EXHIBIT 4.1
The SBERA 401(k) Plan
as adopted by
Westfield Bank
Regional Prototype
Cash or Deferred
Profit-Sharing Plan
#012
NONSTANDARDIZED
ADOPTION AGREEMENT
REGIONAL
PROTOTYPE CASH OR DEFERRED PROFIT SHARING
PLAN AND TRUST
Sponsored by
SBERA
The Employer named below hereby establishes a Cash or Deferred Profit-Sharing
Plan for eligible Employees as provided in this Adoption Agreement and the
accompanying Regional Prototype Plan and Trust Basic Plan Document #Rl.
1. EMPLOYER INFORMATION
NOTE: If multiple Employers are adopting the Plan, complete this section
based on the lead Employer. Additional Employers may adopt this Plan
by xxxxxxxxx executed signature pages to the back of the Employer's
Adoption Agreement.
(a) NAME AND ADDRESS:
Westfield Savings Bank
000 Xxx Xxxxxx
Xxxxxxxxx, XX 00000
(b) TELEPHONE NUMBER: (000) 000-0000
(c) TAX ID NUMBER: 00-0000000
(d) FORM OF BUSINESS:
[_] (i) Sole Proprietor
[_] (ii) Partnership
[x] (iii) Corporation
[_] (iv) "S" Corporation (formerly known as Subchapter S)
[_] (v) Other:
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(e) NAME(S) OF INDIVIDUAL(S) AUTHORIZED TO ISSUE INSTRUCTIONS TO THE
TRUSTEE/CUSTODIAN:
(f) NAME OF PLAN: SBERA 401(k) Plan as adopted by
Westfield Savings Bank
(g) THREE DIGIT PLAN NUMBER FOR ANNUAL RETURN/REPORT: 002
2. EFFECTIVE DATE
(a) This is a new Plan having an effective date of __________.
(b) This is an amended Plan.
The effective date of the original Plan was April 1, 1995.
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The effective date of the amended Plan is July 1, 2000.
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(c) If different from above, the Effective Date for the Plan's Elective
Deferral provisions shall be _______.
3. DEFINITIONS
(a) "Collective or Commingled Funds"
[_] (i) Not Applicable - Non-Institutional Trustee.
[x] (ii) Investment in collective or commingled funds as permitted at
paragraph 13.3(b) of the Basic Plan Document #RI shall only
be made to the following specifically named fund(s):
SBERA Common and Collective Trust
---------------------------------
_____________________________________
_____________________________________
Funds made available after the execution of this Adoption Agreement will be
listed on schedules attached to the end of this Adoption Agreement.
(b) "Compensation" [paragraph 1.12]
(i) Compensation Measurement Period - Compensation shall be
determined on the basis of the:
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[x] (1) Plan Year
[_] (2) Employer's Taxable Year
[_] (3) Calendar Year
Compensation shall be determined on the basis of the following
safe-harbor definition of Compensation in IRS Regulation
Section 1.414(s)-1(c):
[_] (4) Code Section 6041 and 6051 Compensation,
[x] (5) Code Section 3401(a) Compensation, or
[_] (6) Code Section 415 Compensation.
(ii) Application of Salary Savings Agreements:
Compensation shall exclude Employer contributions made
pursuant to a Salary Savings Agreement under:
[_] (1) Not applicable, no such agreement exists.
[x] (2) Not applicable, no Employer contributions made pursuant
to a Salary Savings Agreement shall be excluded.
[_] (3) A Cash or Deferred Profit-Sharing Plan under Code
Section 401(k) or Simplified Employee Pension under
Code Section 402(h)(1)(B).
[-] (4) A flexible benefit plan under Code Section 125.
[-] (5) A tax deferred annuity under Code Section 403(b.
(iii) Exclusions From Compensation:
(1) overtime.
(2) bonuses.
(3) commissions.
(4) ____________
Type of Contribution(s) Exclusion(s)
----------------------- ------------
Elective Deferrals [Section 7(b)] __________
Matching Contributions [Section 7(c)] __________
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Qualified Non-Elective Contributions Section 7(d)] _________
and Non-Elective Contributions [Section 7(e)]
(iv) Maximum Compensation
For purposes of the Plan, Compensation shall be limited to
the maximum amount which will be considered for Plan
purposes. [If an amount is specified, it will limit the
amount of contributions allowed on behalf of higher
compensated Employees. Completion of this section is not
intended to coordinate with the $200,000 limit of Code
Section 415(d), thus the amount should be less than the
$200,000 limit as adjusted for cost-of-living increases.]
(c) "Entry Date" [paragraph 1.30]
(i) The first day of the Plan Year during which an
Employee meets the eligibility requirements.
(ii) The first day of the Plan Year nearest the date on
which an Employee meets the eligibility requirements.
(iii) The earlier of the first day of the Plan Year or the
first day of the seventh month of the Plan Year
coinciding with or following the date on which an
Employee meets the eligibility requirements.
(iv) The first day of the Plan Year following the date on
which the Employee meets the eligibility
requirements. If this election is made, the Service
requirement at 4(a)(ii) may not exceed 1/2 year and
the age requirement at 4(b)(ii) may not exceed 20
1/2.
(v) The first day of the month coinciding with or
following the date on which an Employee meets the
eligibility requirements.
(vi) The first day of the Plan Year, or the first day of
the fourth month, or the first day of the seventh
month or the first day of the tenth month, of the
Plan Year coinciding with or following the date on
which an Employee meets the eligibility requirements.
Indicate Entry Date(s) to be used by specifying option from
list above:
Type of Contribution(s) Entry Date(s)
----------------------- -------------
For Discretionary Profit-Sharing
Contributions under 7(e), (f) and (g) ______________
For all other contributions (Option (i) not v
available for these contributions) --------------
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(d) "Hour of Service" [paragraph 1.41]
Shall be determined on the basis of the method selected below. Only one
method may be selected. The method selected shall be applied to all
Employees covered under the Plan as follows:
[x] (i) On the basis of actual hours for which an Employee
is paid or entitled to payment.
[_] (ii) On the basis of days worked.
An Employee shall be credited with ten (10) Hours of
Service if under paragraph 1.41 of the Basic Plan Document
#RI such Employee would be credited with at least one (1)
Hour of Service during the day.
[_] (iii) On the basis of weeks worked.
An Employee shall be credited with forty-five (45) Hours of
Service if under paragraph 1.41 of the Basic Plan Document
#Rl such Employee would be credited with at least one (1)
Hour of Service during the week.
[_] (iv) On the basis of semimonthly payroll periods.
An Employee shall be credited with ninety-five (95) Hours
of Service if under paragraph 1.41 of the Basic Plan
Document #R1 such Employee would be credited with at least
one (1) Hour of Service during the semi monthly payroll
period.
[_] (v) On the basis of months worked.
An Employee shall be credited with one hundred ninety (190)
Hours of Service if under paragraph 1.41 of the Basic Plan
Document #R1 such Employee would be credited with at least
one (1) Hour of Service during the month.
(e) "Limitation Year" [paragraph 1.44]
The 12-consecutive month period commencing on January 1 and
---------
ending on December 31.
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If applicable, the Limitation Year will be a short Limitation
Year commencing on and ending on ______________. Thereafter, the
Limitation Year shall end on the date last specified above.
(f) "Net Profit"
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[x] (i) Not applicable (profits will not be required for any
contributions to the Plan).
[_] (ii) As defined in paragraph 1.48 of the Basic Plan Document
#Rl.
[_] (iii) Shall be defined as:
___________________________
___________________________
(Only use if definition in paragraph 1.48 of the Basic
Plan Document #R1 is to be superseded.)
(g) "Plan Year" [paragraph 1.57]
The 12-consecutive month period commencing on January 1 and ending on
---------
December 31
-----------
If applicable, the Plan Year will be a short Plan Year commencing on
and ending on _____. Thereafter, the Plan Year shall end on the date
last specified above.
(h) "Qualified Early Retirement Age"
For purposes of making distributions under the provisions of a
Qualified Domestic Relations Order, the Plan's Qualified Early
Retirement Age with regard to the Participant against whom the order is
entered [x] shall [ ] shall not be the date the order is determined to
be qualified. If "shall" is elected, this will only allow payout to the
alternate payee(s).
(i) "Qualified Joint and Survivor Annuity"
The safe-harbor provisions of paragraph 8.7 of the Basic Plan Document
#R1 [x] are [_] are not applicable. If not applicable, the survivor
annuity shall be __% (50%, 66-2/3%, 75% or 100%) of the annuity payable
during the lives of the Participant and Spouse. If no answer is
specified, 50% will be used.
(j) "Taxable Wage Base" [paragraph 1.63]
[x] (i) Not Applicable - Plan is not integrated with Social
Security.
[_] (ii) The maximum earnings considered wages for such Plan Year
under Code Section 3121(a).
[_] (iii) %(not more than 100%) of the amount considered wages for
such Plan Year under Code Section 3121(a).
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[_] (iv) $___, provided that such amount is not in excess of the amount
determined under paragraph 3(j)(ii) above.
[_] (v) For the 1989 Plan Year $10,000. For all subsequent Plan Years,
20% of the maximum earnings considered wages for such Plan
Year under Code Section 3121(a).
NOTE: Using less than the maximum at (ii) may result in a change in the
allocation formula in Section 7.
(k) "Valuation Date(s)"
Allocations to Participant Accounts will be done in accordance with
Article V of the Basic Plan Document #R1:
(i) Daily (v) Quarterly
(ii) Weekly (vi) Semi-Annually
(iii) Monthly (vii) Annually
(iv) Bi-Monthly
Indicate Valuation Date(s) to be used by specifying option from list
above:
Type of Contribution(s) Valuation Date(s)
----------------------- -----------------
After-Tax Voluntary Contributions [Section 6(b)]
-----------------
Elective Deferrals [Section 6(a)] i
-----------------
Matching Contributions [Section 7(c)] i
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Qualified Non-Elective Contributions [Section 7(d)]
-----------------
Non-Elective Contributions [Section 7(e), (f), (g)]
-----------------
Minimum Top-Heavy Contributions [Section 7(i)] i
-----------------
(l) "Year of Service"
(i) For Eligibility Purposes: The 12-consecutive month period during which
an Employee is credited with 1000 (not more than 1,000) Hours of
----
Service.
(ii) For Allocation Accrual Purposes: The 12-consecutive month period during
which an Employee is credited with 1 (not more than 1,000) Hours of
-
Service.
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(iii) For Vesting Purposes: The 12-consecutive month period during
which an Employee is credited with.1000 (not more than 1,000)
----
Hours of Service.
4. ELIGIBILITY REQUIREMENTS [Article II]
(a) Service:
(i) For Elective Deferrals, and Required Voluntary Contributions or
Employer Contributions [unless specified otherwise at (ii)
below]:
[_] (1) The Plan shall have no service requirement.
[x] (2) The Plan shall cover only Employees having completed
at least .25 [not more than three (3)] Years of
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Service. If more than one (1) is specified, for
Plan Years beginning in 1989 and later, the answer
will be deemed to be one (1).
(ii) For contributions [not covered at (i) above] specify the Service
requirements below:
Type of Contribution Service Requirement
-------------------- -------------------
Employer Matching 1 Year
---------
Qualified Non-Elective _________
Discretionary Profit-Sharing _________
Required Voluntary _________
Not more than three (3) years may be specified. If more than two
(2) years is specified, for Plan Years beginning in 1989 and
later, the requirement will be deemed to be two (2) years.
NOTE: If the eligibility period selected is or includes a fractional year, an
Employee will not be required to complete a specified number of Hours
of Service to receive credit for such period. Participants will be
eligible for Top-Heavy minimum contributions after the period in (i)
above, assuming they satisfy the other requirements of this Section 4.
(b) Age:
[_] (i) The Plan shall have no minimum age requirement.
[x] (ii) The Plan shall cover only Employees having attained age 21
--
(not more than age 21).
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(c) Classification:
The Plan shall cover all Employees who have met the age and service
requirements with the following exceptions:
[x] (i) No exceptions.
[_] (ii) The Plan shall exclude Employees included in a unit of
Employees covered by a collective bargaining agreement
between the Employer and Employee Representatives, if
retirement benefits were the subject of good faith
bargaining. For this purpose, the term "Employee
Representative" does not include any organization more than
half of whose members are Employees who are owners,
officers, or executives of the Employer.
[_] (iii) The Plan shall exclude Employees who are nonresident aliens
and who receive no earned income from the Employer which
constitutes income from sources within the United States.
[_] (iv) The Plan shall exclude from participation any
nondiscriminatory classification of Employees determined as
follows:
____________________________________
____________________________________
____________________________________
(d) Employees on Effective Date:
[_] (i) Not Applicable. All Employees will be required to satisfy
both the age and Service requirements specified above.
[_] (ii) Employees employed on the Plan's Effective Date do not have
to satisfy the Service requirements specified above at [_]
(a)(i), [_] (a)(ii), [_] both.
[_] (iii) Employees employed on the Plan's Effective Date do not have
to satisfy the age requirements specified above.
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5. RETIREMENT AGES
(a) Normal Retirement Age:
If the Employer imposes a requirement that Employees retire upon
reaching a specified age, the Normal Retirement Age selected below
may not exceed the Employer imposed mandatory retirement age.
[x] (i) Normal Retirement Age shall be 65 (not to exceed age 65).
--
[_] (ii) Normal Retirement Age shall be the later of attaining age
(not to exceed age 65) or the _________ (not to exceed the
anniversary of the first day of the first Plan Year in
which the Participant commenced participation in the Plan.
(b) Early Retirement Age:
[_] (i) Not Applicable.
[_] (ii) The Plan shall have an Early Retirement Age of 59 1/2(not
less than 55) and completion of ____ Years of Service.
6. EMPLOYEE CONTRIBUTIONS
[x] (a) Participants shall be permitted to make Elective Deferrals in
any amount from 1% up to 15 % of their Compensation.
- --
If (a) is applicable, Participants shall be permitted to amend
their Salary Savings Agreements to change the contribution
percentage as provided below:
[_] (i) On the Anniversary Date of the Plan,
[_] (ii) On the Anniversary Date of the Plan and on the first
day of the seventh month of the Plan Year,
[x] (iii) On the Anniversary Date of the Plan and on the first
day following any Valuation Date, or
[_] (iv) Upon 30 days notice to the Employer.
[_] (b) Participants shall be permitted to make after tax Voluntary
Contributions.
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[_] (c) Participants shall be required to make after tax Voluntary
Contributions as follows (Thrift Savings Plan):
[_] (i) ______% of Compensation.
[_] (ii) A percentage determined by the Employee on his or
her enrollment form.
[_] (d) If necessary to pass the Average Deferral Percentage Test
Participants may [ ] may not [ ] have Elective Deferrals
recharacterized as Voluntary Contributions.
NOTE: The Average Deferral Percentage Test will apply to
contributions under (a) above. The Average Contribution
Percentage Test will apply to contributions under (b) and (c)
above, and may apply to (a).
7. EMPLOYER CONTRIBUTIONS AND ALLOCATION THEREOF
NOTE: The Employer shall make contributions to the Plan in
accordance with the formula or formulas selected below. The
Employer's contribution shall be subject to the limitations
contained in Articles III and X. For this purpose, a
contribution for a Plan Year shall be limited for the
Limitation Year which ends with or within such Plan Year.
Also, the integrated allocation formulas below are for Plan
Years beginning in 1989 and later. The Employer's allocation
for earlier years shall be as specified in its Plan prior to
amendment for the Tax Reform Act of 1986.
(a) Profits Requirement:
(i) Current or Accumulated Net Profits are required for:
[_] (A) Matching Contributions.
[_] (B) Qualified Non-Elective Contributions.
[_] (C) Discretionary Contributions.
(ii) No Net Profits are required for:
[x] (A) Matching Contributions.
[_] (B) Qualified Non-Elective Contributions.
[_] (C) Discretionary Contributions.
NOTE: Elective Deferrals can always be contributed regardless of
profits.
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[X] (b) Salary Savings Agreement:
The Employer shall contribute and allocate to each
Participants account an amount equal to the amount withheld
from the Compensation of such Participant pursuant to his or
her Salary Savings Agreement. If applicable, the maximum
percentage is specified in Section 6 above.
An Employee who has terminated his or her election under the
Salary Savings Agreement other than for Hardship reasons may
not make another Elective Deferral:
[_] (i) until the first day of the next Plan Year.
[X] (ii) until the first day of the [X] next valuation
period. [_] second valuation period following
termination. [_] third valuation period following
termination.
[_] (iii) for a period of _ month(s) (not to exceed 12
months).
[X] (c) Matching Employer Contribution [See paragraphs (h) and (i)]:
[X] (i) Percentage Match: The Employer shall contribute
and allocate to each eligible Participant's
account an amount equal to 50% of the amount
contributed and allocated in accordance with
paragraph 7(b) above and (if checked) _____% of
[_] the amount of Voluntary Contributions made in
accordance with paragraph 4.1 of the Basic Plan
Document #R1. The Employer shall not match
Participant Elective Deferrals as provided above
in excess of $___ or in excess of 6% of the
Participant's Compensation or if applicable,
Voluntary Contributions in excess of $_______ or
in excess of ___% of the Participant's
Compensation. In no event will the match on both
Elective Deferrals and Voluntary Contributions
exceed a combined amount of $______ or _____%.
[_] (ii) Discretionary Match: The Employer shall
contribute and allocate to each eligible
Participant's account a percentage of the
Participant's Elective Deferral contributed and
allocated in accordance with paragraph 7(b)
above. The Employer shall set such percentage
prior to the end of the Plan Year. The Employer
shall not match Participant Elective Deferrals in
excess of $___ or in excess of ____% of the
Participant's Compensation.
[_] (iii) Tiered Match: The Employer shall contribute and
allocate to each Participant's account an amount
equal to _____% of the first ______% of the
Participant's Compensation, to the extent
deferred, ______% of the next _% of the
Participant's
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Compensation, to the extent deferred.
_________% of the next _% of the Participant's
Compensation, to the extent deferred.
NOTE: Percentages specified in (iii) above may not increase
as the percentage of Participant's contribution
increases.
[_] (iv) Flat Dollar Match: The Employer shall contribute
and allocate to each Participant's account
$_____ if the Participant defers at least 1% of
Compensation.
[_] (v) Percentage of Compensation Match: The Employer
shall contribute and allocate to each
Participant's account ______% of Compensation
if the Participant defers at least 1% of
Compensation.
[_] (vi) Proportionate Compensation Match: The Employer
shall contribute and allocate to each
Participant who defers at least 1% of
Compensation, an amount determined by
multiplying such Employer Matching Contribution
by a fraction the numerator of which is the
Participant's Compensation and the denominator
of which is the Compensation of all Participants
eligible to receive such an allocation, The
Employer shall set such discretionary
contribution prior to the end of the Plan Year.
[_] (vii) Qualified Match: Employer Matching Contributions
will be treated as Qualified Matching
Contributions to the extent specified below:
[_] (A) Matching Contributions.
[_] (B) None.
[_] (C) ____% of the Employees Matching
Contribution.
[_] (D) up to __% of each Participant' s
Compensation.
[_] (E) The amount necessary to meet the [_]
Average Deferral Percentage (ADP) test,
[_] Average Contribution Percentage
(ACP) test, [_] Both the ADP and ACP
tests.
(viii) Matching Contribution Computation Period: The
time period upon which matching contributions
will be based shall be
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[_] (A) weekly
[_] (B) bi-weekly
[_] (C) semi-monthly
[_] (D) monthly
[_] (E) quarterly
[_] (F) semi-annually
[X] (G) annually
(ix) Eligibility for Match: Employer Matching
Contributions, whether or not Qualified, will only be
made on Employee Contributions not withdrawn prior to
the end of the [X] valuation period [_] Plan Year.
[_] (d) Qualified Non-elective Employer Contribution - [See
paragraphs (h) and (i)] These contributions are fully
vested when contributed.
The Employer shall have the right to make an additional
discretionary contribution which shall be allocated to each
eligible Employee in proportion to his or her Compensation
as a percentage of the Compensation of all eligible
Employees. This part of the Employees contribution and the
allocation thereof shall be unrelated to any Employee
contributions made hereunder. The amount of Qualified
non-Elective Contributions taken into account for purposes
of meeting the ADP or ACP test requirements is:
[_] (i) All such Qualified non-Elective Contributions.
[_] (ii) The amount necessary to meet [_] the ADP test,
[_] the ACP test, [_] Both the ADP and ACP
tests.
Qualified non-Elective Contributions will be made to:
[_] (iii) All Employees eligible to participate.
[_] (iv) Only non-Highly Compensated Employees eligible
to participate.
[_] (e) Additional Employer Contribution Other Than Qualified
Non-Elective Contributions - Non-Integrated [See paragraphs
(h) and (i)]
The Employer shall have the right to make an additional
discretionary contribution which shall be allocated to each
eligible Employee in proportion to his or her Compensation
as a percentage of the Compensation of all eligible
Employees. This part of the Employees contribution and the
allocation thereof
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shall be unrelated to any Employee contributions made hereunder.
[_] (f) Additional Employer Contribution - Integrated Allocation Formula [See
paragraphs (h) and (i)]
The Employer shall have the right to make an additional discretionary
contribution. The Employees contribution for the Plan Year plus any
forfeitures shall be allocated to the accounts of eligible
Participants as follows:
(i) First, to the extent contributions and forfeitures are
sufficient, all Participants will receive an allocation equal to
3% of their Compensation.
(ii) Next, any remaining Employer Contributions and forfeitures will
be allocated to Participants who have Compensation in excess of
the Taxable Wage Base (excess Compensation). Each such
Participant will receive an allocation in the ratio that his or
her excess compensation bears to the excess Compensation of all
Participants. Participants may only receive an allocation of 3%
of excess Compensation.
(iii) Next, any remaining Employer contributions and forfeitures will
be allocated to all Participants in the ratio that their
Compensation plus excess Compensation bears to the total
Compensation plus excess Compensation of all Participants.
Participants may only receive an allocation of up to 2.7% of
their Compensation plus excess Compensation, under this
allocation method. If the Taxable Wage Base defined at Section
3(j) is less than or equal to the greater of $10,000 or 20% of
the maximum, the 2.7% need not be reduced. If the amount
specified is greater than the greater of $10,000 or 20% of the
maximum Taxable Wage Base, but not more than 80%, 2.7% must be
reduced to 1.3%. If the amount specified is greater than 80% but
less than 100% of the maximum Taxable Wage Base, the 2.7% must
be reduced to 2.4%.
NOTE: If the Plan is not Top-Heavy or if the Top-Heavy minimum
contribution or benefit is provided under another Plan [see
Section 11(d)(ii)] covering the same Employees, sub-paragraphs
(i) and (ii) above may be disregarded and 5.7%, 4.3% or 5.4% may
be substituted for 2.7%, 1.3% or 2.4% where it appears in (iii)
above.
(iv) Next, any remaining Employer contributions and forfeitures will
be allocated to all Participants (whether or not they received
an allocation under the preceding paragraphs) in the ratio that
each Participant's Compensation bears to all Participants'
Compensation.
[_] (g) Additional Employer Contribution Alternative Integrated Allocation
Formula [See paragraph (i)]
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The Employer shall have the right to make an additional discretionary
contribution. To the extent that such contributions are sufficient, they
shall be allocated as follows:
______% of each eligible Participant's Compensation plus % of Compensation
in excess of the Taxable Wage Base defined at Section 3(j) hereof. The
percentage on excess compensation may not exceed the lesser of (i) the
amount first specified in this paragraph or (ii) the greater of 5.7% or
the percentage rate of tax under Code Section 3111(a) as in effect on the
first day of the Plan Year attributable to the Old Age (OA) portion of the
OASDI provisions of the Social Security Act. If the Employer specifies a
Taxable Wage Base in Section 3(j) which is lower than the Taxable Wage
Base for Social Security purposes (SSTWB) in effect as of the first day of
the Plan Year, the percentage contributed with respect to excess
Compensation must be adjusted. If the Plan's Taxable Wage Base is greater
than the larger of $10,000 or 20% of the SSTWB but not more than 80% of
the SSTWB, the excess percentage is 4.3%. If the Plan's Taxable Wage Base
is greater than 80% of the SSTWB but less than 100% of the SSTWB, the
excess percentage is 5.4%.
NOTE: Only one plan maintained by the Employer may be integrated with Social
Security.
(h) Allocation of Excess Amounts (Annual Additions)
In the event that the allocation formula above results in an Excess
Amount, such excess shall be:
[X] (i) placed in a suspense account accruing no gains or losses for the
benefit of the Participant.
[_] (ii) reallocated as additional Employer contributions to all other
Participants to the extent that they do not have any Excess
Amount.
(i) Minimum Employer Contribution Under Top-Heavy Plans:
For any Plan Year during which the Plan is Top-Heavy, the sum of the
contributions and forfeitures as allocated to eligible Employees under
paragraphs 7(d), 7(e), 7(f), 7(g) and 9 of this Adoption Agreement shall
not be less than the amount required under paragraph 14.2 of the Basic
Plan Document #R1. Top-Heavy minimums will be allocated to:
[X] (i) all eligible Participants.
[_] (ii) only eligible non-Key Employees who are Participants.
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(j) Return of Excess Contributions and/or Excess Aggregate
Contributions:
In the event that one or more Highly Compensated Employees are
subject to both the ADP and ACP tests and the sum of such tests
exceeds the Aggregate Limit, the limit will be satisfied by
reducing the:
[X] (i) the ADP of the affected Highly Compensated Employees.
[_] (ii) the ACP of the affected Highly Compensated Employees.
[_] (iii) a combination of the ADP and ACP of the affected
Highly Compensated Employees.
8. ALLOCATIONS TO TERMINATED EMPLOYEES [Paragraph 5.3]
[_] (a) The Employer will not allocate Employer related
contributions to Employees who terminate during a Plan Year,
unless required to satisfy the requirements of Code Section
401(a)(26) and 410(b). (These requirements are effective for
1989 and subsequent Plan Years.)
[_] (b) The Employer will allocate Employer matching and other
related contributions as indicated below to Employees who
terminate during the Plan Year as a result of:
Matching Other
-------- -----
[_] [_] (i) Retirement.
[_] [_] (ii) Disability.
[_] [_] (iii) Death.
[_] [_] (iv) Other termination of
employment provided that the
Participant has completed a
Year of Service as defined
for Allocation Accrual
Purposes.
[_] [_] (v) Other termination of
employment even though the
Participant has not
completed a Year of Service.
17
[_] [_] (vi) Termination of employment (for
any reason) provided that the
Participant had completed a
Year of Service for Allocation
Accrual Purposes.
9. ALLOCATION OF FORFEITURES
NOTE: Subsections (a), (b) and (c) below apply to forfeitures of amounts
other than Excess Aggregate Contributions.
(a) Allocation Alternatives:
If forfeitures are allocated to Participants, such allocation
shall be done in the same manner as the Employer's
contribution.
[_] (i) Not Applicable. All contributions are always fully
vested.
[_] (ii) Forfeitures shall be allocated to Participants in the
same manner as the Employees contribution.
If allocation to other Participants is selected, the
allocation shall be as follows:
[1] Amount attributable to Employer Discretionary
Contributions and Top-Heavy minimums will be
allocated to:
[_] all eligible Participants under the Plan.
[_] only those Participants eligible for an
allocation of Employer contributions in the
current year.
[_] only those Participants eligible for an
allocation of matching contributions in the
current year.
[2] Amounts attributable to Employer Matching
contributions will be allocated to:
[_] all eligible Participants.
[_] only those Participants eligible for allocations
of matching contributions in the current year.
[X] (iii) Forfeitures shall be applied to reduce the Employer's
contribution for such Plan Year.
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[_] (iv) Forfeitures shall be applied to offset administrative expenses of
the Plan. If forfeitures exceed these expenses, (iii) above shall
apply.
