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EXHIBIT 10.18
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XXXXXXX XXXXX
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SPECIAL
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PROTOTYPE DEFINED
CONTRIBUTION PLAN
ADOPTION AGREEMENT
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401(k) PLAN
EMPLOYEE THRIFT PLAN
PROFIT-SHARING PLAN
LETTER SERIAL NUMBER: D359287b
NATIONAL OFFICE LETTER DATE: 6/29/93
THIS PROTOTYPE PLAN AND ADOPTION AGREEMENT ARE IMPORTANT LEGAL INSTRUCTIONS WITH
LEGAL AND TAX IMPLICATIONS FOR WHICH THE SPONSOR, MERRILL, LYNCH, XXXXXX, XXXXXX
& XXXXX, INCORPORATED, DOES NOT RESPONSIBILITY. THE EMPLOYER IS URGED TO CONSULT
WITH ITS OWN ATTORNEY WITH REGARD TO THE ADOPTION OF THIS PLAN AND ITS
SUITABILITY TO ITS CIRCUMSTANCES.
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ADOPTION OF PLAN
The Employer named below hereby establishes or restates a profit-sharing plan
that includes a 401(k) [X], profit-sharing [X] and/or [ ] thrift plan feature
(the "Plan") by adopting the Xxxxxxx Xxxxx Special Prototype Defined
Contribution Plan and Trust as modified by the terms and provisions of this
Adoption Agreement.
EMPLOYER AND PLAN INFORMATION
Employer Name:* Gadzooks, Inc.
Business Address: 0000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Telephone Number: (000) 000-0000
Employer Taxpayer ID Number: 00-0000000
Employer Taxable Year ends on: a 52 or 53 week year which ends on
the Saturday nearest January 31.
Plan Name: Gadzooks, Inc. Savings Plan
Plan Number: 001
PROFIT
401(k) SHARING THRIFT
Effective Date of Adoption
or Restatement: 4/1/98 4/1/98 ---/---/---
--- --- ---
Original Effective Date: 1/1/95 1/1/95 ---/---/---
--- --- ---
IF THIS PLAN IS A CONTINUATION OR AN AMENDMENT OF A PRIOR PLAN, ALL OPTIONAL
FORMS OF BENEFITS PROVIDED IN THE PRIOR PLAN MUST BE PROVIDED UNDER THIS PLAN TO
ANY PARTICIPANT WHO HAD AN ACCOUNT BALANCE, WHETHER OR NOT VESTED, IN THE PRIOR
PLAN.
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* If there are any Participating Affiliates in this Plan, list below the
proper name of each Participating Affiliate. N/A
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ARTICLE I.
DEFINITIONS
A. "COMPENSATION"
(1) With respect to each Participant, except as provided below,
Compensation shall mean the (select all those applicable for
each column):
401(k) AND/ PROFIT
OR THRIFT SHARING
[ ] [ ] (a) amount reported in the "Wages
Tips and Other Compensation" Box
on Form W-2 for the applicable
period selected in Item 5 below.
[X] [X] (b) compensation for Code Section
415 safe-harbor purposes (as
defined in Section 3.9.1(H)(i)
of basic plan document #03) for
the applicable period selected
in Item 5 below.
[ ] [ ] (c) amount reported pursuant to Code
Section 3401(a) for the
applicable period selected in
Item 5 below.
[ ] [ ] (d) all amounts received (under
either option (a) or (b) above)
for personal services rendered
to the Employer but excluding
(select all those applicable):
[ ] overtime
[ ] bonuses
[ ] commissions
[ ] amounts in excess of $____.
[ ] other (specify): _____.
(2) Treatment of Elective Contributions (select one):
[X] (a) For purposes of contributions, Compensation
shall include Elective Deferrals and amounts
excludable from the gross income of the
Employee under Code Section 125, Code
Section 402(e)(3), Code Section 402(h) or
Code Section 403(b) ("elective
contributions").
[ ] (b) For purposes of contributions, Compensation
shall not include "elective contributions."
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(3) CODA Compensation (select one):
[X] (a) For purposes of the ADP and ACP Tests,
Compensation shall include "elective
contributions."
[ ] (b) For purposes of the ADP and ACP Tests,
Compensation shall not include "elective
contributions."
(4) With respect to Contributions to an Employer Contributions
Account, Compensation shall include all Compensation (select
one):
[ ] (a) during the Plan Year in which the
Participant enters the Plan.
[X] (b) after the Participant's Entry Date.
(5) The applicable period for determining Compensation shall be
(select one):
[X] (a) the Plan year.
[ ] (b) the Limitation Year.
[ ] (c) the consecutive 12-month period ending on ____.
B. "DISABILITY"
(1) Definition
Disability shall mean a condition which results in the
Participant's (select one):
[ ] (a) inability to engage in any substantial
gainful activity by reason of any medically
determinable physical or mental impairment
that can be expected to result in death or
which has lasted or can be expected to last
for a continuous period of not less than 12
months.
[ ] (b) total and permanent inability to meet the
requirements of the Participant's customary
employment which can be expected to last for
a continuous period of not less than 12
months.
[ ] (c) qualification for Social Security disability
benefits.
[X] (d) qualification for benefits under the
Employer's long-term disability plan.
(2) Contributions Due to Disability (select one):
[X] (a) No contributions to an Employer
Contributions Account will be made on behalf
of a Participant due to his or her
Disability.
