EXHIBIT 10.9
XXXXXX FLEXIBLE 401(K) AND PROFIT SHARING PLAN
PLAN AGREEMENT #001
This is the Plan Agreement for a Xxxxxx nonstandardized prototype 401(k) plan
with optional profit sharing plan provisions. Please consult a tax or legal
advisor and review the entire form before you sign it. If you fail to fill out
this Xxxxxx Plan Agreement properly, the Plan may be disqualified. By executing
this Plan Agreement, the Employer establishes a 401(k) and profit sharing plan
and trust upon the terms and conditions of Xxxxxx Basic Plan Document #07, as
supplemented and modified by the provisions elected by the Employer in this Plan
Agreement. This Plan Agreement must be accepted by Xxxxxx in order for the
Employer to receive future amendments to the Xxxxxx Flexible 401(k) and Profit
Sharing Plan.
* * * * *
1. Employer Information. The Employer adopting this Plan is:
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A. Employer Name: Benthos, Inc.
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B. Employer Identification Number: 00-0000000
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C. Employer Address: 00 Xxxxxxxx Xxxxx
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N. Xxxxxxxx, XX 00000
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D. SIC Code: 3815
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E. Employer Contact: Name: Xxxxxxx Xxxx -- Human Resources
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Xxxxx Xxxxx -- CFO
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Phone #: 000-000-0000
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F. Fiscal Year: October 1 through September 30
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(month/day) (month/day)
G. Type of Entity (check one):
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[X] Corporation [ ] Partnership [ ] Subchapter S Corporation
[ ] Sole proprietorship [ ] Other _____
H. Plan Name: Benthos, Inc. 401(k) Retirement Plan
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I. Plan Number: 002 (complete)
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2. Plan Information.
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A. Plan Year. Check one:
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[ ] (1) The Calendar Year
[X] (2) The Plan Year will be the same as the Fiscal Year of the
Employer shown in 1.F. above. If the Fiscal Year of the
Employer changes, the Plan Year will change accordingly.
[ ] (3) The Plan Year will be the period of 12 months beginning on
the first day of ___________ (month) and ending on the
last day of________ (month).
[ ] (4) A short Plan Year commencing on ____________ (month/day/year)
and ending on ____________ (month/day/year) and immediately
thereafter the 12-consecutive month period commencing on
_____________ (month/day).
The Plan Year will also be your Plan's Limitation Year for purposes of
the contribution limitation rules in Article 6 of the Plan.
B. Effective Date of Adoption of Plan.
(1) Are you adopting this Plan to replace an existing plan?
[X] (a) Yes [ ] (b) No
(2) If you answered Yes in 2.B(1) above, the Effective Date of your
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adoption of this Replacement Plan will be the first day of the
current Plan Year unless you elect a later date in (2)(b) below.
Please complete the following:
(a) July 1,1987
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Original Effective Date of the Plan you are Replacing
(b) July 1,1999
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Effective Date of this Replacement Plan
(3) If you answered No in 2B(1) above, the Effective Date of your
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adoption of this Plan will be the day you select below (not
before the first day of the current Plan Year, and not before the
day your Business began):
(a) The Effective Date is: ______________
month/day/year
2
C. Identifying Highly Compensated Employees. Check either (1) or (2).
[X] (1) The Plan will use the regular method under Plan Section
2.58(a) for identifying Highly Compensated Employees.
If you selected this option and your Plan Year is the
calendar year, do you wish to make the regular method's
"calendar year election" for identifying your Highly
Compensated Employees?
[ ] (a) Yes [ ] (b) No
[ ] (2) The Plan will use the simplified method under Plan
Section 2.58(b) for identifying Highly Compensated
Employees.
3. Eligibility for Plan Participation (Plan Section 3.1). Employees will be
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eligible to participate in the Plan when they complete the requirements you
select in A, B, C and D below.
A. Classes of Eligible Employees. The Plan will cover all employees who
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have met the age and service requirements with the following
exclusions:
[ ] (1) No exclusions. All job classifications will be eligible.
[X] (2) The Plan will exclude employees in a unit of Employees
covered by a collective bargaining agreement with respect to
which retirement benefits were the subject of good faith
bargaining, with the exception of the following collective
bargaining units, which will be included: ____.
[X] (3) The Plan will exclude employees who are non-resident aliens
without U.S. source income.
[ ] (4) Employees of the following Affiliated Employers (specify):
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[X] (5) Leased Employees
[X] (6) Employees in the following other classes (specify):
commission salespeople
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temporary employees
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3
B. Age Requirement (check and complete (1) or (2)):
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[ ] (1) No minimum age required for participation
[X] (2) Employees must reach age 19 (not over 21) to participate
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C. Service Requirements.
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(1) Elective Deferrals. To become eligible, an employee must complete
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(choose one):
[X] (a) No minimum service required.
[ ] (b) One 6-month Eligibility Period
[ ] (c) One _____-month Eligibility Period (must be less than 12)
[ ] (d) One 12-month Eligibility Period
(2) Employer Matching Contributions: To become eligible, an employee
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must complete (choose one):
[ ] (a) No minimum service required.