(b) Date for Reallocation:
NOTE: If no distribution has been made to a former Participant, subsection
(i) below will apply to such Participant even if the Employer elects
(ii), (iii) or (iv) below as its normal administrative policy.
[_] (i) Forfeitures shall be reallocated at the end of the Plan
Year during which the former Participant incurs his or her
fifth consecutive one year Break In Service.
[_] (ii) Forfeitures will be reallocated immediately (as of the next
Valuation Date).
[_] (iii) Forfeitures shall be reallocated at the end of the Plan
Year during which the former Employee incurs his or her
______ (1st, 2nd, 3rd, or 4th) consecutive one year Break
In Service.
[x] (iv) Forfeitures will be reallocated immediately (as of the Plan
Year end).
(c) Restoration of Forfeitures:
If amounts are forfeited prior to five consecutive 1-year Breaks in
Service, the Funds for restoration of account balances will be
obtained from the following resources in the order indicated (fill in
the appropriate number):
[1] (i) Current year's forfeitures.
[2] (ii) Additional Employer contribution.
[_] (iii) Income or gain to the Plan.
(d) Forfeitures of Excess Aggregate Contributions shall be:
[_] (i) Applied to reduce Employer contributions.
[_] (ii) Allocated, after all other forfeitures under the Plan, to
the Matching Contribution account of each non-Highly
Compensated Participant who made Elective Deferrals or
Voluntary Contributions in the ratio which each such
Participant's Compensation for the Plan Year bears to the
total Compensation of all Participants for such Plan Year.
Such forfeitures cannot be allocated to account of any
Highly Compensated Employee.
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Forfeitures of Excess Aggregate Contributions will be so applied at
the end of the Plan Year in which they occur.
10. CASH OPTION
[_] (a) The Employer may permit a Participant to elect to defer to the
Plan, an amount not to exceed ___________ % of any Employer paid
cash bonus made for such Participant for any year. A
Participant must file an election to defer such contribution at
least fifteen (15) days prior to the end of the Plan Year, If
the Employee fails to make such an election, the entire Employer
paid cash bonus to which the Participant would be entitled shall
be paid as cash and not to the Plan. Amounts deferred under this
section shall be treated for all purposes as Elective Deferrals.
Notwithstanding the above, the election to defer must be made
before the bonus is made available to the Participants.
[x] (b) Not Applicable.
11. LIMITATIONS ON ALLOCATIONS [Article X]
[_] This is the only Plan the Employer maintains or ever maintained;
therefore, this section is not applicable.
[x] The Employer does maintain or has maintained another Plan (including
a Welfare Benefit Fund or an individual medical account [as defined
in Code Section 415(1)(2)], under which amounts are treated as Annual
Additions) and has completed the proper sections below.
Complete (a), (b) and (c) only if the Employer maintains or ever
maintained another qualified plan, including a Welfare Benefit Fund
or an individual medical account [as defined in Code Section
415(l)(2)] in which any Participant in this Plan is (or was) a
participant or could possibly become a participant.
(a) If the Participant is covered under another qualified Defined
Contribution Plan maintained by the Employer, other than a Regional
Prototype Plan:
[x] (i) the provisions of Article X of the Basic Plan Document #R1
will apply, as if the other plan were a Regional Prototype
Plan.
(ii) Attach provisions stating the method under which the plans
will limit total Annual Additions to the Maximum
Permissible Amount, and will properly reduce any Excess
Amounts, in a manner that precludes Employer discretion.
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(b) If a Participant is or ever has been a participant in a Defined
Benefit Plan maintained by the Employer:
Attach provisions which will satisfy the 1.0 limitation of Code
Section 415(e). Such language must preclude Employer discretion. The
Employer must also specify the interest and mortality assumptions used
in determining Present Value in the Defined Benefit Plan.
(c) The minimum contribution or benefit required under Code Section 416
relating to Top-Heavy Plans shall be satisfied by:
[_] (i) This Plan.
[x] (ii) SBERA Pension Plan as adopted by Westfield Savings Bank
-------------------------------------------------------
(Name of other qualified plan of the Employer).
[_] (iii) Attach provisions stating the method under which the
minimum contribution and benefit provisions of Code Section
416 will be satisfied. If a Defined Benefit Plan is or was
maintained, an attachment must be provided showing interest
and mortality assumptions used in the Top Heavy Ratio.
12. VESTING [Article IX]
Employees shall have a fully vested and nonforfeitable interest in any
Employer contribution and the investment earnings thereon made in
accordance with paragraphs (select one or more options) [_] 7(c), [_] 7(e),
[_] 7(f), [_] 7(g) and [_] 7(i) hereof. Contributions under paragraph 7(b),
7(c)(vii) and 7(d) are always fully vested. If one or more of the foregoing
options are not selected, such Employer contributions shall be subject to
the vesting table selected by the Employer.
Each Participant shall acquire a vested and nonforfeitable percentage in
his or her account balance attributable to Employer contributions and the
earnings thereon under the procedures selected below except with respect to
any Plan Year during which the Plan is Top-Heavy, in which case the
Two-twenty vesting schedule [option (b)(iv)] shall automatically apply
unless the Employer has already elected a faster vesting schedule. If the
Plan is switched to option (b)(iv), because of its Top-Heavy status, that
vesting schedule will remain in effect even if the Plan later becomes non
Top-Heavy until the Employer executes an amendment of this Adoption
Agreement indicating otherwise.
(a) Computation Period:
The computation period for purposes of determining Years of Service and
Breaks in Service for purposes of computing a Participant's nonforfeitable
right to his or her account balance derived from Employer contributions:
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[_] (i) shall not be applicable since Participants are always
fully vested,
[x] (ii) shall commence on the date on which an Employee first
performs an Hour of Service for the Employer and each
subsequent 12-consecutive month period shall commence
on the anniversary thereof, or
[_] (iii) shall commence on the first day of the Plan Year
during which an Employee first performs an Hour of
Service for the Employer and each subsequent 12-
consecutive month period shall commence on the
anniversary thereof.
A Participant shall receive credit for a Year of Service if he or she
completes at least 1,000 Hours of Service [or if lesser, the number of
hours specified at 3(l)(iii) of this Adoption Agreement] at any time
during the 12-consecutive month computation period. Consequently, a
Year of Service may be earned prior to the end of the 12-consecutive
month computation period and the Participant need not be employed at
the end of the 12consecutive month computation period to receive credit
for a Year of Service.
(b) Vesting Schedules:
NOTE: The vesting schedules below only apply to a Participant
who has at least one Hour of Service during or after the
1989 Plan Year. If applicable, Participants who separated
from Service prior to the 1989 Plan Year will remain under
the vesting schedule as in effect in the Plan prior to
amendment for the Tax Reform Act of 1986.
(i) Full and immediate vesting.
Years of Service
----------------
1 2 3 4 5 6 7
- - - - - - -
(ii) % 100%
(iii) 0% 0% 100%
- -
(iv) % 20% 40% 60% 80% 100%
(v) % % 20% 40% 50% 80% 100%
(vi) 10% 20% 30% 40% 50% 80% 100%
(vii) % % % % 100%
(viii) % % % % % % 100%
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NOTE: The percentages selected for schedule (viii) may not be
less for any year than the percentages shown at schedule
(v).
[x] All contributions other than those which are fully vested
when contributed will vest under schedule iii above.
[_] Contributions other than those which are fully vested
when contributed will vest as provided below:
Vesting Option Selected Type Of Employer Contribution
----------------------- -----------------------------
_____________ 7(c) Employer Match on Salary Savings
_____________ 7(c) Employer Match on Employee Voluntary
_____________ 7(e) Employer Discretionary
_____________ 7(f) & (g) Employer Discretionary Integrated
(c) Service disregarded for Vesting:
[x] (i) Not Applicable. All Service shall be considered.
[_] (ii) Service prior to the Effective Date of this
Plan or a predecessor plan shall be disregarded
when computing a interest.
[_] (iii) Service prior to a Participant having attained
age 18 shall be disregarded when computing a
Participant's vested and nonforfeitable interest.
13. SERVICE WITH PREDECESSOR ORGANIZATION
For purposes of satisfying the Service requirements for eligibility,
Hours of Service shall include Service with the following predecessor
organization(s):
(These hours will also be used for vesting purposes.)
________________________________
________________________________
14. ROLLOVER/TRANSFER CONTRIBUTIONS
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(a) Rollover Contributions, as described at paragraph 4.3 of the
Basic Plan Document #R1,[x] shall [_] shall not be permitted. If
permitted, Employees [x] may [_] may not make Rollover
Contributions prior to meeting the eligibility requirements for
participation in the Plan.
(b) Transfer Contributions, as described at paragraph 4.4 of the
Basic Plan Document #R1, [x] shall [_] shall not be permitted. If
permitted, Employees [x] may [_] may not Transfer Contributions
prior to meeting the eligibility requirements for participation
in the Plan.
NOTE: Even if available, the Employer may refuse to accept such
contributions if its Plan meets the safe-harbor rules of
paragraph 8.7 of the Basic Plan Document #R1.
15. HARDSHIP WME[DRAWALS
Hardship withdrawals, as provided for in paragraph 6.9 of the Basic
Plan Document #R1, [x] are [_] are not permitted.
16. PARTICIPANT LOANS
Participant loans, as provided for in paragraph 13.4 of the Basic Plan
Document #R1, [x] are [_] are not [_] permitted. If permitted,
repayments of principal and interest shall be repaid to [x] the
Participant's segregated account or [_] the general Fund.
17. INSURANCE POLICIES
The insurance provisions of paragraph 13.5 of the Basic Plan Document
#R1 [_] shall [x] shall not be applicable.
18. EMPLOYER INVESTMENT DIRECTION
The Employer investment direction provisions, as set forth in paragraph
13.6 of the Basic Plan Document #R1, [_] shall [x] shall not be
applicable.
19. EMPLOYEE INVESTMENT DIRECTION
(a) The Employee investment direction provisions, as set forth in
paragraph 13.7 of the Basic Plan Document #R1, [x] shall [_] shall
not be applicable.
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If applicable, Participants may direct their investments:
[_] (i) among funds offered by the Trustee.
[x] (ii) among any allowable investments.
(b) Participants may direct the following kinds of contributions
and the earnings thereon (check all applicable):
[x] (i) All Contributions.
[_] (ii) Elective Deferrals.
[_] (iii) Employee Voluntary Contributions (after-tax).
[_] (iv) Employee Mandatory Contributions (after-tax).
[_] (v) Employer Qualified Matching Contributions.
[_] (vi) Other Employer Matching Contributions.
[_] (vii) Employer Qualified Non-Elective Contributions.
[_] (viii) Employer Discretionary Contributions.
[_] (ix) Rollover Contributions.
[_] (x) Transfer Contributions.
[_] (xi) All of above which are checked, but only to
the extent that the Participant is vested in
those contributions.
NOTE: To the extent that Employee investment direction was
previously allowed, it shall continue to be allowed on
those amounts and the earnings thereon.
20. EARLY PAYMENT OPTION
(a) A Participant who separates from Service prior to retirement,
death or Disability [x] may [_] may not make application to
the Employer requesting an early payment of his or her vested
account balance.
(b) A Participant who has not separated from Service [_] may [x]
may not obtain a distribution of his or her vested Employer
contributions. Distribution can only be made if the
Participant is 100% vested.
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(c) A Participant who has attained the Plan's Normal Retirement Age and
who has not separated from Service [_] may [x] may not receive a
distribution of his or her vested account balance.
NOTE: If the Participant has had the right to withdraw his or her account
balance in the past, this right may not be taken away.
Notwithstanding the above, to the contrary, required minimum
distributions will be paid. For timing of distribution see item
21(a) below.
21. DISTRIBUTION OPTIONS
(a) Timing of Distributions:
In cases of termination for other than death, Disability or
retirement benefits shall be paid:
[x] (i) As soon as administratively feasible, following the
close of the valuation period during which a
distribution is requested or is otherwise payable.
[_] (ii) As soon as administratively feasible following the
close of the Plan Year during which a distribution
is requested or is otherwise payable.
[_] (iii) As soon as administratively feasible, following the
date on which a distribution is requested or is
otherwise payable.
[_] (iv) As soon as administratively feasible, after the
close of the Plan Year during which the Participant
incurs _______ consecutive one-year Breaks in
Service.
[_] (v) Only after the Participant has achieved the Plan's
Normal Retirement Age, or Early Retirement Age, if
applicable.
In cases of death, Disability or retirement, benefits shall be
paid:
[x] (vi) As soon as administratively feasible, following the
close of the valuation period during which a
distribution is requested or is otherwise payable.
[_] (vii) As soon as administratively feasible following the
close of the Plan Year during which a distribution
is requested or is otherwise payable.
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[_] (viii) As soon as administratively feasible, following the
date on which a distribution is requested or is
otherwise payable.
(b) Optional Forms of Payment:
[_] (i) Lump Sum.
[x] (ii) Installment Payments.
[_] (iii) Life Annuity*.
[_] (iv) Life Xxxxxxx Xxxx Xxxxxxx*.
Life Annuity with payments guaranteed for _____ years (not
to exceed 20 years, specify all applicable).
(v) Joint and [_] 50%, [_] 66-2/3%, [_] 75% or [_] 100%
survivor annuity* (specify all applicable).
(vi) Other form(s) specified: ___________________
*Not available in Plan meeting provisions of paragraph 8.7 of
Basic Plan Document #R1.
(c) Recalculation of Life Expectancy:
In determining required distributions under the Plan, Participants
and/or their Spouse (Surviving Spouse) [x] shall [_] shall not
have the right to have their life expectancy recalculated.
If "shall",
[_] only the Participant shall be recalculated.
[_] both the Participant and Spouse shall be recalculated.
[x] who is recalculated shall be determined by the Participant.
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22. SIGNATURES
(a) EMPLOYER:
Name and address of Employer if different than specified in Section 1
above.
This agreement and the corresponding provisions of the Plan and Trust
Basic Plan Document #R1 were adopted by the Employer the 18th day of July,
2000.
Signed for the Employer by:
Title: _______________________________________________________________
Signature: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------------------
The Employer understands that its failure to properly complete the
Adoption Agreement may result in disqualification of its Plan.
Employer's Reliance: The adopting Employer may not rely on a notification
letter issued by the National Office of the Internal Revenue Service as
evidence that the Plan is qualified under Code Section 401. In order to
obtain reliance with respect to Plan qualification, the Employer must
apply to the appropriate Key District Office for a determination letter.
This Adoption Agreement may only be used in conjunction with Basic Plan
Document #R1.
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(b) TRUSTEE:
Name of Trustee:
Savings Banks Employees Retirement Association.
The Employer's Plan as contained herein was accepted by the Trustee(s)
the 10/th/ day of May, 2000
Signed for the Trustee by:
Title: Plan Administrator
Signature: /s/ Xxxxxx Xxxxxx, Xx.
---------------------------------------------
Xxxxxx Xxxxxx, Xx.
(c) SPONSOR:
The Employer's Agreement and the corresponding provisions of the Plan
and Trust/Custodial Account Basic Plan Document #R1 were accepted by
the Sponsor the day of _____________, 20_____.
Signed for the Sponsor by:
Title:
Signature:
__________________________________________________
29
REGIONAL PROTOTYPE DEFINED CONTRIBUTION
PLAN AND TRUST
Sponsored By
SAVINGS BANKS EMPLOYEES RETIREMENT ASSOCIATION
BASIC PLAN DOCUMENT
TABLE OF CONTENTS
-----------------
PARAGRAPH PAGE
--------- ----
ARTICLE I
DEFINITIONS
1.1 Actual Deferral Percentage 1
1.2 Adoption Agreement 1
1.3 Aggregate Limit 1
1.4 Annual Additions 2
1.5 Annuity Starting Date 2
1.6 Applicable Calendar Year 2
1.7 Applicable Life Expectancy 2
1.8 Average Contribution Percentage (ACP) 2
1.9 Average Deferral Percentage (ADP) 3
1.10 Break In Service 3
1.11 Code 3
1.12 Compensation 3
1.13 Contribution Percentage 5
1.14 Defined Benefit Plan 5
1.15 Defined Benefit (Plan) Fraction 5
1.16 Defined Contribution Dollar Limitation 6
1.17 Defined Contribution Plan 6
1.18 Defined Contribution (Plan) Fraction 6
1.19 Designated Beneficiary 6
1.20 Disability 7
1.21 Distribution Calendar Year 7
1.22 Early Retirement Age 7
1.23 Earned Income 7
1.24 Effective Date 7
1.25 Election Period 7
1.26 Elective Deferral 7
1.27 Eligible Participant 7
1.28 Employee 8
1.29 Employer 8
1.30 Entry Date 8
1.31 Excess Aggregate Contributions 8
1.32 Excess Amount 8
1.33 Excess Contribution 8
1.34 Excess Elective Deferrals 9
1.35 Family Member 9
1.36 First Distribution Calendar Year 9
1.37 Fund 9
1.38 Hardship 9
1.39 Highest Average Compensation 9
1.40 Highly Compensated Employee 9
1.41 Hour Of Service 10
1.42 Key Employee 11
1.43 Leased Employee 11
1.44 Limitation Year 11
1.45 Master Or Prototype Plan 11
1.46 Matching Contribution 11
1.47 Maximum Permissible Amount 12
1.48 Net Profit 12
1.49 Normal Retirement Age 12
1.50 Owner-Employee 12
1.51 Paired Plans 12
1.52 Participant 12
1.53 Participant's Benefit 12
1.54 Permissive Aggregation Group 12
1.55 Plan 12
1.56 Plan Administrator 13
1.57 Plan Year 13
1.58 Present Value 13
1.59 Projected Annual Benefit 13
1.60 Qualified Deferred Compensation Plan 13
1.61 Qualified Domestic Relations Order 13
1.62 Qualified Early Retirement Age 13
1.63 Qualified Joint And Survivor Annuity 14
1.64 Qualified Matching Contribution 14
1.65 Qualified Non-Elective Contributions 14
1.66 Qualified Voluntary Contribution 14
1.67 Regional Prototype Plan 14
1.68 Required Aggregation Group 14
1.69 Required Beginning Date 14
1.70 Rollover Contribution 14
1.71 Salary Savings Agreement 15
1.72 Self-Employed Individual 15
1.73 Service 15
1.74 Shareholder Employee 15
1.75 Simplified Employee Pension Plan 15
1.76 Sponsor 15
1.77 Spouse (Surviving Spouse) 15
1.78 Super Top-Heavy Plan 15
1.79 Taxable Wage Base 15
1.80 Top-Heavy Determination Date 15
1.81 Top-Heavy Plan 16
1.82 Top-Heavy Ratio 16
1.83 Top-Paid Group 17
1.84 Transfer Contribution 18
1.85 Trustee 18
1.86 Valuation Date 18
1.87 Vested Account Balance 18
1.88 Voluntary Contribution 18
1.89 Welfare Benefit Fund 18
1.90 Year Of Service 19
ARTICLE II
ELIGIBILITY REQUIREMENTS
2.1 Participation 20
2.2 Change In Classification Of Employment 20
2.3 Computation Period 20
2.4 Employment Rights 20
2.5 Service With Controlled Groups 20
2.6 Owner-Employees 21
2.7 Leased Employees 21
2.8 Thrift Plans 22
ARTICLE III
EMPLOYER CONTRIBUTIONS
3.1 Amount 23
3.2 Expenses And Fees 23
3.3 Responsibility For Contributions 23
3.4 Return Of Contributions 23
ARTICLE IV
EMPLOYEE CONTRIBUTIONS
4.1 Voluntary Contributions 24
4.2 Qualified Voluntary Contributions 24
4.3 Rollover Contribution 24
4.4 Transfer Contribution 25
4.5 Employer Approval Of Transfer Contributions 25
4.6 Elective Deferrals 25
4.7 Required Voluntary Contributions 26
4.8 Direct Rollover Of Benefits 26
ARTICLE V
PARTICIPANT ACCOUNTS
5.1 Separate Accounts 27
5.2 Adjustments To Participant Accounts 27
5.3 Allocating Employer Contributions 28
5.4 Allocating Investment Earnings And Losses 28
5.5 Participant Statements 28
ARTICLE VI
RETIREMENT BENEFITS AND DISTRIBUTIONS
6.1 Normal Retirement Benefits 30
6.2 Early Retirement Benefits 30
6.3 Benefits On Termination Of Employment 30
6.4 Restrictions On Immediate Distributions 31
6.5 Normal Form Of Payment 32
6.6 Commencement Of Benefits 33
6.7 Claims Procedures 33
6.8 In-Service Withdrawals 34
6.9 Hardship Withdrawal 35
ARTICLE VII
DISTRIBUTION REQUIREMENTS
7.1 Joint And Survivor Annuity Requirements 37
7.2 Minimum Distribution Requirements 37
7.3 Limits On Distribution Periods 37
7.4 Required Distributions On Or After The Required Beginning Date 37
7.5 Required Beginning Date 38
7.6 Transitional Rule 39
7.7 Designation Of Beneficiary For Death Benefit 40
7.8 Nonexistence Of Beneficiary 40
7.9 Distribution Beginning Before Death 41
7.10 Distribution Beginning After Death 41
7.11 Distribution Of Excess Elective Deferrals 41
7.12 Distributions Of Excess Contributions 42
7.13 Distribution Of Excess Aggregate Contributions 43
ARTICLE VIII
JOINT AND SURVIVOR ANNUITY REQUIREMENTS
8.1 Applicability Of Provisions 44
8.2 Payment Of Qualified Joint And Survivor Annuity 44
8.3 Payment of Qualified Pre-Retirement Survivor Annuity 44
8.4 Qualified Election 44
8.5 Notice Requirements For Qualified Joint And Survivor Annuity 45
8.6 Notice Requirements For Qualified Pre-Retirement Survivor Annuity 45
8.7 Special Safe-Harbor Exception For Certain Profit-Sharing Plans 46
8.8 Transitional Joint And Survivor Annuity Rules 46
8.9 Automatic Joint And Survivor Annuity And Early Survivor Annuity 47
8.10 Annuity Contracts 48
ARTICLE IX
VESTING
9.1 Employee Contributions 49
9.2 Employer Contributions 49
9.3 Computation Period 49
9.4 Requalification Prior To Five Consecutive One-Year Breaks In Service 49
9.5 Requalification After Five Consecutive One-Year Breaks In Service 49
9.6 Calculating Vested Interest 49
9.7 Forfeitures 50
9.8 Amendment Of Vesting Schedule 50
9.9 Service With Controlled Groups 50
9.10 Application Of Prior Vesting Rules 51
ARTICLE X
LIMITATIONS ON ALLOCATIONS AND
ANTIDISCRIMINATION TESTING
10.1 Participation In This Plan Only 51
10.2 Disposition Of Excess Annual Additions 52
10.3 Participation In This Plan And Another Regional Prototype Defined
Contribution Plan, Welfare Benefit Fund, Or Individual
Medical Account Maintained By The Employer 53
10.4 Disposition Of Excess Annual Additions Under Two Plans 54
10.5 Participation In This Plan And Another Defined Contribution Plan
Plan Which Is Not A Regional Prototype Plan 54
10.6 Participation In This Plan And A Defined Benefit Plan 54
10.7 Limitations On Allocations 54
10.8 Average Deferral Percentage (ADP) Test 54
10.9 Special Rules Relating To Application Of ADP Test 55
10.10 Recharacterization 56
10.11 Average Contribution Percentage (ACP) Test 56
10.12 Special Rules Relating To Application Of ACP Test 57
ARTICLE XI
ADMINISTRATION
11.1 Plan Administrator 59
11.2 Trustee 59
11.3 Administrative Fees And Expenses 60
11.4 Division Of Duties And Indemnification 60
ARTICLE XII
TRUST FUND ACCOUNT
12.1 The Fund 62
12.2 Control Of Plan Assets 62
12.3 Exclusive Benefit Rules 62
12.4 Assignment And Alienation Of Benefits 62
12.5 Determination Of Qualified Domestic Relations Order (QDRO) 62
ARTICLE XIII
INVESTMENTS
13.1 Fiduciary Standards 64
13.2 Trustee Appointment 64
13.3 Investment Alternatives Of The Trustee 64
13.4 Participant Loans 65
13.5 Insurance Policies 67
13.6 Employer Investment Direction 68
13.7 Employee Investment Direction 69
ARTICLE XIV
TOP-HEAVY PROVISIONS
14.1 Applicability Of Rules 70
14.2 Minimum Contribution 70
14.3 Minimum Vesting 70
ARTICLE XV
AMENDMENT AND TERMINATION
15.1 Amendment By Sponsor 72
15.2 Amendment By Employer 72
15.3 Termination 72
15.4 Qualification Of Employer's Plan 73
15.5 Mergers And Consolidations 73
15.6 Resignation And Removal 73
15.7 Qualification Of Prototype 73
ARTICLE XVI
GOVERNING LAW
REGIONAL PROTOTYPE DEFINED CONTRIBUTION
PLAN AND TRUST
Sponsored By
SBERA
The Sponsor hereby establishes the following Regional Prototype Defined
Contribution Plan and Trust for use by those of its adopting Employers who
qualify and wish to provide a qualified retirement program for its Employees.
Any Plan and Trust Account established hereunder shall be administered for the
exclusive benefit of Participants and their beneficiaries under the following
terms and conditions:
ARTICLE I
DEFINITIONS
1.1 Actual Deferral Percentage The ratio (expressed as a percentage and
calculated separately for each Participant) of:
(a) the amount of Employer contributions [as defined at (c) and (d)]
actually paid over to the Fund on behalf of such Participant for the
Plan Year to
(b) the Participant's Compensation for such Plan Year. Compensation will
only include amounts for the period during which the Employee was
eligible to participate.
Employer contributions on behalf of any Participant shall include:
(c) any Elective Deferrals made pursuant to the Participant's deferral
election, including Excess Elective Deferrals, but excluding Elective
Deferrals that are taken into account in the Contribution Percentage
test (provided the ADP test is satisfied both with and without
exclusion of these Elective Deferrals) or are returned as excess
Annual Additions; and
(d) at the election of the Employer, Qualified Non-Elective Contributions
and Qualified Matching Contributions.
For purposes of computing Actual Deferral Percentages, an Employee who would be
a Participant but for the failure to make Elective Deferrals shall be treated as
a Participant on whose behalf no Elective Deferrals are made.
1.2 Adoption Agreement The document attached to this Plan by which an Employer
elects to establish a qualified retirement plan and trust account under the
terms of this Regional Prototype Defined Contribution Plan and Trust.
1.3 Aggregate Limit The sum of:
(a) 125 percent of the greater of the ADP of the non-Highly Compensated
Employees for the Plan Year or the ACP of non-Highly Compensated
Employees under the Plan subject to Code Section 401(m) for the Plan
Year beginning with or within the Plan Year of the cash or deferred
arrangement as described in Code Section 401(k) or Code Section
402(h)(1)(B) and
(b) the lesser of 200% or two plus the lesser of such ADP or ACP.
Alternatively, the Aggregate Limit may be expressed by substituting the word
"lesser" for the word "greater" where it appears in the first line of
sub-paragraph (a) and substituting the word "greater" for the word "lesser"
where it appears for the second time in the first line of sub-paragraph (b).
1
1.4 Annual Additions The sum of the following amounts credited to a
Participant's account for the Limitation Year:
(a) Employer Contributions,
(b) Employee Contributions (under Article IV),
(c) forfeitures, and
(d) amounts allocated after March 31, 1984 to an individual medical
account, as defined in Code Section 415(l)(2), which is part of a
pension or annuity plan maintained by the Employer (these amounts are
treated as Annual Additions to a Defined Contribution Plan though they
arise under a Defined Benefit Plan), and
(e) amounts derived from contributions paid or accrued after 1985, in
taxable years ending after 1985, which are either attributable to
post-retirement medical benefits, allocated to the account of a Key
Employee, or a Welfare Benefit Fund maintained by the Employer are
also treated as Annual Additions to a Defined Contribution Plan. For
purposes of this paragraph, an Employee is a Key Employee if he or she
meets the requirements of paragraph 1.42 at any time during the Plan
Year or any preceding Plan Year. Welfare Benefit Fund is defined at
paragraph 1.89.
