PENNSY SUPPLY, INC.
401(K) AND PROFIT SHARING PLAN
ADOPTION AGREEMENT #005
NONSTANDARDIZED 401(k) PROFIT SHARING PLAN
The undersigned, Oldcastle SW Group, Inc. ("Employer"), by executing this
Adoption Agreement, elects to establish a retirement plan and trust ("Plan")
under the xxx000x.xxx, Inc. Defined Contribution Prototype Plan and Trust (basic
plan document #01). The Employer, subject to the Employer's Adoption Agreement
elections, adopts fully the Prototype Plan and Trust provisions. This Adoption
Agreement, the basic plan document and any attached appendices or addenda,
constitute the Employer's entire plan and trust document. All section references
within this Adoption Agreement are Adoption Agreement section references unless
the Adoption Agreement or the context indicate otherwise. All article references
are basic plan document and Adoption Agreement references as applicable. Numbers
in parenthesis which follow headings are references to basic plan document
sections. The Employer makes the following elections granted under the
corresponding provisions of the basic plan document.
ARTICLE I
DEFINITIONS
1. PLAN (1.21). The name of the Plan as adopted by the Employer is Pennsy
Supply, Inc. 401(k) and Profit Sharing Plan.
2. TRUSTEE (1.33). The Trustee executing this Adoption Agreement is:
(Choose one of (a), (b) or (c))
[ ] (a) A discretionary Trustee. See Plan Section 10.03[A].
[ ] (b) A nondiscretionary Trustee. See Plan Section 10.03[B].
[X] (c) A Trustee under a separate trust agreement. See Plan Section
10.03[G].
3. EMPLOYEE (1.11). The following Employees are not eligible to participate
in the Plan: (Choose (a) or one or more of (b) through (g) as applicable)
[ ] (a) No exclusions.
[X] (b) Collective bargaining Employees.
[X] (c) Nonresident aliens.
[X] (d) Leased Employees.
[ ] (e) Reclassified Employees.
[ ] (f) Classifications: _______________.
[ ](g) Exclusions by types of contributions. The following
classification(s) of Employees are not eligible for the specified contributions:
Employee classification: __________
Contribution type: __________
4. COMPENSATION (1.07). The Employer makes the following election(s)
regarding the definition of Compensation for purposes of the contribution
allocation formula under Article III: (Choose one of (a), (b) or (c))
[X] (a) W-2 wages increased by Elective Contributions.
[ ] (b) Code ss.3401(a) federal income tax withholding wages increased by
Elective Contributions.
[ ] (c) 415 compensation.
[Note: Each of the Compensation definitions in (a), (b) and (c) includes
Elective Contributions. See Plan Section 1.07(D). To exclude Elective
Contributions, the Employer must elect (g).]
Compensation taken into account. For the Plan Year in which an Employee
first becomes a Participant, the Plan Administrator will determine the
allocation of Employer contributions (excluding deferral contributions) by
taking into account: (Choose one of (d) or (e))
[X] (d) Plan Year. The Employee's Compensation for the entire Plan Year.
[ ] (e) Compensation while a Participant. The Employee's Compensation only
for the portion of the Plan Year in which the Employee actually is a
Participant.
Modifications to Compensation definition. The Employer elects to modify the
Compensation definition elected in (a), (b) or (c) as follows. (Choose one or
more of (f) through (n) as applicable. If the Employer elects to allocate its
nonelective contribution under Plan Section 3.04 using permitted disparity, (i),
(j), (k) and (l) do not apply):
[ ] (f) Fringe benefits. The Plan excludes all reimbursements or other
expense allowances, fringe benefits (cash and non-cash), moving expenses,
deferred compensation and welfare benefits.
[ ] (g) Elective Contributions. The Plan excludes a Participant's Elective
Contributions. See Plan Section 1.07(D).
[ ] (h) Exclusion. The Plan excludes Compensation in excess of:
_______________.
[ ] (i) Bonuses. The Plan excludes bonuses.
[ ] (j) Overtime. The Plan excludes overtime.
[ ] (k) Commissions. The Plan excludes commissions.
[ ] (l) Nonelective contributions. The following modifications apply to the
definition of Compensation for nonelective contributions: _______________.
[ ] (m) Deferral contributions. The following modifications apply to the
definition of Compensation for deferral contributions: _______________.
[ ] (n) Matching contributions. The following modifications apply to the
definition of Compensation for matching contributions: _______________.
5. PLAN YEAR/LIMITATION YEAR (1.24). Plan Year and Limitation Year mean the
12-consecutive month period (except for a short Plan Year) ending every: (Choose
(a) or (b). Choose (c) if applicable)
[X] (a) December 31.
[ ] (b) Other: _______________.
[ ] (c) Short Plan Year: commencing on: __________ and ending on
__________.
6. EFFECTIVE DATE (1.10). The Employer's adoption of the Plan is a: (Choose
one of (a) or (b))
[ ] (a) New Plan. The Effective Date of the Plan is: _______________.
[X] (b) Restated Plan. The restated Effective Date is: January 1, 1999.
This Plan is an amendment and restatement of an existing retirement plan(s)
originally established effective as of: January 1, 2002.
7. HOUR OF SERVICE/ELAPSED TIME METHOD (1.15). The crediting method for
Hours of Service is: (Choose one or more of (a) through (d) as applicable)
[X] (a) Actual Method. See Plan Section 1.15(B).
[ ] (b) Equivalency Method. The Equivalency Method is: _______________.
[Note: Insert "daily," "weekly," "semi-monthly payroll periods" or "monthly."]
See Plan Section 1.15(C).
[ ] (c) Combination Method. In lieu of the Equivalency Method specified in
(b), the Actual Method applies for purposes of: _______________.
[ ] (d) Elapsed Time Method. In lieu of crediting Hours of Service, the
Elapsed Time Method applies for purposes of crediting Service for: (Choose one
or more of (1), (2) or (3) as applicable)
[ ] (1) Eligibility under Article II.
[ ] (2) Vesting under Article V.
[ ] (3) Contribution allocations under Article III.
8. PREDECESSOR EMPLOYER SERVICE (1.30). In addition to the predecessor
service the Plan must credit by reason of Section 1.30 of the Plan, the Plan
credits as Service under this Plan service with the following predecessor
employer(s): Xxxxxxxx Industries Inc., and Oldcastle Materials.
[Note: If the Plan does not credit any additional predecessor service under
this Section 1.30, insert "N/A" in the blank line. The Employer also may elect
to credit predecessor service with specified Participating Employers only. See
the Participation Agreement.] Service with the designated predecessor
employer(s) applies: (Choose one or more of (a) through (d) as applicable)
[X] (a) Eligibility. For eligibility under Article II. See Plan Section
1.30 for time of Plan entry.
[X] (b) Vesting. For vesting under Article V.
[X] (c) Contribution allocation. For contribution allocations under Article
III.
[ ] (d) Exceptions. Except for the following Service: _______________.
ARTICLE II
ELIGIBILITY REQUIREMENTS
9. ELIGIBILITY (2.01).
Eligibility conditions. To become a Participant in the Plan, an Employee
must satisfy the following eligibility conditions: (Choose one or more of (a)
through (e) as applicable) [Note: If the Employer does not elect (c), the
Employer's elections under (a) and (b) apply to all types of contributions. The
Employer as to deferral contributions may not elect (b)(2) and may not elect
more than 12 months in (b)(4) and (b)(5).]
[ ] (a) Age. Attainment of age (not to exceed age 21).
[X] (b) Service. Service requirement. (Choose one of (1) through (5))
[X] (1) One Year of Service.
[ ] (2) Two Years of Service, without an intervening Break in Service. See
Plan Section 2.03(A).
[ ] (3) One Hour of Service (immediate completion of Service requirement).
The Employee satisfies the Service requirement on his/her Employment
Commencement Date.
[ ] (4) months (not exceeding 24).
[ ] (5) An Employee must complete _____ Hours of Service within the _____
time period following the Employee's Employment Commencement Date. If an
Employee does not complete the stated Hours of Service during the specified time
period (if any), the Employee is subject to the One Year of Service requirement.
[Note: The number of hours may not exceed 1,000 and the time period may not
exceed 24 months. If the Plan does not require the Employee to satisfy the Hours
of Service requirement within a specified time period, insert "N/A" in the
second blank line.]
[X] (c) Alternative 401(k)/401(m) eligibility conditions. In lieu of the
elections in (a) and (b), the Employer elects the following eligibility
conditions for the following types of contributions: (Choose (1) or (2) or both
if the Employer wishes to impose less restrictive eligibility conditions for
deferral/Employee contributions or for matching contributions)
(1) [X] Deferral/Employee contributions: (Choose one of a. through d.
Choose e. if applicable)
a. [ ] One Year of Service
b. [X] One Hour of Service (immediate completion of Service requirement)
c. [ ] months (not exceeding 12)
d. [ ] An Employee must complete _____ Hours of Service within the _____
time period following an Employee's Employment Commencement Date. If an Employee
does not complete the stated Hours of Service during the specified time period
(if any), the Employee is subject to the One Year of Service requirement. [Note:
The number of hours may not exceed 1,000 and the time period may not exceed 12
months. If the Plan does not require the Employee to satisfy the Hours of
Service requirement within a specified time period, insert "N/A" in the second
blank line.]
e. [ ] Age _____ (not exceeding age 21)
(2) [X] Matching contributions: (Choose one of f. through i. Choose j. if
applicable)
f. [ ] One Year of Service
g. [X] One Hour of Service (immediate completion of Service requirement)
h. [ ] months (not exceeding 24)
i. [ ] An Employee must complete _____ Hours of Service within the _____
time period following an Employee's Employment Commencement Date. If an Employee
does not complete the stated Hours of Service during the specified time period
(if any), the Employee is subject to the One Year of Service requirement. [Note:
The number of hours may not exceed 1,000 and the time period may not exceed 24
months. If the Plan does not require the Employee to satisfy the Hours of
Service requirement within a specified time period, insert "N/A" in the second
blank line.]
j. [ ] Age _____ (not exceeding age 21)
[ ] (d) Service requirements: __________. [Note: Any Service requirement
the Employer elects in (d) must be available under other Adoption Agreement
elections or a combination thereof.]
