EXHIBIT 10.28
THE CORPORATEPLAN
FOR RETIREMENT 100/SM/
(PROFIT SHARING/401(K) PLAN)
A FIDELITY PROTOTYPE PLAN
Non-Standardized Adoption Agreement No. 001
For use With
Fidelity Basic Plan Document No. 10
The CORPORATEplan for Retirement 100/SM/, Basic Plan Document No. 10, and
related Adoption Agreements has not yet received approval from the Internal
Revenue Service for use as a prototype plan. The CORPORATEplan for Retirement
100/SM/ will be submitted in 1999 to the Internal Revenue Service as a minor
modifier to Fidelity Basic Plan Document No. 14 once the Internal Revenue
Service has issued an opinion letter with respect to Fidelity Basic Plan
Document No. 14. The document is considered an individually-designed plan until
it is approved by the Internal Revenue Service, Revisions to the Basic Plan
Document and/or Adoption Agreement may be required by the Internal Revenue
Service as part of the approval process. If revisions are required, the approved
document will be distributed to adopting employers and must be re-executed by
them within a specified time period
ADOPTION AGREEMENT
ARTICLE 1
NON-STANDARDIZED PROFIT SHARING/401(K) PLAN
1.01 PLAN INFORMATION
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(a) Name of Plan:
This is the Xxxxx Corporation Employee Savings Plan (the "Plan")
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(b) Type of Plan:
(1) [_] 401(k) Only
(2) [X] 401(k) and Profit Sharing
(3) [_] Profit Sharing Only
(c) Administrator Name (if not the Employer):
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Address:
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Telephone Number:
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The Administrator is the agent for service of legal process for the
Plan.
(d) Plan Year End (month/day): 12/31
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(e) Three Digit Plan Number: 001
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(f) Limitation Year (check one):
(1) [X] Calendar Year
(2) [_] Plan Year
(3) [_] Other:
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(g) Plan Status (check appropriate box(es)):
(1) [X] New Plan Effective Date: 3/l/2000
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(2) [_] Amendment Effective Date:
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This is (check one):
(A) [_] an amendment of The CORPORATE plan for Retirement
100(SM) Basic Plan Document No. 10 Adoption Agreement
previously executed by the Employer; or
(B) [_] a conversion to The CORPORATEplan for Retirement 100(SM)
Basic Plan Document No. 10.
The original effective date of the Plan:
______________
The substantive provisions of the Plan shall apply prior to
the Amendment Effective Date to the extent required by the
Internal Revenue Code, as specifically provided in the Basic
Plan Document.
(3) [_] Plan Merger Effective Dates. Please complete the Special
Effective Dates Addendum to the Adoption Agreement
indicating the plan(s) that have merged into the Plan and
the effective date(s) of such merger(s).
1.02 EMPLOYER
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(a) Employer Name: Xxxxx Corporation
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Address: 000 Xxxxx Xxxx Xx., Xxxxx 1825
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Los Angeles, CA 90071
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Contact's Name: Xx. Xxxxxxx Xxxxxxxxxxx
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Telephone Number: (000) 000-0000
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(1) Employer's Tax Identification Number: 00-0000000
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(2) Business Form of Employer (check one):
(A) [X] Corporation or LLC being taxed as a corporation
(B) [_] Sole proprietor, partnership, or LLC or LLP being taxed
as a partnership
(C) [_] Subchapter S Corporation
(D) [_] Tax-exempt organization
(E) [_] Governmental entity
(3) Employer's fiscal year end: 12/31
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(4) Date business commenced: 07/60
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(b) The term "Employer" includes the following Related Employer(s) (as
defined in Subsection 2.01(rr)) (list each participating Related
Employer and its Employer Tax Identification Number):
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1.03 TRUSTEE
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(a) Trustee Name: Fidelity Management Trust Company
Address: 00 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
1.04 COVERAGE
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All Employees who meet the conditions specified below shall be eligible to
participate in the Plan:
(a) Age Requirement (check one):
(1) [_] no age requirement.