[ ] (b) One 6-month Eligibility Period
[ ] (c) One _____-month Eligibility Period (must be less than 12)
[X] (d) One 12-month Eligibility Period
[ ] (e) Two 12-month Eligibility Periods (may only be chosen if
you adopt the vesting schedule under item 9.A(3)(a) to
provide 100% full and immediate vesting of Employer
Matching Contributions).
[ ] (f) Not applicable. The Employer will not make Employer
Matching Contributions.
(3) Profit Sharing Contributions. To become eligible, an employee
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must complete (choose one):
[ ] (a) No minimum service required.
[ ] (b) One 6-month Eligibility Period
[ ] (c) One _____-month Eligibility Period (must be less than 12)
[X] (d) One 12-month Eligibility Period
4
[ ] (e) Two 12-month Eligibility Periods (may only be chosen
if you adopt the vesting schedule under item 9.A(3)(a) to
provide for 100% full and immediate vesting of Profit
Sharing Contributions)
[ ] (f) Not applicable. The Employer will not make Profit
Sharing Contributions.
(4) If the Employer acquired a business on or before the Effective
Date of this Plan and the Eligibility Periods selected in (1),
(2) and (3) for former employees of that acquired business will
include the former employees' periods of employment with that
business, list the business below. Any acquired business which
had a plan which the Employer now maintains must be listed below.
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(5) If the Employer acquires a business after the Effective Date, the
Eligibility Periods for an employee of the acquired business will
be the periods selected in (1), (2) and (3) beginning on (check
(a) or (b)):
[ ] (a) the date the employee began work with the acquired
business.
[X] (b) the date of the acquisition (i.e., the date the employee
begins work for the Employer).
(6) Hours of Service for Eligibility Periods.
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(a) 6-Month Eligibility Period. To receive credit for a 6-month
Eligibility Period, an employee must complete 6 months of
service, during which he completes at least:
[ ] (i) 500 Hours of Service
[ ] (ii) _____ Hours of Service (under 500)
(b) 12-Month Eligibility Period. To receive credit for a 12-
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month Eligibility Period, an employee must complete 12
months of service, during which he completes at least:
[X] (i) 1,000 Hours of Service
[ ] (ii) _____ Hours of Service (under 1,000)
5
(c) Other Eligibility Period. To receive credit for the
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Eligibility Period selected in 3.C(1)(c), 3.C(2)(c) and/or
3.C(3)(c) above, an employee must complete during it at
least:
[ ] (i) _____ Hours of Service (under 1000)
(7) Method of Crediting Hours of Service For Eligibility and Vesting.
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Hours of Service will be credited to an employee by the following
method (check one):
[X] (a) Actual hours for which an employee is paid
[ ] (b) Any employee who has one actual paid hour in the
following period will be credited with the number of Hours
of Service indicated (check one):
[ ] (i) Day (10 Hours of Service)
[ ] (ii) Week (45 Hours of Service)
[ ] (iii) Semi-monthly payroll period (95 Hours of Service)
[ ] (iv) Month (190 Hours of Service)
(8) Entry Dates. Each employee in an eligible class who completes the
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age and service requirements specified above will begin to
participate in the Plan on (check one):
[ ] (a) The first day of the month in which he fulfills the
requirements.
[X] (b) The first of the following dates occurring after he
fulfills the requirements (check one):
[ ] (i) The first day of the month following the date he
fulfills the requirements (monthly).
[X] (ii) The first day of the first, fourth, seventh and
tenth months in a Plan Year (quarterly).
[ ] (iii) The first day of the first month and the seventh
month in a Plan Year (semiannually).
[ ] (c) Other: _____ (May be no later than (i) the first day of
the Plan Year after which he fulfills the requirements, and
(ii) the date six months after the date on which he fulfills
the requirements, which ever occurs first.)
6
D. (For New Plans Only) Will all eligible Employees as of the Effective Date
be required to meet the age and service requirements for participation
specified in B and C above?
[ ] (a) Yes
[ ] (b) No. Eligible Employees will be eligible to become Participants
as of the Effective Date even if they have not satisfied (check one
or both):
[ ] (i) the age requirement.
[ ] (ii) the service requirement.
4. Contributions.
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A. Elective Deferrals (Plan Section 5.2). Your Plan will allow employees
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to elect pre-tax contributions under Section 401(k) of the Code. You
must complete this part A.
(1) A Participant may make Elective Deferrals for each year in an
amount not to exceed (check one):
[X] (a) 15% of his Earnings
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[ ] (b) _____% of his Earnings not to exceed $_____ (specify a
dollar amount)
[ ] (c) $_____ (specify a dollar amount)
(2) Will a Participant be required to make a minimum Elective
Deferral in order to make Elective Deferrals under the Plan?
(check one and complete as applicable)
[X] (a) No.
[ ] (b) Yes. The minimum Elective Deferral will be ____% of the
Participant's Earnings.
(3) A Participant may begin to make Elective Deferrals, or change the
amount of his Elective Deferrals, as of the following dates
(check one):
[ ] (a) First business day of each month (monthly).
[X] (b) First business day of the first, fourth, seventh and
tenth months of the Plan Year (quarterly).
[ ] (c) First business day of the first and seventh months of
the Plan Year (semiannually).
[ ] (d) First business day of the Plan Year only (annually).