[ ] (e) Dual eligibility. The eligibility conditions of this Section 2.01
apply solely to an Employee employed by the Employer after__________. If the
Employee was employed by the Employer by the specified date, the Employee will
become a Participant on the latest of: (i) the Effective Date; (ii) the restated
Effective Date; (iii) the Employee's Employment Commencement Date; or (iv) on
the date the Employee attains age __________ (not exceeding age 21).
Plan Entry Date. "Plan Entry Date" means the Effective Date and: (Choose
one of (f) through (j). Choose (k) if applicable) [Note: If the Employer does
not elect (k), the elections under (f) through (j) apply to all types of
contributions. The Employer must elect at least one Entry Date per Plan Year.]
[ ] (f) Semi-annual Entry Dates. The first day of the Plan Year and the
first day of the seventh month of the Plan Year.
[ ] (g) The first day of the Plan Year.
[ ] (h) Employment Commencement Date (immediate eligibility).
[ ] (i) The first day of each: __________ (e.g., "Plan Year quarter").
[X] (j) The following Plan Entry Dates: Each day of the Year.
[X] (k) Alternative 401(k)/401(m) Plan Entry Date(s). For the alternative
401(k)/401(m) eligibility conditions under (c), Plan Entry Date means: (Choose
(1) or (2) or both as applicable)
(1) [X] Deferral/Employee (2) [X] Matching contributions
contributions (Choose one (Choose one of e. through h.)
of a. through d.)
a. [ ] Semi-annual Entry Dates e. [ ] Semi-annual Entry Dates
b. [ ] The first day of the
Plan Year f. [ ] The first day of the
c. [X] Employment Commencement Plan Year
Date (immediate eligibility) g. [X] Employment
Commencement Date
(immediate eligibility)
d.[ ] The first day of each: h. [ ] The first day of
each:
--------------------- --------------------
Time of participation. An Employee will become a Participant, unless
excluded under Section 1.11, on the Plan Entry Date (if employed on that date):
(Choose one of (l), (m) or (n). Choose (o) if applicable): [Note: If the
Employer does not elect (o), the election under (l), (m) or (n) applies to all
types of contributions.]
[X] (l) Immediately following or coincident with
[ ] (m) Immediately preceding or coincident with
[ ] (n) Nearest
[ ] (o) Alternative 401(k)/401(m) election(s): (Choose (1) or (2) or both
as applicable)
(1) [ ] Deferral contributions (2) [ ] Matching contributions (Choose
b., c. or d.)
a. [ ] Immediately following or b. [ ] Immediately following
coincident with or coincident with
c. [ ] Immediately preceding or
coincident with
d. [ ] Nearest
the date the Employee completes the eligibility conditions described in
this Section 2.01. [Note: Unless otherwise excluded under Section 1.11, an
Employee must become a Participant by the earlier of: (1) the first day of the
Plan Year beginning after the date the Employee completes the age and service
requirements of Code ss.410(a); or (2) 6 months after the date the Employee
completes those requirements.]
10. YEAR OF SERVICE - ELIGIBILITY (2.02). (Choose (a) and (b) as
applicable): [Note: If the Employer does not elect a Year of Service condition
or elects the Elapsed Time Method, the Employer should not complete (a) or (b).]
[X] (a) Year of Service. An Employee must complete 1000 Hour(s) of Service
during an eligibility computation period to receive credit for a Year of Service
under Article II: [Note: The number may not exceed 1,000. If left blank, the
requirement is 1,000.]
[X] (b) Eligibility computation period. After the initial eligibility
computation period described in Plan Section 2.02, the Plan measures the
eligibility computation period as: (Choose one of (1) or (2))
[ ] (1) The Plan Year beginning with the Plan Year which includes the first
anniversary of the Employee's Employment Commencement Date.
[X] (2) The 12-consecutive month period beginning with each anniversary of
the Employee's Employment Commencement Date.
11. PARTICIPATION - BREAK IN SERVICE (2.03). The one year hold-out rule
described in Plan Section 2.03(B): (Choose one of (a), (b) or (c))
[X] (a) Not applicable. Does not apply to the Plan.
[ ] (b) Applicable. Applies to the Plan and to all Participants.
[ ] (c) Limited application. Applies to the Plan, but only to a Participant
who has incurred a Separation from Service.
12. ELECTION NOT TO PARTICIPATE (2.06). The Plan: (Choose one of (a) or
(b))
[ ] (a) Election not permitted. Does not permit an eligible Employee to
elect not to participate.
[X] (b) Irrevocable election. Permits an Employee to elect not to
participate if the Employee makes a one-time irrevocable election prior to the
Employee's Plan Entry Date.
ARTICLE III
EMPLOYER CONTRIBUTIONS, DEFERRAL CONTRIBUTIONS AND FORFEITURES
13. AMOUNT AND TYPE (3.01). The amount and type(s) of the Employer's
contribution to the Trust for a Plan Year or other specified period will equal:
(Choose one or more of (a) through (f) as applicable)
[X] (a) Deferral contributions (401(k) arrangement). The dollar or
percentage amount by which each Participant has elected to reduce his/her
Compensation, as provided in the Participant's salary reduction agreement and in
accordance with Section 3.02.
[X] (b) Matching contributions (other than safe harbor matching
contributions under Section 3.01(d)). The matching contributions made in
accordance with Section 3.03.
[X] (c) Nonelective contributions (profit sharing). The following
nonelective contribution (Choose (1) or (2) or both as applicable): [Note: The
Employer may designate as a qualified nonelective contribution, all or any
portion of its nonelective contribution. See Plan Section 3.04(F).]
[X] (1) Discretionary. An amount the Employer in its sole discretion may
determine.
[ ] (2) Fixed. The following amount: __________
[ ] (d) 401(k) safe harbor contributions. The following 401(k) safe harbor
contributions described in Plan Section 14.02(D): (Choose one of (1), (2) or
(3). Choose (4), if applicable)
[ ] (1) Safe harbor nonelective contribution. The safe harbor nonelective
contribution equals _____% of a Participant's Compensation [Note: the amount in
the blank must be at least 3%.].
[ ] (2) Basic safe harbor matching contribution. A matching contribution
equal to 100% of each Participant's deferral contributions not exceeding 3% of
the Participant's Compensation, plus 50% of each Participant's deferral
contributions in excess of 3% but not in excess of 5% of the Participant's
Compensation. For this purpose, "Compensation" means Compensation for:
__________. [Note: The Employer must complete the blank line with the applicable
time period for computing the Employer's basic safe harbor match, such as "each
payroll period," "each month," "each Plan Year quarter" or "the Plan Year".]
[ ] (3) Enhanced safe harbor matching contribution. (Choose one of a. or
b.).
[ ] a. Uniform percentage. An amount equal to _____% of each Participant's
deferral contributions not exceeding _____% of the Participant's Compensation.
For this purpose, "Compensation" means Compensation for: __________. [See the
Note in (d)(2).]
[ ] b. Tiered formula. An amount equal to the specified matching percentage
for the corresponding level of each Participant's deferral contribution
percentage. For this purpose, "Compensation" means Compensation for: __________.
[See the Note in (d)(2).]
Deferral Contribution Percentage Matching Percentage
-------------------- --------------------
[Note: The matching percentage may not increase as the deferral
contribution percentage increases and the enhanced matching formula otherwise
must satisfy the requirements of Code ss.ss.401(k)(12)(B)(ii) and (iii). If the
Employer wishes to avoid ACP testing on its enhanced safe harbor matching
contribution, the Employer also must limit deferral contributions taken into
account (the "Deferral Contribution Percentage") for the matching contribution
to 6% of Plan Year Compensation.]
[ ] (4) Another plan. The Employer will satisfy the 401(k) safe harbor
contribution in the following plan: __________.
[ ] (e) Xxxxx-Xxxxx contributions. The amount(s) specified for the
applicable Plan Year or other applicable period in the Employer's Xxxxx-Xxxxx
contract(s). The Employer will make a contribution only to Participants covered
by the contract and only with respect to Compensation paid under the contract.
If the Participant accrues an allocation of nonelective contributions (including
forfeitures) under the Plan in addition to the Xxxxx-Xxxxx contribution, the
Plan Administrator will: (Choose one of (1) or (2))
[ ] (1) Not reduce the Participant's nonelective contribution allocation by
the Xxxxx-Xxxxx contribution.
[ ] (2) Reduce the Participant's nonelective contribution allocation by the
Xxxxx-Xxxxx contribution.
[ ] (f) Frozen Plan. This Plan is a frozen Plan effective: __________. For
any period following the specified date, the Employer will not contribute to the
Plan, a Participant may not contribute and an otherwise eligible Employee will
not become a Participant in the Plan.
14. DEFERRAL CONTRIBUTIONS (3.02). The following limitations and terms
apply to an Employee's deferral contributions: (If the Employer elects Section
3.01(a), the Employer must elect (a). Choose (b) or (c) as applicable)
[X] (a) Limitation on amount. An Employee's deferral contributions are
subject to the following limitation(s) in addition to those imposed by the Code:
(Choose (1), (2) or (3) as applicable)
[ ] (1) Maximum deferral amount: __________.
[ ] (2) Minimum deferral amount: __________.
[X] (3) No limitations.
For the Plan Year in which an Employee first becomes a Participant, the
Plan Administrator will apply any percentage limitation the Employer elects in
(1) or (2) to the Employee's Compensation: (Choose one of (4) or (5) unless the
Employer elects (3))
[ ] (4) Only for the portion of the Plan Year in which the Employee
actually is a Participant.
[ ] (5) For the entire Plan Year.
[ ] (b) Negative deferral election. The Employer will withhold __________%
from the Participant's Compensation unless the Participant elects a lesser
percentage (including zero) under his/her salary reduction agreement. See Plan
Section 14.02(C). The negative election will apply to: (Choose one of (1) or
(2))
[ ] (1) All Participants who have not deferred at least the automatic
deferral amount as of: ----------.
[ ] (2) Each Employee whose Plan Entry Date is on or following the negative
election effective date.
