Exhibit 4.4(c)
XXXXXX XXXXXX 401(K) PLAN
FOR
SAVINGS AND INVESTMENTS
ADOPTION AGREEMENT
1. EMPLOYER INFORMATION
A. NAME OF EMPLOYER:
Name Xxxxxx Xxxxxx International Inc. Tax I.D.# 00-0000000
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Address 000 Xxxxx Xxxxxx Telephone (000) 000-0000
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City New York State New York Zip Code 10017
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Contact Person Xxxxxxx X. Xxxxxxxx Telephone (000) 000-0000
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B. NAME OF PLAN ADMINISTRATOR: (IF NONE HAS BEEN NAMED, THE EMPLOYER IS
DEEMED TO BE THE ADMINISTRATOR.)
Name Xxxxxxx X. Xxxxxxxx
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Address 000 Xxxxx Xxxxxx Telephone (000) 000-0000
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City New York State New York Zip Code 10017
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Contact Person Xxxxxxx X. Xxxxxxxx Telephone (000) 000-0000
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C. PLAN'S AGENT FOR SERVICE OF LEGAL PROCESS (CHECK ONE):
[ ] Plan Administrator.
[ ] Employer.
[X] Other (complete below):
Name Xxxxxxxxx X. Xxxxxxxx, Xx., Esq. c/o Warshaw Xxxxxxxx et al
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Address 000 Xxxxx Xxxxxx Telephone (000) 000-0000
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City New York State New York Zip Code 10017
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D. KEY OPERATING DATES:
Date Business Commenced / / 1903
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Incorporation or Partnership Effective Date (if applicable) 08/04/72.
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Fiscal Year End 05/31 .
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E. BUSINESS FORM OF EMPLOYER (CHECK ONE):
[X] Corporation
[ ] Professional Service Corporation
[ ] Subchapter S Corporation
[ ] Partnership
[ ] Sole Proprietorship
[_] Not-for-Profit Organization
2. PLAN INFORMATION
A. NAME OF PLAN:
Xxxxxx Xxxxxx International Inc. - 401k Plan for Savings and Investment
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(Your organization's legal name & plan name)
B. STATUS OF PLAN:
[ ] New Plan.
[X] Amendment (including a conversion from another defined
contribution plan).
C. TYPE OF PLAN (CHECK ONE):
[X] 401(k) and Profit Sharing Plan (with Employer matching and
discretionary contributions).
[ ] 401(k) and Profit Sharing Plan (with Employer discretionary
contributions).
[ ] 401(k) Plan (with Employer matching contributions only).
[ ] 401(k) Plan (no Employer discretionary or matching
contributions).
[ ] Profit Sharing Plan.
[ ] Discretionary Contribution Plan (Not-for-Profit Organizations
only).
D. PLAN YEAR (CHECK ONE):
[ ] The Employer's fiscal year.
[X] Calendar year.
[ ] Other (complete) / / .
-- --
(must be yearly periods which begin on the first day of a
calendar month).
E. EFFECTIVE DATE (CHECK ONE):
[ ] The first day of the Employer's current fiscal year / / .
-- --
[ ] Other (complete) 01 / 01 / 90 .
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F. VALUATION FREQUENCY (CHECK ONE):
[ ] Monthly
[X] Quarterly
[ ] Semiannually
[ ] Annually
G. ENTRY DATE (CHECK ONE):
[ ] First day of the month immediately following completion of
eligibility requirments (monthly entry dates).
[X] First day of the month immediately following the first or second
half of the plan year during which eligibility requirements are
first met (quarterly entry dates).
[ ] First day of the month immediately following the plan year
quarter during which eligibility requirements are first met
(semiannual entry dates).
[ ] First day of the plan year immediately following completion of
eligibility requirements (annual entry dates).
Note: The limits on the minimum age and service requirements in
Section 4.A of the Adoption Agreement are reduced by 1/2
year if the Plan uses annual entry dates.
H. LIMITATION YEAR (CHECK ONE):
[X] The 12 month period corresponding with the plan year.
[ ] The 12 month period corresponding with the calendar year.
[ ] The 12 month period corresponding with the fiscal year.