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[ ] (b) Contributions to an Employer Contributions
Account will be made on behalf of a
Participant due to his or her Disability
provided that: the Employer elected option
(a) or (c) above as the definition of
Disability, contributions are not made on
behalf of a Highly Compensated Employee, the
contribution is based on the Compensation
each such Participant would have received
for the Limitation Year if the Participant
had been paid at the rate of Compensation
paid immediately before his or her
Disability, and contributions made on behalf
of such Participant will be nonforfeitable
when made.
C. "EARLY RETIREMENT" is (select one):
[X] (1) not permitted.
[ ] (2) permitted if a Participant terminates Employment
before Normal Retirement Age and has (select one):
[ ] (a) attained age ____.
[ ] (b) attained age ____ and completed
____ Years of Service.
[ ] (c) attained age ____ and completed
____ Years of Service as a
Participant.
D. "ELIGIBLE EMPLOYEES" (select one):
[X] (1) All Employees are eligible to participate in the
Plan.
[ ] (2) The following Employees are not eligible to
participate in the Plan (select all those
applicable):
[ ] (a) Employees included in a unit of
Employees covered by a collective
bargaining agreement between the
Employer or a Participating
Affiliate and the Employee
representatives (not including any
organization more than half of whose
members are Employees who are
owners, officers, or executives of
the Employer or Participating
Affiliate) in the negotiation of
which retirement benefits were the
subject of good faith bargaining,
unless the bargaining agreement
provides for participation in the
Plan.
[ ] (b) non-resident aliens who received no
earned income from the Employer or a
Participating Affiliate which
constitutes income from sources
within the United States.
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[ ] (c) Employees of an Affiliate.
[ ] (d) Employees employed in or by the
following specified division,
plant, location, job category
or other identifiable individual
or group of Employees: ____.
E. "ENTRY DATE"
Entry Date shall mean (select as applicable):
401(k) AND/ PROFIT
OR THRIFT SHARING
[ ] [ ] (1) If the initial Plan Year is less
than twelve months, the _____
day of _________ and thereafter:
[ ] [ ] (2) the first day of the Plan Year
following the date the Employee
meets the eligibility
requirements. If the Employer
elects this option (2)
establishing only one Entry
Date, the eligibility "age and
service" requirements elected in
Article II must be no more than
age 20 1/2 and 6 months of
service.
[ ] [ ] (3) the first day of the month
following the date the Employee
meets the eligibility
requirements.
[X] [X] (4) the first day of the Plan Year
and the first day of the seventh
month of the Plan Year following
the date the Employee meets the
eligibility requirements.
[ ] [ ] (5) the first day of the Plan Year,
the first day of the fourth
month of the Plan Year, the
first day of the seventh month
of the Plan Year, and the first
day of the tenth month of the
Plan Year following the date the
Employee meets the eligibility
requirements.
[ ] [ ] (6) other: _____
provided that the Entry Date or
Dates selected are no later than
any of the options above.
F. "HOURS OF SERVICE"
Hours of Service for the purpose of determining a Participant's Period
of Severance and Year of Service shall be determined on the basis of the method
specified below:
(1) Eligibility Service: For purposes of determining whether a
Participant has satisfied the eligibility requirements, the
following method shall be used (select one):
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401(k) AND/ PROFIT
OR THRIFT SHARING
[ ] [ ] (a) elapsed time method
[X] [X] (b) hourly records method
(2) Vesting Service: A Participant's nonforfeitable interest shall
be determined on the basis of the method specified below
(select one):
[ ] (a) elapsed time method
[X] (b) hourly records method
[ ] (c) If this item (c) is checked, the Plan only
provides for contributions that are always
100% vested and this item (2) will not
apply.
(3) Hourly Records: For the purpose of determining Hours of
Service under the hourly record method
(select one):
[X] (a) only actual hours for which an Employee is
paid or entitled to payment shall be
counted.
[ ] (b) an Employee shall be credited with 45 Hours
of Service if such Employee would be
credited with at least 1 Hour of Service
during the week.
G. "INTEGRATION LEVEL"
[ ] (1) This Plan is not integrated with Social Security.
[X] (2) This Plan is integrated with Social Security. The
Integration Level shall be (select one):
[X] (a) the Taxable Wage Base.
[ ] (b) $______ (a dollar amount less than the
Taxable Wage Base).
[ ] (c) ____% of the Taxable Wage Base (not to
exceed 100%).
[ ] (d) the greater of $10,000 or 20% of the Taxable
Wage Base.
H. "LIMITATION COMPENSATION"
For purposes of Code Section 415, Limitation Compensation shall be
compensation as determined for purposes of (select one):
[X] (1) Code Section 415 Safe-Harbor as defined in Section
3.9.1(H)(i) of basic plan document #03.
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[ ] (2) the "Wages, Tips and Other Compensation" Box on Form
W-2.
[ ] (3) Code Section 3401(a) Federal Income tax Withholding.
I. "LIMITATION YEAR"
For purposes of Code Section 415, the Limitation Year shall be (select
one):
[X] (1) the Plan Year.
(2) the twelve consecutive month period ending on the
[ ] _____ day of the month of _______.
J. "NET PROFITS" are (select one):
[X] (1) not necessary for any contribution.
[ ] (2) necessary for (select all those applicable):
[ ] (a) Profit-Sharing Contributions.
[ ] (b) Matching 401(k) Contributions.
[ ] (c) Matching Thrift Contributions.
K. "NORMAL RETIREMENT AGE"
Normal Retirement Age shall be (select one):
[ ] (1) attainment of age ____ (not more than 65) by the
Participant.