[ ] (c) Cash or deferred contributions. For each Plan Year for which the
Employer makes a designated cash or deferred contribution under Plan Section
14.02(B), a Participant may elect to receive directly in cash not more than the
following portion (or, if less, the 402(g) limitation) of his/her proportionate
share of that cash or deferred contribution: (Choose one of (1) or (2))
[ ] (1) All or any portion. [ ] (2) __________%.
Modification/revocation of salary reduction agreement. A Participant
prospectively may modify or revoke a salary reduction agreement, or may file a
new salary reduction agreement following a prior revocation, at least once per
Plan Year or during any election period specified by the basic plan document or
required by the Internal Revenue Service. The Plan Administrator also may
provide for more frequent elections in the Plan's salary reduction agreement
form.
15. MATCHING CONTRIBUTIONS (INCLUDING ADDITIONAL SAFE HARBOR MATCH UNDER
PLAN SECTION 14.02(D)(3)) (3.03). The Employer matching contribution is: (If the
Employer elects Section 3.01(b), the Employer must elect one or more of (a), (b)
or (c) as applicable. Choose (d) if applicable)
[ ] (a) Fixed formula. An amount equal to __________% of each Participant's
deferral contributions.
[X] (b) Discretionary formula. An amount (or additional amount) equal to a
matching percentage the Employer from time to time may deem advisable of the
Participant's deferral contributions. The Employer, in its sole discretion, may
designate as a qualified matching contribution, all or any portion of its
discretionary matching contribution. The portion of the Employer's discretionary
matching contribution for a Plan Year not designated as a qualified matching
contribution is a regular matching contribution.
[ ] (c) Multiple level formula. An amount equal to the following
percentages for each level of the Participant's deferral contributions. [Note:
The matching percentage only will apply to deferral contributions in excess of
the previous level and not in excess of the stated deferral contribution
percentage.]
Deferral Contribution Percentage Matching Percentage
-------------------- ---------------------
[ ] (d) Related Employers. If two or more Related Employers contribute to
this Plan, the Plan Administrator will allocate matching contributions and
matching contribution forfeitures only to the Participants directly employed by
the contributing Employer. The matching contribution formula for the other
Related Employer(s) is: __________. [Note: If the Employer does not elect (d),
the Plan Administrator will allocate all matching contributions and matching
forfeitures without regard to which contributing Related Employer directly
employs the Participant.]
Time period for matching contributions. The Employer will determine its
matching contribution based on deferral contributions made during each: (Choose
one of (e) through (h))
[ ] (e) Plan Year.
[ ] (f) Plan Year quarter.
[X] (g) Payroll period.
[ ] (h) Alternative time period: __________. [Note: Any alternative time
period the Employer elects in (h) must be the same for all Participants and may
not exceed the Plan Year.]
Deferral contributions taken into account. In determining a Participant's
deferral contributions taken into account for the above-specified time period
under the matching contribution formula, the following limitations apply:
(Choose one of (i), (j) or (k))
[ ] (i) All deferral contributions. The Plan Administrator will take into
account all deferral contributions.
[X] (j) Specific limitation. The Plan Administrator will disregard deferral
contributions exceeding 10% of the Participant's Compensation. [Note: To avoid
the ACP test in a safe harbor 401(k) plan, the Employer must limit deferrals and
Employee contributions which are subject to match to 6% of Plan Year
Compensation.]
[ ] (k) Discretionary. The Plan Administrator will take into account the
deferral contributions as a percentage of the Participant's Compensation as the
Employer determines.
Other matching contribution requirements. The matching contribution formula
is subject to the following additional requirements: (Choose (l) or (m) or both
if applicable)
[ ] (l) Matching contribution limits. A Participant's matching
contributions may not exceed: (Choose one of (1) or (2))
[ ] (1) __________. [Note: The Employer may elect (1) to place an overall
dollar or percentage limit on matching contributions.]
[ ] (2) 4% of a Participant's Compensation for the Plan Year under the
discretionary matching contribution formula. [Note: The Employer must elect (2)
if it elects a discretionary matching formula with the safe harbor 401(k)
contribution formula and wishes to avoid the ACP test.]
[ ] (m) Qualified matching contributions. The Plan Administrator will
allocate, as qualified matching contributions, the matching contributions
specified in Adoption Agreement Section: __________. The Plan Administrator will
allocate all other matching contributions as regular matching contributions.
[Note: If the Employer elects two matching formulas, the Employer may use (m) to
designate one of the formulas as a qualified matching contribution.]
16. CONTRIBUTION ALLOCATION (3.04).
Employer nonelective contributions (3.04(A)). The Plan Administrator will
allocate the Employer's nonelective contribution under the following
contribution allocation formula: (Choose one of (a), (b) or (c). Choose (d) if
applicable)
[ ] (a) Nonintegrated (pro rata) allocation formula.
[ ] (b) Permitted disparity. The following permitted disparity formula and
definitions apply to the Plan: (Choose one of (1) or (2). Also choose (3))
[ ] (1) Two-tiered allocation formula.
[ ] (2) Four-tiered allocation formula.
[ ] (3) For purposes of Section 3.04(b), "Excess Compensation" means
Compensation in excess of: (Choose one of a. or b.)
[ ] a. _____% of the taxable wage base in effect on the first day of the
Plan Year, rounded to the next highest $_____ (not exceeding the taxable wage
base).
[ ] b. The following integration level: __________. [Note: The integration
level cannot exceed the taxable wage base in effect for the Plan Year for which
this Adoption Agreement first is effective.]
[X] (c) Uniform points allocation formula. Under the uniform points
allocation formula, a Participant receives: (Choose (1) or both (1) and (2) as
applicable)
[X] (1) 1 point(s) for each Period of Service. Period of Service means: 5
Years of Service.
[X] (2) One point for each $5000.00 increment of Plan Year Compensation.
[ ] (d) Incorporation of contribution formula. The Plan Administrator will
allocate the Employer's nonelective contribution under Section(s) 3.01(c)(2),
(d)(1) or (e) in accordance with the contribution formula adopted by the
Employer under that Section.
Qualified nonelective contributions. (3.04(F)). The Plan Administrator will
allocate the Employer's qualified nonelective contributions to: (Choose one of
(e) or (f))
[X] (e) Nonhighly compensated Employees only.
[ ] (f) All Participants.
Related Employers. (Choose (g) if applicable)
[ ] (g) Allocate only to directly employed Participants. If two or more
Related Employers adopt this Plan, the Plan Administrator will allocate all
nonelective contributions and forfeitures attributable to nonelective
contributions only to the Participants directly employed by the contributing
Employer. If a Participant receives Compensation from more than one contributing
Employer, the Plan Administrator will determine the allocations under this
Section 3.04 by prorating the Participant's Compensation between or among the
participating Related Employers. [Note: If the Employer does not elect 3.04(g),
the Plan Administrator will allocate all nonelective contributions and
forfeitures without regard to which contributing Related Employer directly
employs the Participant. The Employer may not elect 3.04(g) under a safe harbor
401(k) Plan.]
17. FORFEITURE ALLOCATION (3.05). The Plan Administrator will allocate a
Participant forfeiture: (Choose one or more of (a), (b) or (c) as applicable)
[Note: Even if the Employer elects immediate vesting, the Employer should
complete Section 3.05. See Plan Section 9.11.]
[X] (a) Matching contribution forfeitures. To the extent attributable to
matching contributions: (Choose one of (1) through (4))
[ ] (1) As a discretionary matching contribution.
[X] (2) To reduce matching contributions.
[ ] (3) As a discretionary nonelective contribution.
[ ] (4) To reduce nonelective contributions.
[X] (b) Nonelective contribution forfeitures. To the extent attributable to
Employer nonelective contributions: (Choose one of (1) through (4))
[ ] (1) As a discretionary nonelective contribution.
[X] (2) To reduce nonelective contributions.
[ ] (3) As a discretionary matching contribution.
[ ] (4) To reduce matching contributions.
[X] (c) Reduce administrative expenses. First to reduce the Plan's ordinary
and necessary administrative expenses for the Plan Year and then allocate any
remaining forfeitures in the manner described in Sections 3.05(a) or (b) as
applicable.
Timing of forfeiture allocation. The Plan Administrator will allocate
forfeitures under Section 3.05 in the Plan Year: (Choose one of (d) or (e))
[X] (d) In which the forfeiture occurs.
[ ] (e) Immediately following the Plan Year in which the forfeiture occurs.
18. ALLOCATION CONDITIONS (3.06).
Allocation conditions. The Plan does not apply any allocation conditions to
deferral contributions, 401(k) safe harbor contributions (under Section 3.01(d))
or to Xxxxx-Xxxxx contributions (except as the Xxxxx-Xxxxx contract provides).
To receive an allocation of matching contributions, nonelective contributions,
qualified nonelective contributions or Participant forfeitures, a Participant
must satisfy the following allocation condition(s): (Choose one or more of (a)
through (i) as applicable)
[X] (a) Hours of Service condition. The Participant must complete at least
the specified number of Hours of Service (not exceeding 1,000) during the Plan
Year: 1000.
[X] (b) Employment condition. The Participant must be employed by the
Employer on the last day of the Plan Year (designate time period).
[ ] (c) No allocation conditions.
[ ] (d) Elapsed Time Method. The Participant must complete at least the
specified number (not exceeding 182) of consecutive calendar days of employment
with the Employer during the Plan Year: __________.
[ ] (e) Termination of Service/501 Hours of Service coverage rule. The
Participant either must be employed by the Employer on the last day of the Plan
Year or must complete at least 501 Hours of Service during the Plan Year. If the
Plan uses the Elapsed Time Method of crediting Service, the Participant must
complete at least 91 consecutive calendar days of employment with the Employer
during the Plan Year.
[ ] (f) Special allocation conditions for matching contributions. The
Participant must complete at least __________ Hours of Service during the
__________ (designate time period) for the matching contributions made for that
time period.
[ ] (g) Death, Disability or Normal Retirement Age. Any condition specified
in Section 3.06 __________ applies if the Participant incurs a Separation from
Service during the Plan Year on account of: __________ (e.g., death, Disability
or Normal Retirement Age).
