NONSTANDARDIZED
PROTOTYPE CASH OR DEFERRED
PROFIT-SHARING PLAN AND
TRUST/CUSTODIAL ACCOUNT
for
Good Times Drive Thru, Inc. as a Subsidary of
Good Times Restaurants, Inc.
SPONSORED BY
XXXXX FARGO BANK, N.A.
Effective Date: February 1, 0000
Xxxx #000
XXXXXXXXXXXXXXX
ADOPTION AGREEMENT
PROTOTYPE CASH OR DEFERRED PROFIT-SHARING
PLAN AND TRUST/CUSTODIAL ACCOUNT
Sponsored by
XXXXX FARGO BANK, N.A.
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 Basic Prototype Plan and
Trust/Custodial Account Basic Plan Document #04.
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
attaching executed signature pages to the back of
the Employer's Adoption Agreement.
(a) NAME AND ADDRESS:
Good Times Drive Thru, Inc. as a Subsidary of
Good Times Restaurants, Inc.
0000 Xxxx Xxxxx, Xxxxx # 000
Xxxxxxxxxxx, 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
SubchapterS)
[ ] (v) Other:
(e) NAME OF INDIVIDUAL AUTHORIZED TO ISSUE
INSTRUCTIONS TO THE TRUSTEE/CUSTODIAN:
See Designation of Committee Form
(f) NAME OF PLAN: Good Times Drive Thru, Inc. as a Subsidary
of Good Times Restaurants, Inc. 401(k)
Savings and Investment Plan
(g) THREE DIGIT PLAN NUMBER
FOR ANNUAL RETURN/REPORT: 001
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,
1992 .
The effective date of the amended Plan is February 1,
1998 .
(c) If different from above, the Effective Date for the
Plan's Elective Deferral provisions shall be
. [If no date is entered, the effective
date for Elective Deferrals is the same as 2(a) or
2(b)].
3. DEFINITIONS
(a) "Collective or Commingled Funds" (Applicable to
institutional Trustees only.) Investment in
collective or commingled funds as permitted at
paragraph 13.3(b) of the Basic Plan Document #04
shall only be made to the following specifically
named fund(s):
See Attachment 3(a)
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" Compensation shall be determined on
the basis of the:
[x] (i) Plan Year. If elected, Compensation is
based on the period during which the
Employee is a Participant in the Plan.
[ ] (ii) Employer's Taxable Year.
[ ] (iii)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):
[x] (iv) Code Section 6041 and 6051 Compensation,
[ ] (v) Code Section 3401(a) Compensation, or
[ ] (vi) Code Section 415 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 of Code Section 415(d),
thus the amount should be less than $200,000 as
adjusted for cost-of-living increases.]
(vii) Exclusions From Compensation:
(1) overtime.
(2) bonuses.
(3) commissions.
(4) Contributions made pursuant to a salary
reduction agreement as defined at paragraph
1.12 of Basic Plan Document #04.
(5)
Compensation for Purposes of: Exclusion(s)
Determining Employee Elective Deferrals
expressed as a percentage of Compensation
[Section 7(b)]
Determining Employer Matching Contributions
[Section 7(c)]
Allocating Employer Qualified Non-Elective
Contributions [Section 7(d)] and Non-Elective
Contributions [Section 7(e)]
Determining Actual Deferral and Contribution
Percentages in connection with the
antidiscrimination tests. Such definition
must satisfy Code Section 414(s).
(c) "Entry Date"
[ ] (i) The first day of the Plan Year nearest the
date on which an Employee meets the
eligibility requirements.
[ ] (ii) 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.
[ ] (iii) 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.
[ ] (iv) The first day of the month coinciding with
or following the date on which an Employee
meets the eligibility requirements.
[x] (v) 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.
(d) "Hours of Service" 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 1.42 of
the Basic Plan Document #04 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 1.42 of the Basic Plan Document
#04 such Employee would be credited with at
least one (1) Hour of Service during the
week.
[ ] (iv) On the basis of semi-monthly payroll
periods.
An Employee shall be credited with ninety-five
(95) Hours of Service if under
paragraph 1.42 of the Basic Plan Document
#04 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 1.42 of the Basic Plan
Document #04 such Employee would be
credited with at least one (1) Hour of
Service during the month.
(e) "Limitation Year" The 12-consecutive month period
commencing on October 1 and ending on September 30.
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"
[x] (i) Not applicable (profits will not be
required for any contributions to the
Plan).
[ ] (ii) As defined in paragraph 1.49 of the Basic
Plan Document #04.