Excess amounts applied in a Limitation Year to reduce Employer contributions
will be considered Annual Additions for such Limitation Year, pursuant to the
provisions of Article X.
1.5 Annuity Starting Date The first day of the first period for which an
amount is paid as an annuity or in any other form.
1.6 Applicable Calendar Year The first Distribution Calendar Year, and in the
event of the recalculation of life expectancy, such succeeding calendar year. If
payments commence in accordance with paragraph 7.4(e) before the Required
Beginning Date, the Applicable Calendar Year is the year such payments commence.
If distribution is in the form of an immediate annuity purchased after the
Participant's death with the Participant's remaining interest, the Applicable
Calendar Year is the year of purchase.
1.7 Applicable Life Expectancy Used in determining the required minimum
distribution. The life expectancy (or joint and last survivor expectancy)
calculated using the attained age of the Participant (or Designated Beneficiary)
as of the Participant's (or Designated Beneficiary's) birthday in the applicable
calendar year reduced by one for each calendar year which has elapsed since the
date life expectancy was first calculated. If life expectancy is being
recalculated, the Applicable Life Expectancy shall be the life expectancy as so
recalculated. The life expectancy of a non-Spouse Beneficiary may not be
recalculated.
1.8 Average Contribution Percentage (ACP) The average of the Actual
Contribution Percentages for each Highly Compensated Employee and for each
non-Highly Compensated Employee.
1.9 Average Deferral Percentage (ADP) The average of the Percentages for each
Highly Compensated Employee and for each non-Highly Compensated Employee.
1.10 Break In Service A 12-consecutive month period during which an Employee
fails to complete more than 500 Hours of Service.
1.11 Code The Internal Revenue Code of 1986, including any amendments.
1.12 Compensation The Employer may select one of the following three
safe-harbor definitions of
2
Compensation in the Adoption Agreement. Compensation shall only
include amounts earned while a Participant if Plan Year is chosen as the
applicable computation period.
(a) Code Section 3401(a) Wages. Compensation is defined as wages within
the meaning of Code Section 3401(a) for the purposes of Federal income
tax withholding at the source but determined without regard to any
rules that limit the remuneration included in wages based on the
nature or location of the employment or the services performed [such
as the exception for agricultural labor in Code Section 3401(a)(2)].
(b) Code Section 6041 and 6051 Wages. Compensation is defined as wages as
defined in Code Section 3401(a) and all other payments of Compensation
to an Employee by the Employer (in the course of the Employer's trade
or business) for which the Employer is required to furnish the
Employee a written statement under Code Section 6041(d) and
6051(a)(3). Compensation must be determined without regard to any
rules under Code Section 3401(a) that limit the remuneration included
in wages based on the nature or location of the employment or the
services performed [such as the exception for agricultural labor in
Code Section 3401(a)(2)].
(c) Code Section 415 Compensation. For purposes of applying the
limitations of Article X and Top-Heavy Minimums, the definition of
Compensation shall be Code Section 415 Compensation defined as
follows: a Participant's Earned Income, wages, salaries, and fees for
professional services and other amounts received (without regard to
whether or not an amount is paid in cash) for personal services
actually rendered in the course of employment with the Employer
maintaining the Plan to the extent that the amounts are includable in
gross income [including, but not limited to, commissions paid
salesmen, Compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses, fringe
benefits and reimbursements or other expense allowances under a
nonaccountable plan (as described in Regulation 1.62-2(c)], and
excluding the following:
1. Employer contributions to a plan of deferred
compensation which are not includable in the Employee's
gross income for the taxable year in which contributed,
or Employer contributions under a Simplified Employee
Pension Plan or any distributions from a plan of
deferred compensation,
2. Amounts realized from the exercise of a non-qualified
stock option, or when restricted stock (or property)
held by the Employee either becomes freely transferable
or is no longer subject to a substantial risk of
forfeiture,
3. Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock
option; and
4. Other amounts which received special tax benefits, or
contributions made by the Employer (whether or not
under a salary reduction agreement) towards the
purchase of an annuity contract described in Code
Section 403(b) (whether or not the contributions are
actually excludible from the gross income of the
Employee).
For purposes of applying the limitations of Article X and Top-Heavy Minimums,
the definition of Compensation shall be Code Section 415 Compensation described
in this paragraph 1.12(c). Also, for purposes of applying the limitations of
Article X, Compensation for a Limitation Year is the Compensation actually paid
or made available during such Limitation Year. Notwithstanding the preceding
sentence, Compensation for a Participant in a defined contribution plan who is
permanently and totally disabled [as defined in Code Section 22(e)(3)] is the
Compensation such Participant would have received for the Limitation Year if the
Participant had been paid at the rate of Compensation paid immediately before
becoming permanently and totally disabled. Such imputed Compensation for the
disabled Participant may be taken into account only if the Participant is not a
Highly Compensated Employee
3
[as defined in Code Section 414(q)] and contributions made on behalf of such
Participant are nonforfeitable when made.
If the Employer fails to pick the applicable period in the Adoption Agreement,
the Plan Year shall be used. Unless otherwise specified by the Employer in the
Adoption Agreement, Compensation shall be determined as provided in Code Section
3401(a) [as defined in this paragraph 1.12(a)]. In nonstandardized Adoption
Agreements 004, 005 and 006, the Employer may choose to eliminate or exclude
categories of Compensation which do not violate the provisions of Code Sections
401(a)(4), 414(s) the regulations thereunder and Revenue Procedure 89-65.
Beginning with 1989 Plan Years, the annual Compensation of each Participant
which may be taken into account for determining all benefits provided under the
Plan (including benefits under Article XIV) for any year shall not exceed
$200,000, as adjusted under Code Section 415(d). In determining the Compensation
of a Participant for purposes of this limitation, the rules of Code Section
414(q)(6) shall apply, except in applying such rules, the term "family" shall
include only the Spouse of the Participant and any lineal descendants of the
Participant who have not attained age 19 before the end of the Plan year. If, as
a result of the application of such rules the adjusted $200,000 limitation is
exceeded, then (except for purposes of determining the portion of Compensation
up to the integration level if this Plan provides for permitted disparity), the
limitation shall be prorated among the affected individuals in proportion to
each such individual's Compensation as determined under this section prior to
the application of this limitation.
If a Plan has a Plan Year that contains fewer than 12 calendar months, then the
annual Compensation limit for that period is an amount equal to the $200,000 as
adjusted for the calendar year in which the Compensation period begins,
multiplied by a fraction the numerator of which is the number of full months in
the Short Plan Year and the denominator of which is 12. If Compensation for any
prior Plan Year is taken into account in determining an Employee's contributions
or benefits for the current year, the Compensation for such prior year is
subject to the applicable annual Compensation limit in effect for that prior
year. For this purpose, for years beginning before January 1, 1990, the
applicable annual Compensation limit is $200,000.
Compensation shall not include deferred Compensation other than contributions
through a salary reduction agreement to a cash or deferred plan under Code
Section 401(k), a Simplified Employee Pension Plan under Code Section
402(h)(1)(B), a cafeteria plan under Code Section 125 or a tax-deferred annuity
under Code Section 403(b). Unless elected otherwise by the Employer in the
Adoption Agreement, these deferred amounts will be considered as Compensation
for Plan purposes. These deferred amounts are not counted as Compensation for
purposes of Articles X and XIV. When applicable to a Self-Employed Individual,
Compensation shall mean Earned Income.
1.13 Contribution Percentage The ratio (expressed as a percentage and
calculated separately for each Participant) of:
(a) the Participant's Contribution Percentage Amounts [as
defined at (c)-(f)] for the Plan Year, to
(b) the Participant's Compensation for the Plan Year.
Compensation will only include amounts for the period during
which the Employee was eligible to participate.
Contribution Percentage Amounts on behalf of any Participant shall include:
(c) the amount of Employee Voluntary Contributions, Matching
Contributions, and Qualified Matching Contributions (to the
extent not taken into account for purposes of the ADP test)
made under the Plan on behalf of the Participant for the
Plan Year,
(d) forfeitures of Excess Aggregate Contributions or Matching
Contributions allocated to the Participant's account which
shall be taken into account in the year in which such
forfeiture is allocated,
(e) at the election of the Employer, Qualified Non-Elective
Contributions, and
4
(f) the Employer also may elect to use Elective Deferrals in the
Contribution Percentage Amounts so long as the ADP test is
met before the Elective Deferrals are used in the ACP test
and continues to be met following the exclusion of those
Elective Deferrals that are used to meet the ACP test.
Contribution Percentage Amounts shall not include Matching Contributions,
whether or not Qualified, that are forfeited either to correct Excess Aggregate
Contributions, or because the contributions to which they relate are Excess
Deferrals, Excess Contributions, or Excess Aggregate Contributions.
1.14 Defined Benefit Plan A Plan under which a Participant's benefit is
determined by a formula contained in the Plan and no individual accounts are
maintained for Participants.
1.15 Defined Benefit (Plan) Fraction A fraction, the numerator of which is the
sum of the Participant's Projected Annual Benefits under all the Defined Benefit
Plans (whether or not terminated) maintained by the Employer, and the
denominator of which is the lesser of 125 percent of the dollar limitation
determined for the Limitation Year under Code Sections 415(b) and (d) or 140
percent of the Highest Average Compensation, including any adjustments under
Code Section 415(b).
Notwithstanding the above, if the Participant was a Participant as of the first
day of the first Limitation Year beginning after December 31, 1986, in one or
more Defined Benefit Plans maintained by the Employer which were in existence on
May 6, 1986, the denominator of this fraction will not be less than 125 percent
of the sum of the annual benefits under such plans which the Participant had
accrued as of the close of the last Limitation Year beginning before January 1,
1987, disregarding any changes in the terms and conditions of the plan after May
5, 1986. The preceding sentence applies only if the Defined Benefit Plans
individually and in the aggregate satisfied the requirements of Section 415 for
all Limitation Years beginning before January 1, 1987.
1.16 Defined Contribution Dollar Limitation Thirty thousand dollars ($30,000)
or if greater, one-fourth of the defined benefit dollar limitation set forth in
Code Section 415(b)(1)(A) as in effect for the Limitation Year.
1.17 Defined Contribution Plan A Plan under which individual accounts are
maintained for each Participant to which all contributions, forfeitures,
investment income and gains or losses, and expenses are credited or deducted. A
Participant's benefit under such Plan is based solely on the fair market value
of his or her account balance.
1.18 Defined Contribution (Plan) Fraction A Fraction, the numerator of which is
the sum of the Annual Additions to the Participant's account under all the
Defined Contribution Plans (whether or not terminated) maintained by the
Employer for the current and all prior Limitation Years (including the Annual
Additions attributable to the Participant's nondeductible Employee contributions
to all Defined Benefit Plans, whether or not terminated, maintained by the
Employer, and the Annual Additions attributable to all Welfare Benefit Funds, as
defined in paragraph 1.89 and individual medical accounts, as defined in Code
Section 415(1)(2), maintained by the Employer), and the denominator of which is
the sum of the maximum aggregate amounts for the current and all prior
Limitation Years of service with the Employer (regardless of whether a Defined
Contribution Plan was maintained by the Employer). The maximum aggregate amount
in the Limitation Year is the lesser of 125 percent of the dollar limitation
determined under Code Sections 415(b) and (d) in effect under Code Section
415(c)(1)(A) or 35 percent of the Participant's Compensation for such year.
If the Employee was a Participant as of the end of the first day of the first
Limitation Year beginning after December 31, 1986, in one or more Defined
Contribution Plans maintained by the Employer which were in existence on May 6,
1986, the numerator of this fraction will be adjusted if the sum of this
fraction and the Defined Benefit Fraction would otherwise exceed 1.0 under the
terms of this Plan. Under the adjustment, an amount equal to the product of (a)
the excess of the sum of the fractions over 1.0 times (b) the denominator of
this fraction will be permanently subtracted from the numerator of this
fraction. The adjustment is calculated using the fractions as they would be
computed as of the end of the last Limitation Year beginning before January 1,
1987, and disregarding any changes in the terms and conditions of the Plan made
after May 6, 1986, but using the Section 415 limitation applicable to the first
Limitation Year beginning on or after January 1, 1987. The Annual Addition for
any Limitation Year beginning before January 1, 1987, shall not be re-computed
to treat all Employee Contributions as Annual
5
Additions.
1.19 Designated Beneficiary The individual who is designated as the beneficiary
under the Plan in accordance with Code Section 401(a)(9) and the regulations
thereunder.
1.20 Disability An illness or injury of a potentially permanent nature,
expected to last for a continuous period of not less than 12 months, certified
by a physician selected by or satisfactory to the Employer which prevents the
Employee from engaging in any occupation for wage or profit for which the
Employee is reasonably fitted by training, education or experience.
1.21 Distribution Calendar Year A calendar year for which a minimum
distribution is required.
1.22 Early Retirement Age The age set by the Employer in the Adoption Agreement
(but not less than 55), which is the earliest age at which a Participant may
retire and receive his or her benefits under the Plan.
1.23 Earned Income Net earnings from self-employment in the trade or business
with respect to which the Plan is established, determined without regard to
items not included in gross income and the deductions allocable to such items,
provided that personal services of the individual are a material
income-producing factor. Earned income shall be reduced by contributions made by
an Employer to a qualified plan to the extent deductible under Code Section 404.
For tax years beginning after 1989, net earnings shall be determined taking into
account the deduction for one-half of self-employment taxes allowed to the
Employer under Code Section 164(f) to the extent deductible.
1.24 Effective Date The date on which the Employer's retirement plan or
amendment to such plan becomes effective. For amendments reflecting statutory
and regulatory changes post Tax Reform Act of 1986, the Effective Date will be
the earlier of the date upon which such amendment is first administratively
applied or the first day of the Plan Year following the date of adoption of such
amendment.
1.25 Election Period The period which begins on the first day of the Plan Year
in which the Participant attains age 35 and ends on the date of the
Participant's death. If a Participant separates from Service prior to the first
day of the Plan Year in which age 35 is attained, the Election Period shall
begin on the date of separation, with respect to the account balance as of the
date of separation.
1.26 Elective Deferral Employer contributions made to the Plan at the election
of the Participant, in lieu of cash Compensation. Elective Deferrals shall also
include contributions made pursuant to a Salary Savings Agreement or other
deferral mechanism, such as a cash option contribution. With respect to any
taxable year, a Participant's Elective Deferral is the sum of all Employer
contributions made on behalf of such Participant pursuant to an election to
defer under any qualified cash or deferred arrangement as described in Code
Section 401(k), any simplified employee pension cash or deferred arrangement as
described in Code Section 402(h)(1)(B), any eligible deferred compensation plan
under Code Section 457, any plan as described under Code Section 501(c)(18), and
any Employer contributions made on the behalf of a Participant for the purchase
of an annuity contract under Code Section 403(b) pursuant to a Salary Savings
Agreement. Elective Deferrals shall not include any deferrals properly
distributed as Excess Annual Additions.
1.27 Eligible Participant Any Employee who is eligible to make a Voluntary
Contribution, or an Elective Deferral (if the Employer takes such contributions
into account in the calculation of the Contribution Percentage), or to receive a
Matching Contribution (including forfeitures) or a Qualified Matching
Contribution. If a Voluntary Contribution or Elective Deferral is required as a
condition of participation in the Plan, any Employee who would be a Participant
in the Plan if such Employee made such a contribution shall be treated as an
Eligible Participant even though no Voluntary Contributions or Elective
Deferrals are made.
1.28 Employee Any person employed by the Employer (including Self-Employed
Individuals and partners), all Employees of a member of an affiliated service
group [as defined in Code Section 414(m)], Employees of a controlled group of
corporations [as defined in Code Section 414(b)], all Employees of any
incorporated or unincorporated trade or business which is under common control
[as defined in Code Section 414(c)], Leased Employees [as defined in Code
Section 414(n)] and any Employee required to be aggregated by Code Section
6
414(o). All such Employees shall be treated as employed by a single Employer.
1.29 Employer The Self-Employed Individual, partnership, corporation or other
organization which adopts this Plan including any firm that succeeds the
Employer and adopting this Plan. For purposes of Article X, Limitations shall
mean the Employer that adopts this Plan, and all members of a controlled group
of corporations [as defined in Code Section 414(b) as modified by Code Section
415(h)], all commonly controlled trades or businesses [as defined in Code
Section 414(c) as modified by Code Section 415(h)] or affiliated service groups
[as defined in Code Section 414(m)] of which the adopting Employer is a part,
and other entities required to be aggregated with the Employer pursuant to
Regulations under Code Section 414(o).
1.30 Entry Date The date on which an Employee commences participation in the
Plan as determined by the Employer in the Adoption Agreement. Unless the
Employer specifies otherwise in the Adoption Agreement, Entry into the Plan
shall be on the first day of the Plan Year or the first day of the seventh month
of the Plan Year coinciding with or following the date on which an Employee
meets the eligibility requirements.
1.31 Excess Aggregate Contributions The excess, with respect to any Plan Year,
of:
(a) The aggregate Contribution Percentage Amounts taken into account in
computing the numerator of the Contribution Percentage actually made
on behalf of Highly Compensated Employees for such Plan Year, over
(b) The maximum Contribution Percentage Amounts permitted by the ACP test
(determined by reducing contributions made on behalf of Highly
Compensated Employees in order of their Contribution Percentages
beginning with the highest of such percentages).
Such determination shall be made after first determining Excess Elective
Deferrals pursuant to paragraph 1.34 and then determining Excess Contributions
pursuant to paragraph 1.33.
1.32 Excess Amount The excess of the Participant's Annual Additions for the
Limitation Year over the Maximum Permissible Amount.
1.33 Excess Contribution With respect to any Plan Year, the excess of:
(a) The aggregate amount of Employer contributions actually taken into
account in computing the ADP of Highly Compensated Employees for such
Plan Year, over
(b) The maximum amount of such contributions permitted by the ADP test
(determined by reducing contributions made on behalf of Highly
Compensated Employees in order of the ADPs, beginning with the highest
of such percentages).
1.34 Excess Elective Deferrals Those Elective Deferrals that are includable in
a Participant's gross income under Code Section 402(g) to the extent such
Participant's Elective Deferrals for a taxable year exceed the dollar limitation
under such Code Section. Excess Elective Deferrals shall be treated as Annual
Additions under the Plan, unless such amounts are distributed no later than the
first April 15 following the close of the Participant's taxable year.
1.35 Family Member The Employee's Spouse, any lineal descendants and ascendants
and the Spouse of such lineal descendants and ascendants.
1.36 First Distribution Calendar Year For distributions beginning before the
Participant's death, the First Distribution Calendar Year is the calendar year
immediately preceding the calendar year which contains the Participant's
Required Beginning Date. For distributions beginning after the Participant's
death, the First Distribution Calendar Year is the calendar year in which
distributions are required to begin pursuant to paragraph 7.10.
7
1.37 Fund All contributions received by the Trustee under this Plan and Trust
Account, investments thereof and earnings and appreciation thereon.
1.38 Hardship An immediate and heavy financial need of the Employee where such
Employee lacks other available resources.
1.39 Highest Average Compensation The average compensation for the three
consecutive Years of Service with the Employer that produces the highest
average. A Year of Service with the Employer is the 12-consecutive month period
defined in the Adoption Agreement.
1.40 Highly Compensated Employee Any Employee who performs service for the
Employer during the determination year and who, during the immediate prior year:
(a) received Compensation from the Employer in excess of $75,000 [as
adjusted pursuant to Code Section 415(d)]; or
(b) received Compensation from the Employer in excess of $50,000 [as
adjusted pursuant to Code Section 415(d)] and was a member of the
Top-Paid Group for such year; or
(c) was an officer of the Employer and received Compensation during such
year that is greater than 50 percent of the dollar limitation in
effect under Code Section 415(b)(1)(A).
Notwithstanding (a), (b) and (c), an Employee who was not Highly Compensated
during the preceding Plan Year shall not be treated as a Highly Compensated
Employee with respect to the current Plan Year unless such Employee is a member
of the 100 Employees paid the greatest Compensation during the year for which
such determination is being made.
(d) Employees who are five percent (5%) Owners at any time during the
immediate prior year or determination year.
Highly Compensated Employee includes Highly Compensated active Employees and
Highly Compensated former Employees.
For purposes of determining those employees that are to be treated as Highly
Compensated for a determination year, an Employer maintaining a fiscal year Plan
may elect to make the look-back year calculation as defined in (S)1.414(q)-1T,
Q&A 14(b) of the Treasury Regulations for a determination year on the basis of
the calendar year ending with or within the applicable determination year. For
purposes of this election, a determination year that is shorter than twelve (12)
months, the look-back year calculation may be made based upon the calendar year
ending with or within the twelve-month period ending with the end of the
applicable determination year. Where such election is made, the employer shall
make its determination year calculation pursuant to the provisions of Treasury
Regulation (S)1.414(q)-1T, Q&A 14(b).
1.41 Hour Of Service
(a) Each hour for which an Employee is paid, or entitled to payment, for
the performance of duties for the Employer. These hours shall be
credited to the Employee for the computation period in which the
duties are performed; and
(b) Each hour for which an Employee is paid, or entitled to payment, by
the Employer on account of a period of time during which no duties are
performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave of absence. No
more than 501 Hours of Service shall be credited under this paragraph
for any single continuous period (whether or not such period occurs in
a single computation period). Hours under this paragraph shall be
calculated and credited pursuant to Department of Labor Regulations
Section 2530.200b-2 which are incorporated herein by this reference;
and
8
(c) Each hour for which back pay, irrespective of mitigation of damages,
is either awarded or agreed to by the Employer. The same Hours of
Service shall not be credited both under paragraph (a) or paragraph
(b), as the case may be, and under this paragraph (c). These hours
shall be credited to the Employee for the computation period or
periods to which the award or agreement pertains rather than the
computation period in which the award, agreement or payment is made.
(d) Hours of Service shall be credited for employment with the Employer
and with other members of an affiliated service group [as defined in
Code Section 414(m)], a controlled group of corporations [as defined
in Code Section 414(b)], or a group of trades or businesses under
common control [as defined in Code Section 414(c)] of which the
adopting Employer is a member, and any other entity required to be
aggregated with the Employer pursuant to Code Section 414(o) and the
regulations thereunder. Hours of Service shall also be credited for
any individual considered an Employee for purposes of this Plan under
Code Section 414(n) or Code Section 414(o) and the regulations
thereunder.
(e) Solely for purposes of determining whether a Break in Service, as
defined in paragraph 1.10, for participation and vesting purposes has
occurred in a computation period, an individual who is absent from
work for maternity or paternity reasons shall receive credit for the
Hours of Service which would otherwise have been credited to such
individual but for such absence, or in any case in which such hours
cannot be determined, 8 Hours of Service per day of such absence. For
purposes of this paragraph, an absence from work for maternity or
paternity reasons means an absence by reason of the pregnancy of the
individual, by reason of a birth of a child of the individual, by
reason of the placement of a child with the individual in connection
with the adoption of such child by such individual, or for purposes of
caring for such child for a period beginning immediately following
such birth or placement. The Hours of Service credited under this
paragraph shall be credited in the computation period in which the
absence begins if the crediting is necessary to prevent a Break in
Service in that period, or in all other cases, in the following
computation period. No more than 501 hours will be credited under this
paragraph.
(f) Unless specified otherwise in the Adoption Agreement, Hours of Service
shall be determined on the basis of the actual hours for which an
Employee is paid or entitled to pay.
1.42 Key Employee Any Employee or former Employee (and the beneficiaries of
such employee) who at any time during the determination period was an officer of
the Employer if such individual's annual Compensation exceeds 50% of the dollar
limitation under Code Section 415(b)(1)(A) (the defined benefit maximum annual
benefit), an owner (or considered an owner under Code Section 318) of one of the
ten largest interests in the employer if such individual's Compensation exceeds
100% of the dollar limitation under Code Section 415(c)(1)(A), a 5% owner of the
Employer, or a 1% owner of the Employer who has an annual Compensation of more
than $150,000. For purposes of determining who is a Key Employee, annual
Compensation shall mean Compensation as defined for Article X, but including
amounts deferred through a salary reduction agreement to a cash or deferred plan
under Code Section 401(k), a Simplified Employee Pension Plan under Code Section
408(k), a cafeteria plan under Code Section 125 or a tax-deferred annuity under
Code Section 403(b). The determination period is the Plan Year containing the
Determination Date and the four preceding Plan Years. The determination of who
is a Key Employee will be made in accordance with Code Section 416(i)(1) and the
regulations thereunder.
1.43 Leased Employee Any person (other than an Employee of the recipient) who,
pursuant to an agreement between the recipient and any other person ("leasing
organization"), has performed services for the recipient [or for the recipient
and related persons determined in accordance with Code Section 414(n)(6)] on a
substantially full-time basis for a period of at least one year, and such
services are of a type historically performed by Employees in the
9
business field of the recipient Employer.
1.44 Limitation Year The calendar year or such other 12-consecutive month
period designated by the Employer in the Adoption Agreement for purposes of
determining the maximum Annual Addition to a Participant's account. If the
Limitation Year is amended to a different 12-consecutive month period, the new
Limitation Year must begin on a date within the Limitation Year in which the
amendment is made.
1.45 Master Or Prototype Plan A plan, the form of which is the subject of a
favorable opinion letter from the Internal Revenue Service.
1.46 Matching Contribution An Employer contribution made to this or any other
defined contribution plan on behalf of a Participant on account of an Employee
Voluntary Contribution made by such Participant, or on account of a
Participant's Elective Deferral, under a Plan maintained by the Employer.
1.47 Maximum Permissible Amount The maximum Annual Addition that may be
contributed or allocated to a Participant's account under the plan for any
Limitation Year shall not exceed the lesser of:
(a) the Defined Contribution Dollar Limitation, or
(b) 25% of the Participant's Compensation for the Limitation Year.
The Compensation limitation referred to in (b) shall not apply to any
contribution for medical benefits [within the meaning of Code Section 401(h) or
Code Section 419A(f)(2)] which is otherwise treated as an Annual Addition under
Code Section 415(l)(1) or 419(d)(2). If a short Limitation Year is created
because of an amendment changing the Limitation Year to a different
12-consecutive month period, the Maximum Permissible Amount will not exceed the
Defined Contribution Dollar Limitation multiplied by the number of months in the
short Limitation Year divided by 12.
1.48 Net Profit The current and accumulated operating earnings of the Employer
before Federal and State income taxes, excluding nonrecurring or unusual items
of income, and before contributions to this and any other qualified plan of the
Employer. Alternatively, the Employer may fix another definition in the Adoption
Agreement.
1.49 Normal Retirement Age The age, set by the Employer in the Adoption
Agreement, at which a Participant may retire and receive his or her benefits
under the Plan.
1.50 Owner-Employee A sole proprietor, or a partner owning more than 10% of
either the capital or profits interest of the partnership.
1.51 Paired Plans Two or more Plans maintained by the Sponsor designed so that
a single or any combination of Plans adopted by an Employer will meet the
antidiscrimination rules, the contribution and benefit limitations, and the
Top-Heavy provisions of the Code.
1.52 Participant Any Employee who has met the eligibility requirements and is
participating in the Plan.
1.53 Participant's Benefit The account balance as of the last Valuation Date in
the calendar year immediately preceding the Distribution Calendar Year
(valuation calendar year) increased by the amount of any contributions or
forfeitures allocated to the account balance as of the dates in the valuation
calendar year after the valuation date and decreased by distributions made in
the valuation calendar year after the Valuation Date. A special exception exists
for the second distribution Calendar Year. For purposes of this paragraph, if
any portion of the minimum distribution for the First Distribution Calendar Year
is made in the second Distribution Calendar Year on or before the Required
Beginning Date, the amount of the minimum distribution made in the second
distribution calendar year shall be treated as if it had been made in the
immediately preceding Distribution Calendar Year.