[X] (h) Suspension of allocation conditions for coverage. The suspension of
allocation conditions of Plan Section 3.06(E) applies to the Plan.
[X] (i) Limited allocation conditions. The Plan does not impose an
allocation condition for the following types of contributions: matching
contributions. [Note: Any election to limit the Plan's allocation conditions to
certain contributions must be the same for all Participants, be definitely
determinable and not discriminate in favor of Highly Compensated Employees.]
ARTICLE IV
PARTICIPANT CONTRIBUTIONS
19. EMPLOYEE (AFTER TAX) CONTRIBUTIONS (4.02). The following elections
apply to Employee contributions: (Choose one of (a) or (b). Choose (c) if
applicable)
[X] (a) Not permitted. The Plan does not permit Employee contributions.
[ ] (b) Permitted. The Plan permits Employee contributions subject to the
following limitations: ----------. [Note: Any designated limitation(s) must be
the same for all Participants, be definitely determinable and not discriminate
in favor of Highly Compensated Employees.]
[ ] (c) Matching contribution. For each Plan Year, the Employer's matching
contribution made with respect to Employee contributions is: __________.
ARTICLE V
VESTING REQUIREMENTS
20. NORMAL/EARLY RETIREMENT AGE (5.01). A Participant attains Normal
Retirement Age (or Early Retirement Age, if applicable) under the Plan on the
following date: (Choose one of (a) or (b). Choose (c) if applicable)
[ ] (a) Specific age. The date the Participant attains age . [Note: The age
may not exceed age 65.]
[X] (b) Age/participation. The later of the date the Participant attains 65
years of age or the 5th anniversary of the first day of the Plan Year in which
the Participant commenced participation in the Plan. [Note: The age may not
exceed age 65 and the anniversary may not exceed the 5th.]
[ ] (c) Early Retirement Age. Early Retirement Age is the later of: (i) the
date a Participant attains age __________ or (ii) the date a Participant reaches
his/her __________ anniversary of the first day of the Plan Year in which the
Participant commenced participation in the Plan.
21. PARTICIPANT'S DEATH OR DISABILITY (5.02). The 100% vesting rule under
Plan Section 5.02 does not apply to: (Choose (a) or (b) or both as applicable)
[ ] (a) Death.
[ ] (b) Disability.
22. VESTING SCHEDULE (5.03). A Participant has a 100% Vested interest at
all times in his/her deferral contributions, qualified nonelective
contributions, qualified matching contributions, 401(k) safe harbor
contributions and Xxxxx-Xxxxx contributions (unless otherwise indicated in (f)).
The following vesting schedule applies to Employer regular matching
contributions and to Employer nonelective contributions: (Choose (a) or choose
one or more of (b) through (f) as applicable)
[ ] (a) Immediate vesting. 100% Vested at all times. [Note: The Employer
must elect (a) if the Service condition under Section 2.01 exceeds One Year of
Service or more than twelve months.]
[X] (b) Top-heavy vesting schedules. [Note: The Employer must choose one of
(b)(1), (2) or (3) if it does not elect (a).]
[ ] (1) 6-year graded as [ ] (3) Modified top-heavy
specified in the Plan schedule.
[X] (2) 3-year cliff as specified in the Plan.
Vested Percentage
Years of Service
Less than 1 -------%
1 -------%
2 -------%
3 -------%
4 -------%
5 -------%
6 or more 100%
--------
[X] (c) Non-top-heavy vesting schedules. [Note: The Employer may elect one
of (c)(1), (2) or (3) in addition to (b).]
[ ] (1) 7-year graded as [X] (3)Modified top-heavy schedule.
specified in the Plan
[ ] (2) 5-year cliff as specified in the Plan.
Vested Percentage
Years of Service
Less than 1 0%
1 0%
2 0%
3 100%
4 100%
5 100%
6 100%
If the Employer does not elect (c), the vesting schedule elected in (b) applies
to all Plan Years. [Note: The modified top-heavy schedule of (b)(3) must satisfy
Code ss.416. If the Employer elects (c)(3), the modified non-top-heavy schedule
must satisfy Code ss.411(a)(2).]
[ ] (d) Separate vesting election for regular matching contributions. In
lieu of the election under (a), (b) or (c), the following vesting schedule
applies to a Participant's regular matching contributions: (Choose one of (1) or
(2))
[ ] (1) 100% Vested at all times.
[ ] (2) Regular matching vesting schedule: __________. [Note: The vesting
schedule completed under (d)(2) must comply with Codess.411(a)(4).]
[ ] (e) Application of top-heavy schedule. The non-top-heavy schedule
elected under (c) applies in all Plan Years in which the Plan is not a top-heavy
plan. [Note: If the Employer does not elect (e), the top-heavy vesting schedule
will apply for the first Plan Year in which the Plan is top-heavy and then in
all subsequent Plan Years.]
[ ] (f) Special vesting provisions: __________. [Note: Any special vesting
provision must satisfy Code ss.411(a). Any special vesting provision must be
definitely determinable, not discriminate in favor of Highly Compensated
Employees and not violate Code ss.401(a)(4).]
23. YEAR OF SERVICE -- VESTING (5.06). (Choose (a) and (b)): [Note: If the
Employer elects the Elapsed Time Method or elects immediate vesting, the
Employer should not complete (a) or (b).]
[X] (a) Year of Service. An Employee must complete at least 1000 Hours of
Service during a vesting computation period to receive credit for a Year of
Service under Article V. [Note: The number may not exceed 1,000. If left blank,
the requirement is 1,000.]
[X] (b) Vesting computation period. The Plan measures a Year of Service on
the basis of the following 12-consecutive month period: (Choose one of (1) or
(2))
[X] (1) Plan Year.
[ ] (2) Employment year (anniversary of Employment Commencement Date).
24. EXCLUDED YEARS OF SERVICE -- VESTING (5.08). The Plan excludes the
following Years of Service for purposes of vesting: (Choose (a) or choose one or
more of (b) through (f) as applicable)
[X] (a) None. None other than as specified in Plan Section 5.08(a).
[ ] (b) Age 18. Any Year of Service before the Year of Service during which
the Participant attained the age of 18.
[ ] (c) Prior to Plan establishment. Any Year of Service during the period
the Employer did not maintain this Plan or a predecessor plan.
[ ] (d) Parity Break in Service. Any Year of Service excluded under the
rule of parity. See Plan Section 5.10.
[ ] (e) Prior Plan terms. Any Year of Service disregarded under the terms
of the Plan as in effect prior to this restated Plan.
[ ] (f) Additional exclusions. Any Year of Service before: __________.
[Note: Any exclusion specified under (f) must comply with Code ss.411(a)(4). Any
exclusion must be definitely determinable, not discriminate in favor of Highly
Compensated Employees and not violate Code ss.401(a)(4). If the Employer elects
immediate vesting, the Employer should not complete Section 5.08.]
ARTICLE VI
DISTRIBUTION OF ACCOUNT BALANCE
25. TIME OF PAYMENT OF ACCOUNT BALANCE (6.01). The following time of
distribution elections apply to the Plan:
Separation from Service/Vested Account Balance not exceeding $5,000.
Subject to the limitations of Plan Section 6.01(A)(1), the Trustee will
distribute in a lump sum (regardless of the Employer's election under Section
6.04) a separated Participant's Vested Account Balance not exceeding $5,000:
(Choose one of (a) through (d))
[ ] (a) Immediate. As soon as administratively practicable following the
Participant's Separation from Service.
[ ] (b) Designated Plan Year. As soon as administratively practicable in
the __________ Plan Year beginning after the Participant's Separation from
Service.
[ ] (c) Designated Plan Year quarter. As soon as administratively
practicable in the __________ Plan Year quarter beginning after the
Participant's Separation from Service.
[X] (d) Designated distribution. As soon as administratively practicable in
the: time after a 1 Year Break in Service if entire vested portion of the
terminated participant's combined Account is to be paid to the participant. If
the participant elects to rollover his Vested portion of the Terminated
Participant's Combined Account into another Employer's Qualified Plan, his
vested account balance will become distributable to him as soon as
administratively feasible following the Participant's Separation from Service.
[Note: The designated distribution time must be the same for all Participants,
be definitely determinable, not discriminate in favor of Highly Compensated
Employees and not violate Codess.401(a)(4).]
Separation from Service/Vested Account Balance exceeding $5,000. A
separated Participant whose Vested Account Balance exceeds $5,000 may elect to
commence distribution of his/her Vested Account Balance no earlier than: (Choose
one of (e) through (i). Choose (j) if applicable)
[ ] (e) Immediate. As soon as administratively practicable following the
Participant's Separation from Service.
[ ] (f) Designated Plan Year. As soon as administratively practicable in
the __________ Plan Year beginning after the Participant's Separation from
Service.
[ ] (g) Designated Plan Year quarter. As soon as administratively
practicable in the __________ Plan Year quarter following the Plan Year quarter
in which the Participant elects to receive a distribution.
[ ] (h) Normal Retirement Age. As soon as administratively practicable
after the close of the Plan Year in which the Participant attains Normal
Retirement Age and within the time required under Plan Section 6.01(A)(2).
[X] (i) Designated distribution. As soon as administratively practicable in
the: time after a 1 Year to be paid to the participant. If the participant
elects to rollover his Vested portion of the Terminated Participant's Combined
Account into another Employer's Qualified Plan, his vested account balance will
become distributable to him as soon as administratively feasible following the
Participant's Separation from Service. [Note: The designated distribution time
must be the same for all Participants, be definitely determinable, not
discriminate in favor of Highly Compensated Employees and not violate
Codess.401(a)(4).]
[ ] (j) Limitation on Participant's right to delay distribution. A
Participant may not elect to delay commencement of distribution of his/her
Vested Account Balance beyond the later of attainment of age 62 or Normal
Retirement Age. [Note: If the Employer does not elect (j), the Plan permits a
Participant who has Separated from Service to delay distribution until his/her
required beginning date. See Plan Section 6.01(A)(2).]