[X] (2) attainment of age 65 (not more than 65) by the
Participant or the 5th anniversary (not more than the
5th) of the first day of the Plan Year in which the
Eligible Employee became a Participant, whichever is
later.
[ ] (3) attainment of age ____ (not more than 65) by the
Participant or the ____ anniversary (not more than
the 5th) of the first day on which the Eligible
Employee performed an Hour of Service, whichever is
later.
L. "PARTICIPANT DIRECTED ASSETS" are:
401(k) AND/ PROFIT
OR THRIFT SHARING
[X] [X] (1) permitted
[ ] [ ] (2) not permitted.
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M. "PLAN YEAR"
The Plan Year shall end on the last day of December.
N. "PREDECESSOR SERVICE"
Predecessor service will be credited (select one):
[X] (1) only as required by the Plan.
[ ] (2) to include, in addition to the Plan requirements and
subject to the limitations set forth below, service
with the following predecessor employer(s) determined
as if such predecessors were the Employer: _______.
Service with such predecessor employer applies
[select either or both (a) and/or (b); (c) is only
available in addition to (a) and/or (b)]:
[ ] (a) for purposes of eligibility to participate;
[ ] (b) for purposes of vesting;
[ ] (c) except for the following service: _____
O. "VALUATION DATE"
Valuation Date shall mean (select one for each column, as applicable):
401(k) AND/ PROFIT
OR THRIFT SHARING
[ ] [ ] (1) the last business day of each
month.
[ ] [ ] (2) the last business day of each
quarter within the Plan Year.
[ ] [ ] (3) the last business day of each
semi-annual period within the
Plan Year.
[X] [X] (4) the last business day of the
Plan Year.
[ ] [ ] (5) other: _____.
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ARTICLE II.
PARTICIPATION
PARTICIPATION REQUIREMENTS
An Eligible Employee must meet the following requirements to become a
Participant (select one or more for each column, as applicable):
401(k) AND/ PROFIT
OR THRIFT SHARING
[ ] [ ] (1) Performance of one Hour of
Service.
[ ] [ ] (2) Attainment of age ____ (maximum
20 1/2) and completion of _____
(not more than 1/2) Years of
Service. If this item is
selected, no Hours oF Service
shall be counted.
[X] [X] (3) Attainment of age 21 (maximum
21) and completion of one
Year(s) of Service. If more than
one Year of Service is selected,
the immediate 100% vesting
schedule must be selected in
Article VII of this Adoption
Agreement.
[ ] [ ] (4) Attainment of age _____ (maximum
21) and completion of ____ Years
of Service. If more than one
Year of Service is selected, the
immediate 100% vesting schedule
must be selected in Article VII
of this Adoption Agreement.
[ ] [ ] (5) Each Employee who is an Eligible
Employee on ____ will be deemed
to have satisfied the
participation requirements on
the effective date without
regard to such Eligible
Employee's actual age and/or
service.
ARTICLE III.
401(K) CONTRIBUTIONS AND ACCOUNT ALLOCATION
A. ELECTIVE
If selected below, a Participant's Elective Deferrals will be (select
all applicable):
[X] (1) a dollar amount or a percentage of Compensation, as
specified by the Participant on his or her 401(k)
Election form, which may not exceed 15% of his or her
Compensation.
[X] (2) with respect to bonuses, such dollar amount or
percentage as specified by the Participant on his or
her 401(k) Election form with respect to such bonus.
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B. MATCHING 401(k) CONTRIBUTIONS
If selected below, the Employer may make Matching 401(k) Contributions
for each Plan Year (select one):
[ ] (1) Discretionary Formula:
Discretionary Matching 401(k) Contribution equal to such a
dollar amount or percentage of Elective Deferrals, as
determined by the Employer, which shall be allocated (select
one):
[ ] (a) based on the ratio of each Participant's
Elective Deferral for the Plan Year to the
total Elective Deferrals of all Participants
for the Plan Year. If inserted, Matching
401(k) Contributions shall be subject to a
maximum amount of $_____ for each
Participant or ____% of each Participant's
Compensation.
[ ] (b) in an amount not to exceed ____% of each
Participant's first ____% of Compensation
contributed as Elective Deferrals for the
Plan Year. If any Matching 401(k)
Contribution remains, it is allocated to
each such Participant in an amount not to
exceed ____% of the next ____% of each
Participant's Compensation contributed as
Elective Deferrals for the Plan Year.
Any remaining Matching 401(k) Contribution shall be allocated
to each such Participant in the ratio that such Participant's
Elective Deferral for the Plan Year bears to the total
Elective Deferrals of all such Participants for the Plan Year.
If inserted, Matching 401(k) Contributions shall be subject to
a maximum amount of $______ for each Participant or ___% of
each Participant's Compensation.
[X] (2) Nondiscretionary Formula:
A nondiscretionary Matching 401(k) Contribution for each Plan
Year equal to (select one):
[ ] (a) ___% of each Participant's Compensation
contributed as Elective Deferrals. If
inserted, Matching 401(k) Contributions
shall be subject to a maximum amount of
$______ for each Participant or _____% of
each Participant's Compensation.
[X] (b) 50% of the first 5% of the Participant's
Compensation contributed as Elective
Deferrals and 0% of the next 11% of the
Participant's Compensation contributed as
Elective Deferrals. If inserted, Matching
401(k) Contributions shall be subject to a
maximum amount of $_____ for each
Participant or _____% of each Participant's
Compensation.