[ ] (e) Other: ______
7
(4) Will Participants be permitted to make separate Elective
Deferrals of bonuses, even if bonuses have otherwise been
excluded from Compensation for the purpose of Elective Deferrals
under 7.A(l)?
[ ] (a) Yes [X] (b) No
B. Employer Matching Contributions. (Plan Section 5.8). Complete this
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part B only if you will make Employer Matching Contributions under the
Plan.
(1) The Employer will contribute and will allocate to each Qualified
Participant's Employee Matching Account an Employer Matching
Contribution on the basis set forth below:
[X] (a) Discretionary matching contributions. (The Employer may
select this option in addition to option (b) if the
Employer wishes to have the option to make discretionary
matching contributions in addition to fixed matching
contributions.)
[ ] (b) Fixed matching contributions.
[ ] (i) based on Elective Deferrals:
[ ] (A) _____% of Elective Deferrals
[ ] (B) _____% of Elective Deferrals up to
_____% of Earnings.
[ ] (C) _____% of Elective Deferrals up to
_____% of Earnings and _____% of Elective
Deferrals over that percentage of Earnings
and up to _____% of Earnings. (The third
percentage number must be less than the
first percentage number.)
[ ] (D) _____% of Elective Deferrals up to
$_______ of Elective Deferrals.
[ ] (E) _____% of Elective Deferrals up to
$_______ of Elective Deferrals and ___% of
Elective Deferrals over that dollar
amount and up to $______ of Elective
Deferrals. (The last percentage must be
less than the first percentage).
8
[ ] (ii) based on after-tax Participant Contributions:
[ ] (A) _____% of Participant Contributions
[ ] (B) _____% of Participant Contributions up
to _____% of Earnings.
[ ] (C) _____% of Participant Contributions up
to _____% of Earnings and _____% of
Participant Contributions over that
percentage of Earnings and up to ______ % of
Participant Contributions. (The third
percentage must be less than the first
percentage)
[ ] (D) _____% of Participant Contributions up
to $_____ of Participant Contributions.
[ ] (E) _____% of Participant Contributions up
to $_____ of Participant Contributions and
_____% of Participant Contributions over that
dollar amount and up to $_____ of Participant
Contributions. (The last percentage must be
less than the first percentage).
(2) Qualified Participant. In order to receive an allocation of
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Employer Matching Contributions for a Plan Year, an Employee must
be a Qualified Participant for that purpose. Select below either
(a) alone, or any combination of (b), (c) and (d).
[ ] (a) To be a Qualified Participant eligible to receive
Employer Matching Contributions for a Plan Year,
an Employee must (check (i) or (ii)):
[ ] (i) Either be employed on the last day of
the Plan Year, complete more than 500 Hours
of Service in the Plan Year, or retire, die
or become disabled in the Plan Year.
[ ] (ii) Either be employed on the last day of
the Plan Year or complete more than 500
Hours of Service in the Plan Year.
Stop here if you checked (a). If you did not check (a), check
(b), (c) or (d), or any combination of (b), (c) and (d).
9
To be a Qualified Participant eligible to receive Employer
Matching Contributions for a Plan Year, an Employee must:
[X] (b) Be credited with 1 (choose 1, 501 or 1,000) Hours of
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Service in the Plan Year.
[ ] (c) Be an Employee on the last day of the Plan Year.
[X] (d) Retire, die or become disabled during the Plan Year.
(3) Will the Employer have the option of making all or any portion of
its Employer Matching Contributions in Employer Stock?
[ ] (a) Yes [X] (b) No
C. Profit Sharing Contributions. (Plan Sections 4.1 and 4.2)
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(1) Profit Limitation. Will Profit Sharing Contributions to the Plan
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be limited to the current and accumulated profits of your
Business? Check one:
[ ] (a) Yes [X] (b) No
(2) Amount. The Employer will contribute to the Plan for each Plan
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Year (check one):
[X] (a) An amount chosen by the Employer from year to year
[ ] (b) _____% of the Earnings of all Qualified Participants
for the Plan Year
[ ] (c) $_____ for each Qualified Participant per_____ (enter
time period, e.g. payroll period, plan year)
(3) Allocations to Participants
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(a) Allocation to Participants. Profit Sharing Contributions
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will be allocated:
[X] (i) Pro rata (percentage based on compensation)
[ ] (ii) Uniform Dollar amount
[ ] (iii) Integrated With Social Security (complete (b) and
(c) below)
(b) Integration with Social Security. (Complete only if you have
--------------------------------
elected in 4.C(3)(a) to integrate your Plan with Social
Security.) Profit Sharing Contributions will be allocated to
Qualified Participants as you check below:
10
[ ] (i) Profit Sharing Contributions will be allocated
according to the Top-Heavy Integration Formula in Plan
Section 4.2(c)(l) in every Plan Year, whether or not
the Plan is top-heavy.
[ ] (ii) Profit Sharing Contributions will be allocated
according to the Top-Heavy Integration Formula in Plan
Section 4.2(c)(1) only in Plan Years in which the Plan
is top-heavy. In all other Plan Years, contributions
will be allocated according to the Non-Top-Heavy
Integration Formula in Plan Section 4.2(c)(2).