Participant elections prior to Separation from Service. A Participant,
prior to Separation from Service may elect any of the following distribution
options in accordance with Plan Section 6.01(C). (Choose (k) or choose one or
more of (l) through (o) as applicable). [Note: If the Employer elects any
in-service distributions option, a Participant may elect to receive one
in-service distribution per Plan Year unless the Plan's in-service distribution
form provides for more frequent in-service distributions.]
[ ] (k) None. A Participant does not have any distribution option prior to
Separation from Service, except as may be provided under Plan Section 6.01(C).
[X] (l) Deferral contributions. Distribution of all or any portion (as
permitted by the Plan) of a Participant's Account Balance attributable to
deferral contributions if: (Choose one or more of (1), (2) or (3) as applicable)
[X] (1) Hardship (safe harbor hardship rule). The Participant has incurred
a hardship in accordance with Plan Sections 6.09 and 14.11(A).
[X] (2) Age. The Participant has attained age 59 1/2 (Must be at least age
59 1/2).
[ ] (3) Disability. The Participant has incurred a Disability.
[X] (m) Qualified nonelective contributions/qualified matching
contributions/safe harbor contributions. Distribution of all or any portion of a
Participant's Account Balance attributable to qualified nonelective
contributions, to qualified matching contributions, or to 401(k) safe harbor
contributions if: (Choose (1) or (2) or both as applicable)
[X] (1) Age. The Participant has attained age 59 1/2 (Must be at least age
59 1/2).
[ ] (2) Disability. The Participant has incurred a Disability.
[X] (n) Nonelective contributions/regular matching contributions.
Distribution of all or any portion of a Participant's Vested Account Balance
attributable to nonelective contributions or to regular matching contributions
if: (Choose one or more of (1) through (5) as applicable)
[X] (1) Age/Service conditions. (Choose one or more of a. through d. as
applicable):
[X] a. Age. The Participant has attained age 59 1/2.
[ ] b. Two-year allocations. The Plan Administrator has allocated the
contributions to be distributed for a period of not less than __________ Plan
Years before the distribution date. [Note: The minimum number of years is 2.]
[ ] c. Five years of participation. The Participant has participated in the
Plan for at least __________ Plan Years. [Note: The minimum number of years is
5.]
[ ] d. Vested. The Participant is __________% Vested in his/her Account
Balance. See Plan Section 5.03(A). [Note: If an Employer makes more than one
election under Section 6.01(n)(1), a Participant must satisfy all conditions
before the Participant is eligible for the distribution.]
[ ] (2) Hardship. The Participant has incurred a hardship in accordance
with Plan Section 6.09.
[X] (3) Hardship (safe harbor hardship rule). The Participant has incurred
a hardship in accordance with Plan Sections 6.09 and 14.11(A).
[ ] (4) Disability. The Participant has incurred a Disability.
[ ] (5) Designated condition. The Participant has satisfied the following
condition(s): ----------. [Note: Any designated condition(s) must be the same
for all Participants, be definitely determinable and not discriminate in favor
of Highly Compensated Employees.]
[X] (o) Participant contributions. Distribution of all or any portion of a
Participant's Account Balance attributable to the following Participant
contributions described in Plan Section 4.01: (Choose one of (1), (2) or (3))
[ ] (1) All Participant contributions.
[ ] (2) Employee contributions only.
[X] (3) Rollover contributions only.
Participant loan default/offset. See Section 6.08 of the Plan.
26. DISTRIBUTION METHOD (6.03). A separated Participant whose Vested
Account Balance exceeds $5,000 may elect distribution under one of the following
method(s) of distribution described in Plan Section 6.03: (Choose one or more of
(a) through (d) as applicable)
[X] (a) Lump sum.
[X] (b) Installments.
[ ] (c) Installments for required minimum distributions only.
[ ] (d) Annuity distribution option(s): __________. [Note: Any optional
method of distribution may not be subject to Employer, Plan Administrator or
Trustee discretion.]
27. JOINT AND SURVIVOR ANNUITY REQUIREMENTS (6.04). The joint and survivor
annuity distribution requirements of Plan Section 6.04: (Choose one of (a) or
(b))
[X] (a) Profit sharing plan exception. Do not apply to a Participant,
unless the Participant is a Participant described in Section 6.04(H) of the
Plan.
[ ] (b) Applicable. Apply to all Participants.
ARTICLE IX
PLAN ADMINISTRATOR -- DUTIES WITH RESPECT TO PARTICIPANTS' ACCOUNTS
28. ALLOCATION OF NET INCOME, GAIN OR LOSS (9.08). For each type of
contribution provided under the Plan, the Plan allocates net income, gain or
loss using the following method: (Choose one or more of (a) through (e) as
applicable)
[X] (a) Deferral contributions/Employee contributions. (Choose one or more
of (1) through (5) as applicable)
[X] (1) Daily valuation method. Allocate on each business day of the Plan
Year during which Plan assets for which there is an established market are
valued and the Trustee is conducting business.
[ ] (2) Balance forward method. Allocate using the balance forward method.
[ ] (3) Weighted average method. Allocate using the weighted average
method, based on the following weighting period: __________. See Plan Section
14.12.
[ ] (4) Balance forward method with adjustment. Allocate pursuant to the
balance forward method, except treat as part of the relevant Account at the
beginning of the valuation period __________% of the contributions made during
the following valuation period: ----------.
[ ] (5) Individual account method. Allocate using the individual account
method. See Plan Section 9.08.
[X] (b) Matching contributions. (Choose one or more of (1) through (5) as
applicable)
[X] (1) Daily valuation method. Allocate on each business day of the Plan
Year during which Plan assets for which there is an established market are
valued and the Trustee is conducting business.
[ ] (2) Balance forward method. Allocate using the balance forward method.
[ ] (3) Weighted average method. Allocate using the weighted average
method, based on the following weighting period: __________. See Plan Section
14.12.
[ ] (4) Balance forward method with adjustment. Allocate pursuant to the
balance forward method, except treat as part of the relevant Account at the
beginning of the valuation period __________% of the contributions made during
the following valuation period: ----------.
[ ] (5) Individual account method. Allocate using the individual account
method. See Plan Section 9.08.
[X] (c) Employer nonelective contributions. (Choose one or more of (1)
through (5) as applicable)
[X] (1) Daily valuation method. Allocate on each business day of the Plan
Year during which Plan assets for which there is an established market are
valued and the Trustee is conducting business.
[ ] (2) Balance forward method. Allocate using the balance forward method.
[ ] (3) Weighted average method. Allocate using the weighted average
method, based on the following weighting period: __________. See Plan Section
14.12.
[ ] (4) Balance forward method with adjustment. Allocate pursuant to the
balance forward method, except treat as part of the relevant Account at the
beginning of the valuation period __________% of the contributions made during
the following valuation period: ----------.
[ ] (5) Individual account method. Allocate using the individual account
method. See Plan Section 9.08.
[ ] (d) Specified method. Allocate pursuant to the following method:
__________. [Note: The specified method must be a definite predetermined formula
which is not based on Compensation, which satisfies the nondiscrimination
requirements of Treas. Reg. ss.1.401(a)(4) and which is applied uniformly to all
Participants.]
[X] (e) Interest rate factor. In accordance with Plan Section 9.08(E), the
Plan includes interest at the following rate on distributions made more than 90
days after the most recent valuation date: 0.
ARTICLE X
TRUSTEE AND CUSTODIAN, POWERS AND DUTIES
29. INVESTMENT POWERS (10.03). The following additional investment options
or limitations apply under Plan Section 10.03: N/A. [Note: Enter "N/A" if not
applicable.]
30. VALUATION OF TRUST (10.15). In addition to the last day of the Plan
Year, the Trustee must value the Trust Fund on the following valuation date(s):
(Choose one of (a) through (d))
[X] (a) Daily valuation dates. Each business day of the Plan Year on which
Plan assets for which there is an established market are valued and the Trustee
is conducting business.
[ ] (b) Last day of a specified period. The last day of each __________ of
the Plan Year.
[ ] (c) Specified dates: __________.
[ ] (d) No additional valuation dates.
Execution Page
The Trustee (and Custodian, if applicable), by executing this Adoption
Agreement, accepts its position and agrees to all of the obligations,
responsibilities and duties imposed upon the Trustee (or Custodian) under the
Prototype Plan and Trust. The Employer hereby agrees to the provisions of this
Plan and Trust, and in witness of its agreement, the Employer by its duly
authorized officers, has executed this Adoption Agreement, and the Trustee (and
Custodian, if applicable) has signified its acceptance, on:
-----------------------------------------.
Name of Employer: Pennsy Supply, Inc.
Employer's EIN: 00-0000000
Signed:
------------------------------
[Name/Title]
Name(s) of Trustee:
First Trust Corporation
Trust EIN (Optional):
Signed:
-------------------------------
[Name/Title]
Signed:
-------------------------------
[Name/Title]
Signed:
-------------------------------
[Name/Title]
Signed:
-------------------------------
[Name/Title]
Signed:
-------------------------------
[Name/Title]
Name of Custodian (Optional):
Signed:
-------------------------------
[Name/Title]
31. Plan Number. The 3-digit plan number the Employer assigns to this Plan
for ERISA reporting purposes (Form 5500 Series) is: 003.
Use of Adoption Agreement. Failure to complete properly the elections in
this Adoption Agreement may result in disqualification of the Employer's Plan.
The Employer only may use this Adoption Agreement in conjunction with the basic
plan document referenced by its document number on Adoption Agreement page one.
Execution for Page Substitution Amendment Only. If this paragraph is
completed, this Execution Page documents an amendment to Adoption Agreement
Section(s) __________ effective ______________________________, by substitute
Adoption Agreement page number(s) __________.
Prototype Plan Sponsor. The Prototype Plan Sponsor identified on the first
page of the basic plan document will notify all adopting employers of any
amendment of this Prototype Plan or of any abandonment or discontinuance by the
Prototype Plan Sponsor of its maintenance of this Prototype Plan. For inquiries
regarding the adoption of the Prototype Plan, the Prototype Plan Sponsor's
intended meaning of any Plan provisions or the effect of the opinion letter
issued to the Prototype Plan Sponsor, please contact the Prototype Plan Sponsor
at the following address and telephone number: 000 Xxxxxxxxx Xxxx, #000,
Xxxxxxxxx, XX 00000, 000-000-0000.