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C. PARTICIPANTS ELIGIBLE FOR MATCHING 401(k) CONTRIBUTION ALLOCATION
The following Participants shall be eligible for an allocation to their
Matching 401(k) Contributions Account (select all those applicable):
[X] (1) Any Participant who makes Elective Deferrals.
[ ] (2) Any Participant who satisfies those requirements
elected by the Employer for an allocation to his or
her Employer Contributions Account as provided in
Article IV Section C.
[ ] (3) Solely with respect to a Plan in which Matching
401(k) Contributions are made quarterly (or on any
other regular interval that is more frequent than
annually) any Participant whose 401(k) Election is in
effect throughout such entire quarter (or other
interval).
D. QUALIFIED MATCHING CONTRIBUTIONS
If selected below, the Employer may make Qualified Matching
Contributions for each Plan Year (select all those applicable):
(1) In its discretion, the Employer may make Qualified Matching
Contributions on behalf of (select one):
[X] (a) all Participants who make Elective Deferrals
in that Plan Year.
[ ] (b) only those Participants who are Nonhighly
Compensated Employees and who makes Elective
Deferrals for that Plan Year.
(2) Qualified Matching Contributions will be contributed and
allocated to each Participant in an amount equal to (select
one):
[ ] (a) _____% of the Participant's Compensation
contributed as Elective Deferrals. If
inserted, Qualified Matching Contributions
shall not exceed ___% of the Participant's
Compensation.
[ ] (b) Such an amount, determined by the Employer,
which is needed to meet the ACP Test.
(3) In its discretion, the Employer may elect to designate all or
any part of Matching 401(k) Contributions as Qualified
Matching Contributions that are taken into account as Elective
Deferrals - included in the ADP Test and excluded from the ACP
Test - on behalf of (select one):
[ ] (a) all Participants who make Elective Deferrals
for that Plan Year.
[X] (b) Only Participants who are Nonhighly
Compensated Employees who make Elective
Deferrals for that Plan Year.
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E. QUALIFIED NONELECTIVE CONTRIBUTIONS
If selected below, the Employer may make Qualified Nonelective
Contributions for each Plan Year (select all those applicable):
(1) In its discretion, the Employer may make Qualified Nonelective
Contributions on behalf of (select one):
[ ] (a) all Eligible Participants.
[X] (b) only Eligible Participants who are Nonhighly
Compensated Employees.
(2) Qualified Nonelective Contributions will be contributed and
allocated to each Eligible Participant in an amount equal to
(select one):
[ ] (a) _____% (no more than 15%) of the
Compensation of each Eligible Participant
eligible to share in the allocation.
[ ] (b) Such an amount determined by the Employer,
which is needed to meet either the ADP Test
or ACP Test.
(3) At the discretion of the Employer, as needed and taken into
account as Elective Deferrals included in the ADP Test on
behalf of (select one):
[ ] (a) all Eligible Participants.
[X} (b) only those Eligible Participants who are
Nonhighly Compensated Employees.
F. ELECTIVE DEFERRALS USED IN ACP TEST (select one):
[X] (1) At the discretion of the Employer, Elective Deferrals
may be used to satisfy the ACP Test.
[ ] (2) Elective Deferrals may not be used to satisfy the ACP
Test.
G. MAKING AND MODIFYING A 401(k) ELECTION
An Eligible Employee shall be entitled to increase, decrease or resume
his or her Elective Deferral percentage with the following frequency during the
Plan Year (select one):
[ ] (1) annually.
[ ] (2) semi-annually.
[X] (3) quarterly.
[ ] (4) monthly.
[ ] (5) other (specify): ______.
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Any such increase, decrease or resumption shall be effective as of the first
payroll period coincident with or next following the first day of each period
set forth above. A Participant may completely discontinue making Elective
Deferrals at any time effective for the payroll period after written notice is
provided to the Administrator.
ARTICLE IV.
PROFIT-SHARING CONTRIBUTIONS AND ACCOUNT ALLOCATION
A. PROFIT-SHARING CONTRIBUTIONS
If selected below, the following contributions for each Plan Year will
be made: Contributions to Employer Contributions Accounts (select one):
[X] (a) Such an amount, if any, as determined by the
Employer.
[ ] (b) _____% of each Participant's Compensation.
B. ALLOCATION OF CONTRIBUTIONS TO EMPLOYER CONTRIBUTIONS ACCOUNTS (select
one):
[ ] (1) Non-Integrated Allocation
The Employer Contributions Account of each Participant
eligible to share in the allocation for a Plan Year shall be
credited with a portion of the contribution, plus any
forfeitures if forfeitures are reallocated to Participants,
equal to the ratio that the Participant's Compensation for the
Plan Year bears to the Compensation for that Plan Year of all
Participants entitled to share in the contribution.
[X] (2) Integrated Allocation
Contributions to Employer Contributions Accounts with respect
to a Plan Year, plus any forfeitures if forfeitures are
reallocated to Participants, shall be allocated to the
Employer Contributions Account of each eligible Participant as
follows:
(a) First, in the ratio that each such eligible
Participant's Compensation for the Plan Year
bears to the Compensation for that Plan Year
of all eligible Participants but not in
excess of 3% of each Participant's
Compensation.
(b) Second, any remaining contributions and
forfeitures will be allocated in the ratio
that each eligible Participant's
Compensation for the Plan Year in excess of
the Integration Level bears to all such
Participants' excess Compensation for the
Plan Year but not in excess of 3%.