1.54 Permissive Aggregation Group Used for Top-Heavy testing purposes, it is
the Required Aggregation
10
Group of plans plus any other plan or plans of the Employer which, when
considered as a group with the Required Aggregation Group, would continue to
satisfy the requirements of Code Sections 401(a)(4) and 410.
1.55 Plan The Employer's qualified retirement plan as embodied herein and in
the Adoption Agreement.
1.56 Plan Administrator For Employers who are members of the Savings Banks
Employees Retirement Association (SBERA), Xxx Xxxxxx shall be the Plan
Administrator. All other Employers shall select their own Plan Administrator. If
no Plan Administrator is selected, the Employer shall be the Plan Administrator.
1.57 Plan Year For Employers who are members of the Savings Bank Employees
Retirement Association (SBERA), the 12-consecutive month period beginning on
November 1 of each year. Effective January 1, 2000, for Employers who are
members of SBERA, the 12-consecutive month period beginning on January 1 of each
year shall become the Plan Year. For all other Employers, the 12-consecutive
month period designated by the Employer in the Adoption Agreement.
1.58 Present Value Used for Top-Heavy test and determination purposes, when
determining the Present Value of accrued benefits, with respect to any Defined
Benefit Plan maintained by the Employer, interest and mortality rates shall be
determined in accordance with the provisions of the respective plan. If
applicable, interest and mortality assumptions will be specified in the section
of the Adoption Agreement entitled "Limitations on Allocations".
1.59 Projected Annual Benefit Used to test the maximum benefit which may be
obtained from a combination of retirement plans, it is the annual retirement
benefit (adjusted to an actuarial equivalent straight life annuity if
such benefit is expressed in a form other than a straight life annuity or
Qualified Joint and Survivor Annuity) to which the Participant would be entitled
under the terms of a Defined Benefit Plan or plans, assuming:
(a) the Participant will continue employment until Normal Retirement Age
under the plan (or current age, if later), and
(b) the Participant's Compensation for the current Limitation Year and all
other relevant factors used to determine benefits under the plan will
remain constant for all future Limitation Years.
1.60 Qualified Deferred Compensation Plan Any pension, profit-sharing, stock
bonus, or other plan which meets the requirements of Code Section 401 and
includes a trust exempt from tax under Code Section 501(a) or any annuity plan
described in Code Section 403(a).
An Eligible Retirement Plan is an individual retirement account (IRA) as
described in Code Section 408(a), an individual retirement annuity (IRA) as
described in Code Section 408(b), an annuity plan as described in Code Section
403(a), or a qualified trust as described in Code Section 401(a), which accepts
Eligible Rollover Distributions. However in the case of an Eligible Rollover
Distribution to a Surviving Spouse, an Eligible Retirement Plan is an individual
retirement account or individual retirement annuity.
1.61 Qualified Domestic Relations Order A QDRO is a signed Domestic Relations
Order issued by a State Court which creates, recognizes or assigns to an
alternate payee(s) the right to receive all or part of a Participant's Plan
benefit and which meets the requirements of Code Section 414(p). An alternate
payee is a Spouse, former Spouse, child, or other dependent who is treated as a
beneficiary under the Plan as a result of the QDRO.
1.62 Qualified Early Retirement Age Qualified Early Retirement Age is the
latest of:
(a) the earliest date, under the Plan, on which the Participant may elect
to receive retirement benefits, or
(b) the first day of the 120th month beginning before the Participant
attains Normal Retirement Age, or
11
(c) the date the Participant begins participation.
1.63 Qualified Joint And Survivor Annuity An immediate annuity for the life of
the Participant with a survivor annuity for the life of the Participant's Spouse
which is at least one-half of but not more than the amount of the annuity
payable during the joint lives of the Participant and the Participant's Spouse.
The exact amount of the Survivor Annuity is to be specified by the Employer in
the Adoption Agreement. If not designated by the Employer, the Survivor Annuity
will be one-half of the amount paid to the Participant during his or her
lifetime. The Qualified Joint and Survivor Annuity will be the amount of benefit
which can be provided by the Participant's Vested Account Balance.
1.64 Qualified Matching Contribution Matching Contributions which when made are
subject to the distribution and nonforfeitability requirements under Code
Section 401(k).
1.65 Qualified Non-Elective Contributions Contributions (other than Matching
Contributions or Qualified Matching Contributions) made by the Employer and
allocated to Participants' accounts that the Participants may not elect to
receive in cash until distributed from the Plan; that are nonforfeitable when
made; and that are distributable only in accordance with the distribution
provisions that are applicable to Elective Deferrals and Qualified Matching
Contributions.
1.66 Qualified Voluntary Contribution A tax-deductible voluntary Employee
contribution. Qualified Voluntary Contributions are not permitted in this Plan.
1.67 Regional Prototype Plan A plan, the form of which is subject to a
favorable notification letter from the Internal Revenue Service.
1.68 Required Aggregation Group Used for Top-Heavy testing purposes, it
consists of:
(a) each qualified plan of the Employer in which at least one
Key Employee participates or participated at any time during
the determination period (regardless of whether the plan has
terminated), and
(b) any other qualified plan of the Employer which enables a
plan described in (a) to meet the requirements of Code
Sections 401(a)(4) or 410.
1.69 Required Beginning Date The date on which a Participant is required to
take his or her first minimum distribution under the Plan. The rules are set
forth at paragraph 7.5.
1.70 Rollover Contribution A contribution made by a Participant of an amount
distributed to such Participant from another Qualified Deferred Compensation
Plan in accordance with Code Sections 402(a)(5), (6), and (7).
An Eligible Rollover Distribution is any distribution of all or any portion of
the balance to the credit of the Participant except that an Eligible Rollover
Distribution does not include:
(a) any distribution that is one of a series of substantially
equal periodic payments (not less frequently than annually)
made for the life (or life expectancy) of the Participant or
the joint lives (or joint life expectancies) of the
Participant and the Participant's Designated Beneficiary, or
for a specified period of ten years or more;
(b) any distribution to the extent such distribution is required
under Code Section 401(a)(9); and
(c) 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).
A Direct Rollover is a payment by the plan to the Eligible Retirement Plan
specified by the Participant.
12
1.71 Salary Savings Agreement An agreement between the Employer and a
participating Employee where the Employee authorizes the Employer to withhold a
specified amount or percentage of his or her Compensation for deposit to the
Plan on behalf of such Employee.
1.72 Self-Employed Individual An individual who has Earned Income for the
taxable year from the trade or business for which the Plan is established
including an individual who would have had Earned Income but for the fact that
the trade or business had no Net Profit for the taxable year.
1.73 Service The period of current or prior employment with the Employer. If
the Employer maintains a plan of a predecessor employer, Service for such
predecessor shall be treated as Service for the Employer.
1.74 Shareholder Employee An Employee or Officer who owns [or is considered as
owning within the meaning of Code Section 318(a)(1)], on any day during the
taxable year of an electing small business corporation (S Corporation), more
than 5% of such corporation's outstanding stock.
1.75 Simplified Employee Pension Plan An individual retirement account which
meets the requirements of Code Section 408(k), and to which the Employer makes
contributions pursuant to a written formula. These plans are considered for
contribution limitation and Top-Heavy testing purposes.
1.76 Sponsor SBERA, or any successor(s) or assign(s).
1.77 Spouse (Surviving Spouse) The Spouse or Surviving Spouse of the
Participant, provided that a former Spouse will be treated as the Spouse or
Surviving Spouse and a current Spouse will not be treated as the Spouse or
Surviving Spouse to the extent provided under a Qualified Domestic Relations
Order as described in Code Section 414(p).
1.78 Super Top-Heavy Plan A Plan under which the Top-Heavy Ratio [as defined at
paragraph 1.81] exceeds 90%.
1.79 Taxable Wage Base For plans with an allocation formula which takes into
account the Employer's contribution under the Federal Insurance Contributions
Act (FICA), the maximum amount of earnings which may be considered wages for
such Plan Year under the Social Security Act [Code Section 3121(a)(1)], or the
amount selected by the Employer in the sub-section of the Adoption Agreement
entitled "Taxable Wage Base".
1.80 Top-Heavy Determination Date For any Plan Year subsequent to the first
Plan Year, the last day of the preceding Plan Year. For the first Plan Year of
the Plan, the last day of that year.
1.81 Top-Heavy Plan For any Plan Year beginning after 1983, the Employer's Plan
is top-heavy if any of the following conditions exist:
(a) If the Top-Heavy Ratio for the Employer's Plan exceeds 60%
and this Plan is not part of any Required Aggregation Group
or Permissive Aggregation Group of Plans.
(b) If the Employer's plan is a part of a Required Aggregation
Group of plans but not part of a Permissive Aggregation
Group and the Top-Heavy Ratio for the group of plans exceeds
60%.
(c) If the Employer's plan is a part of a Required Aggregation
Group and part of a Permissive Aggregation Group of plans
and the Top-Heavy Ratio for the Permissive Aggregation Group
exceeds 60%.
1.82 Top-Heavy Ratio
(a) If the Employer maintains one or more Defined Contribution
plans (including any
13
Simplified Employee Pension Plan) and the Employer has not maintained
any Defined Benefit Plan which during the 5-year period ending on the
Determination Date(s) has or has had accrued benefits, the Top-Heavy
Ratio for this Plan alone, or for the Required or Permissive
Aggregation Group as appropriate, is a fraction,
(1) the numerator of which is the sum of the account balances of all
Key Employees as of the Determination Date(s) [including any part
of any account balance distributed in the 5-year period ending on
the Determination Date(s)], and
(2) the denominator of which is the sum of all account balances
[including any part of any account balance distributed in the
5-year period ending on the Determination Date(s)], both computed
in accordance with Code Section 416 and the regulations
thereunder.
Both the numerator and denominator of the Top-Heavy Ratio are
increased to reflect any contribution not actually made as of the
Determination Date, but which is required to be taken into account on
that date under Code Section 416 and the regulations thereunder.
(b) If the Employer maintains one or more Defined Contribution Plans
(including any Simplified Employee Pension Plan) and the Employer
maintains or has maintained one or more Defined Benefit Plans which
during the 5-year period ending on the Determination Date(s) has or
has had any accrued benefits, the Top-Heavy Ratio for any Required or
Permissive Aggregation Group as appropriate is a fraction,
(1) the numerator of which is the sum of account balances
under the aggregated Defined Contribution Plan or Plans
for all Key Employees, determined in accordance with
(a) above, and the Present Value of accrued benefits
under the aggregated Defined Benefit Plan or Plans for
all Key Employees as of the Determination Date(s), and
(2) the denominator of which is the sum of the account
balances under the aggregated Defined Contribution Plan
or Plans for all Participants, determined in accordance
with (a) above, and the Present Value of accrued
benefits under the Defined Benefit Plan or Plans for
all Participants as of the Determination Date(s), all
determined in accordance with Code Section 416 and the
regulations thereunder. The accrued benefits under a
Defined Benefit Plan in both the numerator and
denominator of the Top-Heavy Ratio are increased for
any distribution of an accrued benefit made in the
5-year period ending on the Determination Date.
(c) For purposes of (a) and (b) above, the value of account balances and
the Present Value of accrued benefits will be determined as of the
most recent Valuation Date that falls within or ends with the 12-month
period ending on the Determination Date, except as provided in Code
Section 416 and the regulations thereunder for the first and second
plan years of a Defined Benefit Plan. The account balances and accrued
benefits of a participant (1) who is not a Key Employee but who was a
Key Employee in a prior year, or (2) who has not been credited with at
least one hour of service with any Employer maintaining the Plan at
any time during the 5-year period ending on the Determination Date
will be disregarded. The calculation of the Top-Heavy Ratio, and the
extent to which distributions, rollovers, and transfers are taken into
account will be made in accordance with Code Section 416 and the
Regulations thereunder. Qualified Voluntary Employee Contributions
will not be taken into account for purposes of computing the Top-Heavy
Ratio. When aggregating plans the value of account balances and
accrued benefits will be calculated with reference to the
Determination Dates that fall within the same calendar year. The
accrued benefit of
14
a Participant other than a Key Employee shall be
determined under (1) the method, if any, that uniformly
applies for accrual purposes under all Defined Benefit
Plans maintained by the Employer, or (2) if there is no
such method, as if such benefit accrued not more
rapidly than the slowest accrual rate permitted under
the fractional rule of Code Section 411(b)(1)(C).
1.83 Top-Paid Group The group consisting of the top 20% of Employees when
ranked on the basis of Compensation paid during such year. For purposes of
determining the number of Employees in the group (but not who is in it), the
following Employees shall be excluded:
(a) Employees who have not completed 6 months of Service.
(b) Employees who normally work less than 17 1/2hours per week.
(c) Employees who normally do not work more than 6 months during
any year.
(d) Employees who have not attained age 21.
(e) Employees included in a collective bargaining unit, covered
by an agreement between employee representatives and the
Employer, where retirement benefits were the subject of good
faith bargaining and provided that 90% or more of the
Employer's Employees are covered by the agreement.
(f) Employees who are nonresident aliens and who receive no
earned income which constitutes income from sources within
the United States.
1.84 Transfer Contribution A non-taxable transfer of a Participant's benefit
directly from a Qualified Deferred Compensation Plan to this Plan.
1.85 Trustee For Employers who are members of SBERA, the Trustee shall be the
Trustees of the Savings Banks Employees Retirement Association. For all other
Employers, the Trustee shall be the individual, individuals or institution
appointed by the Employer to serve as Trustee of the Plan. In the event the
Employer does not name an individual, individuals or institution to serve as
Trustee of the Plan, the Employer will be deemed to be the Trustee.
1.86 Valuation Date The last day of the Plan Year or such other date as agreed
to by the Employer and the Trustee on which Participant accounts are revalued in
accordance with Article V hereof. For Top-Heavy purposes, the date selected by
the Employer as of which the Top-Heavy Ratio is calculated.
1.87 Vested Account Balance The aggregate value of the Participant's vested
account balances derived from Employer and Employee contributions (including
Rollovers), whether vested before or upon death, including the proceeds of
insurance contracts, if any, on the Participant's life. The provisions of
Article VIII shall apply to a Participant who is vested in amounts attributable
to Employer contributions, Employee contributions (or both) at the time of death
or distribution.
For purposes of paragraph 8.7, Vested Account Balance shall mean, in the case of
a money purchase pension plan, the Participant's separate account balance
attributable solely to Qualified Voluntary Contributions. For profit-sharing
plans the above definition shall apply.
1.88 Voluntary Contribution An Employee contribution by or on behalf of a
Participant that is included in the Participant's gross income in the year in
which made and that is maintained under a separate account to which earnings and
losses are allocated. For Plan Years beginning after the Plan Year in which this
Plan is adopted (or restated) by the Employer, Voluntary Contributions are only
permitted in Standardized Adoption Agreement 003 or Nonstandardized Adoption
Agreement 006 whether or not the Employer utilizes the salary deferral
provisions.
15
Voluntary Contributions for Plan Years beginning after 1986, together with any
Matching Contributions as defined in Code Section 401(m), will be limited so as
to meet the nondiscrimination test of Code Section 401(m).
1.89 Welfare Benefit Fund Any fund that is part of a plan of the Employer, or
has the effect of a plan, through which the Employer provides welfare benefits
to Employees or their beneficiaries. For these purposes, Welfare Benefit means
any benefit other than those with respect to which Code Section 83(h) (relating
to transfers of property in connection with the performance of services), Code
Section 404 (relating to deductions for contributions to an Employee's trust or
annuity and Compensation under a deferred payment plan), Code Section 404A
(relating to certain foreign deferred compensation plans) apply. A "Fund" is any
social club, voluntary employee benefit association, supplemental unemployment
benefit trust or qualified group legal service organization described in Code
Section 501(c)(7), (9), (17) or (20); any trust, corporation, or other
organization not exempt from income tax, or to the extent provided in
regulations, any account held for an Employer by any person.
1.90 Year Of Service A 12-consecutive month period during which an Employee is
credited with not less than 1,000 (or such lesser number as specified by the
Employer in the Adoption Agreement) Hours of Service.
16
ARTICLE II
ELIGIBILITY REQUIREMENTS
2.1 Participation Employees who meet the eligibility requirements in the
Adoption Agreement on the Effective Date of the Plan shall become Participants
as of the Effective Date of the Plan. If so elected in the Adoption Agreement,
all Employees employed on the Effective Date of the Plan may participate, even
if they have not satisfied the Plan's specified eligibility requirements. Other
Employees shall become Participants on the Entry Date coinciding with or
immediately following the date on which they meet the eligibility requirements.
Depending on the Plan's eligibility requirements, the entry date may actually be
earlier than the date on which the Employee satisfies the eligibility
requirements. The Employee must satisfy the eligibility requirements specified
in the Adoption Agreement and be employed on the Entry Date to become a
Participant in the Plan. In the event an Employee who is not a member of the
eligible class of Employees becomes a member of the eligible class, such
Employee shall participate immediately if such Employee has satisfied the
minimum age and service requirements and would have previously become a
Participant had he or she been in the eligible class. Employees may waive
participation in the Plan. However, this is only permitted if the Employer's
adoption is on Nonstandardized Adoption Agreement 004, 005 or 006, and the Plan
will meet the minimum coverage requirements in Code Section 410(b) and the
minimum participation requirements of Code Section 401(a)(26). [To the extent so
provided by regulations, a partner (or other employee) waiving participation in
the Plan may cause Code Section 401(k) and the regulations thereunder to apply.]
A former Participant shall again become a Participant upon returning to the
employ of the Employer at the next Entry Date or if earlier, the next Valuation
Date. For this purpose, Participant's Compensation and Service shall be
considered from date of rehire.
2.2 Change In Classification Of Employment In the event a Participant becomes
ineligible to participate because he or she is no longer a member of an eligible
class of Employees, such Employee shall participate upon his or her return to an
eligible class of Employees.
2.3 Computation Period To determine Years of Service and Breaks in Service for
purposes of eligibility, the 12-consecutive month period shall commence on the
date on which an Employee first performs an Hour of Service for the Employer and
each anniversary thereof, such that the succeeding 12-consecutive month period
commences with the employee's first anniversary of employment and so on. If,
however, the period so specified is one year or less, the succeeding
12-consecutive month period shall commence on the first day of the Plan Year
prior to the anniversary of the date they first performed an Hour of Service
regardless of whether the Employee is entitled to be credited with 1,000 (or
such lesser number as specified by the Employer in the Adoption Agreement) Hours
of Service during their first employment year.
2.4 Employment Rights Participation in the Plan shall not confer upon a
Participant any employment rights, nor shall it interfere with the Employer's
right to terminate the employment of any Employee at any time.
2.5 Service With Controlled Groups All Years of Service with other members of
a controlled group of corporations [as defined in Code Section 414(b)], trades
or businesses under common control [as defined in Code Section 414(c)], or
members of an affiliated service group [as defined in Code Section 414(m)] shall
be credited for purposes of determining an Employee's eligibility to
participate.
2.6 Owner-Employees If this Plan provides contributions or benefits for one or
more Owner-Employees who control both the business for which this Plan is
established and one or more other trades or businesses, this Plan and the Plan
established for other trades or businesses must, when looked at as a single
Plan, satisfy Code Sections 401(a) and (d) for the Employees of this and all
other trades or businesses.
If the Plan provides contributions or benefits for one or more Owner-Employees
who control one or more other trades or businesses, the Employees of the other
trades or businesses must be included in a Plan which satisfies Code Sections
401(a) and (d) and which provides contributions and benefits not less favorable
than provided for Owner-Employees under this Plan.
If an individual is covered as an Owner-Employee under the plans of two or more
trades or businesses which are not controlled, and the individual controls a
trade or business, then the contributions or benefits of the Employees under
17
the plan of the trades or businesses which are controlled must be as favorable
as those provided for him or her under the most favorable plan of the trade or
business which is not controlled.
For purposes of the preceding sentences, an Owner-Employee, or two or more
Owner-Employees, will be considered to control a trade or business if the
Owner-Employee, or two or more Owner-Employees together:
(a) own the entire interest in an unincorporated trade or
business, or
(b) in the case of a partnership, own more than 50% of either
the capital interest or the profits interest in the
partnership.
For purposes of the preceding sentence, an Owner-Employee, or two or more
Owner-Employees shall be treated as owning any interest in a partnership which
is owned, directly or indirectly, by a partnership which such Owner-Employee, or
such two or more Owner-Employees, are considered to control within the meaning
of the preceding sentence.
2.7 Leased Employees Any Leased Employee shall be treated as an Employee of
the recipient Employer; however, contributions or benefits provided by the
leasing organization which are attributable to services performed for the
recipient Employer shall be treated as provided by the recipient Employer. A
Leased Employee shall not be considered an Employee of the recipient if such
Employee is covered by a money purchase pension plan providing:
(a) a non-integrated Employer contribution rate of at least 10%
of Compensation, [as defined in Code Section 415(c)(3) but
including amounts contributed by the Employer pursuant to a
salary reduction agreement, which are excludable from the
Employee's gross income under a cafeteria plan covered by
Code Section 125, a cash or deferred profit-sharing plan
under Code Section 401(k), a Simplified Employee Pension
Plan under Code Section 408(k) and a tax-sheltered annuity
under Code Section 403(b)],
(b) immediate participation, and
(c) full and immediate vesting.
This exclusion is only available if Leased Employees do not constitute more than
twenty percent (20%) of the recipient's non-highly compensated work force.
2.8 Thrift Plans If the Employer makes an election in Adoption Agreements 003
or 006 to require Voluntary Contributions to participate in this Plan, the
Employer shall notify each eligible Employee in writing of his or her
eligibility for participation at least 30 days prior to the appropriate Entry
Date. The Employee shall indicate his or her intention to join the Plan by
authorizing the Employer to withhold a percentage of his or her Compensation as
provided in the Plan. Such authorization shall be returned to the Employer at
least 10 days prior to the Employee's Entry Date. The Employee may decline
participation by so indicating on the enrollment form or by failure to return
the enrollment form to the Employer prior to the Employee's Entry Date. If the
Employee declines to participate, such Employee shall be given the opportunity
to join the Plan on the next Entry Date. The taking of a Hardship Withdrawal
under the provisions of paragraph 6.9 will impact the Participant's ability to
make these contributions.
18
ARTICLE III
EMPLOYER CONTRIBUTIONS
3.1 Amount The Employer intends to make periodic contributions to the Plan in
accordance with the formula or formulas selected in the Adoption Agreement.
However, the Employer's contribution for any Plan Year shall be subject to the
limitations on allocations contained in Article X. A Participant may elect to
waive an Employer contribution on his or her behalf for a given Plan Year.
However, a Participant may only make this election if the Employer's adoption is
on Nonstandardized Adoption Agreement 004, 005 or 006. [In the event a partner
in a partnership makes this election, in accordance with Proposed Regulations
Section 1.401(k)-1(a)(6), the Plan will be deemed to constitute a cash or
deferred arrangement with respect to the partners. Thus, contributions made on
behalf of any partners may be limited to $7,000 indexed as set forth in Code
Section 402(g)]. Any waiver made pursuant to this paragraph will be made prior
to the time such Participant accrues a benefit for that Plan Year.
3.2 Expenses And Fees The Employer shall also be authorized to reimburse the
Fund for all expenses and fees incurred in the administration of the Plan or
Trust Account and paid out of the assets of the Fund. Such expenses shall
include, but shall not be limited to, fees for professional services, printing
and postage. Brokerage Commissions may not be reimbursed.
3.3 Responsibility For Contributions Neither the Trustee nor the Sponsor shall
be required to determine if the Employer has made a contribution or if the
amount contributed is in accordance with the Adoption Agreement or the Code. The
Employer shall have sole responsibility in this regard. The Trustee shall be
accountable solely for contributions actually received by it.
3.4 Return Of Contributions Contributions made to the Fund by the Employer
shall be irrevocable except as provided below:
(a) Any contribution forwarded to the Trustee because of a
mistake of fact, provided that the contribution is returned
to the Employer within one year of the contribution.
(b) In the event that the Commissioner of Internal Revenue
determines that the Plan is not initially qualified under
the Internal Revenue Code, any contribution made incident to
that initial qualification by the Employer must be returned
to the Employer within one year after the date the initial
qualification is denied, but only if the application for the
qualification is made by the time prescribed by law for
filing the Employer's return for the taxable year in which
the Plan is adopted, or such later date as the Secretary of
the Treasury may prescribe.
(c) Contributions forwarded to the Trustee are presumed to be
deductible and are conditioned on their deductibility.
Contributions which are determined to not be deductible will
be returned to the Employer.
19
ARTICLE IV
EMPLOYEE CONTRIBUTIONS
4.1 Voluntary Contributions An Employee may make Voluntary Contributions to
the Plan established hereunder if so authorized by the Employer in a uniform and
nondiscriminatory manner. Such contributions are subject to the limitations on
Annual Additions and are subject to antidiscrimination testing. Voluntary
Contributions are permitted only in Adoption Agreements 003 and 006.
4.2 Qualified Voluntary Contributions A Participant may no longer make
Qualified Voluntary Contributions to the Plan. Such amounts already contributed
may remain in the Trust Fund Account until distributed to the Participant.
4.3 Rollover Contribution Unless provided otherwise in the Adoption Agreement,
a Participant may make a Rollover Contribution to any Defined Contribution Plan
established hereunder of all or any part of an amount distributed or
distributable to him or her from a Qualified Deferred Compensation Plan
provided:
(a) the amount distributed to the Participant is deposited to the Plan no
later than the sixtieth day after such distribution was received by
the Participant,
(b) the amount distributed is not one of a series of substantially equal
periodic payments made for the life (or life expectancy) of the
Participant or the joint lives (or joint life expectancies) of the
Participant and the Participant's Designated Beneficiary, or for a
specified period of ten years or more;
(c) the amount distributed is not required under section 401(a)(9) of the
Code;
(d) if the amount distributed included property such property is rolled
over, or if sold the proceeds of such property may be rolled over,
(e) the amount distributed is not includable in gross income (determined
without regard to the exclusion for net unrealized appreciation with
respect to employer securities).
In addition, if the Adoption Agreement allows Rollover Contributions, the Plan
will also accept any Eligible Rollover Distribution (as defined at paragraph
1.70) directly to the Plan.
Rollover Contributions, which relate to distributions prior to January 1, 1993,
must be made in accordance with paragraphs (a) through (e) and additionally meet
the requirements of paragraph (f):
(f) The distribution from the Qualified Deferred Compensation Plan
constituted the Participant's entire interest in such Plan and was
distributed within one taxable year to the Participant:
(1) on account of separation from Service, a Plan termination, or in
the case of a profit-sharing or stock bonus plan, a complete
discontinuance of contributions under such plan within the
meaning of Section 402(a)(6)(A) of the Code, or
(2) in one or more distributions which constitute a qualified lump
sum distribution within the meaning of Code Section 402(e)(4)(A),
determined without reference to subparagraphs (B) and (H).
Such Rollover Contribution may also be made through an Individual Retirement
Account qualified under Code Section 408 where the IRA was used as a conduit
from the Qualified Deferred Compensation Plan, the Rollover Contribution is made
in accordance with the rules provided under paragraphs (a) through (e) and the
Rollover
20
Contribution does not include any regular IRA contributions, or earnings
thereon, which the Participant may have made to the IRA. Rollover Contributions,
which relate to distributions prior to January 1, 1993, may be made through an
IRA in accordance with paragraphs (a) through (f) and additional requirements as
provided in the previous sentence. The Trustee shall not be held responsible for
determining the tax-free status of any Rollover Contribution made under this
Plan.