(c) Integration Level. (Complete only if you have elected in
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4.C(3)(a) to integrate your Plan with Social Security.) The
Integration Level will be (check one):
[ ] (i) The Social Security Wage Base in effect at the
beginning of the Plan Year.
[ ] (ii) _____% (not more than 100%) of the Social
Security Wage Base in effect at the beginning of the
Plan Year.
[ ] (iii) $_____ (not more than the Social Security Wage
Base).
Note: The Social Security Wage Base is indexed annually to
----
reflect increases in the cost of living.
(4) Qualified Participants. In order to receive an allocation of
----------------------
Profit Sharing Contributions for a Plan Year, an Employee must be
a Qualified Participant for this purpose. Select below either (a)
alone, or any combination of (b), (c) and (d).
[ ] (a) To be a Qualified Participant eligible to receive
an allocation of Profit Sharing Contributions for a Plan
Year, an Employee must (check (i) or (ii)):
[ ] (i) Either be employed on the last day of the Plan
Year, complete more than 500 Hours of Service in
the Plan Year, or retire, die or become disabled
in the Plan Year.
[ ] (ii) Either be employed on the last day of the Plan
Year or complete more than 500 Hours of Service
in the Plan Year.
Stop here if you checked (a). If you did not check (a), check
(b), (c) or (d), or any combination of (b), (c) and (d).
11
To be a Qualified Participant eligible to receive an allocation
of Profit Sharing Contributions for a Plan Year, an Employee
must:
[X] (b) Be credited with 1,000 (choose 1, 501 or 1,000)
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Hours of Service in the Plan Year.
[X] (c) Be an Employee on the last day of the Plan Year.
[X] (d) Retire, die or become disabled during the Plan Year.
D. Participant Contributions (Plan Section 4.6). Will your Plan allow
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Participants to make after-tax contributions?
[ ] (1) Yes [X] (2) No
E. Qualified Matching Contributions (Plan Section 2.61). Skip this part E
----------------------------------------------------
if you will not make Qualified Matching Contributions. N/A
(1) Qualified Matching Contributions will be made with respect to
(check one):
[ ] (a) Elective Deferrals made by all Qualified Participants
(as defined in 4.B(2))
[ ] (b) Elective Deferrals made only by Qualified Participants
(as defined in 4.B(2)) who are not Highly Compensated
Participants
(2) The amount of Qualified Matching Contributions made with respect
to a Participant will be:
[ ] (a) discretionary
[ ] (b) fixed (check and complete (i), (ii) or (iii))
[ ] (i) _____% of Elective Deferrals
[ ] (ii) _____% of Elective Deferrals that do not
exceed _____% of Earnings
[ ] (iii) _____% of Elective Deferrals that do not
exceed $________.
12
F. Qualified Nonelective Contributions (Plan Section 2.62): Skip this
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part F if you will not make Qualified Nonelective Contributions. N/A
(1) Qualified Nonelective Contributions will be made on behalf of
(check either (a) or (b) and either (c) or (d)):
[ ] (a) All Participants
[ ] (b) Only Participants who are not Highly Compensated
Employees who also, for the Plan Year for which the
Qualified Nonelective Contributions are made
[ ] (c) Are Qualified Participants (as defined in 4.C(4))
[ ] (d) Made Elective Deferrals
(2) The amount of Qualified Nonelective Contributions for a Plan Year
will be (check one):
[ ] (a) _____% (not over 15%) of the Earnings of
Participants on whose behalf Qualified Nonelective
Contributions are made
[ ] (b) An amount determined by the Employer from year to
year, to be shared in proportion to their Earnings by
Participants on whose behalf Qualified Nonelective
Contributions are made
G. Forfeitures
(1) Employer Matching Contributions. Forfeitures of Employer Matching
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Contributions will be used as follows (check and complete (a) or
(b)):
[ ] (a) Applied to reduce the following contributions required
of the Employer (check (i) and/or (ii)):
[ ] (i) Employer Matching Contributions
[ ] (ii) Profit Sharing Contributions
[X] (b) Reallocated as follows (check (i) or (ii)):
[X] (i) As additional Employer Matching Contributions
[ ] (ii) As additional Profit Sharing Contributions
13
(2) Profit Sharing Contributions. Forfeitures of Profit Sharing
Contributions will be used as follows (check (a) or (b)):
[ ] (a) Applied to reduce the following contributions
required of the Employer (check (i) and/or (ii)):
[ ] (i) Profit Sharing Contributions
[ ] (ii) Employer Matching Contributions
[X] (b) Reallocated as additional Profit Sharing Contributions
5. Top-Heavy Minimum Contributions (Plan Section 14.3). Skip paragraphs A and
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B below if you do not maintain any other qualified plan in addition to this
Plan.
A. For any Plan Year in which the Plan is Top-Heavy, the Top-Heavy
minimum contribution (or benefit) for Non-Key employees participating
both in this Plan and another qualified plan maintained by the
Employer will be provided in (check one):
[ ] (1) This Plan [ ] (2) The other qualified plan
B. If you maintain a defined benefit plan in addition to this Plan, and
the Top-Heavy Ratio (as defined in Plan Section 14.2(c)) for the
combined plans is between 60% and 90%, you may elect to provide an
increased minimum allocation or benefit pursuant to Plan Section 14.4.