(c) Third, any remaining contributions and
forfeitures will be allocated in the ratio
that the sum of each Participant's
Compensation and
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Compensation in excess of the Integration
Level bears to the sum of all Participants'
Compensation and Compensation in excess of
the Integration Level, but not in excess of
the Maximum Profit-Sharing Disparity Rate
(defined below).
(d) Fourth, any remaining contributions or
forfeitures will be allocated in the ratio
that each Participant's Compensation for
that year bears to all Participants'
Compensation for that year.
The Maximum Profit-Sharing Disparity Rate is equal to
the lesser of:
(a) 2.7% or
(b) The applicable percentage determined in
accordance with the following table:
IF THE INTEGRATION LEVEL IS
(AS A % OF THE TAXABLE WAGE
BASE ("TWB")). THE APPLICABLE PERCENTAGE IS:
20% (or $10,000 if greater(
or less of the TWB 2.7%
More than 20% (but not less than
$10,001) but not
more than 80% of the TWB 1.3%
More than 80% but not less
than 100% of the TWB 2.4%
100% of the TWB 2.7%
C. PARTICIPANTS ELIGIBLE FOR EMPLOYER CONTRIBUTION ALLOCATION
The following Participants shall be eligible for an allocation to their
Employer Contributions Account (select all those applicable):
[ ] (1) Any Participant who was employed during the Plan
Year.
[ ] (2) In the case of a Plan using the hourly record method
for determining Vesting Service, any Participant who
was credited with a Year of Service during the Plan
Year.
[ ] (3) Any Participant who was employed on the last day of
the Plan Year.
[ ] (4) Any Participant who was on a leave of absence on the
last day of the Plan Year.
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[ ] (5) Any Participant who during the Plan Year died or
became Disabled while an Employee or terminated
employment after attaining Normal Retirement Age.
[ ] (6) Any Participant who was credited with at least 501
Hours of Service whether or not employed on the last
day of the Plan Year.
[X] (7) Any Participant who was credited with at least 1,000
Hours of Service and was employed on the last day of
the Plan Year.
ARTICLE X.
XXXXXX CONTRIBUTIONS
A. EMPLOYEE THRIFT CONTRIBUTIONS N/A
If selected below, Employee Thrift Contributions, which are required
for Matching Thrift Contributions, may be made by a Participant in an amount
equal to (select one):
[ ] (1) A dollar amount or a percentage of the Participant's
Compensation which may not be less than ____% nor may
not exceed ____% of his or her Compensation.
[ ] (2) An amount not less than ____% of and not more than
____% of each Participant's Compensation.
B. MAKING AND MODIFYING AN EMPLOYEE THRIFT CONTRIBUTION ELECTION N/A
A Participant shall be entitled to increase, decrease or resume his or
her Employee Thrift Contribution percentage with the following frequency during
the Plan Year (select one):
[ ] (1) annually
[ ] (2) semi-annually
[ ] (3) quarterly.
[ ] (4) monthly.
[ ] (5) other (specify): _____
Any such increase, decrease or resumption shall be effective as of the first
payroll period coincident with or next following the first day of each period
set forth above. A Participant may completely discontinue making Employee Thrift
Contributions at any time effective for the payroll period after written notice
is provided to the Administrator.
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X. XXXXXX MATCHING CONTRIBUTIONS N/A
If selected below, the Employer will make Matching Thrift Contributions
for each Plan year (select one):
[ ] (1) Discretionary Formula:
A discretionary Matching Thrift Contribution equal to such a
dollar amount or percentage as determined by the Employer,
which shall be allocated (select one):
[ ] (a) based on the ratio of each Participant's
Employee Thrift Contribution for the Plan
Year to the total Employee Thrift
Contributions of all Participants for the
Plan Year. If inserted, Matching Thrift
Contributions shall be subject to a maximum
amount of $_____ for each Participant or
____% of each Participant's Compensation.
[ ] (b) in an amount not to exceed ____% of each
Participant's first ___% of Compensation
contributed as Employee Thrift Contributions
for the Plan Year. If any Matching Thrift
Contribution remains, it is allocated to
each such Participant in an amount not to
exceed ____% of the next ____% of each
Participant's Compensation contributed as
Employee Thrift Contributions for the Plan
Year.
Any remaining Matching Thrift Contribution shall be allocated
to each such Participant in the ratio that such Participant's
Employee Thrift Contributions for the Plan Year bears to the
total Employee Thrift Contributions of all such Participants
for the Plan Year. If inserted, Matching Thrift Contributions
shall be subject to a maximum amount of $______ for each
Participant or ____% of each Participant's Compensation.
[ ] (2) Nondiscretionary Formula:
A nondiscretionary Matching Thrift Contribution for each Plan
Year equal to (select one):
[ ] (a) ____% of each Participant's Compensation
contributed as Employee Thrift
Contributions. If inserted, Matching Thrift
Contributions shall be subject to a maximum
amount of $______ for each Participant or
____% of each Participant's Compensation.
[ ] (b) ____% of the first _____% of the
Participant's Compensation contributed as
Employee Thrift Contributions and ____% of
the next ____% of the Participant's
Compensation contributed as Employee Thrift
Contributions. If inserted, Matching Thrift
Contributions shall be subject to a maximum
amount of $_____ for each Participant or
____% of each Participant's Compensation.
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D. QUALIFIED MATCHING CONTRIBUTIONS N/A
If selected below, the Employer may make Qualified Matching
Contributions for each Plan Year (select all those applicable):
[ ] (1) In its discretion, the Employer may make Qualified
Matching Contributions on behalf of (select one):
[ ] (a) all Participants who make Employee Thrift
Contributions.