I. EMPLOYEES ELIGIBLE (CHECK ONE):
[ ] All Employees of the Employer, excluding those 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 representatives" does not
include any organization more than half of whose members are
employees who are owners, officers, or executives of the
Employer.
[X] All Employees of the Employer.
[ ] All Employees covered by a collective bargaining agreement.
[ ] Other ______________________________________________________
3. INVESTMENT INFORMATION
A. INVESTMENT DIRECTION (ELECT WHO WILL DIRECT THE INVESTMENT OF THE
FOLLOWING):
EMPLOYEE EMPLOYER
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1. Employee Money
Elective/After-Tax Contributions [X]
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2. Employer Money
Matching Contributions [X]
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Discretionary Contributions [X]
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B. NUMBER OF INVESTMENT FUNDS (CHECK ONE):
[X] Five funds.
[X] Number of funds (fewer than five).
C. PLAN FUNDS IN ADDITION TO MUTUAL FUNDS:
[ ] Other investments not permitted.
[X] Group Annuity Contracts.
[ ] Certificates of Deposit.
[ ] Bank Commingled Fund.
D. INCREMENTS OF FUNDS AND FREQUENCY OF INVESTMENT CHANGES (CHECK ONE):
[X] Increments of 10% with four opportunities, effective as of
valuation dates, to change investments during plan year.
[ ] Increments of % with opportunities, effective as
of valuation dates, to change investments during plan year
(must be less than or equal to the number of plan valuations
during the plan year).
[ ] Not applicable (participant investment direction not permitted).
4. ELIGIBILITY
A. ELIGIBILITY FOR ENROLLMENT (CHECK AS MANY AS APPLY):
[ ] Entry date after attainment of age 21 and completion of one year
of service (at least 1,000 hours of service per year).
[X] Entry date after attainment of age N/A (not to exceed 21) and
completion of 12 (0-12) months of service. (No minimum Hours of
Service are required to be completed if the initial service
period is less than one year.)
[ ] FOR PROFIT SHARING PLANS ONLY. Entry date after attainment of age
(not to exceed 21) and completion of two years of service (at
least 1,000 hours of service per year, and 100% immediate vesting
must be selected in Section 5.A).
[ ] No age and service requirement.
B. ELIGIBILITY SERVICE (CHECK ONE):
[ ] Shall be determined in accordance with Section 3.2 of the Plan by
including service with a predecessor employer (i.e., earlier
business form of current employer).
[X] Shall always be measured from the Employee's employment
commencement date or on an anniversary thereof.
5. VESTING
A. VESTING FOR MATCHING AND/OR DISCRETIONARY EMPLOYER CONTRIBUTIONS (CHECK
APPLICABLE):
[ ] 20% vesting after three years of service, increased by 20% for
each year thereafter with 100% vesting after seven years.
OR elect separately for (1) "Matching" and (2) "Discretionary"
contributions.
(1) (2)
[ ] [ ] 20% vesting for each year with 100% vesting after five
years of service.
[ ] [ ] 100% immediate vesting.
[X] [X] Other (1) 33 1/3 after two years, 66 2/3 after three
years, 100% after four years of service
Must not be less in each year than under
both Options 1 and 2 above)
(2) see above (Must not be less in each year
than under both Options 1 and 2 above)
B. VESTING COMPUTATION PERIOD (ELECT SEPARATELY FOR (1) "MATCHING" AND (2)
DISCRETIONARY"):
(1) (2)
[ ] [ ] Shall be measured during the 12 month period
beginning with the first day of the month
during which an Employee was hired.
[X] [X] Shall be measured during the 12 month period which
corresponds with the Plan Year which includes an
Employee's employment commencement date.
C. VESTING SERVICE (ELECT SEPARATELY FOR (1) "MATCHING" AND (2)
"DISCRETIONARY":
(1) (2)
[ ] [ ] Shall be measured by excluding service with
a predecessor employer, such as an earlier
business form of current Employer.
[X] [X] Shall be measured by including service with a predecessor
employer.
6. COMPENSATION
Total base compensation (as defined in Section 2.9 of the Plan) for each
Employee during the calendar year ending on or within plan year (check
one or more as appropriate):
[ ] With no exclusions.
[ ] Excluding overtime.
[X] Excluding bonuses.*
[ ] Excluding commissions.