Specify your election by completing the statement below:
The Employer will provide an increased (specify contribution or
benefit)_____ in its (specify defined contribution or defined
benefit)_____ plan as permitted under Plan Section 14.4.
6. Other Plans. You must complete this section if you maintain or ever
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maintained another qualified plan in which any Participant in this Plan is
(or was) a participant or could become a participant. The Plan and your
other plan(s) combined will meet the contribution limitation rules in
Article 6 of the Plan as you specify below:
A. If a Participant in the Plan is covered under another qualified
defined contribution plan maintained by your Business, other than a
master or prototype plan (check one):
[ ] (1) The provisions of Section 6.2 of the Plan will apply
as if the other plan were a master or prototype plan.
[ ] (2) The plans will limit total annual additions to the
maximum permissible amount, and will properly reduce any
excess amounts, in the manner you describe below.
---------
---------
14
B. If a Participant in the Plan is or has ever been a participant in a
defined benefit plan maintained by your Business, the plans will meet
the limits of Article 6 in the manner you describe below:
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If your Business has ever maintained a defined benefit plan, state
below the interest rate and mortality table to be used in establishing
the present value of any benefit under the defined benefit plan for
purposes of computing the top-heavy ratio:
Interest rate: ______%
Mortality Table: ______
7. Compensation (Plan Section 2.8).
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A. Amount.
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(1) Elective Deferrals and Employer Matching Contributions.
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Compensation for the purposes of determining the amount and
allocation of Elective Deferrals and Employer Matching
Contributions will be determined as follows (choose either (a) or
(b), and (c) and/or (d) as applicable).
[X] (a) Compensation will include Form W-2 earnings as
defined in Section 2.8 of the Plan.
[ ] (b) Compensation will include all compensation
included in the definition of Code Section 415
Compensation in Plan Section 6.5(b) of the Plan.
[X] (c) In addition to the amount provided in either (a) or
(b) above, Compensation will also include any amounts
withheld from the employee under a 401(k) plan,
cafeteria plan, SARSEP, tax sheltered 403(b)
arrangement, or Code Section 457 deferred compensation
plan, and contributions described in Code Section 41
4(h)(2) that are picked up by a governmental employer.
[X] (d) Compensation will also exclude the following amount
(choose each that applies):
[X] (i) overtime pay.
[ ] (ii) bonuses.
[X] (iii) commissions.
[X] (iv) other pay (describe): services of a type
------------------
customarily performed by outside contractors
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[ ] (v) compensation in excess of $ ______
15
(2) Profit Sharing Contributions. Compensation for the purposes
----------------------------
of determining the amount and allocation of Profit Sharing
Contributions shall be determined as follows (choose either
(a) or (b), and (c) and/or (d), as applicable).
[X] (a) Compensation will include Form W-2 earnings as
defined in Section 2.8 of the Plan.
[ ] (b) Compensation will include all compensation included
in the definition of Code Section 415 Compensation
in Section 6.5(b) of the Plan.
[X] (c) In addition to the amount provided in either (a)
or (b) above, compensation will also include any
amounts withheld from the employee under a 401(k)
plan, cafeteria plan, SARSEP, tax sheltered 403(b)
arrangement, or Code Section 457 deferred
compensation plan, and contributions described in
Code Section 414(h)(2) that are picked up by a
governmental employer.
[X] (d) Compensation will also exclude the following
amounts (choose each that applies):
[ ] (i) overtime pay
[X] (ii) bonuses
[X] (iii) commissions
[X] (iv) other pay (describe): services of a
type customarily performed by outside
contractors
[ ] (v) compensation in excess of $ ______
Note: No exclusion under (d) may be selected if
Profit Sharing Contributions will be integrated
with Social Security under 4.C(3)(a)(iii). In
addition, no exclusion under (d) will apply for
purposes of determining the top-heavy minimum
contribution if the Plan is top-heavy.
B. Measuring Period. Compensation will be based on the Plan Year.
----------------
However, for an Employee's initial year of participation in the Plan,
Compensation will be recognized as of:
[ ] (1) the first day of the Plan Year.
[X] (2) the date the Participant enters the Plan.
16
8. Distributions and Withdrawals.
A. Retirement Distributions.
------------------------
(1) Normal Retirement Age (Plan Section 7.1). Normal retirement age
----------------------------------------
will be the later of 59 1/2 (not over age 65) or _____ (not more
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than 5) years of participation in the Plan.
(2) Early Retirement (Plan Section 7.1). Select one:
-----------------------------------
[X] (a) No early retirement will be permitted.
[ ] (b) Early retirement will be permitted at age ______ .
[ ] (c) Early retirement will be permitted at age ______
with at least ____ __ Years of Service.
(3) Annuities (Plan Section 9.3). Will your Plan permit distributions
---------------------------
in the form of a life annuity? You must check Yes if this Plan
replaces or serves as a transferee plan for an existing Plan that
permits distributions in a life annuity form.
[ ] (a) Yes [X] (b) No
B. Hardship Distributions (Plan Section 12.2). Will your Plan permit
hardship distributions?