[ ] (b) only those Participants who are Nonhighly
Compensated Employees and who make Employee
Thrift Contributions.
[ ] (2) Qualified Matching Contributions will be contributed
and allocated to each Participant in an amount equal
to:
[ ] (a) ____% of the Participant's Employee Thrift
Contributions. If inserted, Qualified
Matching Contributions shall not exceed
____% of the Participant's Compensation.
[ ] (b) such an amount, determined by the Employer,
which is needed to meet the ACP Test.
ARTICLE VI.
PARTICIPANT CONTRIBUTIONS
PARTICIPANT VOLUNTARY NONDEDUCTIBLE CONTRIBUTIONS
Participant Voluntary Nondeductible Contributions are (select one):
[ ] (a) permitted.
[X] (b) not permitted.
ARTICLE VII.
VESTING
A. EMPLOYER CONTRIBUTION ACCOUNTS
(1) A Participant shall have a vested percentage in his or her
Profit-Sharing Contributions, Matching 401(k) Contributions
and/or Matching Thrift Contributions, if applicable, in
accordance with the following schedule (Select one):
18
19
MATCHING 401(k)
AND/OR MATCHING
THRIFT PROFIT-SHARING
CONTRIBUTIONS CONTRIBUTIONS
------------- -------------
[ ] [ ] (a) 100% vesting immediately upon participation.
[ ] [ ] (b) 100% after ____ (not more than 5) years of Vesting Service.
[X] [X] (c) Graded vesting schedule:
0% 0% after 1 year of Vesting Service;
25% 25% after 2 years of Vesting Service;
MATCHING 401(k)
AND/OR MATCHING
THRIFT PROFIT-SHARING
CONTRIBUTIONS CONTRIBUTIONS
------------- -------------
50% 50% (not less than 20%) after 3 years of Vesting Service;
75% 75% (not less than 40%) after 4 years of Vesting Service;
100% 100% (not less than 60%) after 5 years of Vesting Service;
___% ___% (not less than 80%) after 6 years of Vesting Service;
100% after 7 years of Vesting Service.
(2) Top Heavy Plan
MATCHING 401(k)
AND/OR MATCHING
THRIFT PROFIT-SHARING
CONTRIBUTIONS CONTRIBUTIONS
------------- -------------
Vesting Schedule (Select one):
[ ] [ ] (a) 100% vesting immediately upon participation.
[ ] [ ] (b) 100% after ____ (not more than 3) years of Vesting Service.
[X] [X] (c) Graded vesting schedule:
0% 0% after 1 year of Vesting Service;
25% 25% (not less than 20%) after 2 years of Vesting Service;
50% 50% (not less than 40%) after 3 years of Vesting Service;
75% 75% (not less than 60%) after 4 years of Vesting Service;
100% 100% (not less than 80%) after 5 years of Vesting Service;
19
20
Top Heavy Ratio:
(a) If the adopting Employer maintains or has ever maintained a
qualified defined benefit plan, for purposes of establishing
present value to compute the top-heavy ratio, any benefit
shall be discounted only for mortality and interest based on
the following:
Interest Rate: 8%
Mortality Table: UP `84
(b) For purposes of computing the top-heavy ratio, the valuation
date shall be the last business day of each Plan Year.
B. ALLOCATION OF FORFEITURES
Forfeitures shall be (select one from each applicable column):
MATCHING 401(k)
AND/OR MATCHING
THRIFT PROFIT-SHARING
CONTRIBUTIONS CONTRIBUTIONS
[X] [ ] (1) used to reduce Employer
contributions for succeeding
Plan Year.
[ ] [X] (2) allocated in the succeeding
Plan Year in the ratio which
the Compensation of each
Participant for the Plan Year
bears to the total
Compensation of all
Participants entitled to
share in the Contributions.
If the Plan is integrated
with Social Security,
forfeitures shall be
allocated in accordance with
the formula elected by the
Employer.
C. VESTING SERVICE
For purposes of determining Years of Service for Vesting Service
[select (1) or (2) and/or (3)]:
[X] (1) All Years of Service shall be included.
[ ] (2) Years of Service before the Participant attained age
18 shall be excluded.
[ ] (3) Service with the Employer prior to the effective date
of the Plan shall be excluded.
20
21
ARTICLE VIII.
DEFERRAL OF BENEFIT DISTRIBUTIONS,
IN-SERVICE WITHDRAWALS AND LOANS
A. DEFERRAL OF BENEFIT DISTRIBUTIONS
401(k) AND/ PROFIT
OR THRIFT SHARING
[ ] [ ] If this item is checked, a Participant's
vested benefit in his or her Employer
Accounts shall be payable as soon as
practicable after the earlier of: (1)
the date the Participant terminates
Employment due to Disability or (2) the
end of the Plan Year in which a
terminated Participant attains Early
Retirement Age, if applicable, or Normal
Retirement Age.
B. IN-SERVICE DISTRIBUTIONS
[X] (1) In-service distributions may be made from any of the
Participant's vested Accounts, at any time upon or
after the occurrence of the following events (select
all applicable):
[X] (a) a Participant's attainment of age 59 1/2.
[X] (b) due to hardships as defined in Section 5.9
of the Plan.
[ ] (2) In-service distributions are not permitted.
C. LOANS ARE:
401(k) AND/ PROFIT
OR THRIFT SHARING
[X] [X] (1) permitted.