Note: None of the exclusions elected above, if any, will apply
for purposes of the top-heavy rules in Section 12.2 or
discrimination tests in Section 6.1 of the Basic Plan
Document.
*Also excluding income from the surrender of stock options.
7. CONTRIBUTIONS (SEE FOOTNOTE BELOW BEFORE COMPLETING ITEM B.)
A. ELECTIVE EMPLOYEE CONTRIBUTIONS (CHECK ONE):
[X] Up to 20% of compensation (but not to exceed $7,979 in
1990 and adjusted thereafter by the Secretary of the
Treasury).
[ ] Up to _____% of compensation (less than 20% but
not to exceed $7,979 in 1990 and ajusted thereafter by the
Secretary of the Treasury).
[ ] Not applicable; the Plan selected does not include a 401(k)
feature (see item 2.C).
B. AFTER-TAX EMPLOYEE CONTRIBUTIONS (CHECK ONE)1:
[ ] Employees may make contributions from after-tax compensation.
[ ] Employee after-tax contributions not permitted for "Highly
Compensated" Employees, as defined in Section 2.21 of the
Basic Plan Document.
[ ] Not applicable; After-Tax Employee contributions not
permitted.
C. LUMP SUM AFTER-TAX EMPLOYEE CONTRIBUTIONS (CHECK ONE)(1):
[ ] Minimum lump sum is $100 during any three month period.
[ ] Minimum lump sum is $_____ during any ______ month period.
[X] Not applicable; After-Tax Employee contributions not
permitted.
D. MATCHING EMPLOYER CONTRIBUTIONS (CHECK ONE):
[X] To be determined annually as a number of cents per dollar of
Elective Employee contributions up to a maximum of six percent
of Employee compensation.(2)
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(1) An Employer may not elect to permit after-tax Employee Contributions if the
Employer does not elect a 401(k) feature in Item A above.
(2) It is anticipated that the employer match will be: Matching employer
contribution will be equal to $.50 for each $1.00 contribution by the employees
up to a maximum of 6% of employee compensation on the first $20,000 of
earnings; provided that consolidated Xxxxxx Xxxxxx International Inc. pretax
earnings for the fiscal year contained within the current calendar year exceed
$3.5 million. Matching contributions will be made at the end of each calendar
year.
[ ] Matching Employer contributions will be equal to $______
for each $1.00 of Elective Employee contributions up to a
maximum of _____% of Employee compensation.
[ ] Matching Employer contributions will be equal to $_____ for
each $1.00 of Elective Employee contributions up to a maximum
of ______% of Employee compensation, but not to exceed
$__________ per employee.
[ ] Matching Employer contributions will be equal to $________ for
each $1.00 of Elective Employee contributions up to a maximum
of ______% of Employee compensation; $_____________ for each
additional $1.00 of Elective Employee Employee contributions
up to a maximum of _____% of Employee compensation.
[ ] Matching Employer contributions will be equal to $________ for
each $1.00 contributed by Employees up to a maximum of _____%
of Elective Employee and/or After-Tax Employee contributions.
[ ] Not applicable; matching Employer contributions not permitted.
E. EMPLOYER DISCRETIONARY (OR PROFIT SHARING) CONTRIBUTIONS (CHECK ONE):
[ ] Permitted.
[ ] Not permitted.
F. ELIGIBILITY FOR EMPLOYER CONTRIBUTIONS (ELECT SEPARATELY FOR (1)
"MATCHING" AND (2) "DISCRETIONARY" CONTRIBUTIONS):
(1) (2)
[ ] [ ] Those Employees employed as of every pay period.
[X] [X] Those Employees employed as of the last day of the plan
year quarter.
[ ] [ ] Those Employees employed as of the last day of the plan
year.
[ ] [ ] Those Employees who have completed at least 1,000 hours in
a plan year.
[ ] [ ] Not applicable.
G. ALLOCATION OF EMPLOYER DISCRETIONARY (OR PROFIT SHARING) CONTRIBUTIONS
(CHECK ONE):
[X] Employer discretinary contributions will be allocated to
participants in the same ratio that the compensation of
each participant bears to the compensation of all
participants.