Reliance on Sponsor Opinion Letter. The Prototype Plan Sponsor has obtained
from the IRS an opinion letter specifying the form of this Adoption Agreement
and the basic plan document satisfy, as of the date of the opinion letter, Code
ss.401. An adopting Employer may rely on the Prototype Sponsor's IRS opinion
letter only to the extent provided in Announcement 2001-77, 2001-30 I.R.B. The
Employer may not rely on the opinion letter in certain other circumstances or
with respect to certain qualification requirements, which are specified in the
opinion letter and in Announcement 2001-77. In order to have reliance in such
circumstances or with respect to such qualification requirements, the Employer
must apply for a determination letter to Employee Plans Determinations of the
Internal Revenue Service.
PARTICIPATION AGREEMENT
[X] Check here if not applicable and do not complete this page.
The undersigned Employer, by executing this Participation Agreement, elects
to become a Participating Employer in the Plan identified in Section 1.21 of the
accompanying Adoption Agreement, as if the Participating Employer were a
signatory to that Adoption Agreement. The Participating Employer accepts, and
agrees to be bound by, all of the elections granted under the provisions of the
Prototype Plan as made by the Signatory Employer to the Execution Page of the
Adoption Agreement, except as otherwise provided in this Participation
Agreement.
32. EFFECTIVE DATE (1.10). The Effective Date of the Plan for the
Participating Employer is: .
33. NEW PLAN/RESTATEMENT. The Participating Employer's adoption of this
Plan constitutes: (Choose one of (a) or (b))
[ ] (a) The adoption of a new plan by the Participating Employer.
[ ] (b) The adoption of an amendment and restatement of a plan
currently maintained by the Participating Employer, identified
as: and having an original effective date of: .
34. PREDECESSOR EMPLOYER SERVICE (1.30). In addition to the predecessor
service credited by reason of Section 1.30 of the Plan, the Plan credits as
Service under this Plan, service with this Participating Employer. (Choose one
or more of (a) through (d) as applicable): [Note: If the Plan does not credit
any additional predecessor service under Section 1.30 for this Participating
Employer, do not complete this election.]
[ ] (a) Eligibility. For eligibility under Article II. See Plan Section
1.30 for time of Plan entry.
[ ] (b) Vesting. For vesting under Article V.
[ ] (c) Contribution allocation. For contribution allocations under Article
III.
[ ] (d) Exceptions. Except for the following Service: __________.
Name of Plan: Name of Participating Employer:
Signed:
------------------------------------
[Name and Title]
Date:
Participating Employer's EIN:
Acceptance by the Signatory Employer to the Execution Page of the Adoption
Agreement and by the Trustee.
Name of Signatory Employer: Name(s) of Trustee:
Signed: Signed:
-------------------------- ----------------------------
[Name/Title] [Name/Title]
Date Date
[Note: Each Participating Employer must execute a separate Participation
Agreement. If the Plan does not have a Participating Employer, the Signatory
Employer may delete this page from the Adoption Agreement.]
APPENDIX A
TESTING ELECTIONS/EFFECTIVE DATE ADDENDUM
35. The following testing elections and special effective dates apply:
(Choose one or more of (a) through (n) as applicable)
[ ] (a) Highly Compensated Employee (1.14). For Plan Years beginning after
, the Employer makes the following election(s) regarding the definition of
Highly Compensated Employee:
(1) [ ] Top paid group election. (2) [ ] Calendar year data election
(fiscal year plan).
[ ] (b) 401(k) current year testing. The Employer will apply the current
year testing method in applying the ADP and ACP tests effective for Plan Years
beginning after: __________. [Note: For Plan Years beginning on or after the
Employer's execution of its "GUST" restatement, the Employer must use the same
testing method within the same Plan Year for both the ADP and ACP tests.]
[ ] (c) Compensation. The Compensation definition under Section 1.07 will
apply for Plan Years beginning after: .
[ ] (d) Election not to participate. The election not to participate under
Section 2.06 is effective: ----------.
[ ] (e) 401(k) safe harbor. The 401(k) safe harbor provisions under Section
3.01(d) are effective: ----------.
[ ] (f) Negative election. The negative election provision under Section
3.02(b) is effective: ----------.
[ ] (g) Contribution/allocation formula. The specified contribution(s) and
allocation method(s) under Sections 3.01 and 3.04 are effective: __________.
[ ] (h) Allocation conditions. The allocation conditions of Section 3.06
are effective: __________.
[ ] (i) Benefit payment elections. The distribution elections of Section(s)
__________ are effective: ----------.
[ ] (j) Election to continue pre-SBJPA required beginning date. A
Participant may not elect to defer commencement of the distribution of his/her
Vested Account Balance beyond the April 1 following the calendar year in which
the Participant attains age 70 1/2. See Plan Section 6.02(A).
[ ] (k) Elimination of age 70 1/2 in-service distributions. The Plan
eliminates a Participant's (other than a more than 5% owner) right to receive
in-service distributions on April 1 of the calendar year following the year in
which the Participant attains age 70 1/2 for Plan Years beginning after: .
[ ] (l) Allocation of earnings. The earnings allocation provisions under
Section 9.08 are effective: . --------------------
[ ] (m) Elimination of optional forms of benefit. The Employer elects
prospectively to eliminate the following optional forms of benefit: (Choose one
or more of (1), (2) and (3) as applicable)
[ ] (1) QJSA and QPSA benefits as described in Plan Sections 6.04, 6.05 and
6.06 effective: ----------.
[ ] (2) Installment distributions as described in Section 6.03 effective:
__________.
[ ] (3) Other optional forms of benefit (Any election
to eliminate must be consistent with Treas. Reg.
ss.1.411(d)-4): __________.
[ ] (n) Special effective date(s): .
For periods prior to the above-specified special effective date(s), the
Plan terms in effect prior to its restatement under this Adoption Agreement will
control for purposes of the designated provisions. A special effective date may
not result in the delay of a Plan provision beyond the permissible effective
date under any applicable law.
APPENDIX B
GUST Remedial Amendment Period Elections
36. The following GUST restatement elections apply: (Choose one or more of
(a) through (j) as applicable)
[X] (a) Highly Compensated Employee elections. The Employer makes the
following remedial amendment period elections with respect to the Highly
Compensated Employee definition:
(1) 1997: [ ] Top paid group election. [ ] Calendar year election.
[ ] Calendar year data election.
(2) 1998: [ ] Top paid group election. [ ] Calendar year data election.
(3) 1999: [X] Top paid group election. [ ] Calendar year data election.
(4) 2000: [X] Top paid group election. [ ] Calendar year data election.
(5) 2001: [X] Top paid group election. [ ] Calendar year data election.
(6) 2002: [X] Top paid group election. [ ] Calendar year data election.
[X] (b) 401(k) testing methods. The Employer makes the following remedial
amendment period elections with respect to the ADP test and the ACP test: [Note:
The Employer may use a different testing method for the ADP and ACP tests
through the end of the Plan Year in which the Employer executes its GUST
restated Plan.]
ADP test ACP test
(1) 1997: [ ] prior year [ ] current year 1997: [ ] prior year [ ] current year
(2) 1998: [ ] prior year [ ] current year 1998: [ ] prior year [ ] current year
(3) 1999: [ ] prior year [X] current year 1999: [ ] prior year [X] current year
(4) 2000: [ ] prior year [X] current year 2000: [ ] prior year [X] current year
(5) 2001: [ ] prior year [X] current year 2001: [ ] prior year [X] current year
(6) 2002: [ ] prior year [X] current year 2002: [ ] prior year [X] current year
[ ] (c) Delayed application of SBJPA required beginning date. The Employer
elects to delay the effective date for the required beginning date provision of
Plan Section 6.02 until Plan Years beginning after: __________.
[ ] (d) Model Amendment for required minimum distributions. The Employer
adopts the IRS Model Amendment in Plan Section 6.02(E) effective . [Note: The
date must not be earlier than January 1, 2001.]
Defined Benefit Limitation
[X] (e) Code ss.415(e) repeal. The repeal of the Code ss.415(e) limitation
is effective for Limitation Years beginning after December 31, 1999. [Note: If
the Employer does not make an election under (e), the repeal is effective for
Limitation Years beginning after December 31, 1999.]
Code ss.415(e) limitation. To the extent necessary to satisfy the
limitation under Plan Section 3.17 for Limitation Years beginning prior to the
repeal of Code ss.415(e), the Employer will reduce: (Choose one of (f) or (g))
[ ] (f) The Participant's projected annual benefit under the defined
benefit plan.
[X] (g) The Employer's contribution or allocation on behalf of the
Participant to the defined contribution plan and then, if necessary, the
Participant's projected annual benefit under the defined benefit plan.
Coordination with top-heavy minimum allocation. The Plan Administrator will
apply the top-heavy minimum allocation provisions of Article XII with the
following modifications: (Choose (h) or choose (i) or (j) or both as applicable)
[X] (h) No modifications.
[ ] (i) For Non-Key Employees participating only in this Plan, the
top-heavy minimum allocation is the minimum allocation determined by
substituting __________% (not less than 4%) for "3%," except: (Choose one of (1)
or (2))
[ ] (1) No exceptions.
[ ] (2) Plan Years in which the top-heavy ratio exceeds 90%.
[ ] (j) For Non-Key Employees also participating in the defined benefit
plan, the top-heavy minimum is: (Choose one of (1) or (2))
[ ] (1) 5% of Compensation irrespective of the contribution rate of any Key
Employee: (Choose one of a. or b.)
[ ] a. No exceptions.
[ ] b. Substituting "7 1/2%" for "5%" if the top-heavy ratio does not
exceed 90%.
[ ] (2) 0%. [Note: The defined benefit plan must satisfy the top-heavy
minimum benefit requirement for these Non-Key Employees.]
Actuarial assumptions for top-heavy calculation. To determine the top-heavy
ratio, the Plan Administrator will use the following interest rate and mortality
assumptions to value accrued benefits under a defined benefit plan: N/A.