[ ] [ ] (2) not permitted.
ARTICLE IX.
GROUP TRUST
[ ] If this item is checked, the Employer elects to establish a Group Trust
consisting of such Plan assets as shall from time to time be
transferred to the Trustee pursuant to Article X of the Plan. The Trust
Fund shall be a Group Trust consisting of assets of this Plan plus
assets of the following plans of the Employer or of an Affiliate:
_______.
21
22
ARTICLE X.
MISCELLANEOUS
[INTENTIONALLY REMOVED]
22
23
The attached Supplement, dated January 29, 1998, is a part of the Plan.
EMPLOYER'S SIGNATURE
Name of Employer: Gadzooks, Inc. [X]
--------------------------------------------
By: /s/ Xxxxx X. Xxxxxxxxx [X]
------------------------------------------------------
Authorized Signature
Xxxxx X. Xxxxxxxxx [X]
------------------------------------------------------
Print Name
Sr. Vice President and Chief Financial Officer [X]
------------------------------------------------------
Title
DATED: January 29 , 19 98 [X]
------------------------------------------- ---------
TO BE COMPLETED BY XXXXXXX XXXXX:
SPONSOR ACCEPTANCE:
Subject to the terms and conditions of the Prototype Plan and this Adoption
Agreement, this Adoption Agreement is accepted by Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated as the Prototype Sponsor.
Authorized Signature:
-----------------------------------------------------------
23
24
TRUSTEE(S) SIGNATURE
This Trustee Acceptance is to be completed only if the Employer appoints one or
more Trustees and does not appoint a Xxxxxxx Xxxxx Trust Company as Trustee.
The undersigned hereby accept all of the terms, conditions, and obligations of
appointment as Trustee under the Plan. If the Employer has elected a Group Trust
in this Adoption Agreement, the undersigned Trustee(s) shall be the Trustee(s)
of the Group Trust.
AS TRUSTEE:
[X]
----------------------------------- -----------------------------------
(Signature) (print or type name)
[X]
----------------------------------- -----------------------------------
(Signature) (print or type name)
[X]
----------------------------------- -----------------------------------
(Signature) (print or type name)
[X]
----------------------------------- -----------------------------------
(Signature) (print or type name)
DATED: , 19______ [X]
-----------------------------------
24
25
THE XXXXXXX XXXXX TRUST COMPANIES AS TRUSTEE
This Trustee Acceptance and designation of Investment Committee are to be
completed only when a Xxxxxxx Xxxxx Trust Company is appointed as Trustee.
TO BE COMPLETED BY THE EMPLOYER:
DESIGNATION OF INVESTMENT COMMITTEE*
The Investment Committee for the Plan is (print or type names):
Name: Xxxxx Xxxxxxxxxxx
---------------------------------------------------------------------------
Name: Xxxxx Xxxxxxxxx
---------------------------------------------------------------------------
Name: Xxxxx Xxxxxxxxxx
---------------------------------------------------------------------------
Name:
---------------------------------------------------------------------------
TO BE COMPLETED BY XXXXXXX XXXXX TRUST COMPANY:
ACCEPTANCE BY TRUSTEE:
The undersigned hereby accept all of the terms, conditions, and obligations of
appointment as Trustee under the Plan. If the Employer has elected a Group Trust
in this Adoption Agreement, the undersigned Trustee(s) shall be the Trustee(s)
of the Group Trust.
SEAL MERRILL XXXXX TRUST COMPANY [_______________]
By:
---------------------------------
DATED , 19
--------- --
-------------------------
* The Investment Committee is the Administrative Committee. See the Supplement.
25
26
THE XXXXXXX XXXXX TRUST COMPANIES AS TRUSTEE
This Trustee Acceptance is to be completed only if, in addition to a Xxxxxxx
Xxxxx Trust Companies as Trustee, the Employer appoints an additional Trustee of
a second trust fund.
The undersigned hereby accepts all of the terms, conditions, and obligations of
appointment as Trustee under the Plan. If the Employer has elected a Group Trust
in this Adoption Agreement, the undersigned Trustee(s) shall be the Trustee(s)
of the Group Trust.
AS TRUSTEE
-------------------------------------- ---------------------------------------
(Signature) print or type name)
DATED: , 19
------------ -----
SEAL MERRILL XXXXX TRUST COMPANY [______________]
By:
DATED: , 19
------------ -----
DESIGNATION OF ADMINISTRATIVE COMMITTEE
The Administrative Committee for the Plan is (print or type names):
Name: Xxxxx Xxxxxxxxxxx
---------------------------------------------------------------------------
Name: Xxxxx Xxxxxxxxx
---------------------------------------------------------------------------
Name: Xxxxx Xxxxxxxxxx
---------------------------------------------------------------------------
Name:
---------------------------------------------------------------------------
26
27
SUPPLEMENT TO THE
GADZOOKS, INC. SAVINGS PLAN
(AS AMENDED AND RESTATED EFFECTIVE APRIL 1, 1998) (THE "PLAN")
The Employer is hereby amending and restating the Plan, effective April
1, 1998, as an individually-designed plan, rather than a prototype plan under
the sponsorship of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Inc. The documents
comprising the Plan, as so amended and restated, consist of the Xxxxxxx Xxxxx
Special Prototype Defined Contribution Plan Adoption Agreement as filled out and
executed by the Employer ("Adoption Agreement"), the Xxxxxxx Xxxxx Special
Prototype Defined Contribution Plan Basic Plan Document #03 ("Basic Plan
Document") and the provisions of this Supplement. This Supplement modifies and
overrides the Adoption Agreement and the Basic Plan Document.