4.4 Transfer Contribution Unless provided otherwise in the Adoption Agreement
a Participant may, subject to the provisions of paragraph 4.5, also arrange for
the direct transfer of his or her benefit from a Qualified Deferred Compensation
Plan to this Plan. For accounting and record keeping purposes, Transfer
Contributions shall be treated in the same manner as Rollover Contributions.
In the event the Employer accepts a Transfer Contribution from a Plan in which
the Employee was directing the investments of his or her account, the Employer
may continue to permit the Employee to direct his or her investments in
accordance with paragraph 13.7 with respect only to such Transfer Contribution.
Notwithstanding the above, the Employer may refuse to accept such Transfer
Contributions.
4.5 Employer Approval Of Transfer Contributions The Employer maintaining a
Safe-Harbor Profit-Sharing Plan in accordance with the provisions of paragraph
8.7, acting in a nondiscriminatory manner, may in its sole discretion refuse to
allow Transfer Contributions to its profit-sharing plan, if such contributions
are directly or indirectly being transferred from a defined benefit plan, a
money purchase pension plan (including a target benefit plan), a stock bonus
plan, or another profit-sharing plan which would otherwise provide for a life
annuity form of payment to the Participant.
4.6 Elective Deferrals A Participant may enter into a Elective Deferrals
Agreement with the Employer authorizing the Employer to withhold a portion of
such Participant's Compensation not to exceed $7,000 per calendar year as
adjusted for inflation or, if lesser, the percentage of Compensation specified
in the Adoption Agreement and to deposit such amount to the Plan. No Participant
shall be permitted to have Elective Deferrals made under this Plan or any other
qualified plan maintained by the Employer, during any taxable year, in excess of
the dollar limitation contained in Code Section 402(g) in effect at the
beginning of such taxable year. Thus, the $7,000 limit may be reduced if a
Participant contributes pre-tax contributions to qualified plans of this or
other Employers. Any such contribution shall be credited to the Employee's
Elective Deferrals Account. Unless otherwise specified in the Adoption
Agreement, a Participant may amend his or her Elective Deferrals Agreement to
increase, decrease or terminate the percentage upon 30 days written notice to
the Employer. If a Participant terminates his or her agreement, such Participant
shall not be permitted to put a new Elective Deferrals Agreement into effect
until the first pay period in the next Plan Year, unless otherwise stated in the
Adoption Agreement. The Employer may also amend or terminate said agreement on
written notice to the Participant. If a Participant has not authorized the
Employer to withhold at the maximum rate and desires to increase the total
withheld for a Plan Year, such Participant may authorize the Employer upon 30
days notice to withhold a supplemental amount up to 100% of his or her
Compensation for one or more pay periods. In no event may the sum of the amounts
withheld under the Elective Deferrals Agreement plus the supplemental
withholding exceed 25% of a Participant's Compensation for a Plan Year. The
Employer may also recharacterize as after-tax Voluntary Contributions all or any
portion of amounts previously withheld under any Elective Deferrals Agreement
within the Plan Year as provided for at paragraph 10.10. This may be done to
insure that the Plan will meet one of the antidiscrimination tests under Code
Section 401(k). Elective Deferrals shall be deposited in the Trust within 30
days after being withheld from the Participant's pay. Elective Deferrals are
permitted only in Standardized Adoption Agreement 003, Nonstandardized Adoption
Agreement 006, and Standardized Adoption Agreement 009.
21
4.7 Required Voluntary Contributions If the Employer makes a thrift election
in the Adoption Agreement, each eligible Participant shall be required to make
Voluntary Contributions to the Plan for credit to his or her account as provided
in the Adoption Agreement. Such Voluntary Contributions shall be withheld from
the Employee's Compensation and shall be transmitted by the Employer to the
Trustee as agreed between the Employer and Trustee. A Participant may
discontinue participation or change his or her Voluntary Contribution percentage
by so advising the Employer at least 10 days prior to the date on which such
discontinuance or change is to be effective. If a Participant discontinues his
or her Voluntary Contributions, such Participant may not again authorize
Voluntary Contributions for a period of one year from the date of
discontinuance. A Participant may voluntarily change his or her Voluntary
Contribution percentage once during any Plan Year and may also agree to have a
reduction in his or her contribution, if required to satisfy the requirements of
the ACP test. Voluntary Contributions are permitted only in Standardized
Adoption Agreement 003 and Nonstandardized Adoption Agreement 006.
4.8 Direct Rollover Of Benefits Notwithstanding any provision of the Plan to
the contrary that would otherwise limit a Participant's election under this
paragraph, for distributions made on or after January 1, 1993, a Participant may
elect, at the time and in the manner prescribed by the Plan Administrator, to
have any portion of an Eligible Rollover Distribution paid directly to an
Eligible Retirement Plan specified by the Participant in a Direct Rollover. Any
portion of a distribution which is not paid directly to an Eligible Retirement
Plan shall be distributed to the Participant. For purposes of this paragraph, a
Surviving Spouse or a Spouse or former Spouse who is an alternate payee under a
Qualified Domestic Relations Order as defined in Code Section 414(p), will be
permitted to elect to have any Eligible Rollover Distribution paid directly to
an individual retirement account (IRA) or an individual retirement annuity
(IRA).
The Plan provisions otherwise applicable to distributions continue to apply to
Rollover and Transfer Contributions.
22
ARTICLE V
PARTICIPANT ACCOUNTS
5.1 Separate Accounts The Employer shall establish a separate bookkeeping
account for each Participant showing the total value of his or her interest in
the Fund. Each Participant's account shall be separated for bookkeeping purposes
into the following sub-accounts:
(a) Employer Contributions.
(1) Matching Contributions.
(2) Qualified Matching Contributions.
(3) Qualified Non-Elective Contributions.
(4) Discretionary Contributions.
(5) Elective Deferrals.
(b) Voluntary Contributions (and additional amounts including, required
contributions and if applicable, either repayments of loans previously
defaulted on and treated as "deemed distributions" on which a tax
report has been issued, and amounts paid out upon a separation from
service which have been included in income and which are repaid after
being re-hired by the Employer).
(c) Qualified Voluntary Contributions (if the Plan previously accepted
these).
(d) Rollover Contributions.
(e) Transfer Contributions.
5.2 Adjustments To Participant Accounts As of each Valuation Date of the Plan,
the Employer shall add to each account:
(a) the Participant's share of the Employer's contribution and forfeitures
as determined in the Adoption Agreement,
(b) any Elective Deferrals, Voluntary, Rollover or Transfer Contributions
made by the Participant.
(c) any repayment of amounts previously paid out to a Participant upon a
separation from Service and repaid by the Participant since the last
Valuation Date, and
(d) the Participant's proportionate share of any investment earnings and
increase in the fair market value of the Fund since the last Valuation
Date, as determined at paragraph 5.4.
The Employer shall deduct from each account:
(e) any withdrawals or payments made from the Participant's account since
the last Valuation Date, and
(f) the Participant's proportionate share of any decrease in the fair
market value of the Fund since the last Valuation Date, as determined
at paragraph 5.4.
5.3 Allocating Employer Contributions The Employer's contribution shall be
allocated to Participants in accordance with the allocation formula selected by
the Employer in the Adoption Agreement, and the minimum
23
contribution and allocation requirements for Top-Heavy Plans. Beginning with the
1990 Plan Year and thereafter, for plans on Standardized Adoption Agreements
001, 002, 003, 007, 008 and 009, Participants who are credited with more than
500 Hours of Service or are employed on the last day of the Plan Year must
receive a full allocation of Employer contributions. In Nonstandardized Adoption
Agreements 004, 005, and 006, Employer contributions shall be allocated to the
accounts of Participants employed by the Employer on the last day of the Plan
Year unless indicated otherwise in the Adoption Agreement. In the case of a
non-Top-Heavy, Nonstandardized Plan, Participants must also have completed a
Year of Service unless otherwise specified in the Adoption Agreement. For
Nonstandardized Adoption Agreements 004, 005, and 006, the Employer may only
apply the last day of the Plan Year and Year of Service requirements, if the
Plan satisfies the requirements of Code Sections 401(a)(26) and 410(b) and the
regulations thereunder including the exception for 401(k) plans. If, when
applying the last day and Year of Service requirements, the Plan fails to
satisfy the aforementioned requirements, additional Participants will be
eligible to receive an allocation of Employer Contributions until the
requirements are satisfied. Participants who are credited with a Year of
Service, but not employed at Plan Year end, are the first category of additional
Participants eligible to receive an allocation. If the requirements are still
not satisfied, Participants credited with more than 500 Hours of Service and
employed at Plan Year end are the next category of Participants eligible to
receive an allocation. Finally, if necessary to satisfy the said requirements,
any Participant credited with more than 500 Hours of Service will be eligible
for an allocation of Employer Contributions.
5.4 Allocating Investment Earnings And Losses A Participant's share of
investment earnings and any increase or decrease in the fair market value of the
Fund shall be based on the proportionate value of all active accounts (other
than accounts with segregated investments) as of the last Valuation Date less
withdrawals since the last Valuation Date. If Employer and/or Employee
contributions are made monthly, quarterly, or on some other systematic basis,
the adjusted value of such accounts for allocation of investment income and
gains or losses shall include one-half the Employer contributions for such
period. If Employer and/or Employee contributions are not made on a systematic
basis, it is assumed that they are made at the end of the valuation period and
therefore will not receive an allocation of investment earnings and gains or
losses for such period.
Alternatively, at the Plan Administrator's option, all Employer contributions
will be credited with an allocation of the actual investment earnings and gains
and losses from the actual date of deposit of each such contribution until the
end of the period. Accounts with segregated investments shall receive only the
income or loss on such segregated investments. In no event shall the selection
of a method of allocating gains and losses be used to discriminate in favor of
the Highly Compensated Employees.
5.5 Participant Statements Upon completing the allocations described above for
the Valuation Date coinciding with the end of the Plan Year, the Employer shall
prepare a statement for each Participant showing the additions to and
subtractions from his or her account since the last such statement and the fair
market value of his or her account as of the current Valuation Date. Employers
so choosing may prepare Participant statements for each Valuation Date.
24
ARTICLE VI
RETIREMENT BENEFITS AND DISTRIBUTIONS
6.1 Normal Retirement Benefits A Participant shall be entitled to receive the
balance held in his or her account from Employer contributions upon attaining
Normal Retirement Age or at such earlier dates as the provisions of this Article
VI may allow. If the Participant elects to continue working past his or her
Normal Retirement Age, he or she will continue as an active Plan Participant and
no distribution shall be made to such Participant until his or her actual
retirement date unless the employer elects otherwise in the Adoption Agreement,
or a minimum distribution is required by law. Settlement shall be made in the
normal form, or if elected in one of the optional forms of payment provided
below.
6.2 Early Retirement Benefits If the Employer so provides in the Adoption
Agreement, an Early Retirement benefit will be available to individuals who meet
the age and Service requirements. An individual who meets the Early Retirement
Age requirements and separates from Service, will become fully vested,
regardless of any vesting schedule which otherwise might apply. If a Participant
separates from Service before satisfying the age requirements, but after having
satisfied the Service requirement, the Participant will be entitled to elect an
Early Retirement benefit upon satisfaction of the age requirement.
6.3 Benefits On Termination Of Employment
(a) If a Participant terminates employment prior to Normal Retirement Age,
such Participant shall be entitled to receive the vested balance held
in his or her account payable at Normal Retirement Age in the normal
form, or if elected, in one of the optional forms of payment provided
hereunder. If applicable, the Early Retirement Benefit provisions may
be elected. Notwithstanding the preceding sentence, a former
Participant may, if allowed in the Adoption Agreement, make
application to the Employer requesting early payment of any deferred
vested and nonforfeitable benefit due.
(b) If a Participant terminates employment, and the value of that
Participant's Vested Account Balance derived from Employer and
Employee contributions is not greater than $3,500, the Participant may
receive a lump sum distribution of the value of the entire vested
portion of such account balance and the non-vested portion will be
treated as a forfeiture. The Employer shall continue to follow their
consistent policy, as may be established, regarding immediate
cash-outs of Vested Account Balances of $3,500 or less. For purposes
of this article, if the value of a Participant's Vested Account
Balance is zero, the Participant shall be deemed to have received a
distribution of such Vested Account Balance immediately following
termination. Likewise, if the Participant is reemployed prior to
incurring 5 consecutive 1-year Breaks in Service they will be deemed
to have immediately repaid such distribution. For Plan Years prior to
1989, a Participant's Vested Account Balance shall not include
Qualified Voluntary Contributions. Notwithstanding the above, if the
Employer maintains or has maintained a policy of not distributing any
amounts until the Participant's Normal Retirement Age, the Employer
can continue to uniformly apply such policy.
(c) If a Participant terminates Service with a Vested Account Balance
derived from Employer and Employee contributions in excess of $3,500,
and elects (with his or her Spouse's consent) to receive 100% of the
value of his or her Vested Account Balance in a lump sum, the
non-vested portion will be treated as a forfeiture. Except as provided
at paragraph 6.4(c), the Participant (and his or her Spouse) must
consent to any distribution, when the Vested Account Balance described
above exceeds $3,500 or if at the time of any prior distribution it
exceeded $3,500. For purposes of this paragraph, a Participant's
Vested Account Balance shall not include Qualified Voluntary
Contributions, for Plan Years beginning prior to 1989.
25
(d) Distribution of less than 100% of the Participant's Vested Account
Balance shall only be permitted if the Participant is fully vested
upon termination of employment.
(e) If a Participant who is not 100% vested receives or is deemed to
receive a distribution pursuant to this paragraph, and such
Participant's non-vested benefit is forfeited hereunder, and if such
Participant resumes employment covered under this Plan, the
Participant shall have the right to repay to the Plan the full amount
of the distribution attributable to Employer contributions on or
before the earlier of the date that the Participant incurs 5
consecutive 1-year Breaks in Service following the date of
distribution or five years after the first date on which the
Participant is subsequently reemployed. In such event, the
Participant's forfeiture shall be restored to his or her account as of
the Valuation Date at the end of the Plan Year following the date on
which repayment of the distribution is received. Restoration of the
forfeiture amount shall be accomplished in accordance with the
procedure selected by the Employer in the Adoption Agreement.
(f) A Participant shall also have the option, to postpone payment of his
or her Plan benefits until the first day of April following the
calendar year in which he or she attains age 70\1/2. Any balance of a
Participant's account resulting from his or her Employee contributions
not previously withdrawn, if any, may be withdrawn by the Participant
immediately following separation from Service.
(g) If a Participant ceases to be an active Employee as a result of a
Disability as defined at paragraph 1.20, such Participant shall be
able to make an application for a disability retirement benefit
payment. The Participant's account balance will be deemed "immediately
distributable" as set forth in paragraph 6.4, and will be fully vested
pursuant to paragraph 9.2.
6.4 Restrictions On Immediate Distributions
(a) An account balance is immediately distributable if any part of the
account balance could be distributed to the Participant (or Surviving
Spouse) before the Participant attains (or would have attained whether
or not deceased) the later of the Normal Retirement Age or age 62.
(b) If the value of a Participant's Vested Account Balance derived from
Employer and Employee Contributions exceeds (or at the time of any
prior distribution exceeded) $3,500, and the account balance is
immediately distributable, the Participant and his or her Spouse (or
where either the Participant or the Spouse has died, the survivor)
must consent to any distribution of such account balance. The consent
of the Participant and the Spouse shall be obtained in writing within
the 90-day period ending on the annuity starting date, which is the
first day of the first period for which an amount is paid as an
annuity or any other form. The Plan Administrator shall notify the
Participant and the Participant's Spouse of the right to defer any
distribution until the Participant's account balance is no longer
immediately distributable. Such notification shall include a general
description of the material features, and an explanation of the
relative values of, the optional forms of benefit available under the
plan in a manner that would satisfy the notice requirements of Code
Section 417(a)(3), and shall be provided no less than 30 days and no
more than 90 days prior to the annuity starting date.
(c) Notwithstanding the foregoing, only the Participant need consent to
the commencement of a distribution in the form of a qualified Joint
and Survivor Annuity while the account balance is immediately
distributable. Furthermore, if payment in the form of a Qualified
Joint and Survivor Annuity is not required with respect to the
Participant pursuant to paragraph 8.7 of the Plan, only the
Participant need consent to the distribution of an account balance
that is immediately distributable. Neither the consent of the
Participant nor the Participant's Spouse shall be required to the
extent that a distribution is required to
26
satisfy Code Section 401(a)(9) or Code Section 415. In addition, upon
termination of this Plan if the Plan does not offer an annuity option
(purchased from a commercial provider), the Participant's account
balance may, without the Participant's consent, be distributed to the
Participant or transferred to another Defined Contribution Plan [other
than an employee stock ownership plan as defined in Code Section
4975(e)(7)] within the same controlled group.
(d) For purposes of determining the applicability of the foregoing consent
requirements to distributions made before the first day of the first
Plan Year beginning after 1988, the Participant's Vested Account
Balance shall not include amounts attributable to Qualified Voluntary
Contributions.
6.5 Normal Form Of Payment The normal form of payment for a profit- sharing
plan satisfying the requirements of paragraph 8.7 hereof shall be a lump sum
with no option for annuity payments. For all other plans, the normal form of
payment hereunder shall be a Qualified Joint and Survivor Annuity as provided
under Article VIII. A Participant whose Vested Account Balance derived from
Employer and Employee contributions exceeds $3,500, or if at the time of any
prior distribution it exceeds $3,500, shall (with the consent of his or her
Spouse) have the right to receive his or her benefit in a lump sum or in
monthly, quarterly, semi-annual or annual payments from the Fund over any period
not extending beyond the life expectancy of the Participant and his or her
Beneficiary. For purposes of this paragraph, a Participant's Vested Account
Balance shall not include Qualified Voluntary Contributions, for Plan Years
beginning prior to 1989. The normal form of payment shall be automatic, unless
the Participant files a written request with the Employer prior to the date on
which the benefit is automatically payable, electing a lump sum or installment
payment option. No amendment to the Plan may eliminate one of the optional
distribution forms listed above.
6.6 Commencement Of Benefits
(a) Unless the Participant elects otherwise, distribution of benefits will
begin no later than the 60th day after the close of the Plan Year in
which the latest of the following events occurs:
(1) the Participant attains age 65 (or normal retirement age if
earlier),
(2) occurs the 10th anniversary of the year in which the Participant
commenced participation in the Plan, or
(3) the Participant terminates Service with the Employer.
(b) Notwithstanding the foregoing, the failure of a Participant and Spouse
(if necessary) to consent to a distribution while a benefit is
immediately distributable, within the meaning of paragraph 6.4 hereof,
shall be deemed an election to defer commencement of payment of any
benefit sufficient to satisfy this paragraph.
(c) Unless the Employer provides otherwise in the Adoption Agreement,
distributions of benefits will be made within 60 days following the
close of the Plan Year during which a distribution is requested or
otherwise becomes payable.
6.7 Claims Procedures Upon retirement, death, or other severance of
employment, the Participant or his or her representative may make application to
the Employer requesting payment of benefits due and the manner of payment. If no
application for benefits is made, the Employer shall automatically pay any
vested benefit due hereunder in the normal form at the time prescribed at
paragraph 6.6. If an application for benefits is made, the Employer shall
accept, reject, or modify such request and shall notify the Participant in
writing setting forth the response of the Employer and in the case of a denial
or modification the Employer shall:
(a) state the specific reason or reasons for the denial,
27
(b) provide specific reference to pertinent Plan provisions on which the
denial is based,
(c) provide a description of any additional material or information
necessary for the Participant or his representative to perfect the
claim and an explanation of why such material or information is
necessary, and
(d) explain the Plan's claim review procedure as contained in this Plan.
In the event the request is rejected or modified, the Participant or his
representative may within 60 days following receipt by the Participant or
representative of such rejection or modification, submit a written request for
review by the Employer of its initial decision. Within 60 days following such
request for review, the Employer shall render its final decision in writing to
the Participant or representative stating specific reasons for such decision. If
the Participant or representative is not satisfied with the Employer's final
decision, the Participant or representative can institute an action in a federal
court of competent jurisdiction; for this purpose, process would be served on
the Employer.
6.8 In-Service Withdrawals An Employee may withdraw all or any part of the
fair market value of his or her Mandatory Contributions, Voluntary
Contributions, Qualified Voluntary Contributions or Rollover Contributions, upon
written request to the Employer. Transfer Contributions, which originate from a
Plan meeting the safe-harbor provisions of paragraph 8.7, may also be withdrawn
by an Employee upon written request to the Employer. Transfer Contributions not
meeting the safe-harbor provisions may only be withdrawn upon retirement, death,
Disability, termination or termination of the Plan, and will be subject to
Spousal consent requirements contained in Code Sections 411(a)(11) and 417. No
such withdrawals are permitted from a money purchase plan until the Participant
reaches Normal Retirement Age. Such request shall include the Participant's
address, social security number, birthdate, and amount of the withdrawal. If at
the time a distribution of Qualified Voluntary Contributions is received the
Participant has not attained age 59 1/2 and is not disabled, as defined at Code
Section 22(e)(3), the Participant will be subject to a federal income tax
penalty, unless the distribution is rolled over to a qualified plan or
individual retirement plan within 60 days of the date of distribution. A
Participant may withdraw all or any part of the fair market value of his or her
pre-1987 Voluntary Contributions with or without withdrawing the earnings
attributable thereto. Post-1986 Voluntary Contributions may only be withdrawn
along with a portion of the earnings thereon. The amount of the earnings to be
withdrawn is determined by using the formula: DA[1-(V , V + E)], where DA is the
distribution amount, V is the amount of Voluntary Contributions and V + E is the
amount of Voluntary Contributions plus the earnings attributable thereto. A
Participant withdrawing his or her other contributions prior to attaining age 59
1/2, will be subject to a federal tax penalty to the extent that the withdrawn
amounts are includable in income. Unless the Employer provides otherwise in the
Adoption Agreement, any Participant in a profit-sharing plan who is 100% fully
vested in his or her Employer contributions may withdraw all or any part of the
fair market value of any of such contributions that have been in the account at
least two years, plus the investment earnings thereon, without separation from
Service. Such distributions shall not be eligible for redeposit to the Fund. A
withdrawal under this paragraph shall not prohibit such Participant from sharing
in any future Employer Contribution he or she would otherwise be eligible to
share in. A request to withdraw amounts pursuant to this paragraph must if
applicable, be consented to by the Participant's Spouse. The consent shall
comply with the requirements of paragraph 6.4 relating to immediate
distributions.
Elective Deferrals, Qualified Non-elective Contributions, and Qualified Matching
Contributions, and income allocable to each are not distributable to a
Participant or his or her Beneficiary or Beneficiaries, in accordance with such
Participant's or Beneficiary's or Beneficiaries' election, earlier than upon
separation from Service, death, or Disability. Such amounts may also be
distributed upon:
(a) Termination of the Plan without the establishment of another Defined
Contribution Plan.
(b) The disposition by a corporation to an unrelated corporation of
substantially all of the assets [within the meaning of Code Section
409(d)(2)] used in a trade or business of such corporation if such
corporation continues to maintain this Plan after the disposition, but
only with respect to Employees who continue employment with the
corporation acquiring such assets.
28
(c) The disposition by a corporation to an unrelated entity of such
corporation's interest in a subsidiary [within the meaning of Code
Section 409(d)(3)] if such corporation continues to maintain this
plan, but only with respect to Employees who continue employment with
such subsidiary.
(d) The attainment of age 59 1/2.
(e) The Hardship of the Participant as described in paragraph 6.9.
All distributions that may be made pursuant to one or more of the foregoing
distributable events are subject to the Spousal and Participant consent
requirements, if applicable, contained in Code Sections 401(a)(11) and 417.
6.9 Hardship Withdrawal If permitted by the Employer in the Adoption
Agreement, a Participant in a profit-sharing plan may request a hardship
withdrawal prior to attaining age 59 1/2. If the Participant has not attained
age 59 1/2, the Participant may be subject to a federal income tax penalty. Such
request shall be in writing to the Employer who shall have sole authority to
authorize a hardship withdrawal, pursuant to the rules below. Hardship
withdrawals may include Elective Deferrals and any earnings accrued and credited
thereon as of the last day of the Plan Year ending before July 1, 1989 and
Employer related contributions, including but not limited to Employer Matching
Contributions, plus the investment earnings thereon to the extent vested.
Qualified Matching Contributions, Qualified Non-Elective Contributions and
Elective Deferrals reclassified as Voluntary Contributions, plus the investment
earnings thereon are only available for a Hardship Withdrawal prior to age 59
1/2 to the extent that they were credited to the Participant's Account as of the
last day of the Plan Year ending prior to July 1, 1989. The Plan Administrator
may limit withdrawals to Elective Deferrals and the earnings thereon as
stipulated above. Hardship withdrawals are subject to the Spousal consent
requirements contained in Code Sections 401(a)(11) and 417. Only the following
reasons are valid to obtain hardship withdrawal:
(a) medical expenses [within the meaning of Code Section 213(d)] of the
Participant, his or her Spouse, children and other dependents,
(b) the purchase (excluding mortgage payments) of the principal residence
for the Participant,
(c) payment of tuition and related educational expenses for the next
twelve (12) months of post-secondary education for the Participant,
his or her Spouse, children or other dependents, or
(d) the need to prevent eviction of the Employee from or a foreclosure on
the mortgage of, the Employee's principal residence.
Furthermore, for Plans on Adoption Agreements 003 and 006, the following
conditions must be met in order for a withdrawal to be authorized:
(e) the Participant has obtained all distributions, other than hardship
distributions, and all nontaxable loans under all plans maintained by
the Employer,
(f) all plans maintained by the Employer provide that the Employee's
Elective Deferrals and Voluntary Contributions will be suspended for
twelve months after the receipt of the Hardship distribution,
(g) the distribution is not in excess of the amount of the immediate and
heavy financial need [(a) through (d)] above, and
(h) all plans maintained by the Employer provide that an Employee may only
make Elective Deferrals for the Employee's taxable year immediately
following the taxable year of the hardship distribution of the
applicable limit under Code Section 402(g) for such taxable year, less
the amount of such Employee's pre-tax contributions for the taxable
year of the
29
hardship distribution.
If a distribution is made from any Plan at a time when a Participant has a
nonforfeitable right to less than 100% of the account balance derived from
Employer contributions and the Participant may increase the nonforfeitable
percentage in the account:
(a) A separate account will be established for the Participant's interest
in the Plan as of the time of the distribution, and
(b) At any relevant time the Participant's nonforfeitable portion of the
separate account will be equal to an amount ("X") determined by the
formula:
X = P [AB + (R X D)] - (R X D)
For purposes of applying the formula: "P" is the nonforfeitable percentage at
the relevant time, "AB" is the account balance at the relevant time, "D" is the
amount of the distribution and "R" is the ratio of the account balance at the
relevant time to the account balance after distribution.
30
ARTICLE VII
DISTRIBUTION REQUIREMENTS
7.1 Joint And Survivor Annuity Requirements All distributions made under the
terms of this Plan must comply with the provisions of Article VIII including, if
applicable, the safe harbor provisions thereunder.
7.2 Minimum Distribution Requirements All distributions required under this
Article shall be determined and made in accordance with the minimum distribution
requirements of Code Section 401(a)(9) and the regulations thereunder, including
the minimum distribution incidental benefit rules found at Regulations Section
1.401(a)(9)-2. The entire interest of a Participant must be distributed or begin
to be distributed no later than the Participant's Required Beginning Date. Life
expectancy and joint and last survivor life expectancy are computed by using the
expected return multiples found in Tables V and VI of Regulations Section
1.72-9.