CHECKLIST OF EMPLOYER INFORMATION
AND EMPLOYER ADMINISTRATIVE ELECTIONS
Commencing with the 2002 Plan Year
The Prototype Plan permits the Employer to make certain administrative
elections not reflected in the Adoption Agreement. This form lists those
administrative elections and provides a means of recording the Employer's
elections. This checklist is not part of the Plan document.
37. Employer Information.
Pennsy Supply, Inc.
[Employer Name]
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
[City, State and Zip Code]
000-000-0000
[Telephone Number]
38. Form of Business.
(a) [X] Corporation (b) [ ] S Corporation
(c) [ ] Limited Liability Company (d) [ ] Sole Proprietorship
(e) [ ] Partnership (f) [ ] __________
39. Section 1.07(F) -- Nondiscriminatory definition of Compensation. When
testing nondiscrimination under the Plan, the Plan permits the Employer to make
elections regarding the definition of Compensation. [Note: This election solely
is for purposes of nondiscrimination testing. The election does not affect the
Employer's elections under Section 1.07 which apply for purposes of allocating
Employer contributions and Participant forfeitures.]
(a) [X] The Plan will "gross up" Compensation for Elective Contributions.
(b) [ ] The Plan will exclude Elective Contributions.
40. Section 4.04 -- Rollover contributions.
(a) [X] The Plan accepts rollover contributions.
(b) [ ] The Plan does not accept rollover contributions.
41. Section 8.06 -- Participant direction of investment/404(c). The Plan
authorizes Participant direction of investment with Trustee consent. If the
Trustee permits Participant direction of investment, the Employer and the
Trustee should adopt a policy which establishes the applicable conditions and
limitations, including whether they intend the Plan to comply with ERISA
ss.404(c).
(a) [X] The Plan permits Participant direction of investment and is a
404(c) plan.
(b) [ ] The Plan does not permit Participant direction of investment or is
a non-404(c) plan.
42. Section 9.04[A] -- Participant loans. The Plan authorizes the Plan
Administrator to adopt a written loan policy to permit Participant loans.
(a) [X] The Plan permits Participant loans subject to the following
conditions:
(1) [X] Minimum loan amount: $500.
(2) [X] Maximum number of outstanding loans: 1.
(3) [X] Reasons for which a Participant may request a loan:
a. [X] Any purpose.
b. [ ] Hardship events.
c. [ ] Other: __________.
(4) [X] Suspension of loan repayments:
a. [ ] Not permitted.
b. [X] Permitted for non-military leave of absence.
c. [ ] Permitted for military service leave of absence.
(5) [X] The Participant must be a party in interest.
(b) [ ] The Plan does not permit Participant loans.
43. Section 11.01 -- Life insurance. The Plan with Employer approval
authorizes the Trustee to acquire life insurance.
(a) [ ] The Plan will invest in life insurance contracts.
(b) [X] The Plan will not invest in life insurance contracts.
44. Surety bond company: __________. Surety bond amount: $__________
EGTRRA
AMENDMENT TO THE
PENNSY SUPPLY, INC.
401(K) AND PROFIT SHARING PLAN
ARTICLE I
PREAMBLE
1.1 Adoption and effective date of amendment. This amendment of the plan is
adopted to reflect certain provisions of the Economic Growth and Tax Relief
Reconciliation Act of 2001 ("EGTRRA"). This amendment is intended as good faith
compliance with the requirements of EGTRRA and is to be construed in accordance
with EGTRRA and guidance issued thereunder. Except as otherwise provided, this
amendment shall be effective as of the first day of the first plan year
beginning after December 31, 2001.
1.2 Supersession of inconsistent provisions. This amendment shall supersede
the provisions of the plan to the extent those provisions are inconsistent with
the provisions of this amendment.
ARTICLE II
ADOPTION AGREEMENT ELECTIONS
The questions in this Article II only need to be completed in order to
override the default provisions set forth below. If all of the default
provisions will apply, then these questions should be skipped.
Unless the employer elects otherwise in this Article II, the following
defaults apply: 1) The vesting schedule for matching contributions will be a 6
year graded schedule (if the plan currently has a graded schedule that does not
satisfy EGTRRA) or a 3 year cliff schedule (if the plan currently has a cliff
schedule that does not satisfy EGTRRA), and such schedule will apply to all
matching contributions (even those made prior to 2002). 2) Rollovers are
automatically excluded in determining whether the $5,000 threshold has been
exceeded for automatic cash-outs (if the plan is not subject to the qualified
joint and survivor annuity rules and provides for automatic cash-outs). This is
applied to all participants regardless of when the distributable event occurred.
3) The suspension period after a hardship distribution is made will be 6 months
and this will only apply to hardship distributions made after 2001. 4) Catch-up
contributions will be allowed. 5) For target benefit plans, the increased
compensation limit of $200,000 will be applied retroactively (i.e., to years
prior to 2002).
2.1 Vesting Schedule for Matching Contributions
If there are matching contributions subject to a vesting schedule that does
not satisfy EGTRRA, then unless otherwise elected below, for participants who
complete an hour of service in a plan year beginning after December 31, 2001,
the following vesting schedule will apply to all matching contributions subject
to a vesting schedule:
If the plan has a graded vesting schedule (i.e., the vesting schedule
includes a vested percentage that is more than 0% and less than 100%) the
following will apply:
Years of vesting service Nonforfeitable percentage
2 20%
3 40%
4 60%
5 80%
6 100%
If the plan does not have a graded vesting schedule, then matching
contributions will be nonforfeitable upon the completion of 3 years of vesting
service.
In lieu of the above vesting schedule, the employer elects the following
schedule:
a. [X] 3 year cliff (a participant's accrued benefit derived from employer
matching contributions shall be nonforfeitable upon the participant's completion
of three years of vesting service).
b. [ ] 6 year graded schedule (20% after 2 years of vesting service and an
additional 20% for each year thereafter).
c. [ ] Other (must be at least as liberal as a. or the b. above):
Years of vesting service Nonforfeitable percentage
---------- ----------%
---------- ----------%
---------- ----------%
---------- ----------%
---------- ----------%
The vesting schedule set forth herein shall only apply to participants who
complete an hour of service in a plan year beginning after December 31, 2001,
and, unless the option below is elected, shall apply to all matching
contributions subject to a vesting schedule.
d. [ ] The vesting schedule will only apply to matching contributions made
in plan years beginning after December 31, 2001 (the prior schedule will apply
to matching contributions made in prior plan years).
2.2 Exclusion of Rollovers in Application of Involuntary Cash-out
Provisions (for profit sharing and 401(k) plans only). If the plan is not
subject to the qualified joint and survivor annuity rules and includes
involuntary cash-out provisions, then unless one of the options below is
elected, effective for distributions made after December 31, 2001, rollover
contributions will be excluded in determining the value of the participant's
nonforfeitable account balance for purposes of the plan's involuntary cash-out
rules.
a. [ ] Rollover contributions will not be excluded.
b. [ ] Rollover contributions will be excluded only with respect to
distributions made after __________. (Enter a date no earlier than December 31,
2001.)
c. [ ] Rollover contributions will only be excluded with respect to
participants who separated from service after __________. (Enter a date. The
date may be earlier than December 31, 2001.)
2.3 Suspension period of hardship distributions. If the plan provides for
hardship distributions upon satisfaction of the safe harbor (deemed) standards
as set forth in Treas. Reg. Section 1.401(k)-1(d)(2)(iv), then, unless the
option below is elected, the suspension period following a hardship distribution
shall only apply to hardship distributions made after December 31, 2001.
[X] With regard to hardship distributions made during 2001, a participant
shall be prohibited from making elective deferrals and employee contributions
under this and all other plans until the later of January 1, 2002, or 6 months
after receipt of the distribution.
2.4 Catch-up contributions (for 401(k) profit sharing plans only): The plan
permits catch-up contributions (Article VI) unless the option below is elected.
[ ] The plan does not permit catch-up contributions to be made.
2.5 For target benefit plans only: The increased compensation limit
($200,000 limit) shall apply to years prior to 2002 unless the option below is
elected.
[ ] The increased compensation limit will not apply to years prior to 2002.
ARTICLE III
VESTING OF MATCHING CONTRIBUTIONS
3.1 Applicability. This Article shall apply to participants who complete an
Hour of Service after December 31, 2001, with respect to accrued benefits
derived from employer matching contributions made in plan years beginning after
December 31, 2001. Unless otherwise elected by the employer in Section 2.1
above, this Article shall also apply to all such participants with respect to
accrued benefits derived from employer matching contributions made in plan years
beginning prior to January 1, 2002.
3.2 Vesting schedule. A participant's accrued benefit derived from employer
matching contributions shall vest as provided in Section 2.1 of this amendment.
ARTICLE IV
INVOLUNTARY CASH-OUTS
4.1 Applicability and effective date. If the plan provides for involuntary
cash-outs of amounts less than $5,000, then unless otherwise elected in Section
2.2 of this amendment, this Article shall apply for distributions made after
December 31, 2001, and shall apply to all participants. However, regardless of
the preceding, this Article shall not apply if the plan is subject to the
qualified joint and survivor annuity requirements of Sections 401(a)(11) and 417
of the Code.
4.2 Rollovers disregarded in determining value of account balance for
involuntary distributions. For purposes of the Sections of the plan that provide
for the involuntary distribution of vested accrued benefits of $5,000 or less,
the value of a participant's nonforfeitable account balance shall be determined
without regard to that portion of the account balance that is attributable to
rollover contributions (and earnings allocable thereto) within the meaning of
Sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii), and 457(e)(16) of the
Code. If the value of the participant's nonforfeitable account balance as so
determined is $5,000 or less, then the plan shall immediately distribute the
participant's entire nonforfeitable account balance.
ARTICLE V
HARDSHIP DISTRIBUTIONS
5.1 Applicability and effective date. If the plan provides for hardship
distributions upon satisfaction of the safe harbor (deemed) standards as set
forth in Treas. Reg. Section 1.401(k)-1(d)(2)(iv), then this Article shall apply
for calendar years beginning after 2001.