[ ] (iii) Shall be defined as:
(Only use if definition in paragraph 1.49 of the
Basic Plan Document #04 is to be superseded.)
(g) "Plan Year" The 12-consecutive month period
commencing on October 1 and ending on September 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 #04 [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 1.79]
[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).
[ ] (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 under a daily valuation system will be
performed in accordance with paragraph 5.4(b) of the
Basic Plan Document #04. Allocatons to Participant
Accounts under a balance forward valuation system
will be performed in accordance with paragraph 5.4(a)
of Basic Plan Document #04:
(i) Monthly (iv) Semi-Annually
(ii) Bi-Monthly (v) Annually
(iii) Quarterly
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] iii
Elective Deferrals [Section 7(b)] iii
Matching Contributions [Section 7(c)] iii
Qualified Non-Elective Contributions
[Section 7(d)] iii
Non-Elective Contributions
[Section 7(e), (f) and (g)] iii
Minimum Top-Heavy Contributions
[Section 7(i)] iii
(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 1000 (not more than
1,000) Hours of Service.
(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
(a) Service:
[ ] (i) The Plan shall have no service requirement.
[x] (ii) The Plan shall cover only Employees having
completed at least 1 [not more than three
(3)] Years of 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).
NOTE: If the eligibility period selected is less
than one year, an Employee will not be
required to complete any specified number
of Hours of Service to receive credit for
such period.
(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).
(c) Classification:
The Plan shall cover all Employees who have met the
age and service requirements with the following
exceptions:
[ ] (i) No exceptions.
[x] (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:
[x] (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.
[ ] (iii) Employees employed on the Plan's
Effective Date do not have to satisfy
the age requirements specified above.
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 5th) an-
niversary of the first day of the first
Plan Year in which the Participant
commenced participation in the Plan.
(b) Early Retirement Age:
[x] (i) Not Applicable.
[ ] (ii) The Plan shall have an Early Retirement Age
of (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 14
% 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 in any amount from
% up to % of their Compensation.
[ ] (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.
[x] (B) Qualified Non-Elective Contributions.
[x] (C) discretionary contributions.
NOTE: Elective Deferrals can always be contributed
regardless of profits.
[x] (b) Salary Savings Agreement:
The Employer shall contribute and allocate to each
Participant's 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 next valuation
period.
[ ] (iii) for a period of month(s) (not
to exceed 12 months).
[x] (c) Matching Employer Contribution [See paragraphs (h)
and (i)]:
[ ] (i) Percentage Match: The Employer shall
contribute and allocate to each eligible
Participant's account an amount equal to
% 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 #04. The Employer shall not match
Participant Elective Deferrals as provided
above in excess of $ or in excess of
% 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 %.
[x] (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 6 % 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 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 Com-
pensation 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 Contri-
bution 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) All Matching Contributions.
[ ] (B) None.
[ ] (C) % of the Employer's
Matching Contribution.
[ ] (D) Up to % of each Par-
ticipant'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
[ ] (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
applicable [ ] payroll period
[ ] valuation period [x] Plan Year.
[x] (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 Employer's 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:
[x] (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.
[x] (iv) Only non-Highly Compensated Employees
eligible to participate.
[x] (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 Employer's contribution and the allocation
thereof 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
Employer's 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 forfei-
tures are sufficient, all Participants will
receive an allocation equal to 3% of their Com-
pensation.
(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(c)(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 Partici-
pants (whether or not they received an allo-
cation 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 (h)
and (i)]
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, after
distribution of Employee related contributions
pursuant to paragraph 10.2 of the Basic Plan Document
shall be:
[ ] (i) Suspense Account - placed in a suspense
account accruing no gains or losses for the
benefit of the Participant.
[x] (ii) Spillover - 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 #04.
Top-Heavy minimums will be allocated to:
[x] (i) all eligible Participants.
[ ] (ii) only eligible non-Key Employees who are
Participants.
(j) Return of Excess Contributions and/or Excess
Aggregate Contributions:
In the event that one or more Highly Compensated
Employees is 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:
[ ] (i) the ADP of the affected Highly Compensated
Employees.
[ ] (ii) the ACP of the affected Highly Compensated
Employees.
[x] (iii) a combination of the ADP and/or ACP of
the affected Highly Compensated
Employees.
8. ALLOCATIONS TO TERMINATED EMPLOYEES
[ ] (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.)
[x] (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
[x] [x] (i) Retirement.
[x] [x] (ii) Disability.