[ ] (1) No
[X] (2) Yes. Indicate below from which Accounts hardship
withdrawals will be permitted (check all that apply):
[X] (a) Elective Deferral Account
[X] (b) Rollover Account
[ ] (c) Employer Matching Account
[ ] (d) Employer Contribution Account (i.e. Profit Sharing
Contributions)
C. Withdrawals after Age 59 1/2 (Plan Section 12.3). Will your Plan
------------------------------------------------
permit employees over age 59 1/2 to withdraw amounts upon request? You
must check Yes if this Plan replaces an existing Plan that permits
withdrawals after age 59 1/2.
[X] (1) Yes [ ] (2) No
17
D. Withdrawals following Five Years of Participation or Two Years after
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Contribution (Plan Section 12.4). Will your Plan permit employees to
--------------------------------
withdraw amounts from the vested portion of their Employer Matching
Contribution Accounts and Employer Contribution Accounts (i.e., Profit
Sharing Contributions) if either (i) the Participant has been a
Participant for at least five years, or (ii) the amount withdrawn from
each of these Accounts is limited to the amounts that were credited to
that Account prior to the date two years before the withdrawal? You
must check yes if this Plan replaces a Plan which permits withdrawals
in these circumstances.
[ ] (1) Yes [X] (2) No
E. Loans (Plan Section 12.5). Will your Plan permit loans to employees
-------------------------
from the vested portion of their Accounts?
[ ] (1) No
[X] (2) Yes. Indicate below whether loans will be permitted for any
reason or only on account of hardship:
[X] (a) Any reason.
[ ] (b) Hardship only.
F. Automatic Distribution of Small Accounts (Plan Section 9.1). Will your
-----------------------------------------------------------
Plan automatically distribute vested account balances not exceeding
$3,500, within 60 days after the end of the Plan Year in which a
Participant separates from employment?
[X] (1) Yes [ ] (2) No
9. Vesting (Plan Article 8)
------------------------
A. Time of Vesting (select (1) or (2) below and complete vesting
-------------------------------------------------------------
schedule).
---------
[X] (1) Single Vesting Schedule:
The vesting schedule selected below will apply to both Employer
Matching Contributions and Profit Sharing Contributions.
[ ] (2) Dual Vesting Schedules:
The vesting schedule marked with an "MC" below will apply to
Employer Matching Contributions and the vesting schedule marked
with a "PS" below will apply to Profit Sharing Contributions.
18
(3) Vesting Schedules:
[ ] (a) 100% vesting immediately upon participation in the Plan.
[X] (b) Five-Year Graded Schedule:
Vested Percentage 20% 40% 60% 80% 100%
Years of Service 1 2 3 4 5
[ ] (c) Seven-Year Graded Schedule:
Vested Percentage 20% 40% 60% 80% 100%
Years of Service 3 4 5 6 7
[ ] (d) Six-Year Graded Schedule:
Vested Percentage 20% 40% 60% 80% 100%
Years of Service 2 3 4 5 6
[ ] (e) Three-Year Cliff Schedule:
Vested Percentage 0% 100%
Years of Service 0-2 3
[ ] (f) Five-Year Cliff Schedule:
Vested Percentage 0% 100%
Years of Service 0-4 5
[ ] (g) Other Schedule (must be at least as favorable as Seven-Year Graded
Schedule or Five-Year Cliff Schedule):
(i) Vested Percentage _____% _____% _____% _____% _____%
(ii) Years of Service ______ ______ ______ ______ ______
(4) Top Heavy Schedule:
(a) If you selected above an "Other Schedule," specify in the
space below the schedule that will apply in Plan Years that
the Plan is top-heavy. The schedule you specify must be at
least as favorable to employees, at all years of service, as
either the Six-Year Graded Schedule or the Three-Year Cliff
Schedule. The top-heavy vesting schedule will be:
19
[ ] (i) the same "Other Schedule" selected above
[ ] (ii) the following schedule:
Vested Percentage _____% _____% _____% _____% _____%
Years of Service _____ _____ ______ _____ _____
[ ] (iii) Six-Year Graded Schedule
[ ] (iv) Three-Year Cliff Schedule
(b) If the Plan becomes top-heavy in a Plan Year, will the top-
heavy vesting schedule apply for all subsequent Plan Years?
N/A
[ ] (i) Yes [ ] (ii) No
B. Service for Vesting (select (1) or (2), and complete (3)).
---------------------------------------------------------
[X] (1) All of an employee's service will be used to determine his Years
of Service for purposes of vesting
[ ] (2) An employee's Years of Service for vesting will include all years
except (check all that apply):
[ ] (a) (New plan) service before the effective date of the plan
[ ] (b) (Existing plan) service before the effective date of the
existing plan
[ ] (c) Service before the Plan Year in which an employee reached age
18
(3) Will an employee's service for a business acquired by the
Employer that was performed before the acquisition be included in
determining an employee's Years of Service for vesting?