(2) [X] must have attained age: 21 (not to exceed 21).
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(b) Eligibility Service Requirement (check one):
(1) [_] no Eligibility Service requirement.
(2) [_] three months of Eligibility Service requirement (no minimum
number Hours of Service can be required).
(3) [_] six months of Eligibility Service requirement (no minimum
number Hours of Service can be required).
(4) [X] one year of Eligibility Service requirement (at least 1,000
Hours of Service are required during the Eligibility
Computation Period).
(c) Eligible Class of Employees (check one):
Note: The Plan may not cover employees who are citizens of Puerto
Rico. These employees are automatically excluded from the eligible
class, regardless of the Employer's selection under this Subsection
1.04(c).
(1) [_] includes all Employees of the Employer.
(2) [X] includes all Employees of the Employer except for (check the
appropriate box(es)):
(A) [X] employees covered by a collective bargaining agreement.
(B) [_] Highly Compensated Employees as defined in Code Section
414(q).
(C) [X] Leased Employees as defined in Subsection 2.01(dd).
(D) [X] nonresident aliens who do not receive any earned income
from the Employer which constitutes United States source
income.
(E) [_] other:
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Note: No exclusion in this Subsection 1.04(c) may create a
discriminatory class of employees. An Employer's Plan must
still pass the Internal Revenue Code coverage requirements
if one or more of the above groups of Employees have been
excluded from the Plan.
(d) The Entry Dates shall be (check one):
(1) [_] the first day of each Plan Year (do not select if Section
1.04(b)(4) is selected or if there is an age requirement of
more than 20-l/2 in Subsection 1.04(a)).
(2) [_] the first day of each Plan Year and the first day of the
seventh month of each Plan Year.
(3) [X] the first day of each Plan Year and the first day of the
fourth, seventh, and tenth months of each Plan Year.
(4) [_] the first day of each month.
(e) Date of Initial Participation - An Employee shall become a Participant
unless excluded by Subsection 1.04(c) above on the Entry Date
immediately following the date the Employee completes the service and
age requirement(s) in Subsections 1.04(a) and (b), if any, except
(check one):
(1) [_] no exceptions.
(2) [X] Employees employed on the Effective Date in Subsection
1.01(g) shall become Participants on that date.
(3) [_] Employees who meet the age and service requirement(s) of
Subsections 1.04(a) and (b) on the Effective Date in
Subsection 1.01(g) shall become Participants on that date.
1.05 COMPENSATION
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Compensation for purposes of determining contributions shall be as defined
in Subsection 2.01(j), modified as provided below.
(a) Compensation Exclusions: Compensation shall exclude the item(s) listed
below for purposes of determining contributions. (Check the appropriate
box(es)):
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(1) [X] No exclusions. (Must be selected if Section 1.10(a)(3)or
Section 1.11(a)(3), safe harbor Matching Employer
Contribution or safe harbor Nonelective Employer
Contribution, is selected.)
(2) [_] Overtime Pay.
(3) [_] Bonuses.
(4) [_] Commissions.
(5) [_] The value of a qualified or a non-qualified stock option
granted to an Employee by the Employer to the extent such
value is includable in the Employee's taxable income.
(6) [_] Severance Pay.
Note: If the Employer selects Option (2), (3), (4), (5), or (6)
and has selected 1.1l(a) or (b), Compensation must be tested to
show that it meets the requirements of Code Section 414 (s) or
401(a)(4). These exclusions shall not apply for purposes of the
"Top Heavy" requirements in Section 15.03 or for allocating
Nonelective Employer Contributions if the Integrated Formula is
elected in Subsection 1.11(b)(2).
(b) Compensation for the First Year of Participation-Contributions for
the Plan Year in which an Employee first becomes a Participant shall
be determined based on the Employee's Compensation (check one):
(1) [_] for the entire Plan Year.