[ ] Employer discretionary contributions will be allocated as
follows:
First, an amount equal to the lesser of 5.7% of
compensation or a base contribution equal to ____% (not
less than 3%) of compensation shall be allocated to the
account of each participant.
Second, an amount no greater than the lesser of 5.7% of
compensation or the base contribution (described above) in
excess of the Social Security Taxable Wage Base will be
allocated to the account of each participant.
Third, any remaining contribution will be allocated to the
account of each participant in the ratio that the
compensation of each participant bears to the compensation
of all participants.
IMPORTANT: AN EMPLOYER WHO ELECTS TO USE THIS TYPE OF
ALLOCATION FORMULA MAY NOT ELECT ANY OF THE EXCLUSIONS
FROM COMPENSATION IN SECTIN 6 ABOVE.
The 5.7% described above shall be adjusted upward, if necessary,
to equal the Employer Social Security contributions for Old Age,
Survivors Disability, and Health Insurance.
[ ] Not applicable, Employer discretionary contributions not
permitted.
8. WITHDRAWALS
A. HARDSHIP WITHDRAWALS (CHECK ONE):
[X] Permitted from Elective Employee contributions only
($500 minimum).
[ ] Permitted from Elective Employee contributions only
(1,000 minimum).
[ ] Not applicable, Elective Employee contributions not
permitted.
B. WITHDRAWAL OF AFTER-TAX EMPLOYEE CONTRIBUTIONS (CHECK ONE):
[X] Employees may withdraw a minimum of $500 only
(including a portion of earnings per IRS
regulations).
[X] Employees may withdraw a minimum of $______ (not
less than $500 and including a portion of earnings
per IRS regulations).
[ ] Not applicable, withdrawal of After-tax
contributions not permitted.
9. RETIREMENT INFORMATION
A. NORMAL RETIREMENT DATE (CHECK ONE):
[X] First day of the month after attainment of age 65.
[ ] First day of the month after attainment of age
____. (Benefits must begin by the end of the plan
year in which a participant attains age 65 unless
the participant elects to receive a distribution at
a later date).
B. EARLY RETIREMENT DATE (CHECK ONE):
[ ] First day of the month after attainment of age 55.
[X] First day of the month after attainment of age 55
and completion of 4 years of service.
[ ] Not applicable, early retirement not permitted.
C. DISABILITY RETIREMENT (CHECK ONE):
[X] Employee must satisfy requirement for benefits
under Employer's Long-Term Disability Plan.
[ ] Employee must be eligible for Social Security
disability benefits.
[ ] Employee must be determined disabled by a physician
selected by the Plan Administrator.
10. FORFEITURES
A. FORFEITURE OF EMPLOYER CONTRIBUTIONS (CHECK ONE):
[ ] Will be added to accounts of remaining participants.
[X] Will be applied to reduce Employer contributions in
subsequent years.
[ ] Not applicable, no Employer contributions (see
Section 7.D and/or 7.F).
B. FORFEITURE OF EXCESS MATCHING CONTRIBUTIONS (CHECK ONE):
Amounts forfeited by Highly Compensated Employees under Section
6.12 of the Plan:
[X] Will be added to the accounts of non-Highly
Compensated participants according to the formula
elected in 7.F of the Adoption Agreement.
[ ] Will be allocated to the accounts of non-Highly
Compensated Participants entitled to an Employer
Matching contribution for the plan year as described
in Section 6.13 of the Plan.
[ ] Not applicable, Matching contributions not
permitted.
11. LOANS
A. PARTICIPANT LOANS (CHECK ONE):
[ ] Permitted from all accounts ($500 minimum).
[X] Permitted from all acocunts ($1,000 minimum).
[ ] Permitted, but only from Elective Employee
contributions ($______ minimum).
[ ] Not applicable, loans not permitted.
B. LOAN REINVESTMENT (CHECK ONE):
[X] Investment of principal and interest in the same
percentage of elections at time of repayment.
[ ] Investment of principal and interest in the same
percentage as elections at time of initial loan
withdrawal.
12. OTHER PLANS (COMPLETE ONLY IF APPLICABLE, - SEE SECTION 6.9 OF THE BAIS
PLAN DOCUMENT.)