[ ] (a) Yes [X] (b) No
List below any business acquired on or before the Effective Date
for which an employee's service will be included in determining
an employee's Years of Service for vesting. Service of an
employee for a predecessor employer (which includes an acquired
business) whose plan the Employer maintains must be included as
service for the Employer under this Plan. Therefore, also list
below any predecessor employer whose plan the Employer maintains:
--------
--------
--------
20
C. Hours of Service for Vesting. The number of Hours of Service required
----------------------------
for crediting a Year of Service for vesting will be (check one):
[X] (1) 1,000 Hours of Service
[ ] (2) _____ Hours of Service
(under 1,000)
Hours of Service for vesting will be credited according to the method
selected under 3.C(6).
D. Year of Service Measuring Period for Vesting (Plan Section 2.52). The
----------------------------------------------------------------
periods of 12 months used for measuring Years of Service will be
(check one):
[X] (1) Plan Years
[ ] (2) 12-month Eligibility Periods
Note: If you are adopting this Plan to replace an existing plan, employees
will be credited under this Plan with all service credited to them under
the plan you are replacing.
10. Investments (Plan Sections 13.2 and 13.3).
-----------------------------------------
A. Available Investment Products (Plan Section 13.2). The investment
-------------------------------------------------
options available under the Plan are identified in the Service
Agreement or such other written instructions between the Employer and
Xxxxxx, as the case may be. All Investment Products must be sponsored,
underwritten, managed or expressly agreed to in writing by Xxxxxx. If
there is any amount in the Trust Fund for which no instructions or
unclear instructions are delivered, it will be invested in the default
option selected by the Employer in its Service Agreement with Xxxxxx,
or such other written instructions as the case may be, until
instructions are received in good order, and the Employer will be
deemed to have selected the option indicated in its Service Agreement,
or such other written instructions as the case may be, as an available
Investment Product for that purpose.
B. Instructions (Plan Section 13.3). Investment instructions for amounts
--------------------------------
held under the Plan generally will be given by each Participant for
his own Accounts and delivered to Xxxxxx as indicated in the Service
Agreement between Xxxxxx and the Employer. Check below only if the
Employer will make investment decisions under the Plan with respect to
the following contributions made to the Plan. (Check all applicable
options.)
C.
[ ] (1) The Employer will make all investment decisions with respect
to all employee contributions, including Elective Deferrals,
Participant Contributions, Deductible Employee Contributions
and Rollover Contributions.
21
[ ] (2) The Employer will make all investment decisions with respect
to all Employer contributions, including Profit Sharing
Contributions, Employer Matching Contributions, Qualified
Matching Contributions and Qualified Nonelective
Contributions.
[ ] (3) The Employer will make investment decisions with respect to
Employer Matching Contributions and Qualified Matching
Contributions.
[ ] (4) The Employer will make investment decisions with respect to
Qualified Nonelective Contributions.
[ ] (5) The Employer will make investment decisions with respect to
Profit Sharing Contributions.
[ ] (6) Other (Describe. An Employer may elect to make investment
decisions with respect to a specified portion of a specific
type of contribution to the Plan.): ______
_______
_______
C. Changes. Investment instructions may be changed (check one):
-------
[X] (1) on any Valuation Date (daily)
[ ] (2) on the first day of any month (monthly)
[ ] (3) on the first day of the first, fourth, seventh and tenth
months in a Plan Year (quarterly)
D. Employer Stock. (Skip this paragraph if you did not designate Employer
--------------
Stock as an investment under the Service Agreement.)
(1) Voting. Employer Stock will be voted as follows:
------
[ ] (a) In accordance with the Employer's instructions.
[ ] (b) In accordance with the Participant's instructions.
Participants are hereby appointed named fiduciaries for
the purpose of the voting of Employer Stock in
accordance with Plan Section 13.8.
(2) Tendering. Employer Stock will be tendered as follows:
---------
[ ] (a) In accordance with the Employer's instructions.
[ ] (b) In accordance with the Participant's instructions.
Participants are hereby appointed named fiduciaries for
the purpose of the tendering of Employer Stock in
accordance with Plan Section 13.8.
22
11. Administration.
--------------
A. Plan Administrator (Plan Section 15.1). You may appoint a person or a
--------------------------------------
committee to serve as Plan Administrator. If you do not appoint a Plan
Administrator, the Plan provides that the Employer will be the Plan
Administrator.
The initial Plan Administrator will be (check one):
[ ] This person: _____
[X] A committee composed of these people:
Xxxxxxx Xxxx
------------
Xxxxxxx X. Xxxxx, Xx.
---------------------
Xxxx X. Xxxxxxxx
----------------
B. Recordkeeper (Plan Section 15.4). Unless Xxxxxx expressly permits
--------------------------------
otherwise, you must appoint Xxxxxx as Recordkeeper to perform certain
routine services determined upon execution of a written Service
Agreement between Xxxxxx and the Employer. The initial Record keeper
will be:
Xxxxxx Fiduciary Trust Company
------------------------------
Xxxxxx Retail 401(k) B-2-B
--------------------------
000 Xxxxxxx Xx.
---------------
Xxxxxx, XX 00000-0000
---------------------
12. Determination Letter Required. You may not rely on an opinion letter issued
-----------------------------
to Xxxxxx by the National Office of the Internal Revenue Service as
evidence that the Plan is qualified under Section 401 of the Internal
Revenue Code. In order to obtain reliance with respect to qualification of
the Plan, you must receive a determination letter from the appropriate Key
District Office of Internal Revenue. Xxxxxx will prepare an application for
such a letter upon your request at a fee agreed upon by the parties.