7.3 Limits On Distribution Periods As of the First Distribution Calendar Year,
distributions if not made in a single-sum, may only be made over one of the
following periods (or a combination thereof):
(a) the life of the Participant,
(b) the life of the Participant and a Designated Beneficiary,
(c) a period certain not extending beyond the life expectancy of the
participant, or
(d) a period certain not extending beyond the joint and last survivor
expectancy of the Participant and a Designated Beneficiary.
7.4 Required Distributions On Or After The Required Beginning Date
(a) If a participant's benefit is to be distributed over (1) a period not
extending beyond the life expectancy of the Participant or the joint
life and last survivor expectancy of the Participant and the
Participant's Designated Beneficiary or (2) a period not extending
beyond the life expectancy of the Designated Beneficiary, the amount
required to be distributed for each calendar year, beginning with
distributions for the First Distribution Calendar Year, must at least
equal the quotient obtained by dividing the Participant's benefit by
the Applicable Life Expectancy.
(b) For calendar years beginning before 1989, if the Participant's Spouse
is not the Designated Beneficiary, the method of distribution selected
must have assured that at least 50% of the Present Value of the amount
available for distribution was to be paid within the life expectancy
of the Participant.
(c) For calendar years beginning after 1988, the amount to be distributed
each year, beginning with distributions for the First Distribution
Calendar Year shall not be less than the quotient obtained by dividing
the Participant's benefit by the lesser of (1) the Applicable Life
Expectancy or (2) if the Participant's Spouse is not the Designated
Beneficiary, the applicable divisor determined from the table set
forth in Q&A-4 of Regulations Section 1.401(a)(9)-2. Distributions
after the death of the Participant shall be distributed using the
Applicable Life Expectancy as the relevant divisor without regard to
Regulations Section 1.401(a)(9)-2.
(d) The minimum distribution required for the Participant's First
Distribution Calendar Year must be made on or before the Participant's
Required Beginning Date. The minimum distribution for other calendar
years, including the minimum distribution for the Distribution
Calendar Year in which the Participant's Required Beginning Date
occurs, must be made on or before December 31 of that Distribution
Calendar Year.
31
(e) If the Participant's benefit is distributed in the form of an annuity
purchased from an insurance company, distributions thereunder shall be
made in accordance with the requirements of Code Section 401(a)(9) and
the regulations thereunder.
(f) For purposes of determining the amount of the required distribution
for each Distribution Calendar Year, the account balance to be used is
the account balance determined as of the last valuation preceding the
Distribution Calendar Year. This balance will be increased by the
amount of any contributions or forfeitures allocated to the account
balance after the valuation date in such preceding calendar year. Such
balance will also be decreased by distributions made after the
Valuation Date in such preceding Calendar Year.
(g) For purposes of subparagraph 7.4(f), if any portion of the minimum
distribution for the First Distribution Calendar Year is made in the
second Distribution Calendar Year on or before the Required Beginning
Date, the amount of the minimum distribution made in the second
Distribution Calendar Year shall be treated as if it had been made in
the immediately preceding Distribution Calendar Year.
7.5 Required Beginning Date
(a) General Rule. The Required Beginning Date of a Participant is the
first day of April of the calendar year following the calendar year in
which the Participant attains age 70 1/2.
(b) Transitional Rules. The Required Beginning Date of a Participant who
attained age 70 1/2before 1988, shall be determined in accordance with
(1) or (2) below:
(1) Non-5-percent owners. The Required Beginning Date of a
Participant who is not a 5-percent owner is the first day of
April of the calendar year following the calendar year in which
the later of retirement or attainment of age 70 1/2 occurs. The
Required Beginning Date of a Participant who is not a 5-percent
owner, who attains age 70 1/2 during 1988 and who has not retired
as of 1989, is April 1, 1990.
(2) 5-percent owners. The Required Beginning Date of a Participant
who is a 5-percent owner during any year beginning after 1979, is
the first day of April following the later of:
(i) the calendar year in which the Participant attains age 70
1/2, or
(ii) the earlier of the calendar year with or within which ends
the plan year in which the Participant becomes a 5-percent
owner, or the calendar year in which the Participant
retires.
(c) A Participant is treated as a 5-percent owner for purposes of this
Paragraph if such Participant is a 5-percent owner as defined in Code
Section 416(i) (determined in accordance with Code Section 416 but
without regard to whether the Plan is Top-Heavy) at any time during
the Plan Year ending with or within the calendar year in which such
Owner attains age 66 1/2 or any subsequent Plan Year.
(d) Once distributions have begun to a 5-percent owner under this
paragraph, they must continue to be distributed, even if the
Participant ceases to be a 5-percent owner in a subsequent year.
32
7.6 Transitional Rule
(a) Notwithstanding the other requirements of this article and subject to
the requirements of Article VIII, Joint and Survivor Annuity
Requirements, distribution on behalf of any Employee, including a
5-percent owner, may be made in accordance with all of the following
requirements (regardless of when such distribution commences):
(i) The distribution by the trust is one which would not have
disqualified such trust under Code Section 401(a)(9) as in
effect prior to amendment by the Deficit Reduction Act of
1984.
(ii) The distribution is in accordance with a method of
distribution designated by the employee whose interest in
the trust is being distributed or, if the employee is
deceased, by a beneficiary of such employee.
(iii) Such designation was in writing, was signed by the employee
or the beneficiary, and was made before January 1, 1984.
(iv) The Employee has accrued a benefit under the Plan as of
December 31, 1983.
(v) The method of distribution designated by the Employee or
the beneficiary specifies the time at which distribution
will commence, the period over which distributions will be
made, and in the case of any distribution upon the
Employee's death, the beneficiaries of the Employee listed
in order of priority.
(b) A distribution upon death will not be covered by this transitional
rule unless the information in the designation contains the required
information described above with respect to the distributions to be
made upon the death of the Employee.
(c) For any distribution which commences before January 1, 1984, but
continues after December 31, 1983, the Employee, or the beneficiary,
to whom such distribution is being made, will be presumed to have
designated the method of distribution under which the distribution is
being made if the method of distribution was specified in writing and
the distribution satisfies the requirements in sub-paragraphs (a)(i)
and (a)(v) above.
(d) If a designation is revoked, any subsequent distribution must satisfy
the requirements of Code Section 401(a)(9) and the Regulations
thereunder. If a designation is revoked subsequent to the date
distributions are required to begin, the Plan must distribute by the
end of the calendar year following the calendar year in which the
revocation occurs the total amount not yet distributed which would
have been required to have been distributed to satisfy Code Section
401(a)(9) and the Regulations thereunder, but for the Tax Equity and
Fiscal Responsibility Act Section 242(b)(2) election. For calendar
years beginning after December 31, 1988, such distributions must meet
the minimum distribution incidental benefit requirements in
Regulations Section 1.401(a)(9)-2. Any changes in the designation will
be considered to be a revocation of the designation. However, the mere
substitution or addition of another beneficiary (one not named in the
designation) under the designation will not be considered to be a
revocation of the designation, so long as such substitution or
33
addition does not alter the period over which distributions are to be
made under the designation, directly or indirectly (for example, by
altering the relevant measuring life). In the case in which an amount
is transferred or rolled over from one plan to another plan, the rules
in Q&A J-2 and Q&A J-3 of Regulations Section 1.401(a)(9)-2 shall
apply.
7.7 Designation Of Beneficiary For Death Benefit Each Participant shall
file a written designation of beneficiary with the Employer upon qualifying for
participation in this Plan. Such designation shall remain in force until revoked
by the Participant by filing a new beneficiary form with the Employer. The
Participant may elect to have a portion of his or her account balance invested
in an insurance contract. If an insurance contract is purchased under the Plan,
the Trustee must be named as Beneficiary under the terms of the contract.
However, the Participant shall designate a Beneficiary to receive the proceeds
of the contract after settlement is received by the Trustee. Under a
profit-sharing plan satisfying the requirements of paragraph 8.7 hereof, the
Designated Beneficiary shall be the Participant's Surviving Spouse, if any,
unless such Spouse properly consents otherwise.
7.8 Nonexistence Of Beneficiary Any portion of the amount payable hereunder
which is not disposed of because of the Participant's or former Participant's
failure to designate a beneficiary, or because all of the Designated
Beneficiaries are deceased, shall be paid to his or her Spouse. If the
Participant had no Spouse at the time of death, payment shall be made to the
personal representative of his or her estate in a lump sum.
7.9 Distribution Beginning Before Death If the Participant dies after
distribution of his or her interest has begun, the remaining portion of such
interest will continue to be distributed at least as rapidly as under the method
of distribution being used prior to the Participant's death.
7.10 Distribution Beginning After Death If the Participant dies before
distribution of his or her interest begins, distribution of the Participant's
entire interest shall be completed by December 31 of the calendar year
containing the fifth anniversary of the Participant's death except to the extent
that an election is made to receive distributions in accordance with (a) or (b)
below:
(a) If any portion of the Participant's interest is payable to a
Designated Beneficiary, distributions may be made over the life or
over a period certain not greater than the life expectancy of the
Designated Beneficiary commencing on or before December 31 of the
calendar year immediately following the calendar year in which the
Participant died;
(b) If the Designated Beneficiary is the Participant's Surviving
Spouse, the date distributions are required to begin in
accordance with (a) above shall not be earlier than the later of
(1) December 31 of the calendar year immediately following the
calendar year in which the participant died, or (2) December 31
of the calendar year in which the Participant would have attained
age 70 1/2.
If the Participant has not made an election pursuant to this paragraph by the
time of his or her death, the Participant's Designated Beneficiary must elect
the method of distribution no later than the earlier of (1) December 31 of the
calendar year in which distributions would be required to begin under this
section, or (2) December 31 of the calendar year which contains the fifth
anniversary of the date of death of the participant. If the Participant has no
Designated Beneficiary, or if the Designated Beneficiary does not elect a method
of distribution, then distribution of the Participant's entire interest must be
completed by December 31 of the calendar year containing the fifth anniversary
of the Participant's death.
For purposes of this paragraph if the Surviving Spouse dies after the
Participant, but before payments to such Spouse begin, the provisions of this
paragraph with the exception of paragraph (b) therein, shall be applied as if
the Surviving Spouse were the Participant. For the purposes of this paragraph
and paragraph 7.9, distribution of a Participant's interest is considered to
begin on the Participant's Required Beginning Date (or, if the preceding
sentence is applicable, the date distribution is required to begin to the
Surviving Spouse). If distribution in the form of an annuity described in
paragraph 7.4(e) irrevocably commences to the Participant before the Required
Beginning Date, the date distribution is considered to begin is the date
distribution actually commences.
34
For purposes of paragraph 7.9 and this paragraph, if an amount is payable to
either a minor or an individual who has been declared incompetent, the benefits
shall be paid to the legally appointed guardian for the benefit of said minor or
incompetent individual, unless the court which appointed the guardian has
ordered otherwise.
7.11 Distribution Of Excess Elective Deferrals
(a) Notwithstanding any other provision of the Plan, Excess Elective
Deferrals plus any income and minus any loss allocable thereto,
shall be distributed no later than April 15, 1988, and each April
15 thereafter, to Participants to whose accounts Excess Elective
Deferrals were allocated for the preceding taxable year, and who
claim Excess Elective Deferrals for such taxable year. Excess
Elective Deferrals shall be treated as Annual Additions under the
Plan, unless such amounts are distributed no later than the first
April 15th following the close of the Participant's taxable year.
A Participant is deemed to notify the Plan Administrator of any
Excess Elective Deferrals that arise by taking into account only
those Elective Deferrals made to this Plan and any other plans of
this Employer. Furthermore, a Participant who participates in
another plan allowing Elective Deferrals may assign to this Plan
any Excess Elective Deferrals made during a taxable year of the
Participant, by notifying the Plan Administrator of the amount of
the Excess Elective Deferrals to be assigned.
(b) The Participant's claim shall be in writing; shall be submitted
to the Plan Administrator not later than March 1 of each year;
shall specify the amount of the Participant's Excess Elective
Deferrals for the preceding taxable year; and shall be
accompanied by the Participant's written statement that if such
amounts are not distributed, such Excess Elective Deferrals, when
added to amounts deferred under other plans or arrangements
described in Code Sections 401(k), 408(k) [Simplified Employee
Pensions], or 403(b) [annuity programs for public schools and
charitable organizations] will exceed the $7,000 limit as
adjusted under Code Section 415(d) imposed on the Participant by
Code Section 402(g) for the year in which the deferral occurred.
(c) Excess Elective Deferrals shall be adjusted for any income or
loss up to the end of the taxable year, during which such excess
was deferred. Income or loss will be calculated under the method
used to calculate investment earnings and losses elsewhere in the
Plan.
(d) If the Participant receives a return of his or her Elective
Deferrals, the amount of such contributions which are returned
must be brought into the Employee's taxable income.
7.12 Distributions of Excess Contributions
(a) Notwithstanding any other provision of this Plan, Excess
Contributions, plus any income and minus any loss allocable
thereto, shall be distributed no later than the last day of each
Plan Year to Participants to whose accounts such Excess
Contributions were allocated for the preceding Plan Year. If such
excess amounts are distributed more than 2 1/2months after the
last day of the Plan Year in which such excess amounts arose, a
ten (10) percent excise tax will be imposed on the Employer
maintaining the Plan with respect to such amounts. Such
distributions shall be made to Highly Compensated Employees on
the basis of the respective portions of the Excess Contributions
attributable to each of such Employees. Excess Contributions
shall be allocated to Participants who are subject to the Family
Member aggregation rules of Code Section 414(q)(6) in the manner
prescribed by the regulations thereunder.
(b) Excess Contributions (including the amounts recharacterized) shall
be treated as Annual Additions under the Plan.
35
(c) Excess Contributions shall be adjusted for any income or loss up to
the end of the Plan Year. Income or loss will be calculated under the
method used to calculate investment earnings and losses elsewhere in
the Plan.
(d) Excess Contributions shall be distributed from the Participant's
Contribution account and Qualified Matching Contribution account (if
applicable) in proportion to the Participant's Elective Deferrals and
Qualified Matching Contributions (to the extent used in the ADP test)
for the Plan Year. Excess Contributions shall be distributed from the
Participant's Qualified Non-Elective Contribution account only to the
extent that such Excess Contributions exceed the balance in the
Participant's Elective Deferral account and Qualified Matching
Contribution account.
7.13 Distribution Of Excess Aggregate Contributions
(a) Notwithstanding any other provision of this Plan, Excess Aggregate
Contributions, plus any income and minus any loss allocable thereto,
shall be forfeited, if forfeitable, or if not forfeitable, distributed
no later than the last day of each Plan Year to Participants to whose
accounts such Excess Aggregate Contributions were allocated for the
preceding Plan Year. Excess Aggregate Contributions shall be allocated
to Participants who are subject to the Family Member aggregation rules
of Code Section 414(q)(6) in the manner prescribed by the regulations.
If such Excess Aggregate Contributions are distributed more than 2
1/2months after the last day of the Plan Year in which such excess
amounts arose, a ten (10) percent excise tax will be imposed on the
Employer maintaining the Plan with respect to those amounts. Excess
Aggregate Contributions shall be treated as Annual Additions under the
plan.
(b) Excess Aggregate Contributions shall be adjusted for any income or
loss up to the end of the Plan Year. The income or loss allocable to
Excess Aggregate Contributions is the sum of income or loss for the
Plan Year allocable to the Participant's Voluntary Contribution
account, Matching Contribution account, (if any, and if all amounts
therein are not used in the ADP test) and, if applicable, Qualified
Non-Elective Contribution account and Elective Deferral account.
Income or loss will be calculated under the method used to calculate
investment earnings and losses elsewhere in the Plan.
(c) Forfeitures of Excess Aggregate Contributions may either be
reallocated to the accounts of non-Highly Compensated Employees or
applied to reduce Employer contributions, as elected by the employer
in the Adoption Agreement.
(d) Excess Aggregate Contributions shall be forfeited if such amount is
not vested. If vested, such excess shall be distributed on a pro-rata
basis from the Participant's Voluntary Contribution account (and, if
applicable, the Participant's Qualified Non-Elective Contribution
account or Elective Deferral account, or both).
36
ARTICLE VIII
JOINT AND SURVIVOR ANNUITY REQUIREMENTS
8.1 Applicability Of Provisions The provisions of this Article shall apply to
any Participant who is credited with at least one Hour of Service with the
Employer on or after August 23, 1984 and such other Participants as provided in
paragraph 8.8.
8.2 Payment Of Qualified Joint And Survivor Annuity Unless an optional form of
benefit is selected pursuant to a Qualified Election within the 90-day period
ending on the Annuity Starting Date, a married Participant's Vested Account
Balance will be paid in the form of a Qualified Joint and Survivor Annuity and
an unmarried Participant's Vested Account Balance will be paid in the form of a
life annuity. The Participant may elect to have such annuity distributed upon
attaining Early Retirement Age under the Plan.
8.3 Payment Of Qualified Pre-Retirement Survivor Annuity Unless an optional
form of benefit has been selected within the Election Period pursuant to a
Qualified Election, if a Participant dies before benefits have commenced then
one-half of the Participant's Vested Account Balance shall be paid to the
Surviving Spouse in the form of a life annuity. The Surviving Spouse may elect
to have such annuity distributed within a reasonable period after the
Participant's death.
A Participant who does not meet the age 35 requirement set forth in the Election
Period as of the end of any current Plan Year may make a special qualified
election to waive the qualified Pre-retirement Survivor Annuity for the period
beginning on the date of such election and ending on the first day of the Plan
Year in which the Participant will attain age 35. Such election shall not be
valid unless the Participant receives a written explanation of the Qualified
Pre-retirement Survivor Annuity in such terms as are comparable to the
explanation required under paragraph 8.5. Qualified Pre-retirement Survivor
Annuity coverage will be automatically reinstated as of the first day of the
Plan Year in which the Participant attains age 35. Any new waiver on or after
such date shall be subject to the full requirements of this Article.
8.4 Qualified Election A waiver of a Qualified Joint and Survivor Annuity or a
qualified pre-retirement survivor annuity. Any waiver of a Qualified Joint and
Survivor Annuity or a qualified pre-retirement survivor annuity shall not be
effective unless:
(a) the Participant's Spouse consents in writing to the election;
(b) the election designates a specific beneficiary, including any class of
beneficiaries or any contingent beneficiaries, which may not be
changed without spousal consent (or the Spouse expressly permits
designations by the Participant without any further spousal consent);
(c) the Spouse's consent acknowledges the effect of the election; and
(d) the Spouse's consent is witnessed by a Plan representative or notary
public.
Additionally, a Participant's waiver of the Qualified Joint and Survivor Annuity
shall not be effective unless the election designates a form of benefit payment
which may not be changed without spousal consent (or the Spouse expressly
permits designations by the Participant without any further spousal consent). If
it is established to the satisfaction of the Plan Administrator that there is no
Spouse or that the Spouse cannot be located, a waiver will be deemed a Qualified
Election. Any consent by a Spouse obtained under this provision (or
establishment that the consent of a Spouse may not be obtained) shall be
effective only with respect to such Spouse. A consent that permits designations
by the Participant without any requirement of further consent by such Spouse
must acknowledge that the Spouse has the right to limit consent to a specific
beneficiary, and a specific form of benefit where applicable, and that the
Spouse voluntarily elects to relinquish either or both of such rights. A
revocation of a prior waiver may be made by a Participant without the consent of
the Spouse at any time before the commencement of benefits. The number of
revocations shall not be limited. No consent obtained under this provision shall
be valid unless the Participant has received notice as provided in paragraphs
8.5 and 8.6 below.
8.5 Notice Requirements For Qualified Joint And Survivor Annuity In the case
of a Qualified Joint and
37
Survivor Annuity, the Plan Administrator shall, no less than 30 days and no more
than 90 days prior to the Annuity Starting date, provide each Participant a
written explanation of:
(a) the terms and conditions of a Qualified Joint and Survivor Annuity;
(b) the Participant's right to make and the effect of an election to waive
the qualified Joint and Survivor Annuity form of benefit;
(c) the rights of a Participant's Spouse; and
(d) the right to make, and the effect of, a revocation of a previous
election to waive the Qualified Joint and Survivor Annuity.
8.6 Notice Requirements For Qualified Pre-Retirement Survivor Annuity In the
case of a qualified pre-retirement survivor annuity as described in paragraph
8.3, the Plan Administrator shall provide each Participant within the applicable
period for such Participant a written explanation of the qualified
pre-retirement survivor annuity in such terms and in such manner as would be
comparable to the explanation provided for meeting the requirements of paragraph
8.5 applicable to a Qualified Joint and Survivor Annuity. The applicable period
for a Participant is whichever of the following periods ends last:
(a) the period beginning with the first day of the Plan Year in which the
Participant attains age 32 and ending with the close of the Plan Year
preceding the Plan Year in which the Participant attains age 35;
(b) a reasonable period ending after the individual becomes a Participant;
(c) a reasonable period ending after this Article first applies to the
Participant. Notwithstanding the foregoing, notice must be provided
within a reasonable period ending after separation from Service in the
case of a Participant who separates from Service before attaining age
35.
For purposes of applying the preceding paragraph, a reasonable period ending
after the events described in (b) and (c) is the end of the two-year period
beginning one-year prior to the date the applicable event occurs, and ending
one-year after that date. In the case of a Participant who separates from
Service before the Plan Year in which age 35 is attained, notice shall be
provided within the two-year period beginning one year prior to separation and
ending one year after separation. If such a Participant subsequently returns to
employment with the Employer, the applicable period for such Participant shall
be re-determined.
8.7 Special Safe-Harbor Exception For Certain Profit-Sharing Plans
(a) To the extent that the following conditions are met, the Qualified
Joint and Survivor Annuity requirements of this Article VIII shall be
inapplicable to a Participant in a profit-sharing plan, and to any
distribution, made on or after the first day of the first plan year
beginning after 1988, from or under a separate account attributable
solely to Qualified Voluntary contributions, as maintained on behalf
of a Participant in a money purchase pension plan, (including a target
benefit plan) if the following conditions are satisfied:
(1) the Participant does not or cannot elect payments in the form of
a life annuity; and
(2) on the death of a Participant, the Participant's Vested Account
Balance will be paid to the Participant's Surviving Spouse, but
if there is no Surviving Spouse, or if the Surviving Spouse has
consented in a manner conforming to a Qualified Election, then to
the Participant's Designated Beneficiary.
The Surviving Spouse may elect to have distribution of the Vested
Account Balance commence within the 90-day period following the date
of the Participant's death. The account balance shall be adjusted for
gains or losses occurring after the Participant's death
38
in accordance with the provisions of the Plan governing the adjustment
of account balances for other types of distributions. These
safe-harbor rules shall not be operative with respect to a Participant
in a profit-sharing plan if that Plan is a direct or indirect
transferee of a Defined Benefit Plan, money purchase plan, a target
benefit plan, stock bonus plan, or profit-sharing plan which is
subject to the survivor annuity requirements of Code Section
401(a)(11) and Code Section 417, and would therefore have a Qualified
Joint and Survivor Annuity as its normal form of benefit.
(b) The Participant may waive the spousal death benefit described in this
paragraph at any time provided that no such waiver shall be effective
unless it satisfies the conditions (described in paragraph 8.4) that
would apply to the Participant's waiver of the Qualified
Pre-Retirement Survivor Annuity.
(c) If this paragraph 8.7 is operative, then all other provisions of this
Article other than paragraph 8.8 are inoperative.
8.8 Transitional Joint And Survivor Annuity Rules Special transition rules
apply to Participants who were not receiving benefits on August 23, 1984.
(a) Any living Participant not receiving benefits on August 23, 1984, who
would otherwise not receive the benefits prescribed by the previous
paragraphs of this Article, must be given the opportunity to elect to
have the prior paragraphs of this Article apply if such Participant is
credited with at least one Hour of Service under this Plan or a
predecessor Plan in a Plan Year beginning on or after January 1, 1976
and such Participant had at least 10 Years of Service for vesting
purposes when he or she separated from Service.
(b) Any living Participant not receiving benefits on August 23, 1984, who
was credited with at least one Hour of Service under this Plan or a
predecessor Plan on or after September 2, 1974, and who is not
otherwise credited with any Service in a Plan Year beginning on or
after January 1, 1976, must be given the opportunity to have his or
her benefits paid in accordance with paragraph 8.9.
(c) The respective opportunities to elect [as described in (a) and (b)
above] must be afforded to the appropriate Participants during the
period commencing on August 23, 1984 and ending on the date benefits
would otherwise commence to said Participants.
8.9 Automatic Joint And Survivor Annuity And Early Survivor Annuity Any
Participant who has elected pursuant to paragraph 8.8(b) and any Participant who
does not elect under paragraph 8.8(a) or who meets the requirements of paragraph
8.8(a), except that such Participant does not have at least 10 years of vesting
Service when he or she separates from Service, shall have his or her benefits
distributed in accordance with all of the following requirements if benefits
would have been payable in the form of a life annuity.
(a) Automatic Joint and Survivor Annuity. If benefits in the form of a
life annuity become payable to a married Participant who:
(1) begins to receive payments under the Plan on or after Normal
Retirement Age, or
(2) dies on or after Normal Retirement Age while still working for
the Employer, or
(3) begins to receive payments on or after the Qualified Early
Retirement Age, or
(4) separates from Service on or after attaining Normal Retirement
(or the Qualified Early Retirement Age) and after satisfying the
eligibility requirements for the payment of benefits under the
Plan and thereafter dies before beginning to receive such
benefits, then such benefits will be
39
received under this Plan in the form of a Qualified Joint and
Survivor Annuity, unless the Participant has elected otherwise
during the Election Period. The Election Period must begin at
least 6 months before the Participant attains Qualified Early
Retirement Age and end not more than 90 days before the
commencement of benefits. Any election hereunder will be in
writing and may be changed by the Participant at any time.
(b) Election of Early Survivor Annuity. A Participant who is employed
after attaining the Qualified Early Retirement Age will be given the
opportunity to elect, during the Election Period, to have a survivor
annuity payable on death. If the Participant elects the survivor
annuity, payments under such annuity must not be less than the
payments which would have been made to the Spouse under the Qualified
Joint and Survivor Annuity if the Participant had retired on the day
before his or her death. Any election under this provision will be in
writing and may be changed by the Participant at any time. The
Election Period begins on the later of:
(1) the 90th day before the Participant attains the Qualified Early
Retirement Age, or
(2) the date on which participation begins, and ends on the date the
Participant terminates employment.
8.10 Annuity Contracts Any annuity contract distributed under this Plan must
be nontransferable. The terms of any annuity contract purchased and distributed
by the Plan to a Participant or Spouse shall comply with the requirements of
this Plan.
40
ARTICLE IX
VESTING
9.1 Employee Contributions A Participant shall always have a 100% vested and
nonforfeitable interest in his or her Elective Deferrals, Voluntary
Contributions, Qualified Voluntary Contributions, Rollover Contributions, and
Transfer Contributions plus the earnings thereon. No forfeiture of Employer
related contributions (including any minimum contributions made under paragraph
14.2 hereof) will occur solely as a result of an Employee's withdrawal of any
Employee contributions.
9.2 Employer Contributions A Participant shall acquire a vested and
nonforfeitable interest in his or her account attributable to Employer
contributions in accordance with the table selected in the Adoption Agreement,
provided that if a Participant is not already fully vested, he or she shall
become so upon attaining Normal Retirement Age, Early Retirement Age, on death
prior to normal retirement, on retirement due to Disability, or on termination
of the Plan.
9.3 Computation Period The computation period for purposes of determining
Years of Service and Breaks in Service for purposes of computing a Participant's
nonforfeitable right to his or her account balance derived from Employer
contributions shall be determined by the Employer in the Adoption Agreement. If
the Employer provides for other than full and immediate vesting and does not
designate otherwise, the computation period will be the Plan Year. In the event
a former Participant with no vested interest in his or her Employer contribution
account requalifies for participation in the Plan after incurring a Break in
Service, such Participant shall be credited for vesting with all pre-break and
post-break Service.