A. ANNUAL LIMITS ON CONTRIBUTIONS TO MORE THAN ONE PLAN:
If the Employer maintains or ever maintained another qualified plan in
which any Participant in this Plan (or was) a Particpant or could become
a Participant, the Employer must complete this section. The Employer
must also complete this section if it maintains a welfare benefit fund,
as defined in section 419(e) of the Code, or an individual medical
account, as defined in section 415(1)(2) of the Code, under which
amounts are treated as Annual Additions with respect to any Participant
in this Plan.
1. If the Participant is covered under another qualified defined
contribution plan maintained by the Employer, other than a master
or prototype plan:
(a) The provisions of subsections 2.1 through 2.6 of Section 6
will apply as if the other plan were a master or prototype
plan.
(b) Provide the method under which the plans will limit total
Annual Additions to the maximum permissible amount, and
will property reduce any excess amounts, in a manner that
precludes Employer discretion.
B. If the Participant is or has ever been a participant in a defined
benefit plan maintained by the Employer*:
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B. TOP-HEAVY MINIMUM ALLOCATION:
The minimum allocation required under Section 12.3 of the Basic
Plan Document on behalf of each Participant who is not a Key
Employee and who is covered under another qualified plan
maintained by the Employer will be provided (check one):
[ ] under this Plan.
[ ] under the _________________________________ Plan.
(Indicate other Plan(s) under which the requirement would be
satisfied.)
C. EMPLOYER-SPONSORED DEFINED BENEFIT PLAN:
State the interest and morality rates for any defined plan
maintained by the Employer (this determines the definition of
Present Value in section 12.2 of the Basic Plan Document):
[ ] % Interest Rate
[ ] Morality Table.
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* If the Employer currently maintains another defined contribution plan,
specify from which plan the reduction will be made so that the limits
described above will not be exceeded. If the Employer maintains a defined
benefit plan the maximum contribution to this plan may not exceed 125% of
the maximum allowable limits under Code Section 415 as adjusted from time to
time (for 1990 the maximum defined benefit that may be provided is the
lesser of $102,582 or 100% of compensation). In this situation specify which
plan will be adjusted so that the overall limits described above will not be
exceeded. Normally the reduction should be made to the defined benefit plan.
13. ADDITIONAL EMPLOYER AGREEMENT
The Employer agrees that a majority of the Funds used for Plan
investments shall be Fidelity mutual funds or Bank Commingled funds
managed by Fidelity Management Trust Company.
The Employer acknowledges that having consulted an attorney with referec
to this Plan and Trust Agreement.
The Employer will file all reports and make all disclosures as to xxxxx
Plan required by Federal and State law.
If Participants may direct the investment of their accounts, the
Employer will ascertain that a Participant has receive the appropriate
prospectus(es) before instructing the Trustee to invest a contribution
for the Participant in mutual fund(s).
14. EMPLOYER'S ADOPTION
Plan Number: 0 0 1
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Employer Signature(s) to adopt the Plan:
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PLEASE PRINT NAME(S) OF THE AUTHORIZED PERSON(S) SIGNING ABOVE:
Xxxxxxx X. Xxxxxxxx Date 3/28/91
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Xxxx Xxxxxxxxxx Date 3/28/91
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The adopting Employer may not rely on any opinion letter issued by the
National Office of the Internal Revenue Servive as evidence that the
Plan is qualified under Section 401 of the Internal Revenue Code. 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 be used only in
conjunctionwith Basic Plan Document #06.
15. ACCEPTANCE OF TRUSTEE(S)
Acceptance of Trustee is agreed to in accordance with the terms and
conditions of the Plan, effective as of the date of execution by the
Employer, as set forth above.
By Trustee /s/ Xxxx Xxxxxxxxxx
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(Trustee's Tax I.D. #) (Date)
Xxxx Xxxxxxxxxx
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(Print Name)
By Trustee /s/ Xxxxxxx X. Xxxxxxxx
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(Trustee's Tax I.D. #) (Date)
Xxxxxxx X. Xxxxxxxx
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(Print Name)
By Trustee /s/ Xxxxxx Xxxxxxxx
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(Trustee's Tax I.D. #) (Date)
Xxxxxx Xxxxxxxx
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(Print Name)
ADDRESS OF TRUSTEE(S):
c/o Xxxxxx Xxxxxx International Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