5.2 Suspension period following hardship distribution. A participant who
receives a distribution of elective deferrals after December 31, 2001, on
account of hardship shall be prohibited from making elective deferrals and
employee contributions under this and all other plans of the employer for 6
months after receipt of the distribution. Furthermore, if elected by the
employer in Section 2.3 of this amendment, a participant who receives a
distribution of elective deferrals in calendar year 2001 on account of hardship
shall be prohibited from making elective deferrals and employee contributions
under this and all other plans until the later of January 1, 2002, or 6 months
after receipt of the distribution.
ARTICLE VI
CATCH-UP CONTRIBUTIONS
Catch-up Contributions. Unless otherwise elected in Section 2.4 of this
amendment, all employees who are eligible to make elective deferrals under this
plan and who have attained age 50 before the close of the plan year shall be
eligible to make catch-up contributions in accordance with, and subject to the
limitations of, Section 414(v) of the Code. Such catch-up contributions shall
not be taken into account for purposes of the provisions of the plan
implementing the required limitations of Sections 402(g) and 415 of the Code.
The plan shall not be treated as failing to satisfy the provisions of the plan
implementing the requirements of Section 401(k)(3), 401(k)(11), 401(k)(12),
410(b), or 416 of the Code, as applicable, by reason of the making of such
catch-up contributions.
ARTICLE VII
INCREASE IN COMPENSATION LIMIT
Increase in Compensation Limit. The annual compensation of each participant
taken into account in determining allocations for any plan year beginning after
December 31, 2001, shall not exceed $200,000, as adjusted for cost-of-living
increases in accordance with Section 401(a)(17)(B) of the Code. Annual
compensation means compensation during the plan year or such other consecutive
12-month period over which compensation is otherwise determined under the plan
(the determination period). If this is a target benefit plan, then except as
otherwise elected in Section 2.5 of this amendment, for purposes of determining
benefit accruals in a plan year beginning after December 31, 2001, compensation
for any prior determination period shall be limited to $200,000. The
cost-of-living adjustment in effect for a calendar year applies to annual
compensation for the determination period that begins with or within such
calendar year.
ARTICLE VIII
PLAN LOANS
Plan loans for owner-employees or shareholder-employees. If the plan
permits loans to be made to participants, then effective for plan loans made
after December 31, 2001, plan provisions prohibiting loans to any owner-employee
or shareholder-employee shall cease to apply.
ARTICLE IX
LIMITATIONS ON CONTRIBUTIONS (IRC SECTION 415 LIMITS)
9.1 Effective date. This Section shall be effective for limitation years
beginning after December 31, 2001.
9.2 Maximum annual addition. Except to the extent permitted under Article
VI of this amendment and Section 414(v) of the Code, if applicable, the annual
addition that may be contributed or allocated to a participant's account under
the plan for any limitation year shall not exceed the lesser of:
a. $40,000, as adjusted for increases in the cost-of-living under Section
415(d) of the Code, or
b. 100 percent of the participant's compensation, within the meaning of
Section 415(c)(3) of the Code, for the limitation year.
The compensation limit referred to in b. shall not apply to any
contribution for medical benefits after separation from service (within the
meaning of Section 401(h) or Section 419A(f)(2) of the Code) which is otherwise
treated as an annual addition.
ARTICLE X
MODIFICATION OF TOP-HEAVY RULES
10.1 Effective date. This Article shall apply for purposes of determining
whether the plan is a top-heavy plan under Section 416(g) of the Code for plan
years beginning after December 31, 2001, and whether the plan satisfies the
minimum benefits requirements of Section 416(c) of the Code for such years. This
Article amends the top-heavy provisions of the plan.
10.2 Determination of top-heavy status.
10.2.1 Key employee. Key employee means any employee or former employee
(including any deceased employee) who at any time during the plan year that
includes the determination date was an officer of the employer having annual
compensation greater than $130,000 (as adjusted under Section 416(i)(1) of the
Code for plan years beginning after December 31, 2002), a 5-percent owner of the
employer, or a 1-percent owner of the employer having annual compensation of
more than $150,000. For this purpose, annual compensation means compensation
within the meaning of Section 415(c)(3) of the Code. The determination of who is
a key employee will be made in accordance with Section 416(i)(1) of the Code and
the applicable regulations and other guidance of general applicability issued
thereunder.
10.2.2 Determination of present values and amounts. This Section 10.2.2
shall apply for purposes of determining the present values of accrued benefits
and the amounts of account balances of employees as of the determination date.
a. Distributions during year ending on the determination date. The present
values of accrued benefits and the amounts of account balances of an employee as
of the determination date shall be increased by the distributions made with
respect to the employee under the plan and any plan aggregated with the plan
under Section 416(g)(2) of the Code during the 1-year period ending on the
determination date. The preceding sentence shall also apply to distributions
under a terminated plan which, had it not been terminated, would have been
aggregated with the plan under Section 416(g)(2)(A)(i) of the Code. In the case
of a distribution made for a reason other than separation from service, death,
or disability, this provision shall be applied by substituting "5-year period"
for "1-year period."
b. Employees not performing services during year ending on the
determination date. The accrued benefits and accounts of any individual who has
not performed services for the employer during the 1-year period ending on the
determination date shall not be taken into account.
10.3 Minimum benefits.
10.3.1 Matching contributions. Employer matching contributions shall be
taken into account for purposes of satisfying the minimum contribution
requirements of Section 416(c)(2) of the Code and the plan. The preceding
sentence shall apply with respect to matching contributions under the plan or,
if the plan provides that the minimum contribution requirement shall be met in
another plan, such other plan. Employer matching contributions that are used to
satisfy the minimum contribution requirements shall be treated as matching
contributions for purposes of the actual contribution percentage test and other
requirements of Section 401(m) of the Code.
10.3.2 Contributions under other plans. The employer may provide, in an
addendum to this amendment, that the minimum benefit requirement shall be met in
another plan (including another plan that consists solely of a cash or deferred
arrangement which meets the requirements of Section 401(k)(12) of the Code and
matching contributions with respect to which the requirements of Section
401(m)(11) of the Code are met). The addendum should include the name of the
other plan, the minimum benefit that will be provided under such other plan, and
the employees who will receive the minimum benefit under such other plan.
ARTICLE XI
DIRECT ROLLOVERS
11.1 Effective date. This Article shall apply to distributions made after
December 31, 2001.
11.2 Modification of definition of eligible retirement plan. For purposes
of the direct rollover provisions of the plan, an eligible retirement plan shall
also mean an annuity contract described in Section 403(b) of the Code and an
eligible plan under Section 457(b) of the Code which is maintained by a state,
political subdivision of a state, or any agency or instrumentality of a state or
political subdivision of a state and which agrees to separately account for
amounts transferred into such plan from this plan. The definition of eligible
retirement plan shall also apply in the case of a distribution to a surviving
spouse, or to a spouse or former spouse who is the alternate payee under a
qualified domestic relation order, as defined in Section 414(p) of the Code.
11.3 Modification of definition of eligible rollover distribution to
exclude hardship distributions. For purposes of the direct rollover provisions
of the plan, any amount that is distributed on account of hardship shall not be
an eligible rollover distribution and the distributee may not elect to have any
portion of such a distribution paid directly to an eligible retirement plan.
11.4 Modification of definition of eligible rollover distribution to
include after-tax employee contributions. For purposes of the direct rollover
provisions in the plan, a portion of a distribution shall not fail to be an
eligible rollover distribution merely because the portion consists of after-tax
employee contributions which are not includible in gross income. However, such
portion may be transferred only to an individual retirement account or annuity
described in Section 408(a) or (b) of the Code, or to a qualified defined
contribution plan described in Section 401(a) or 403(a) of the Code that agrees
to separately account for amounts so transferred, including separately
accounting for the portion of such distribution which is includible in gross
income and the portion of such distribution which is not so includible.
ARTICLE XII
ROLLOVERS FROM OTHER PLANS
Rollovers from other plans. The employer, operationally and on a
nondiscriminatory basis, may limit the source of rollover contributions that may
be accepted by this plan.
ARTICLE XIII
REPEAL OF MULTIPLE USE TEST
Repeal of Multiple Use Test. The multiple use test described in Treasury
Regulation Section 1.401(m)-2 and the plan shall not apply for plan years
beginning after December 31, 2001.
ARTICLE XIV
ELECTIVE DEFERRALS
14.1 Elective Deferrals -- Contribution Limitation. No participant shall be
permitted to have elective deferrals made under this plan, or any other
qualified plan maintained by the employer during any taxable year, in excess of
the dollar limitation contained in Section 402(g) of the Code in effect for such
taxable year, except to the extent permitted under Article VI of this amendment
and Section 414(v) of the Code, if applicable.
14.2 Maximum Salary Reduction Contributions for SIMPLE plans. If this is a
SIMPLE 401(k) plan, then except to the extent permitted under Article VI of this
amendment and Section 414(v) of the Code, if applicable, the maximum salary
reduction contribution that can be made to this plan is the amount determined
under Section 408(p)(2)(A)(ii) of the Code for the calendar year.
ARTICLE XV
SAFE HARBOR PLAN PROVISIONS
Modification of Top-Heavy Rules. The top-heavy requirements of Section 416
of the Code and the plan shall not apply in any year beginning after December
31, 2001, in which the plan consists solely of a cash or deferred arrangement
which meets the requirements of Section 401(k)(12) of the Code and matching
contributions with respect to which the requirements of Section 401(m)(11) of
the Code are met.
ARTICLE XVI
DISTRIBUTION UPON SEVERANCE OF EMPLOYMENT
16.1 Effective date. This Article shall apply for distributions and
transactions made after December 31, 2001, regardless of when the severance of
employment occurred.
16.2 New distributable event. A participant's elective deferrals, qualified
nonelective contributions, qualified matching contributions, and earnings
attributable to these contributions shall be distributed on account of the
participant's severance from employment. However, such a distribution shall be
subject to the other provisions of the plan regarding distributions, other than
provisions that require a separation from service before such amounts may be
distributed.
This amendment has been executed this __________ day of
___________________, ________.
Name of Employer: Pennsy Supply, Inc.
By:
------------------------------------------------
EMPLOYER
Name of Plan: Pennsy Supply, Inc. 401(k) and Profit Sharing Plan