Xxxxxx will inform you of all amendments it makes to the prototype plan. If
Xxxxxx ever discontinues or abandons the prototype plan, Xxxxxx will inform
you. This Plan Agreement #001 may be used only in conjunction with Xxxxxx'x
Basic Plan Document #07.
* * * * *
If you have any questions regarding this Plan Agreement, contact Xxxxxx at:
Xxxxxx Defined Contribution Plans
One Xxxxxx Place B2B
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Phone: 0-000-000-0000
23
* * * * *
EMPLOYER'S ADOPTION OF XXXXXX
FLEXIBLE 401(k) AND PROFIT SHARING PLAN
The Employer named below hereby adopts a XXXXXX FLEXIBLE 401(k) AND PROFIT
SHARING PLAN, and appoints Xxxxxx Fiduciary Trust Company to serve as Trustee of
------------------------------
the Plan. The Employer acknowledges that it has received copies of the current
prospectus for each Investment Product available under the Plan, and represents
that it will deliver copies of the then current prospectus for each such
Investment Product to each Participant before each occasion on which the
Participant makes an investment instruction as to his Account. The Employer
further acknowledges that the Plan will be acknowledged by Xxxxxx as a Xxxxxx
Flexible 401(k) and Profit Sharing Plan only upon Xxxxxx'x acceptance of this
Plan Agreement.
Investment Options
------------------
The Employer hereby elects the following as the investment options available
under the Plan:
Xxxxxx Money Market Fund -- A Xxxxxx Income Fund -- A
----------------------------- -----------------------
Xxxxxx Growth & Income Fund II -- A Xxxxxx International Growth Fund -- A
----------------------------------- -------------------------------------
Xxxxxx Investors Fund -- A Xxxxxx Vista Fund -- A
-------------------------- ----------------------
The following investment option shall be the default option: Xxxxxx Money Market
-------------------
Fund -- A (select the default option from among the investment options listed
---------
above).
Benthos, Inc.
Employer signature(s) to adopt Plan: Date of signature:
/s/ Xxxx X. Xxxxxxxx 5/12/99
----------------------------- --------------------
/s/ Xxxxxxx X. Xxxxx, Xx. 5/12/99
----------------------------- --------------------
/s/ Xxxxxxx Xxxx 5/12/99
----------------------------- --------------------
Please print name(s) of authorized person(s) signing above:
Xxxx X. Xxxxxxxx, President & CEO
----------------------------------------
Xxxxxxx X. Xxxxx, Xx., Treasurer
----------------------------------------
Xxxxxxx Xxxx, Human Resources Manager
----------------------------------------
A new Plan must be signed by the last day of the Plan Year in which the Plan is
to be effective.
24
* * * * *
ACCEPTANCE OF XXXXXX FIDUCIARY TRUST COMPANY AS TRUSTEE
The Trustee accepts appointment in accordance with the terms and conditions of
the Plan, effective as of the date of execution by the Employer set forth above.
Xxxxxx Fiduciary Trust Company, Trustee
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------------------------
25
* * * * *
ACCEPTANCE BY XXXXXX
Xxxxxx hereby accepts this Employer's Plan as a prototype established under
Xxxxxx Basic Plan Document #07.
Xxxxxx Mutual Funds Corp.
By: /s/ Xxxxxxxx X. Xxxxxxx
----------------------------------------------
26
0 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
XXXXXX INVESTMENTS
FIRST AMENDMENT TO THE
BENTHOS, INC. 401(k) RETIREMENT PLAN
Benthos, Inc. (the "Employer") having heretofore adopted the Benthos, Inc.
401(k) Retirement Plan, a prototype plan document consisting of the Plan
Agreement #001 and the Xxxxxx Basic Plan Document #07 (the "Plan") effective as
of July 1, 1999, pursuant to the power reserved to the Employer in Section 17.1
of the Plan, hereby amends the Plan Agreement as set forth below.
1. Subsection D. of Section 9., of the Plan Agreement is hereby amended
effective July 1, 1999, by striking said subsection in its entirety and by
substituting the following new paragraph in lieu thereof:
"D. Year of Service Measuring Period for Vesting (Plan Section 2.52). The
----------------------------------------------------------------
periods of 12 months used for measuring Years of Service will be
(check one):
[ ] (1) Plan Years
[X] (2) 12-month Eligibility Periods
Note: If you are adopting this Plan to replace an existing plan,
employees will be credited under this Plan with all service credited to
them under the plan you are replacing."
In all other respects, the Plan provisions remain in full force and effect.
IN WITNESS, WHEREOF, the Employer has caused the First Amendment to the Plan
to be duly executed in its name and behalf and its corporate seal to be
affixed as of the date signed below.
ATTEST:
Benthos, Inc. Xxxxxx Fiduciary Trust Company
By: /s/ X.X. Xxxxx, Xx. By: /s/ Xxxx Xxxxxxxx
-------------------- --------------------
Title: Treasurer Title: VP Compliance & Consulting
-------------------- -----------------------------
Date: 9/28/99 Date: 10/1/99
-------------------- --------------------
BOSTON . LONDON . TOKYO
27