(2) [X] for the portion of the Plan Year in which the Employee is
eligible to participate in the Plan.
Note: If the initial Plan Year of a new Plan consists of fewer
than 12 months from the Effective Date in Subsection
1.01(g)(l) through the end of the initial Plan Year, Compensation
for purposes of determining the amount of contributions, other
than nonsafe harbor Nonelective Employer Contributions, under the
Plan shall be the period from such Effective Date through the end
of the initial year. However, for purposes of determining the
amount of non-safe harbor Nonelective Employer Contributions and
for other Plan purposes, where appropriate, the full 12-
consecutive-month period ending on the last day of the initial
Plan Year shall be used.
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1.06 TESTING RULES
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(a) ADP/ACP Present Testing Method - The testing method for purposes of
applying the "ADP" and "ACP" tests described in Sections 6.03 and 6.06
of the Plan shall be the (check one):
(1) [_] Current Year Testing Method - The ADP or ACP of Highly
Compensated Employees for the Plan Year shall be compared to
the ADP or ACP of Non-Highly Compensated Employees for the
same Plan Year. (Must choose if Option 1.10(a)(3), Safe
Harbor Matching Employer Contributions, or Option 1.11(a)(3),
Safe Harbor Formula, with respect to Nonelective Employer
Contributions is checked)
(2) [X] Prior Year Testing Method - The ADP or ACP of Highly
Compensated Employees for the Plan Year shall be compared to
the ADP or ACP of Non-Highly Compensated Employees for the
immediately preceding Plan Year. (Do not choose if Option
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1.10(a)(3), Safe Harbor Matching Employer Contributions, or
Option 1.11(a)(3), Safe Harbor Formula, with respect to
Nonelective Employer Contributions is checked.)
(3) [_] Not applicable. (Only if Option 1.01(b)(3), Profit Sharing
Only, is checked.)
(b) [_] ADP/ACP Testing Methods Used in Prior Years - For Plan Years
prior to the effective date of this amendment, the "ADP" and
"ACP" tests were applied using a different testing method as
shown in the ADP/ACP Testing Methods History Addendum to the
Adoption Agreement. (Choose if there has been a change in the
testing method used under the Plan.)
(c) [X] Initial Year Testing Method - For the initial Plan Year of a new
Plan, other than a successor plan, the ADP and ACP tests shall be
applied (check one):
(1) [_] assuming a 3% ADP and ACP for Non-Highly Compensated
Employees.
(2) [X] using the actual ADP and ACP of Non-Highly Compensated
Employees for the initial Plan Year.
(d) HCE Determinations: Look Back Year - The look back year for purposes
of determining which Employees are Highly Compensated Employees shall
be the 12-consecutive-month period preceding the Plan Year, unless
otherwise provided below.
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(1) [_] Calendar Year Determination - The look back year shall be the
calendar year beginning within the preceding Plan Year. (Do
not choose if the Plan Year is the calendar year.)
(2) [_] Prior Plan Years - For Plan Years prior to the effective date
of this amendment, the Plan was operated in accordance with a
different look back year election as shown in the Special
Effective Dates Addendum to the Adoption Agreement. (Choose
if there has been a change in the look back year used under
the Plan.)
(e) HCE Determinations: Top Paid Group - Employees with Compensation
exceeding $80,000 (as indexed) shall be considered Highly Compensated
Employees only if they are in the top paid group (the top 20% of
Employees ranked by Compensation), unless otherwise provided below.
(1) [_] No Top Paid Group Election Current Plan Year - All Employees
with Compensation exceeding $80,000 (as indexed) shall be
considered Highly Compensated Employees.
(2) [_] Prior Plan Years - For Plan Years prior to the effective date
of this amendment, the Plan was operated in accordance with a
different top paid group election as shown in the Special
Effective Dates Addendum to the Adoption Agreement. (Choose
if the Plan has used the top paid group election in some
prior Plan Years, but not in others.)