1. Article IX of the Basic Plan Document is hereby modified by
the addition of the following new section:
9.4 Appointment of Administrative Committee.
Notwithstanding the foregoing provisions of this
Article IX, the Employer may, while retaining its status as
plan administrator of the Plan under ERISA, appoint a
committee to administer the Plan and carry out all of the
functions and duties of the Administrator under the Plan (the
"Administrative Committee" or the "Committee"). The Committee
shall also act as the Investment Committee under the Plan. The
rules set forth in Section 9.1.2 of the Basic Plan Document
shall govern actions by the Committee. The members of the
Committee shall be deemed fiduciaries for purposes of ERISA
and shall be indemnified as described in Section 8.4 of the
Basic Plan Document.
2. Section 10.5.1 of the Basic Plan Document is hereby modified
by the addition of the following new paragraph at the end thereof:
A Participant shall not be permitted to direct that more than
50% of any contributions to any Account in the Plan be
initially invested in Qualifying Employer Securities.
3. The Basic Plan Document and the Adoption Agreement are hereby
modified to eliminate the functions and duties of the Sponsor and the mass
submitter, to the extent such functions and duties are to be performed by the
Sponsor or mass submitter in those capacities. The Employer shall assume all
such functions and duties that properly belong to the employer-sponsor of an
individually-designed qualified profit sharing plan under the Code and ERISA.
The Plan shall be construed and interpreted in a manner consistent with its
status as an individually-designed single employer plan of the Employer.
28
GADZOOKS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------
Title: Sr. Vice President and CFO
------------------------------
January 29, 1998
--------------------
Date
2
29
----------------------------
XXXXXXX XXXXX
SPECIAL
PROTOTYPE
DEFINED CONTRIBUTION PLAN
----------------------------
Base Plan Document #03 used in conjunction with:
Non-standardized Profit Sharing Plan with CODA
Letter Serial Number: D359287b
National Office Letter Date: 6/29/93
Non-standardized Money Purchase Pension Plan
Letter Serial Number: D359288b
National Office Letter Date: 6/29/93
Non-standardized Profit Sharing Plan
Letter Serial Number: D359289b
National Office Letter Date: 6/29/93
THIS PROTOTYPE PLAN AND ADOPTION AGREEMENT ARE IMPORTANT LEGAL INSTRUMENTS WITH
LEGAL AND TAX IMPLICATIONS FOR WHICH THE SPONSOR, XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX, INCORPORATED, DOES NOT ASSUME RESPONSIBILITY. THE EMPLOYER IS URGED TO
CONSULT WITH ITS OWN ATTORNEY WITH REGARD TO THE ADOPTION OF THIS PLAN AND ITS
SUITABILITY TO ITS CIRCUMSTANCES.
30
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
------------------------ --------------------------
PLAN DESCRIPTION: PROTOTYPE NON-STANDARDIZED PROFIT SHARING PLAN WITH CODA XXXXXXXXXX, XX 00000
FFN: 50339816103-004 CASE: 9201920 EIN: 00-0000000
BPD: 03 PLAN: 004 LETTER SERIAL NO.: D359287B PERSON TO CONTACT: XX. XXXX
TELEPHONE NUMBER: (000) 000-0000
REFER REPLY TO: E:EP:Q:1
XXXXXXX XXXXX XXXXXX XXXXXX & XXXXX INC. DATE: 06/29/93
X.X. XXX 0000
XXXXXXXXX, XX 00000
Dear Applicant:
In our opinion, the amendment to the form of the plan identified above does not
in and of itself adversely effect the plan's acceptability under section 401 of
the Internal Revenue Code. This opinion relates only to the amendment to the
form of the plan. It is not an opinion as to the acceptability of any other
amendment or of the form of the plan as a whole, or as to the effect of other
Federal or local statutes.
You must furnish a copy of this letter to each employer who adopts this plan.
You are also required to send a copy of the approved form of the plan, any
approved amendments and related documents to each Key District Director of
Internal Revenue Service in whose jurisdiction there are adopting employers.
An employer who adopts the amended form of the plan after the date of the
amendment should apply for a determination letter by filing an application with
the Key District Director of Internal Revenue on Form 5307, Short Form
Application for Determination for Employee Benefit Plan.
This letter with respect to the amendment to the form of the plan does not
affect the applicability to the plan of the continued, interim and extended
reliance provisions of sections 13 and 17.03 of Rev. Proc. 89-9, 1989-1 C.B.
780. The applicability of such provisions may be determined by reference to the
initial opinion letter issued with respect to the plan.
If you, the sponsoring organization, have any questions concerning the IRS
processing of this case, please call the above telephone number. This number is
only for use of the sponsoring organization. Individual participants and/or
adopting employers with questions concerning the plan should contact the
sponsoring organization. The plan's adoption agreement must include the
sponsoring organization's address and telephone number for inquiries by adopting
employers.
If you write to the IRS regarding this plan, please provide your telephone
number and the most convenient time for us to call in case we need more
information. Whether you call or write, please refer to the Letter Serial Number
and File Folder Number shown in the heading of this letter.
You should keep this letter as a permanent record. Please notify us if you
modify or discontinue sponsorship of the plan.
Sincerely yours,
/s/ Xxxx Sevrien
Chief, Employee Plans Qualifications
Branch
31