[x] [x] (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.
[ ] [ ] (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
allocations shall be done in the same manner as the
Employer's contribution.
[ ] (i) Not Applicable. All contributions are
always fully vested.
[x] (ii) Forfeitures attributable to Employer
discretionary contributions and Top-Heavy
minimums:
[ ] will be allocated to:
[ ] all eligible Participants.
[ ] 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.
[x] will be applied to reduce the
Employer's contribution for such
Plan Year.
[ ] shall be applied to offset
administrative expenses of the
Plan. If forfeitures exceed
these expenses, the excess will
be applied to reduce the
Employer's contribution for such
Plan Year.
[x] (iii) Forfeitures attributable to Employer
Matching contributions:
[ ] will be allocated to:
[ ] all eligible Participants.
[ ] 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.
[x] will be applied to reduce the
Employer's contribution for such
Plan Year.
[ ] shall be applied to offset
administrative expenses of the
Plan. If forfeitures exceed
these expenses, the excess will
be applied to reduce the
Employer's contribution for such
Plan Year.
(b) Date for Reallocation:
NOTE: If no distribution has been made to a former
Participant, sub-section (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 as of the
next Valuation Date following the date on
which the former Participant receives
payment of his or her vested benefit.
[ ] (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 as of the
end of the Plan Year during which the
former Participant receives payment of his
or her vested benefit.
(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.
[3] (iii) Income or gain to the Plan.
(d) Forfeitures of Excess Aggregate Contributions shall
be:
[x] (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 such Participants
for such Plan Year. Such forfeitures
cannot be allocated to the account of any
Highly Compensated Employee.
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 Participant.
[x] (b) Not Applicable.
11. LIMITATIONS ON ALLOCATIONS
[x] This is the only Plan the Employer maintains or ever
maintained, therefore, this section is not
applicable.
[ ] 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(l)(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 Master or Prototype Plan:
[ ] (i) the provisions of Article X of the Basic
Plan Document #04 will apply, as if the
other plan were a Master or 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.
(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.
[ ] (ii)
(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
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:
[ ] (i) shall not be applicable since Participants
are always fully vested,
[ ] (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
[x] (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 12-consecutive
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) % % 100%
(iv) % 20% 40% 60% 80% 100%
(v) % % 20% 40% 60% 80% 100%
(vi) 10% 20% 30% 40% 60% 80% 100%
(vii) 0 % 40 % 60 % 80 % 100%
(viii) % % % % % % 100%
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 vii above.
[ ] Contributions other than those which are
fully vested when contributed will vest as
provided below:
Vesting Type Of Employer
Option Selected 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
Participant's vested and
nonforfeitable interest.
[ ] (iii) Service prior to a Participant
having attained age 18 shall be
disregarded when computing a
Participant's vested and nonfor-
feitable 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.)
RTC Express, Inc.
Round The Corner Restaurants, Inc.
14. ROLLOVER/TRANSFER CONTRIBUTIONS
(a) Rollover Contributions, as described at paragraph 4.3
of the Basic Plan Document #04, [x] shall [ ] shall
not be permitted. If permitted, Employees [ ] may
[x] 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 #04 [x] shall [ ] shall
not be permitted. If permitted, Employees [ ] may
[x] may not make 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
#04.
15. HARDSHIP WITHDRAWALS
Hardship withdrawals, as provided for in paragraph 6.9 of
the Basic Plan Document #04, [x] are [ ] are not permitted.
16. PARTICIPANT LOANS
Participant loans, as provided for in paragraph 13.5 of
the Basic Plan Document #04, [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 13.6 of the Basic
Plan Document #04 [ ] shall [x] shall not be applicable.
18. EMPLOYER INVESTMENT DIRECTION
The Employer investment direction provisions, as set forth
in paragraph 13.7 of the Basic Plan Document #04,
[x] shall [ ] shall not be applicable.
19. EMPLOYEE INVESTMENT DIRECTION
(a) The Employee investment direction provisions, as set
forth in paragraph 13.8 of the Basic Plan Document
#04, [x] shall [ ] shall not be applicable.
If applicable, Participants may direct their
investments:
[x] (i) among funds offered by the Trustee.
[ ] (ii) among any allowable investments.
(b) Participants may direct the following kinds of
contributions and the earnings thereon (check all
applicable):
[ ] (i) All Contributions
[x] (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
[x] (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, the Trustee shall have the right
to either make the assets part of the general Trust,
or leave them as separately invested subject to the
rights of paragraph 13.8.