Note: Effective for determination years beginning on or after January
1, 1998, if the Employer elects Option 1.06(d)(l) and/or applies the
top paid group election described in Option 1.06(e), such election
must apply consistently to all retirement plans of the Employer for
determination years that begin with or within the same calendar year
(except that Option 1.06(d)(l), Calendar Year Determination, shall not
apply to calendar year plans). Effective for determination years
beginning on or after January 1, 2000, any such election must apply
consistently to all plans of the Employer, including non-retirement
plans.
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1.07 DEFERRAL CONTRIBUTIONS
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(a) [X] Deferral Contributions - Participants may elect to have a portion
of their Compensation contributed to the Plan on a before-tax
basis pursuant to Code Section 401(k).
(1) Regular Contributions - The Employer shall make a Deferral
Contribution in accordance with Section 5.03 on behalf of each
Participant who has an executed salary reduction agreement in
effect with the Employer for the payroll period in question, not
to exceed 15.00% (not to exceed 25%) of Compensation for that
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period.
Note: The percentage elected above must be less than 25% in
order to satisfy the limitation on annual additions under Code
Section 415 if other types of contributions are provided under
th e Plan.
(A) [_] Instead of specifying a percentage of Compensation, a
Participant's salary reduction agreement may specify a
dollar amount to be contributed each payroll period,
provided such dollar amount does not exceed the maximum
percentage of Compensation specified in Subsection
1.07(a)(l) above.
(B) A Participant may increase or decrease, on a prospective
basis, his salary reduction agreement percentage as of the
next Entry Date.
Note: Notwithstanding the provisions of Subsection
1.07(a)(l)(B), if Option 1.10(a)(3), Safe Harbor Matching
Employer Contributions, or 1.11(a)(3), Safe Harbor
Formula, with respect to Nonelective Employer Contributions
is checked, the Plan provides that an Active Participant
may change his salary reduction agreement percentage for
the Plan Year within a reasonable period (not fewer than 30
days) of receiving the notice described in Section 6.10.
(C) A Participant may revoke, on a prospective basis, a salary
reduction agreement at any time upon proper notice to the
Administrator but in such case may not file a new salary
reduction agreement until any subsequent Entry Date.
(2) [X] Catch-Up Contributions - The Employer may allow
Participants upon proper notice and approval to enter into
a special salary reduction agreement to make additional
Deferral Contributions in an amount up to 100% of their
Compensation for the payroll period(s) in the final month
of the Plan Year.
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(3) [X] Bonus Contributions - The Employer may allow Participants
upon proper notice and approval to enter into a special
salary reduction agreement to make Deferral Contributions in
an amount up to 100% of any Employer paid cash bonuses
designated by the Employer on a uniform and non-
discriminatory basis that are made for such Participants
during the Plan Year. The Compensation definition elected by
the Employer in Subsection 1.05(a) must include bonuses if
bonus contributions are permitted.
Note: A Participant's contributions under Subsection 1.07(a)(2)
and/or (3) may not cause the Participant to exceed the percentage
limit specified by the Employer in Subsection 1.07(a)(1) for the
full Plan Year. The Employer has the right to restrict a
Participant's right to make Deferral Contributions if they will
adversely affect the Plan's ability to pass the "ADP" and/or the
"ACP" test.
1.08 EMPLOYEE CONTRIBUTIONS
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(a) [_] Employee Contributions - Participants are not permitted to
contribute amounts to the Plan on an after-tax basis but the
Employer does maintain frozen Employee Contributions Accounts.