9.4 Requalification Prior To Five Consecutive One-Year Breaks In Service The
account balance of such Participant shall consist of any undistributed amount in
his or her account as of the date of re-employment plus any future contributions
added to such account plus the investment earnings on the account. The Vested
Account Balance of such Participant shall be determined by multiplying the
Participant's account balance (adjusted to include any distribution or redeposit
made under paragraph 6.3) by such Participant's vested percentage. All Service
of the Participant, both prior to and following the break, shall be counted when
computing the Participant's vested percentage.
9.5 Requalification After Five Consecutive One-Year Breaks In Service If such
Participant is not fully vested upon re-employment, a new account shall be
established for such Participant to separate his or her deferred vested and
nonforfeitable account, if any, from the account to which new allocations will
be made. The Participant's deferred account to the extent remaining shall be
fully vested and shall continue to share in earnings and losses of the Fund.
When computing the Participant's vested portion of the new account, all
pre-break and post-break Service shall be counted. However, notwithstanding this
provision, no such former Participant who has had five consecutive one-year
Breaks in Service shall acquire a larger vested and nonforfeitable interest in
his or her prior account balance as a result of requalification hereunder.
9.6 Calculating Vested Interest A Participant's vested and nonforfeitable
interest shall be calculated by multiplying the fair market value of his or her
account attributable to Employer contributions on the Valuation Date preceding
distribution by the decimal equivalent of the vested percentage as of his or her
termination date. The amount attributable to Employer contributions for purposes
of the calculation includes amounts previously paid out pursuant to paragraph
6.3 and not repaid. The Participant's vested and nonforfeitable interest, once
calculated above, shall be reduced to reflect those amounts previously paid out
to the Participant and not repaid by the Participant. The Participant's vested
and nonforfeitable interest so determined shall continue to share in the
investment earnings and any increase or decrease in the fair market value of the
Fund up to the Valuation Date preceding or coinciding with payment.
9.7 Forfeitures Any balance in the account of a Participant who has separated
from Service to which he or she is not entitled under the foregoing provisions,
shall be forfeited and applied as provided in the Adoption Agreement. If not
specified otherwise in the Adoption Agreement, forfeitures will be allocated to
Participants in the same
41
manner as the Employer's contribution. A forfeiture may only occur if the
Participant has received a distribution from the Plan or if the Participant has
incurred five consecutive 1-year Breaks in Service. Forfeitures shall inure only
to the accounts of Participants of the adopting Employer's plan. If not
specified otherwise in the Adoption Agreement, forfeitures shall be allocated at
the end of the Plan Year during which the former Participant incurs five
consecutive one-year Breaks in Service. Furthermore, a Highly Compensated
Employee's Matching Contributions may be forfeited, even if vested, if the
contributions to which they relate are Excess Deferrals, Excess Contributions or
Excess Aggregate Contributions.
9.8 Amendment Of Vesting Schedule No amendment to the Plan shall have the
effect of decreasing a Participant's vested interest determined without regard
to such amendment as of the later of the date such amendment is adopted or the
date it becomes effective. Further, if the vesting schedule of the Plan is
amended, or the Plan is amended in any way that directly or indirectly affects
the computation of any Participant's nonforfeitable percentage, or if the Plan
is deemed amended by an automatic change to or from a Top-Heavy vesting
schedule, each Participant with at least three Years of Service with the
Employer may elect, within a reasonable period after the adoption of the
amendment or change, to have his or her nonforfeitable percentage computed under
the Plan without regard to such amendment or change. For Participants who do not
have at least one Hour of Service in any Plan Year beginning after 1988, the
preceding sentence shall be applied by substituting "Five Years of Service" for
"Three Years of Service" where such language appears. The period during which
the election may be made shall commence with the date the amendment is adopted
or deemed to be made and shall end on the later of:
(a) 60 days after the amendment is adopted;
(b) 60 days after the amendment becomes effective; or
(c) 60 days after the Participant is issued written notice of the
amendment by the Employer or the Trustee. If the Trustee is asked to
so notify, the Fund will be charged for the costs thereof unless the
Employer pays the charges as permitted in paragraph 11.3.
No amendment to the Plan shall be effective to the extent that it has the effect
of decreasing a Participant's accrued benefit. Notwithstanding the preceding
sentence, a Participant's account balance may be reduced to the extent permitted
under section 412(c)(8) of the Code (relating to financial hardships). For
purposes of this paragraph, a Plan amendment which has the effect of decreasing
a Participant's account balance or eliminating an optional form of benefit, with
respect to benefits attributable to service before the amendment shall be
treated as reducing an accrued benefit.
9.9 Service With Controlled Groups All Years of Service with other members of a
controlled group of corporations [as defined in Code Section 414(b)], trades or
businesses under common control [as defined in Code Section 414(c)], or members
of an affiliated service group [as defined in Code Section 414(m)] shall be
considered for purposes of determining a Participant's nonforfeitable
percentage.
9.10 Application Of Prior Vesting Rules This Article reflects the vesting rules
in effect after amendment for the Tax Reform Act of 1986. Any Participant who
separated from Service prior to rendering an Hour of Service in the 1989 Plan
Year, will continue to have his or her vesting governed by the Plan's prior
vesting rules, including, if applicable, the "rules of parity" which would allow
for certain Years of Service to be disregarded.
42
ARTICLE X
LIMITATIONS ON ALLOCATIONS
AND ANTIDISCRIMINATION TESTING
10.1 Participation In This Plan Only If the Participant does not participate in
and has never participated in another qualified plan, a Welfare Benefit Fund (as
defined in paragraph 1.89) or an individual medical account, as defined in Code
Section 415(l)(2), maintained by the adopting Employer, which provides an Annual
Addition as defined in paragraph 1.4, the amount of Annual Additions which may
be credited to the Participant's account for any Limitation Year will not exceed
the lesser of the Maximum Permissible Amount or any other limitation contained
in this Plan. If the Employer contribution that would otherwise be contributed
or allocated to the Participant's account would cause the Annual Additions for
the Limitation Year to exceed the Maximum Permissible Amount, the amount
contributed or allocated will be reduced so that the Annual Additions for the
Limitation Year will equal the Maximum Permissible Amount. Prior to determining
the Participant's actual Compensation for the Limitation Year, the Employer may
determine the Maximum Permissible Amount for a Participant on the basis of a
reasonable estimate of the Participant's Compensation for the Limitation Year,
uniformly determined for all Participants similarly situated. As soon as is
administratively feasible after the end of the Limitation Year, the Maximum
Permissible Amount for the Limitation Year will be determined on the basis of
the Participant's actual Compensation for the Limitation Year.
10.2 Disposition Of Excess Annual Additions If pursuant to paragraph 10.1 or as
a result of the allocation of forfeitures, there is an Excess Amount, the excess
will be disposed of under one of the following methods as determined in the
Adoption Agreement. If no election is made in the Adoption Agreement then method
"(a)" below shall apply.
(a) Suspense Account Method
(1) Any nondeductible Employee Voluntary, Required Voluntary
Contributions and unmatched Elective Deferrals to the extent they
would reduce the Excess Amount will be returned to the
Participant. To the extent necessary to reduce the Excess Amount,
non-Highly Compensated Employees will have all Elective Deferrals
returned whether or not there was a corresponding match.
(2) If after the application of paragraph (1) an Excess Amount still
exists, and the Participant is covered by the Plan at the end of
the Limitation Year, the Excess Amount in the Participant's
account will be used to reduce Employer contributions (including
any allocation of forfeitures) for such Participant in the next
Limitation Year, and each succeeding Limitation Year if
necessary;
(3) If after the application of paragraph (1) an Excess Amount still
exists, and the Participant is not covered by the Plan at the end
of the Limitation Year, the Excess Amount will be held
unallocated in a suspense account. The suspense account will be
applied to reduce future Employer contributions (including
allocation of any forfeitures) for all remaining Participants in
the next Limitation Year, and each succeeding Limitation Year if
necessary;
(4) If a suspense account is in existence at any time during the
Limitation Year pursuant to this paragraph, it will not
participate in the allocation of investment gains and losses. If
a suspense account is in existence at any time during a
particular Limitation Year, all amounts in the suspense
account must be allocated and reallocated to Participants'
accounts before any Employer contributions or any Employee or
Voluntary Contributions
43
may be made to the Plan for that Limitation Year. Excess amounts
may not be distributed to Participants or former Participants.
(b) Spillover Method
(1) Any nondeductible Employee Voluntary, Required Voluntary
Contributions and unmatched Elective Deferrals to the extent they
would reduce the Excess Amount will be returned to the
Participant. To the extent necessary to reduce the Excess Amount,
non-Highly Compensated Employees will have all Elective Deferrals
returned whether or not there was a corresponding match.
(2) Any Excess Amount which would be allocated to the account of an
individual Participant under the Plan's allocation formula will
be reallocated to other Participants in the same manner as other
Employer contributions. No such reallocation shall be made to the
extent that it will result in an Excess Amount being created in
such Participant's own account.
(3) To the extent that amounts cannot be reallocated under (1) above,
the suspense account provisions of (a) above will apply.
10.3 Participation In This Plan And Another Regional Prototype Defined
Contribution Plan, Welfare Benefit Fund, Or Individual Medical Account
Maintained By The Employer The Annual Additions which may be credited to a
Participant's account under this Plan for any Limitation Year will not exceed
the Maximum Permissible Amount reduced by the Annual Additions credited to a
Participant's account under the other Regional Prototype Defined Contribution
plans and Welfare Benefit Funds and individual medical accounts as defined in
Code Section 415(l)(2), maintained by the Employer, which provide an Annual
Addition as defined in paragraph 1.4, for the same Limitation Year. If the
Annual Additions, with respect to the Participant under other Defined
Contribution Plans and Welfare Benefit Funds maintained by the Employer, are
less than the Maximum Permissible Amount and the Employer contribution that
would otherwise be contributed or allocated to the Participant's account under
this Plan would cause the Annual Additions for the Limitation Year to exceed
this limitation, the amount contributed or allocated will be reduced so that the
Annual Additions under all such plans and funds for the Limitation Year will
equal the Maximum Permissible Amount. If the Annual Additions with respect to
the Participant under such other Defined Contribution Plans and Welfare Benefit
Funds in the aggregate are equal to or greater than the Maximum Permissible
Amount, no amount will be contributed or allocated to the Participant's account
under this Plan for the Limitation Year. Prior to determining the Participant's
actual Compensation for the Limitation Year, the Employer may determine the
Maximum Permissible Amount for a Participant in the manner described in
paragraph 10.1. As soon as administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for the Limitation Year will be
determined on the basis of the Participant's actual Compensation for the
Limitation Year.
10.4 Disposition Of Excess Annual Additions Under Two Plans If, pursuant to
paragraph 10.3 or as a result of forfeitures, a Participant's Annual Additions
under this Plan and such other plans would result in an Excess Amount for a
Limitation Year, the Excess Amount will be deemed to consist of the Annual
Additions last allocated except that Annual Additions attributable to a Welfare
Benefit Fund or an individual medical account as defined in Code Section
415(l)(2) will be deemed to have been allocated first regardless of the actual
allocation date. If an Excess Amount was allocated to a Participant on an
allocation date of this Plan which coincides with an allocation date of another
plan, the Excess Amount attributed to this Plan will be the product of:
(a) the total Excess Amount allocated as of such date, times
(b) the ratio of:
(1) the Annual Additions allocated to the Participant for the
Limitation Year
44
as of such date under the Plan, to
(2) the total Annual Additions allocated to the Participant for the
Limitation Year as of such date under this and all the other
qualified Master or Prototype Defined Contribution Plans.
Any Excess Amount attributed to this Plan will be disposed of in the manner
described in paragraph 10.2.
10.5 Participation In This Plan And Another Defined Contribution Plan Which Is
Not A Regional Prototype Plan If the Participant is covered under another
qualified Defined Contribution Plan maintained by the Employer which is not a
Regional Prototype Plan, Annual Additions which may be credited to the
Participant's account under this Plan for any Limitation Year will be limited in
accordance with paragraphs 10.3 and 10.4 as though the other plan were a Master
or Prototype Plan, unless the Employer provides other limitations in the
Adoption Agreement.
10.6 Participation In This Plan And A Defined Benefit Plan If the Employer
maintains, or at any time maintained, a qualified Defined Benefit Plan covering
any Participant in this Plan, the sum of the Participant's Defined Benefit Plan
Fraction and Defined Contribution Plan Fraction will not exceed 1.0 in any
Limitation Year. For any Plan Year during which the Plan is Top-Heavy, the
Defined Benefit and Defined Contribution Plan Fractions shall be calculated in
accordance with Code Section 416(h). The Annual Additions which may be credited
to the Participant's account under this Plan for any Limitation Year will be
limited in accordance with the provisions set forth in the Adoption Agreement.
10.7 Limitations On Allocations In any Plan Year in which the Top-Heavy Ratio
exceeds 90% (i.e., the Plan becomes Super Top-Heavy), the denominators of the
Defined Benefit Fraction (as defined in paragraph 1.15) and Defined Contribution
Fraction (as defined in paragraph 1.18) shall be computed using 100% of the
dollar limitation instead of 125%.
10.8 Average Deferral Percentage (ADP) Test With respect to any Plan Year, the
Average Deferral Percentage for Participants who are Highly Compensated
Employees and the Average Deferral Percentage for Participants who are
non-Highly Compensated Employees must satisfy one of the following tests:
(a) Basic Test - The Average Deferral Percentage for Participants who are
Highly Compensated Employees for the Plan Year is not more than 1.25
times the Average Deferral Percentage for Participants who are
non-Highly Compensated Employees for the same Plan Year, or
(b) Alternative Test - The Average Deferral Percentage for Participants who
are Highly Compensated Employees for the Plan Year does not exceed the
Average Deferral Percentage for Participants who are non-Highly
Compensated Employees for the same Plan Year by more than 2 percentage
points provided that the Average Deferral Percentage for Participants
who are Highly Compensated Employees is not more than 2.0 times the
Average Deferral Percentage for Participants who are non-Highly
Compensated Employees.
45
10.9 Special Rules Relating To Application Of ADP Test
(a) The Actual Deferral Percentage for any Participant who is a Highly
Compensated Employee for the Plan Year and who is eligible to have
Elective Deferrals (and Qualified Non-Elective Contributions or
Qualified Matching Contributions, or both, if treated as Elective
Deferrals for purposes of the ADP test) allocated to his or her
accounts under two or more arrangements described in Code Section
401(k), that are maintained by the Employer, 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
that have different Plan Years, all cash or deferred arrangements
ending with or within the same calendar year shall be treated as a
single arrangement.
(b) In the event that this Plan satisfies the requirements of Code
Sections 401(k), 401(a)(4), or 410(b), only if aggregated with one or
more other plans, or if one or more other plans satisfy the
requirements of such Code Sections only if aggregated with this Plan,
then this Section shall be applied by determining the Actual Deferral
Percentage of Employees as if all such plans were a single plan. For
Plan Years beginning after 1989, plans may be aggregated in order to
satisfy Code Section 401(k) only if they have the same Plan Year.
(c) For purposes of determining the Actual Deferral Percentage of a
Participant who is a 5-percent owner or one of the ten most
highest-paid Highly Compensated Employees, the Elective Deferrals (and
Qualified Non-Elective Contributions or Qualified Matching
Contributions, or both, if treated as Elective Deferrals for purposes
of the ADP test) and Compensation of such Participant shall include
the Elective Deferrals (and, if applicable, Qualified Non-Elective
Contributions and Qualified Matching Contributions, or both) for the
Plan Year of Family Members as defined in paragraph 1.35 of this Plan.
Family Members, with respect to such Highly Compensated Employees,
shall be disregarded as separate Employees in determining the ADP both
for Participants who are non-Highly Compensated Employees and for
Participants who are Highly Compensated Employees. In the event of
repeal of the family aggregation rules under Code Section 414(q)(6),
all applications of such rules under this Plan will cease as of the
effective date of such repeal.
(d) For purposes of determining the ADP test, Elective Deferrals,
Qualified Non-Elective Contributions and Qualified Matching
Contributions must be made before the last day of the twelve-month
period immediately following the Plan Year to which contributions
relate.
(e) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ADP test and the amount of Qualified Non-Elective
Contributions or Qualified Matching Contributions, or both, used in
such test.
(f) The determination and treatment of the Actual Deferral Percentage
amounts of any Participant shall satisfy such other requirements as
may be prescribed by the Secretary of the Treasury.
10.10 Recharacterization If the Employer allows for Voluntary Contributions in
the Adoption Agreement, a Participant may treat his or her Excess Contributions
as an amount distributed to the Participant and then contributed by the
Participant to the Plan. Recharacterized amounts will remain nonforfeitable and
subject to the same distribution requirements as Elective Deferrals. Amounts may
not be recharacterized by a Highly Compensated Employee to the extent that such
amount in combination with other Employee Contributions made
46
by that Employee would exceed any stated limit under the Plan on Voluntary
Contributions. Recharacterization must occur no later than two and one-half
months after the last day of the Plan Year in which such Excess Contributions
arose and is deemed to occur no earlier than the date the last Highly
Compensated Employee is informed in writing of the amount recharacterized and
the consequences thereof. Recharacterized amounts will be taxable to the
Participant for the Participant's tax year in which the Participant would have
received them in cash.
10.11 Average Contribution Percentage (ACP) Test If the Employer makes Matching
Contributions or if the Plan allows Employees to make Voluntary Contributions
the Plan must meet additional nondiscrimination requirements provided under Code
Section 401(m). If Employee Contributions (including any Elective Deferrals
recharacterized as Voluntary Contributions) are made pursuant to this Plan, then
in addition to the ADP test referenced in paragraph 10.8, the Average
Contribution Percentage test is also applicable. The Average Contribution
Percentage for Participants who are Highly Compensated Employees for each Plan
Year and the Average Contribution Percentage for Participants who are Non-Highly
Compensated Employees for the same Plan Year must satisfy one of the following
tests:
(a) The Average Contribution Percentage for Participants who are Highly
Compensated Employees for the Plan Year shall not exceed the Average
Contribution Percentage for Participants who are non-Highly
Compensated Employees for the same Plan Year multiplied by 1.25; or
(b) The ACP for Participants who are Highly Compensated Employees for the
Plan Year shall not exceed the Average Contribution Percentage for
Participants who are non-Highly Compensated Employees for the same
Plan Year multiplied by two (2), provided that the Average
Contribution Percentage for Participants who are Highly Compensated
Employees does not exceed the Average Contribution Percentage for
Participants who are non-Highly Compensated Employees by more than two
(2) percentage points.
10.12 Special Rules Relating To Application Of ACP Test
(a) If one or more Highly Compensated Employees participate in both a cash
or deferred arrangement and a plan subject to the ACP test maintained
by the Employer and the sum of the ADP and ACP of those Highly
Compensated Employees subject to either or both tests exceeds the
Aggregate Limit, then the ADP or ACP of those Highly Compensated
Employees who also participate in a cash or deferred arrangement will
be reduced (beginning with such Highly Compensated Employee whose ACP
is the highest) as set forth in the Adoption Agreement so that the
limit is not exceeded. The amount by which each Highly Compensated
Employee's Contribution Percentage Amounts is reduced shall be treated
as an Excess Aggregate Contribution. The ADP and ACP of the Highly
Compensated Employees are determined after any corrections required to
meet the ADP and ACP tests. Multiple use does not occur if both the
ADP and ACP of the Highly Compensated Employees does not exceed 1.25
multiplied by the ADP and ACP of the non-Highly Compensated Employees.
(b) For purposes of this Article, the Contribution Percentage for any
Participant who is a Highly Compensated Employee and who is eligible
to have Contribution Percentage Amounts allocated to his or her
account under two or more plans described in Code Section 401(a), or
arrangements described in Code Section 401(k) that are maintained by
the Employer, shall be determined as if the total of such Contribution
Percentage Amounts was made under each Plan. If a Highly Compensated
Employee participates in two or more cash or deferred arrangements
that have different plan years, all cash or deferred arrangements
ending with or within the same calendar year shall be treated as a
single arrangement.
47
(c) In the event that this Plan satisfies the requirements of Code
Sections 401(a)(4), 401(m), or 410(b) only if aggregated with one or
more other plans, or if one or more other plans satisfy the
requirements of such Code Sections only if aggregated with this Plan,
then this Section shall be applied by determining the Contribution
Percentage of Employees as if all such plans were a single plan. For
Plan Years beginning after 1989, plans may be aggregated in order to
satisfy Code Section 401(m) only if the aggregated plans have the same
Plan Year.
(d) For purposes of determining the Contribution percentage of a
Participant who is a five-percent owner or one of the ten most
highest-paid, Highly Compensated Employees, the Contribution
Percentage Amounts and Compensation of such Participant shall include
the Contribution Percentage Amounts and Compensation for the Plan Year
of Family Members as defined in paragraph 1.35 of this Plan. Family
Members, with respect to Highly Compensated Employees, shall be
disregarded as separate Employees in determining the Contribution
Percentage both for Participants who are non-Highly Compensated
Employees and for Participants who are Highly Compensated Employees.
In the event of repeal of the family aggregation rules under Code
Section 414(q)(6), all applications of such rules under this Plan will
cease as of the effective date of such repeal.
(e) For purposes of determining the Contribution Percentage test, Employee
Contributions are considered to have been made in the Plan Year in
which contributed to the trust. Matching Contributions and Qualified
Non-Elective Contributions will be considered made for a Plan Year if
made no later than the end of the twelve-month period beginning on the
day after the close of the Plan Year.
(f) The Employer shall maintain records sufficient to demonstrate
satisfaction of the ACP test and the amount of Qualified Non-Elective
Contributions or Qualified Matching Contributions, or both, used in
such test.
(g) The determination and treatment of the Contribution Percentage of any
Participant shall satisfy such other requirements as may be prescribed
by the Secretary of the Treasury.
(h) Qualified Matching Contributions and Qualified Non-Elective
Contributions used to satisfy the ADP test may not be used to satisfy
the ACP test.
48
ARTICLE XI
ADMINISTRATION
11.1 Plan Administrator The Employer shall be the named fiduciary and Plan
Administrator except to the extent the Employer is a member of SBERA or if the
Employer has designated another entity as Plan Administrator. These duties shall
include:
(a) appointing the Plan's attorney, accountant, actuary, custodian or any
other party needed to administer the Plan or the Fund,
(b) directing the Trustee or custodian with respect to payments from the
Fund,
(c) communicating with Employees regarding their participation and
benefits under the Plan, including the administration of all claims
procedures,
(d) filing any returns and reports with the Internal Revenue Service,
Department of Labor, or any other governmental agency,
(e) reviewing and approving any financial reports, investment reviews, or
other reports prepared by any party appointed by the Employer under
paragraph (a),
(f) establishing a funding policy and investment objectives consistent
with the purposes of the Plan and the Employee Retirement Income
Security Act of 1974, and
(g) construing and resolving any question of Plan interpretation. The Plan
Administrator's interpretation of Plan provisions including
eligibility and benefits under the Plan is final, and unless it can be
shown to be arbitrary and capricious will not be subject to "de novo"
review.
11.2 Trustee The Trustee shall be responsible for the administration of
investments held in the Fund. These duties shall include:
(a) receiving contributions under the terms of the Plan,
(b) making distributions from the Fund in accordance with written
instructions received from an authorized representative of the
Employer,
(c) keeping accurate records reflecting its administration of the Fund and
making such records available to the Employer for review and audit.
Within 90 days after each Plan Year, and within 90 days after its
removal or resignation, the Trustee shall file with the Employer an
accounting of its administration of the Fund during such year or from
the end of the preceding Plan Year to the date of removal or
resignation. Such accounting shall include a statement of cash
receipts and disbursements since the date of its last accounting and
shall contain an asset list showing the fair market value of
investments held in the Fund as of the end of the Plan Year. The value
of marketable investments shall be determined using the most recent
price quoted on a national securities exchange or over the counter
market. The value of non-marketable investments shall be determined in
the sole judgement of the Trustee which determination shall be binding
and conclusive. The value of investments in securities or obligations
of the Employer in which there is no market shall be determined in the
sole judgement of the Employer and the Trustee shall have no
responsibility with respect to the valuation of such assets. The
Employer shall review the Trustee's accounting and notify the Trustee
in the event of its disapproval of the report within 90 days,
providing the Trustee with a written description of the items in
question. The Trustee shall have 60
49
days to provide the Employer with a written explanation of the items
in question. If the Employer again disapproves, the Trustee shall file
its accounting in a court of competent jurisdiction for audit and
adjudication, and
(d) employing such agents, attorneys or other professionals as the Trustee
may deem necessary or advisable in the performance of its duties.
The Trustee's duties shall be limited to those described above. The Employer
shall be responsible for any other administrative duties required under the Plan
or by applicable law.
11.3 Administrative Fees And Expenses All reasonable costs, charges and
expenses incurred by the Trustee in connection with the administration of the
Fund and all reasonable costs, charges and expenses incurred by the Plan
Administrator in connection with the administration of the Plan (including fees
for legal services rendered to the Trustee or Plan Administrator) may be paid by
the Employer, but if not paid by the Employer when due, shall be paid from the
Fund. Such reasonable compensation to an institutional Trustee as may be agreed
upon from time to time between the Employer and the Trustee and such reasonable
compensation to the Plan Administrator as may be agreed upon from time to time
between the Employer and Plan Administrator may be paid by the Employer, but if
not paid by the Employer when due shall be paid by the Fund. The Trustee shall
have the right to liquidate trust assets to cover its fees. Notwithstanding the
foregoing, no compensation other than reimbursement for expenses shall be paid
to a Trustee or Plan Administrator who is the Employer or a full-time Employee
of the Employer. In the event any part of the Trust Account becomes subject to
tax, all taxes incurred will be paid from the Fund unless the Plan Administrator
advises the Trustee not to pay such tax.
11.4 Division Of Duties And Indemnification
(a) The Trustee shall have the authority and discretion to manage and
govern the Fund to the extent provided in this instrument, but does
not guarantee the Fund in any manner against investment loss or
depreciation in asset value, or guarantee the adequacy of the Fund to
meet and discharge all or any liabilities of the Plan.
(b) The Trustee shall not be liable for the making, retention or sale of
any investment or reinvestment made by it, as herein provided, or for
any loss to, or diminution of the Fund, or for any other loss or
damage which may result from the discharge of its duties hereunder
except to the extent it is judicially determined that the Trustee has
failed to exercise the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character with like aims.
(c) The Employer warrants that all directions issued to the Trustee by it
or the Plan Administrator will be in accordance with the terms of the
Plan and not contrary to the provisions of the Employee Retirement
Income Security Act of 1974 and Regulations issued thereunder.
(d) The Trustee shall not be answerable for any action taken pursuant to
any direction, consent, certificate, or other paper or document on the
belief that the same is genuine and signed by the proper person. All
directions by the Employer or the Plan Administrator shall be in
writing. The Employer shall deliver to the Trustee certificates
evidencing the individual or individuals authorized to act as set
forth in the Adoption Agreement or as the Employer may subsequently
inform the Trustee in writing and shall deliver to the Trustee
specimens of their signatures.
(e) The duties and obligations of the Trustee shall be limited to those
expressly imposed upon it by this instrument or subsequently agreed
upon by the parties. Responsibility for administrative duties required
under the Plan or applicable law not expressly imposed upon or agreed
to by the Trustee shall rest solely with the Employer.
50
(f) The Trustee shall be indemnified and saved harmless by the Employer
from and against any and all liability to which the Trustee may be
subjected, including all expenses reasonably incurred in its defense,
for any action or failure to act resulting from compliance with the
instructions of the Employer, the employees or agents of the Employer,
the Plan Administrator, or any other fiduciary to the Plan, and for
any liability arising from the actions or nonactions of any
predecessor trustee, custodian or other fiduciaries of the Plan.