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 attained age 59-1/2 and who has
not separated from Service [x] may [ ] may not obtain
a distribution of his or her vested Employer
contributions. Distribution can only be made if the
Participant is 100% vested.
(c) A Participant who has attained the Plan's Normal
Retirement Age and who has not separated from Service
[x] may [ ] 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 distributions, 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:
[ ] (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.
[x] (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:
[ ] (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.
[x] (viii) As soon as administratively feasible,
following the date on which a
distribution is requested or is
otherwise payable.
(b) Optional Forms of Payment:
[x] (i) Lump Sum.
[x] (ii) Installment Payments.
[ ] (iii) Life Annuity*.
[ ] (iv) Life Annuity Term Certain*.
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 #04.
(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 annually.
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.
22. SPONSOR CONTACT
Employers should direct questions concerning the language
contained in and qualification of the Prototype to:
Xxxxx X. Xxxxxxxxx, APA
(Job Title) Assistant Vice President
(Phone Number) (000) 000-0000
In the event that the Sponsor amends, discontinues or
abandons this Prototype Plan, notification will be
provided to the Employer's address provided on the first
page of this Agreement.
23. SIGNATURES:
Due to the significant tax ramifications, the Sponsor
recommends that before you execute this Adoption
Agreement, you contact your attorney or tax advisor, if
any.
(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/Custodial Account Basic Plan
Document #04 were adopted by the Employer the
day of , 19 .
Signed for the Employer by:
Title:
Signature:
The Employer understands that its failure to properly
complete the Adoption Agreement may result in
disqualification of its Plan.
Employer's Reliance: An Employer who adopts a
Standardized Plan and who maintains or has ever
maintained or who later adopts any Plan [including,
after December 31, 1985, a Welfare Benefit Fund, as
defined in Section 419(e) of the Code, which provides
post-retirement medical benefits allocated to
separate accounts for Key Employees, as defined in
Section 419A(d)(3)] or an individual medical account,
as defined in Code Section 415(l)(2) in addition to
this Plan may not rely on the opinion letter issued
by the National Office of the Internal Revenue
Service as evidence that this Plan is qualified under
Section 401 of the Code. If the Employer who adopts
or maintains multiple Plans wishes to obtain reliance
that such Plan(s) are qualified, application for a
determination letter should be made to the
appropriate Key District Director of Internal
Revenue. The Employer understands that its failure
to properly complete the Adoption Agreement may
result in disqualification of its plan.
The Employer may not rely on the opinion letter
issued by the National Office of the Internal Revenue
Service as evidence that this Plan is qualified under
Section 401 of the Code unless the terms of the Plan,
as herein adopted or amended, that pertain to the
requirements of Sections 401(a)(4), 401(a)(17),
401(l), 401(a)(5), 410(b) and 414(s) of the Code, as
amended by the Tax Reform Act of 1986 or later laws,
(a) are made effective retroactively to the first day
of the first Plan Year beginning after December 31,
1988 (or such other date on which these requirements
first become effective with respect to this Plan); or
(b) are made effective no later than the first day on
which the Employer is no longer entitled, under
regulations, to rely on a reasonable, good faith
interpretation of these requirements, and the prior
provisions of the Plan constitute such an
interpretation.
An Employer who adopts a Nonstandardized Plan may not
rely on an opinion 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 #04.
[x] (b) TRUSTEE:
Name of Trustee:
Xxxxx Fargo Bank, N.A.
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000-0000
The assets of the Fund shall be invested in
accordance with paragraph 13.3 of the Basic Plan
Document #04 as a Trust. As such, the Employer's
Plan as contained herein was accepted by the Trustee
the day of , 19 .
Signed for the Trustee by:
Xxxx Xxxxxxxxx Xxxxx Xxxx
Title: Assistant Vice President Trust Officer
Signature:
[ ] (c) CUSTODIAN:
Name of Custodian:
The assets of the Fund shall be invested in
accordance with paragraph 13.4 of the Basic Plan
Document #04 as a Custodial Account. As such, the
Employer's Plan as contained herein was accepted by
the Custodian the day of
, 19 .
Signed for the Custodian by:
Title:
Signature:
(d) SPONSOR:
The Employer's Agreement and the corresponding
provisions of the Plan and Trust/Custodial Account
Basic Plan Document #04 were accepted by the Sponsor
the day of , 19 .
Signed for the Sponsor by: Xxxxx X. Xxxxxxxxx, APA
Title: Assistant Vice President Compliance
Signature:
