.
SECTION 2. TOWER SOFTWARE.
(a) Background and Purpose. On or about May 8, 2008, (the “Tower Closing Date”),
HP completed its acquisition of Tower Software Engineering Pty Ltd. (“Tower”). The Tower 401(k) Plan was merged with and into the HPI Plan, effective July 1, 2008 (the “Tower Plan Merger Date”), and all provisions of the HPI Plan replaced and superseded all provisions of the
Tower Plan. Each participant who had an account balance under the Tower Plan as of the Tower Plan Merger Date became a participant of the HPI Plan (“Tower Participant”) as of such date.
(b) Asset Transfer. The assets of the Tower Plan became assets of the HPI Plan and held as part of the trust established under the HPI Plan as of the Tower Plan Merger Date, and such assets were transferred by the trustee of the Tower Plan to the Trustee of the Plan as soon as administratively practicable after the Tower Plan Merger Date (the “Tower Asset Transfer Date”), adjusted for any earnings or losses from the Tower Plan Merger Date through the Tower Asset Transfer Date. All assets were transferred in cash, except that loans from the Tower Plan to Tower Participants that were outstanding as of the Tower Asset Transfer Date (“Tower Plan Loans”) were transferred in kind. The transferred assets (other than Tower Plan Loans) were be invested in accordance with the investment elections of the Tower Participants as in effect on the Tower Plan Merger Date, until changed in accordance with the investment election provisions of the HPI Plan.
(c) Service Credit. For purposes of eligibility and vesting under the Plan, each Tower Participant was credited with service equal to the service credited to such participant pursuant to the terms of the Tower Plan as of the Tower Plan Merger Date.
(d) Allocation of Contributions, Forfeitures, and Earnings. Allocations of contributions, forfeitures, and earnings for all periods prior to July 1, 2008 were made separately under the Tower Plan and the HPI Plan based upon the terms and provisions of the respective plans.
(e) Merger Protection. Immediately after the Tower Plan Merger Date, each Tower Participant was, in the event the HPI Plan than terminated, entitled to a benefit equal to or greater than the benefit to which such Participant would have been entitled under the Tower Plan
immediately prior to such date if the Tower Plan had then been terminated. The provisions of the preceding sentence shall be construed under the applicable federal regulations pursuant to section 208 of ERISA and section 414(l) of the Code.
(f) Optional Benefits. With respect to Tower Participants, the Plan shall continue to preserve all optional forms of benefit and rights under the Tower Plan required to be preserved pursuant to section 411(d)(6) of the Code and the Treasury Regulations thereunder.
(g) Inconsistent Provisions. Any provision of the Plan or the Tower Plan which is inconsistent with any provision of this Section 2 of Appendix C shall be considered to be and hereby is superseded.
SECTION 3. HP ENTERPRISE SERVICES, LLC.
(a) Background and Purpose. On or about August 26, 2008 (the “EDS Closing Date”), HP completed its acquisition of Electronic Data Systems Corporation, now known as HP Enterprise Services, LLC (“EDS”). The EDS 401(k) Plan (the “EDS Plan”) was merged with and into the Plan, effective December 31, 2010, at 11:59 p.m. (the “EDS Plan Merger Date”), and all provisions of the HPI Plan replaced and superseded all provisions of the EDS Plan. Each participant who had an account balance under the EDS Plan as of the EDS Plan Merger Date became a participant of the HPI Plan (“EDS Participant”) as of such date.
(b) Asset Transfer. The assets of the EDS Plan became assets of the Plan and held as part of the trust established under the Plan as of the EDS Plan Merger Date, and such assets were transferred by the trustee of the EDS Plan to the Trustee of the Plan as soon as administratively practicable after the EDS Plan Merger Date (the “EDS Asset Transfer Date”), adjusted for any earnings or losses from the EDS Plan Merger Date through the EDS Asset Transfer Date. All assets were transferred in cash, except that loans from the EDS Plan to EDS Participants that
were outstanding as of the EDS Asset Transfer Date (“EDS Plan Loans”) were transferred in kind. The transferred assets (other than EDS Plan Loans) were invested in accordance with the investment elections of the EDS Participants as in effect on the EDS Plan Merger Date, until changed in accordance with the investment election provisions of the Plan.
(c) Service Credit. For purposes of eligibility and vesting under the Plan, each EDS Participant was credited with service under the HPI Plan equal to the service credited to such participant pursuant to the terms of the EDS Plan as of the EDS Plan Merger Date.
(d) Allocation of Contributions, Forfeitures, and Earnings. Allocations of contributions, forfeitures, and earnings for all periods prior to December 31, 2010, were made separately under the EDS Plan and the HPI Plan based upon the terms and provisions of the respective plans.
(e) Merger Protection. Immediately after the EDS Plan Merger Date, each EDS Participant was, in the event the HPI Plan than terminated, entitled to a benefit equal to or greater than the benefit to which such Participant would have been entitled under the EDS Plan immediately prior to such date if the EDS Plan had then been terminated. The provisions of the preceding sentence shall be construed under the applicable federal regulations pursuant to section 208 of ERISA and section 414(l) of the Code.
(f) Optional Benefits. With respect to EDS Participants, the Plan shall preserve all optional forms of benefit and rights under the EDS Plan required to be preserved pursuant to section 411(d)(6) of the Code and the Treasury Regulations thereunder.
(g) Inconsistent Provisions. Any provision of the Plan or the EDS Plan which is inconsistent with any provision of this Section 3 of Appendix C shall be considered to be and hereby is superseded.
SECTION 4. MICROLINK.
(a) Background and Purpose. On or about October 3, 2011, HP completed its acquisition of Autonomy Corporation plc, and, indirectly, its U.S. subsidiary Microlink, LLC (“Microlink”). The Microlink, LLC 401(k) Profit Sharing Plan and Trust (“Microlink Plan”) was merged with and into the Plan, effective December 31, 2014, at 11:59 p.m. (the “Microlink Plan Merger Date”), and all provisions of the HPI Plan replaced and superseded all provisions of the Microlink Plan. Each participant who had an account balance under the Microlink Plan as of the Microlink Plan Merger Date became a participant of the HPI Plan (“Microlink Participant”) as of such date.
(b) Asset Transfer. The assets of the Microlink Plan became assets of the HPI Plan and held as part of the trust established under the HPI Plan as of the Microlink Plan Merger Date, and such assets were transferred by the trustee of the Microlink Plan to the Trustee of the Plan as soon as administratively practicable after the Microlink Plan Merger Date (the “Microlink Asset Transfer Date”), adjusted for any earnings or losses from the Microlink Plan Merger Date through the Microlink Asset Transfer Date. All assets were transferred in cash, except that loans from the Microlink Plan to Microlink Participants that were outstanding as of the Microlink Asset Transfer Date (“Microlink Plan Loans”) were transferred in kind. The transferred assets (other than Microlink Plan Loans) were invested in accordance with the investment elections of the Microlink Participants as in effect on the Microlink Plan Merger Date, until changed in accordance with the investment election provisions of the HPI Plan.
(c) Service Credit. For purposes of eligibility and vesting under the Plan, each Microlink Participant was credited with service equal to the service credited to such participant pursuant to the terms of the Microlink Plan as of the Microlink Plan Merger Date.
(d) Allocation of Contributions, Forfeitures, and Earnings. Allocations of contributions, forfeitures, and earnings for all periods prior to December 31, 2014 were made separately under the Microlink Plan and the HPI Plan based upon the terms and provisions of the respective plans.
(e) Merger Protection. Immediately after the Microlink Plan Merger Date, each Microlink Participant was, in the event the Plan than terminated, entitled to a benefit equal to or greater than the benefit to which such Participant would have been entitled under the Microlink Plan immediately prior to such date if the Microlink Plan had then been terminated. The provisions of the preceding sentence shall be construed under the applicable federal regulations pursuant to section 208 of ERISA and section 414(l) of the Code.
(f) Optional Benefits. With respect to Microlink Participants, the Plan shall preserve all optional forms of benefit and rights under the Microlink Plan required to be preserved pursuant to section 411(d)(6) of the Code and the Treasury Regulations thereunder. Notwithstanding the foregoing, from and after June 15, 2015, no Microlink Participant shall be entitled to elect a distribution of his account balance attributable to the Microlink Plan in any form other than a lump sum, except as otherwise provided under Section 12 of the Plan, and any other optional form of benefit distribution was eliminated, as permitted under section 411(d)(6) of the Code and the Treasury Regulations thereunder.
(g) Inconsistent Provisions. Any provision of the Plan or the Microlink Plan which is inconsistent with any provision of this Section 4 of Appendix C shall be considered to be and hereby is superseded.
SECTION 5. RASA NETWORKS.
(a) Background and Purpose. On or about May 13, 2016 (the “Acquisition Date”), HPE completed its acquisition of Rasa Networks Inc. (“Rasa”). Prior to the Acquisition Date, Rasa terminated its participation in the Trinet 401(k) Plan.
(b) Service Credit. For purposes of vesting under the Plan, each employee of Rasa who was an active Employee on the Acquisition Date (“Rasa Participant”), will be credited with Vesting Service for each Period of Service while employed with Rasa under the Plan. For this purpose, “Period of Service” shall be as defined in Section 11(c), except that such Rasa Participant shall be credited with Vesting Service as if Rasa had been a part of the Affiliated Group since its inception.
SECTION 6. NIARA, INC.
(a) Background and Purpose. On or about February 1, 2017 (the “Niara Closing Date”), HPE completed its acquisition of Niara, Inc. (“Niara”). Prior to the Niara Closing Date, Niara provided employee retirement benefits through the Zuman, Inc. Retirement Plan, a multiple employer plan. However, all plan assets and accounts attributable to Niara employees (each a “Niara Account” and, collectively “Niara Accounts”) will be transferred to the Plan on or about April 20, 2017. The Committee has authorized the HPE Trust to accept a plan-to-plan transfer of the Niara Accounts.
(b) Service Credit. For purposes of vesting under the Plan, each employee of Niara who was an active Niara employee on the Niara Closing Date (“Niara Participant”), will be credited with Vesting Service for each Period of Service while employed with Niara under the Plan. For this purpose, “Period of Service” shall be as defined in Section 11(c), except that such
Niara Participant shall be credited with Vesting Service as if Niara had been a part of the Affiliated Group since its inception.
SECTION 7. SIMPLIVITY CORPORATION.
(a) Background and Purpose. On or about February 17, 2017 (the “Acquisition Date”), HPE completed its acquisition of SimpliVity Corporation (“SimpliVity”). Prior to the Acquisition Date, SimpliVity terminated the SimpliVity Corporation 401(k) Retirement Plan.
(b) Service Credit. For purposes of vesting under the Plan, each employee of SimpliVity who was an active Employee on the Acquisition Date (“SimpliVity Participant”), will be credited with Vesting Service for each Period of Service while employed with SimpliVity under the Plan. For this purpose, “Period of Service” shall be as defined in Section 11(c), except that such SimpliVity Participant shall be credited with Vesting Service as if SimpliVity had been a part of the Affiliated Group since its inception.
SECTION 8. CLOUD TECHNOLOGY PARTNERS.
(a) Background and Purpose. On or about September 15, 2017 (the “Acquisition Date”), HPE completed its acquisition of Cloud Technology Partners (“CTP”). Prior to the Acquisition Date, CTP terminated its participation in the Cloud Technology Partners 401(k) Plan.
(b) Service Credit. For purposes of vesting under the Plan, each employee of CTP who was an active Employee on the Acquisition Date (“CTP Participant”), will be credited with Vesting Service for each Period of Service while employed with CTP under the Plan. For this purpose, “Period of Service” shall be as defined in Section 11(c), except that such CTP Participant shall be credited with Vesting Service as if CTP had been a part of the Affiliated Group since its inception.
D
APPENDIX D
DISTRIBUTIONS ELECTED ON OR BEFORE MAY 31, 2019
This Appendix D applies to distributions of Plan Benefits elected on or before May 31, 2019, as previously set forth in Section 12 which has been amended. All capitalized terms in this Appendix D have the same meaning as in the Plan.
For distributions elected on or before May 31, 2019, a Plan Benefit shall be payable in accordance with the following:
(a) Lump Sum Distribution. Except as provided in paragraph (b) below, the Participant (or in the event the Participant is deceased, the Participant’s Beneficiary) shall receive a lump sum distribution consisting of cash, except that a Participant or Beneficiary may elect to have his or her Plan Benefit attributable to the Stock Fund paid in whole shares of Stock, plus a check for any fractional shares.
(b) Installments at Required Beginning Date. If the amount of the Participant’s Plan Benefit exceeds $5,000 (determined as of the date of the distribution), the Participant may elect, in the manner prescribed by the Plan Committee, cash installments, payable at least annually, beginning on the Participant’s Required Beginning Date and continuing over a period not extending beyond the life expectancy of the Participant or the joint life expectancy of the Participant and his or her Beneficiary, in accordance with the requirements of section 401(a)(9) of the Code and the Treasury Regulations thereunder. Upon the death of a Participant who was receiving installment payments, payments may continue to the Participant’s Beneficiary for the remainder of the period elected by the Participant. Notwithstanding the foregoing or any other provision of Plan to the contrary, once installment payments have begun, the Participant (or, if the Participant is deceased, the Participant’s Beneficiary) may elect at any time, in the manner
prescribed by the Plan Committee, to have the entire remaining Plan Benefit distributed in a lump sum distribution. The assets in the Participant’s Accounts shall be liquidated as necessary to fund the installment payments in the order prescribed by the Plan Committee.