(g) The Trustee shall not be responsible in any way for the application of
any payments it is directed to make or for the adequacy of the Fund to
meet and discharge any and all liabilities under the Plan.
51
ARTICLE XII
TRUST FUND ACCOUNT
12.1 The Fund The Fund shall consist of all contributions made under Article
III and Article IV of the Plan and the investment thereof and earnings thereon.
All contributions and the earnings thereon less payments made under the terms of
the Plan, shall constitute the Fund. The Fund shall be administered as provided
in this document.
12.2 Control Of Plan Assets The assets of the Fund or evidence of ownership
shall be held by the Trustee under the terms of the Plan and Trust Account. If
the assets represent amounts transferred from another trustee or custodian under
a former plan, the Trustee named hereunder shall not be responsible for the
propriety of any investment under the former plan.
12.3 Exclusive Benefit Rules No part of the Fund shall be used for, or diverted
to, purposes other than for the exclusive benefit of Participants, former
Participants with a vested interest, and the beneficiary or beneficiaries of a
deceased Participant having a vested interest in the Fund at the death of the
Participant.
12.4 Assignment And Alienation Of Benefits No right or claim to, or interest
in, any part of the Fund, or any payment from the Fund, shall be assignable,
transferable, or subject to sale, mortgage, pledge, hypothecation, commutation,
anticipation, garnishment, attachment, execution, or levy of any kind. The
Trustee shall not recognize any attempt to assign, transfer, sell, mortgage,
pledge, hypothecate, commute, or anticipate the same, except to the extent
required by law. The preceding sentences shall also apply to the creation,
assignment, or recognition of a right to any benefit payable with respect to a
Participant pursuant to a domestic relations order, unless such order is
determined to be a Qualified Domestic Relations Order, as defined in Code
Section 414(p), or any domestic relations order entered before January 1, 1985
which the Plan attorney and Plan Administrator deem to be qualified.
12.5 Determination Of Qualified Domestic Relations Order (QDRO) A domestic
relations order shall specifically state all of the following in order to be
deemed a Qualified Domestic Relations Order ("QDRO"):
(a) The name and last known mailing address (if any) of the Participant
and of each alternate payee covered by the domestic relations order.
However, if the domestic relations order does not specify the current
mailing address of the alternate payee, but the Plan Administrator has
independent knowledge of that address, the domestic relations order
may still be a valid QDROs.
(b) The dollar amount or percentage of the Participant's benefit to be
paid by the Plan to each alternate payee, or the manner in which the
amount or percentage will be determined.
(c) The number of payments or period for which the domestic relations
order applies.
(d) The specific plan (by name) to which the domestic relations order
applies.
A domestic relations order shall not be deemed a QDRO if it requires the Plan to
provide:
(e) any type or form of benefit, or any option not already provided for in
the Plan;
(f) increased benefits, or benefits in excess of the Participant's vested
rights;
(g) payment of a benefit earlier than allowed by the Plan's earliest
retirement provisions or in the case of a profit-sharing plan, prior
to the allowability of in-service withdrawals, or
(h) payment of benefits to an alternate payee which are required to be
paid to another alternate payee under another QDRO.
Promptly, upon receipt of a domestic relations order ("Order") which may or may
not be "Qualified", the Plan
52
Administrator shall notify the Participant and any alternate payee(s) named in
the Order of such receipt, and include a copy of this paragraph 12.5. The Plan
Administrator shall then forward the Order to the Plan's legal counsel for an
opinion as to whether or not the Order is in fact "Qualified" as defined in Code
Section 414(p). Within a reasonable time after receipt of the Order, not to
exceed 60 days, the Plan's legal counsel shall make a determination as to its
"Qualified" status and the Participant and any alternate payee(s) shall be
promptly notified in writing of the determination.
If the "Qualified" status of the Order is in question, there will be a delay in
any payout to any payee including the Participant, until the status is resolved.
In such event, the Plan Administrator shall segregate the amount that would have
been payable to the alternate payee(s) if the Order had been deemed a QDRO. If
the Order is not Qualified, or the status is not resolved (for example, it has
been sent back to the Court for clarification or modification) within 18 months
beginning with the date the first payment would have to be made under the Order,
the Plan Administrator shall pay the segregated amounts plus interest to the
person(s) who would have been entitled to the benefits had there been no Order.
If a determination as to the Qualified status of the Order is made after the
18-month period described above, then the Order shall only be applied on a
prospective basis. If the Order is determined to be a QDRO, the Participant and
alternate payee(s) shall again be notified promptly after such determination.
Once an Order is deemed a QDRO, the Plan Administrator shall pay to the
alternate payee(s) all the amounts due under the QDRO, including segregated
amounts plus interest which may have accrued during a dispute as to the Order's
qualification.
Unless specified otherwise in the Adoption Agreement, the earliest retirement
age with regard to the Participant against whom the order is entered shall be
the date the order is determined to be qualified. This will only allow payouts
to alternate payee(s) and not the Participant.
53
ARTICLE XIII
INVESTMENTS
13.1 Fiduciary Standards The Trustee shall invest and reinvest principal and
income in the same Fund provided that:
(a) such investments are prudent under the Employee Retirement Income
Security Act of 1974 and the regulations promulgated thereunder,
(b) such investments are sufficiently diversified or otherwise insured or
guaranteed to minimize the risk of large losses, and
(c) such investments are similar to those which would be purchased by
another professional money manager for a like plan with similar
investment objectives.
13.2 Trustee Appointment Shall be appointed by the Employer in accordance with
paragraph 1.85.
13.3 Investment Alternatives Of The Trustee The Trustee shall implement an
investment program based on the Employer's investment objectives and the
Employee Retirement Income Security Act of 1974. In addition to powers given by
law, the Trustee may:
(a) invest the Fund in any form of property, including common and
preferred stocks, exchange traded put and call options, bonds, money
market instruments, mutual funds (including funds for which the
Trustee or its affiliates serve as investment advisor), savings
accounts, certificates of deposit, Treasury bills, insurance policies
and contracts, or in any other property, real or personal, having a
ready market. The Trustee may invest in time deposits (including, if
applicable, its own or those of affiliates) which bear a reasonable
interest rate. No portion of any Qualified Voluntary Contribution, or
the earnings thereon, may be invested in life insurance contracts or,
as with any Participant-directed investment, in tangible personal
property characterized by the IRS as a collectible, other than U.S.
Government or State issued gold and silver coins,
(b) transfer any assets of the Fund to a group or collective trust
established to permit the pooling of funds of separate pension and
profit-sharing trusts, provided the Internal Revenue Service has ruled
such group or collective trust to be qualified under Code Section
401(a) and exempt under Code Section 501(a) or to any other common,
collective, or commingled trust fund. Such commingling of assets of
the Fund with assets of other qualified trusts is specifically
authorized, and to the extent of the investment of the Fund in such a
group or collective trust, the terms of the instrument establishing
the group or collective trust shall be a part hereof as though set
forth herein,
(c) invest up to 100% of the Fund in the common stock, debt obligations,
or any other security issued by the Employer or by an affiliate of the
Employer within the limitations provided under Sections 406, 407, and
408 of the Employee Retirement Income Security Act of 1974 and further
provided that such investment does not constitute a prohibited
transaction under Code Section 4975. Any such investment in Employer
securities shall only be made upon written direction of the Employer
who shall be solely responsible for propriety of such investment,
(d) hold cash uninvested and deposit same with any banking or savings
institution,
(e) join in or oppose the reorganization, recapitalization, consolidation,
sale or merger of corporations or properties, including those in which
it is interested as Trustee, upon such terms as it deems wise,
(f) hold investments in nominee or bearer form,
(g) vote proxies and, if appropriate, pass them on to any investment
manager which may have
54
directed the investment in the equity giving rise to the proxy,
(h) exercise all ownership rights with respect to assets held in the Fund.
13.4 Participant Loans If permitted by the Employer in the Adoption Agreement,
a Plan Participant may make application to the Employer requesting a loan from
the Fund. The Employer shall have the sole right to approve or disapprove a
Participant's application provided that loans shall be made available to all
Participants on a reasonably equivalent basis. Loans shall not be made available
to Highly Compensated Employees [as defined in Code Section 414(q)] in an amount
greater than the amount made available to other Employees. Any loan granted
under the Plan shall be made subject to the following rules:
(a) No loan, when aggregated with any outstanding Participant loan(s),
shall exceed the lesser of (i) $50,000 reduced by the excess, if any,
of the highest outstanding balance of loans during the one year period
ending on the day before the loan is made, over the outstanding
balance of loans from the Plan on the date the loan is made or (ii)
one-half of the fair market value of a Participant's Vested Account
Balance built up from Employer Contributions, Voluntary Contributions,
and Rollover Contributions. If the Participant's Vested Account
Balance is $20,000 or less, the maximum loan shall not exceed the
lesser of $10,000 or 100% of the Participant's Vested Account Balance.
For the purpose of the above limitation, all loans from all plans of
the Employer and other members of a group of employers described in
Code Sections 414(b), 414(c), and 414(m) are aggregated. An assignment
or pledge of any portion of the Participant's interest in the Plan and
a loan, pledge, or assignment with respect to any insurance contract
purchased under the Plan, will be treated as a loan under this
paragraph.
(b) All applications must be made on forms provided by the Employer and
must be signed by the Participant.
(c) Any loan shall bear interest at a rate reasonable at the time of
application, considering the purpose of the loan and the rate being
charged by representative commercial banks in the local area for a
similar loan unless the Employer sets forth a different method for
determining loan interest rates in its loan procedures. The loan
agreement shall also provide that the payment of principal and
interest be amortized in level payments not less frequently than
quarterly.
(d) The term of such loan shall not exceed five years except in the case
of a loan for the purpose of acquiring any house, apartment,
condominium, or mobile home (not used on a transient basis) which is
used or is to be used within a reasonable time as the principal
residence of the Participant. The term of such loan shall be
determined by the Employer considering the maturity dates quoted by
representative commercial banks in the local area for a similar loan.
(e) The principal and interest paid by a Participant on his or her loan
shall be credited to the Fund in the same manner as for any other Plan
investment. If elected in the Adoption Agreement, loans may be treated
as segregated investments of the individual Participants. This
provision is not available if its election will result in
discrimination in operation of the Plan.
(f) If a Participant's loan application is approved by the Employer, such
Participant shall be required to sign a note, loan agreement, and
assignment of one-half of his or her interest in the Fund as
collateral for the loan. The Participant, except in the case of a
profit-sharing plan satisfying the requirements of paragraph 8.7 must
obtain the consent of his or her Spouse, if any, within the 90 day
period before the time his or her account balance is used as security
for the loan. A new consent is required if the account balance is used
for any renegotiation, extension, renewal or other revision of the
loan, including an increase in the amount thereof. The consent must be
written, must acknowledge the effect of the loan, and
55
must be witnessed by a plan representative or notary public. Such
consent shall subsequently be binding with respect to the consenting
Spouse or any subsequent Spouse.
(g) If a valid Spousal consent has been obtained, then, notwithstanding
any other provision of this Plan, the portion of the Participant's
Vested Account Balance used as a security interest held by the Plan by
reason of a loan outstanding to the Participant shall be taken into
account for purposes of determining the amount of the account balance
payable at the time of death or distribution, but only if the
reduction is used as repayment of the loan. If less than 100% of the
Participant's vested account balance (determined without regard to the
preceding sentence) is payable to the Surviving Spouse, then the
account balance shall be adjusted by first reducing the Vested Account
Balance by the amount of the security used as repayment of the loan,
and then determining the benefit payable to the Surviving Spouse.
(h) The Employer may also require additional collateral in order to
adequately secure the loan.
1. A Participant's loan shall immediately become due and payable if
such Participant terminates employment for any reason or fails to
make a principal and/or interest payment as provided in the loan
agreement. If such Participant terminates employment, the
Employer shall immediately request payment of principal and
interest on the loan. If the Participant refuses payment
following termination, the Employer shall reduce the
Participant's Vested Account Balance by the remaining principal
and interest on his or her loan. If the Participant's Vested
Account Balance is less than the amount due, the Employer shall
take whatever steps are necessary to collect the balance due
directly from the Participant. However, no foreclosure on the
Participant's note or attachment of the Participant's account
balance will occur until a distributable event occurs in the
Plan.
13.5 Insurance Policies If permitted by the Employer in the Adoption Agreement,
Employees may elect the purchase of life insurance policies under the Plan. If
elected, the maximum annual premium for a whole life policy shall not exceed 50%
of the aggregate Employer contributions allocated to the account of a
Participant. For profit-sharing plans the 50% test need only be applied against
Employer contributions allocated in the last two years. Whole life policies are
policies with both nondecreasing death benefits and nonincreasing premiums. The
maximum annual premium for term contracts or universal life policies and all
other policies which are not whole life shall not exceed 25% of aggregate
Employer contributions allocated to the account of a Participant. The two year
rule for profit-sharing plans again applies. The maximum annual premiums for a
Participant with both a whole life and a term contract or universal life
policies shall be limited to one-half of the whole life premium, plus the term
premium, but shall not exceed 25% of the aggregate Employer contributions
allocated to the account of a Participant, subject to the two year rule for
profit-sharing plans. Any policies purchased under this Plan shall be held
subject to the following rules:
(a) The Trustee shall be applicant and owner of any policies issued.
(b) All policies or contracts purchased, shall be endorsed as
nontransferable, and must provide that proceeds will be payable to the
Trustee; however, the Trustee shall be required to pay over all
proceeds of the contracts to the Participant's Designated Beneficiary
in accordance with the distribution provisions of this Plan. Under no
circumstances shall the Trust retain any part of the proceeds.
(c) Each Participant shall be entitled to designate a beneficiary under
the terms of any contract issued; however, such designation will be
given to the Trustee which must be the named beneficiary on any
policy. Such designation shall remain in force, until revoked by the
Participant, by filing a new beneficiary designation form with the
Trustee. A Participant's Spouse will be the Designated Beneficiary of
the proceeds in all circumstances unless a Qualified Election has been
made in accordance with paragraph 8.4. The beneficiary of a deceased
Participant shall receive in addition to the proceeds of the
Participant's policy or
56
policies, the amount credited to such Participant's investment
account.
(d) A Participant who is uninsurable or insurable at substandard rates,
may elect to receive a reduced amount of insurance, if available, or
may waive the purchase of any insurance.
(e) All dividends or other returns received on any policy purchased, shall
be applied to reduce the next premium due on such policy, or if no
further premium is due, such amount shall be credited to the Fund as
part of the account of the Participant for whom the policy is held.
(f) If Employer contributions are inadequate to pay all premiums on all
insurance policies, the Trustee may, at the option of the Employer,
utilize other amounts remaining in each Participant's account to pay
the premiums on his or her respective policy or policies, allow the
policies to lapse, reduce the policies to a level at which they may be
maintained, or borrow against the policies on a prorated basis,
provided that the borrowing does not discriminate in favor of the
policies on the lives of officers, shareholders, and Highly
Compensated Employees.
(g) On retirement or termination of employment of a Participant, the
Employer shall direct the Trustee to cash surrender the Participant's
policy and credit the proceeds to his or her account for distribution
under the terms of the Plan. However, before so doing, the Trustee
shall first offer to transfer ownership of the policy to the
Participant in exchange for payment by the Participant of the cash
value of the policy at the time of transfer. Such payment shall be
credited to the Participant's account for distribution under the terms
of the Plan. All distributions resulting from the application of this
paragraph shall be subject to the Joint and Survivor Annuity Rules of
Article VIII, if applicable.
(h) The Employer shall be solely responsible to see that these insurance
provisions are administered properly and that if there is any conflict
between the provisions of this Plan and any insurance contracts issued
that the terms of this Plan will control.
13.6 Employer Investment Direction If approved by the Employer in the Adoption
Agreement, the Employer shall have the right to direct the Trustee with respect
to investments of the Fund, may appoint an investment manager (registered as an
investment advisor under the Investment Advisors Act of 1940) to direct
investments, or may give the Trustee sole investment management responsibility.
The Employer may purchase and sell interests in a registered investment company
(i.e., mutual funds) for which the Sponsor, its parent, affiliates, or
successors, may serve as investment advisor and receive compensation from the
registered investment company for its services as investment advisor. The
Employer shall advise the Trustee in writing regarding the retention of
investment powers, the appointment of an investment manager, or the delegation
of investment powers to the Trustee. Any investment directive shall be made in
writing by the Employer or investment manager, as the case may be. In the
absence of such written directive, the Trustee shall automatically invest the
available cash in its discretion in an appropriate interim investment until
specific investment directions are received. Such instructions regarding the
delegation of investment responsibility shall remain in force until revoked or
amended in writing. The Trustee shall not be responsible for the propriety of
any directed investment made and shall not be required to consult with or advise
the Employer regarding the investment quality of any directed investment held
hereunder. If the Employer fails to designate an investment manager, the Trustee
shall have full investment authority. If the Employer does not
issue investment directions, the Trustee shall have authority to invest the Fund
in its sole discretion. While the Employer may direct the Trustee with respect
to Plan investments, the Employer may not:
(a) borrow from the Fund or pledge any of the assets of the Fund as
security for a loan,
(b) buy property or assets from or sell property or assets to the Fund,
(c) charge any fee for services rendered to the Fund, or
(d) receive any services from the Fund on a preferential basis.
13.7 Employee Investment Direction If approved by the Employer in the Adoption
Agreement, Participants
57
shall be given the option to direct the investment of their personal
contributions and their share of the Employer's contribution among alternative
investment funds established as part of the overall Fund, unless otherwise
specified by the Employer in the Adoption Agreement. Such investment funds shall
be under the full control of the Trustee. If investments outside the Trustee's
control are allowed, Participants may not direct that investments be made in
collectibles, other than U.S. Government or State issued gold and silver coins.
In this connection, a Participant's right to direct the investment of any
contribution shall apply only to selection of the desired fund. The following
rules shall apply to the administration of such funds.
(a) At the time an Employee becomes eligible for the Plan, he or
she shall complete an investment designation form stating the
percentage of his or her contributions to be invested in the
available funds.
(b) A Participant may change his or her election with respect to
future contributions by filing a new investment designation
form with the Employer in accordance with the procedures
established by the Plan Administrator.
(c) A Participant may elect to transfer all or part of his or her
balance from one investment fund to another by filing an
investment designation form with the Employer in accordance
with the procedures established by the Plan Administrator.
(d) The Employer shall be responsible when transmitting Employee
and Employer contributions to show the dollar amount to be
credited to each investment fund for each Employee.
(e) Except as otherwise provided in the Plan, neither the Trustee,
nor the Employer, nor any fiduciary of the Plan shall be
liable to the Participant or any of his or her beneficiaries
for any loss resulting from action taken at the direction of
the Participant.
58
ARTICLE XIV
TOP-HEAVY PROVISIONS
14.1 Applicability Of Rules If the Plan is or becomes Top-Heavy in any Plan Year
beginning after December 31, 1983, the provisions of this Article will supersede
any conflicting provisions in the Plan or Adoption Agreement.
14.2 Minimum Contribution Notwithstanding any other provision in the Employer's
Plan, for any Plan Year in which the Plan is Top-Heavy or Super Top-Heavy, the
aggregate Employer contributions and forfeitures allocated on behalf of any
Participant (without regard to any Social Security contribution) under this Plan
and any other Defined Contribution Plan of the Employer shall be the lesser of
3% of such Participant's Compensation or the largest percentage of Employer
contributions and forfeitures, as a percentage of the first $200,000, as
adjusted under Code Section 415(d), of the Key Employee's Compensation,
allocated on behalf of any Key Employee for that year.
Each Participant who is employed by the Employer on the last day of the Plan
Year shall be entitled to receive an allocation of the Employer's minimum
contribution for such Plan Year. The minimum allocation applies even though
under other Plan provisions the Participant would not otherwise be entitled to
receive an allocation, or would have received a lesser allocation for the year
because the Participant fails to make Voluntary Contributions to the Plan, the
Participant's Compensation is less than a stated amount, or the Participant
fails to complete 1,000 Hours of Service (or such lesser number designated by
the Employer in the Adoption Agreement) during the Plan Year. A Paired
profit-sharing plan designated to provide the minimum Top-Heavy contribution
must do so regardless of profits. An Employer may make the minimum Top-Heavy
contribution available to all Participants or just non-Key Employees. Unless the
Employer specifies otherwise in the Adoption Agreement, the minimum Top-Heavy
contribution will be allocated to the accounts of all eligible Participants even
if they are Key Employees.
For purposes of computing the minimum allocation, Compensation shall mean
Compensation as defined in paragraph 1.12(c) of the Plan.
The Top-Heavy minimum contribution does not apply to any Participant to the
extent the Participant is covered under any other plan(s) of the Employer and
the Employer has provided in the Adoption Agreement that the minimum allocation
or benefit requirements applicable to Top-Heavy Plans will be met in the other
plan(s).
If a Key Employee makes an Elective Deferral or has an allocation of Matching
contributions made to his or her account, a Top-Heavy minimum will be required
for all non-Key Employees who are Participants. However, neither Elective
Deferrals by nor Matching Contributions to non-Key Employees may be taken into
account for purposes of satisfying the Top-Heavy minimum contribution
requirement.
14.3 Minimum Vesting For any Plan Year in which this Plan is Top-Heavy, the
minimum vesting schedule elected by, or deemed elected by, the Employer in the
Adoption Agreement will automatically apply to the Plan. If the vesting schedule
selected by the Employer in the Adoption Agreement is less liberal than the
allowable schedule, the schedule will be automatically modified. If the vesting
schedule under the Plan shifts in or out of the Top-Heavy schedule for any Plan
Year, such shift is an amendment to the vesting schedule and the election in
paragraph 9.8 of the Plan applies. The minimum vesting schedule applies to all
accrued benefits within the meaning of Code Section 411(a)(7) except those
attributable to Employee contributions, including benefits accrued before the
effective date of Code Section 416 and benefits accrued before the Plan became
Top-Heavy. Further, no reduction in vested benefits may occur in the event the
Plan's status as Top-Heavy changes for any Plan Year. However, this paragraph
does not apply to the account balances of any Employee who does not have an Hour
of Service after the Plan initially becomes Top-Heavy and such Employee's
account balance attributable to Employer contributions and forfeitures will be
determined without regard to this paragraph.
59
ARTICLE XV
AMENDMENT AND TERMINATION
15.1 Amendment By Sponsor The Sponsor of this Regional Prototype may amend any
or all provisions of this Plan and Trust Account at any time without obtaining
the approval or consent of any Employer which has adopted this Plan and Trust
Account provided that no amendment shall authorize or permit any part of the
corpus or income of the Fund to be used for or diverted to purposes other than
for the exclusive benefit of Participants and their beneficiaries, or eliminate
an optional form of distribution. In the case of a mass-submitted plan, the
mass-submitter shall amend the Plan on behalf of the Sponsor.
15.2 Amendment By Employer The Employer may amend any option in the Adoption
Agreement, and may include language as permitted in the Adoption Agreement,
(a) to satisfy Code Section 415,
(b) to avoid duplication of minimums under Code Section 416
because of the required aggregation of multiple plans,
The Employer may add certain model amendments published by the Internal Revenue
Service which specifically provide that their adoption will not cause the Plan
to be treated as individually designed.
An Employer that has adopted a Standardized Regional Prototype Plan (Adoption
Agreements 001, 002, 003, 007, or 008) may amend the trust document provided
such amendment merely involves the specifications of the names of the Plan,
Employer, Trustee, Plan Administrator and other fiduciaries, the Trust year or
the name of any pooled Trust in which the Plan's Trust will participate.
An Employer that has adopted a Nonstandardized Regional Prototype Plan (Adoption
Agreement 004, 005 or 006) will not be considered to have an individually
designed plan merely because the Employer amends administrative provisions of
the Trust document (such as provisions relating to investments and duties of
Trustees) so long as the amended provisions are not in conflict with any other
provision of the Plan and do not cause the plan to fail to qualify under Code
Section 401(a).
If the Employer amends the Plan and Trust Account other than as provided above,
the Employer's Plan shall no longer participate in this Prototype Plan and will
be considered an individually designed plan for which the Employer must obtain a
separate determination letter.
15.3 Termination Employers shall have the right to terminate their Plans upon
60 days notice in writing to the Trustee. If the Plan is terminated, partially
terminated, or if there is a complete discontinuance of contributions under a
profit-sharing plan maintained by the Employer, all amounts credited to the
accounts of Participants shall vest and become nonforfeitable. In the event of
termination, the Employer shall direct the Trustee with respect to the
distribution of accounts to or for the exclusive benefit of Participants or
their beneficiaries. In the event of a partial termination, only those who are
affected by such partial termination shall be fully vested. In the event of
termination, the Trustee shall dispose of the Fund in accordance with the
written directions of the Plan Administrator, provided that no liquidation of
assets and payment of benefits, (or provision therefore), shall actually be made
by the Trustee until after it is established by the Employer in a manner
satisfactory to the Trustee, that the applicable requirements, if any, of the
Employee Retirement Income Security Act of 1974 and the Internal Revenue Code
governing the termination of employee benefit plans, have been or are being,
complied with, or that appropriate authorizations, waivers, exemptions, or
variances have been, or are being obtained.
15.4 Qualification Of Employer's Plan If the adopting Employer fails to attain
or retain Internal Revenue Service qualification, such Employer's Plan shall no
longer participate in this Regional Prototype Plan and will be considered an
individually designed plan.
60
15.5 Mergers And Consolidations
(a) In the case of any merger or consolidation of the Employer's Plan
with, or transfer of assets or liabilities of the Employer's Plan to,
any other plan, Participants in the Employer's Plan shall be entitled
to receive benefits immediately after the merger, consolidation, or
transfer which are equal to or greater than the benefits they would
have been entitled to receive immediately before the merger,
consolidation, or transfer if the Plan had then terminated.
(b) In the event that the Trustee is an institution, that corporation
into which the Trustee or any successor trustee may be merged or with
which it may be consolidated, or any corporation resulting from any
merger or consolidation to which the Trustee or any successor trustee
may be a party, or any corporation to which all or substantially all
the trust business of the Trustee or any successor trustee may be
transferred, shall be the successor of such Trustee without the
filing of any instrument or performance of any further act, before
any court.
15.6 Resignation And Removal The Trustee may resign by written notice to the
Employer or may be removed by written notice from the Employer. Either such
notification shall be effective 60 days after delivery. The Employer may
discontinue its participation in this Prototype Plan and Trust Account effective
upon 60 days written notice to the Sponsor. In such event the Employer shall,
prior to the effective date thereof, amend the Plan to eliminate any reference
to this Prototype Plan and Trust Account and appoint a successor trustee or
arrange for another funding agent. The Trustee shall deliver the Fund to its
successor on the effective date of the resignation or removal, or as soon
thereafter as practicable, provided that this shall not waive any lien the
Trustee, if an institution, may have upon the Fund for its compensation or
expenses. If the Employer fails to appoint a successor trustee with the said 60
days, or such longer period as the Trustee may specify in writing, the Employer
shall be deemed the successor trustee. The Employer must then obtain its own
determination letter.
15.7 Qualification Of Prototype The Sponsor intends that this Regional
Prototype Plan will meet the requirements of the Code as a qualified Prototype
Retirement Plan and Trust Account. Should the Commissioner of Internal Revenue
or any delegate of the Commissioner at any time determine that the Plan and
Trust Account fails to meet the requirements of the Code, the Sponsor will amend
the Plan and Trust Account to maintain its qualified status.
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ARTICLE XVI
GOVERNING LAW
Construction, validity and administration of the Regional Prototype Retirement
Plan and Trust, and any Employer Plan and Trust as embodied in the Regional
Prototype document and accompanying Adoption Agreement, shall be governed by
Federal law to the extent applicable and to the extent not applicable by the
laws of the State/Commonwealth in which the principal office of the Employer is
located.
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