1.09 QUALIFIED NONELECTIVE CONTRIBUTIONS
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(a) Qualified Nonelective Employer Contributions - If Option 1.07(a),
Deferral Contributions, is checked, the Employer may contribute an
amount which it designates as a Qualified Nonelective Employer
Contribution to be included in the "ADP" or "ACP" test. Qualified
Nonelective Employer Contributions shall be allocated to Participants
who were eligible to participate in the Plan at any time during the
Plan Year and are Non-Highly Compensated Employees either (A) in the
ratio which each Participant's "testing compensation", as defined in
Subsection 6.01(t), for the Plan Year bears to the total of all
Participant's "testing compensation" for the Plan Year or (B) as a
flat dollar amount.
1.10 MATCHING EMPLOYER CONTRIBUTIONS (Only if Option 1.07(a), Deferral
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Contributions is checked)
(a) [X] Basic Matching Employer Contributions (check one):
(1) [_] Non-Discretionary Matching Employer Contributions - The
Employer shall make a basic Matching Employer Contribution
on behalf of each Participant in an amount equal to the
following percentage of a Participant's Deferral
Contributions during the Contribution Period (check (A) or
(B) and, if applicable, (C)):
Note: Effective for Plan Years beginning on or after January 1,
1999, if the Employer elected Option 1.11(a)(3), Safe Harbor
Formula, with respect to Nonelective Employer
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Contributions and meets the requirements for deemed satisfaction
of the "ADP" test for a Plan Year, the Plan will also be deemed
to satisfy the "ACP" test with respect to Matching Employer
Contributions if Matching Employer Contributions hereunder meet
the requirements in Section 6.11.
(A) [X] Single Percentage Match:
(B) [_] Tiered Match:
_____% of the first ____% of the Active Participant's
Compensation contributed to the Plan,
____% of the next ____% of the Active Participant's
Compensation contributed to the Plan,
____% of the next ____% of the Active Participant's
Compensation contributed to the Plan.
Note: The percentages specified above for basic Matching
Employer Contributions may not increase as the percentage of
Compensation contributed increases.
[X] Limit on Non-Discretionary Matching Employer
Contributions (check the appropriate box(es)):
(i) [X] Deferral Contributions in excess of 3.00% of the
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Participant's Compensation for the period in
question shall not be considered for non-
discretionary Matching Employer Contributions.
Note: If the Employer elected a percentage limit in
(i) above and requested the Trustee to account
separately for matched and unmatched Deferral
Contributions, the non-discretionary Matching Employer
Contributions allocated to each Participant must be
computed, and the percentage limit applied, based upon
each payroll period.
(ii) [_] Matching Employer Contributions for each
Participant for each Plan Year shall be limited
to $____.
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(2) [X] Discretionary Matching Employer Contributions - The Employer
may make a basic Matching Employer Contribution on behalf of
each Participant in an amount equal to the percentage
declared for the Contribution Period, if any, by a Board of
Directors' Resolution (or by a Letter of Intent for a sole
proprietor or partnership) of the Deferral Contributions
made by each Participant during the Contribution Period. The
Board of Directors' Resolution (or Letter of Intent, if
applicable) may limit the Deferral Contributions matched to
a specified percentage of Compensation or limit the amount
of the match to a specified dollar amount.
(A) [_] 4% Limitation on Discretionary Matching Employer
Contributions for Deemed Satisfaction of "ACP" Test -
Effective only for Plan Years beginning on or after
January 1, 2000, in no event may the dollar amount of
the discretionary Matching Employer Contribution made on
a Participant's behalf for the Plan Year exceed 4% of
the Participant's Compensation for the Plan Year. (Only
if Option 1.11(a)(3), Safe Harbor Formula, with respect
to Nonelective Employer Contributions is checked.)
(3) [_] Safe Harbor Matching Employer Contributions - Effective only
for Plan Years beginning on or after January 1, 1999, if the
Employer elects one of the safe harbor formula Options
provided in the Safe Harbor Matching Employer Contribution
Addendum to the Adoption Agreement and provides written
notice each Plan Year to all Active Participants of their
rights and obligations under the Plan, the Plan shall be
deemed to satisfy the "ADP" test and, in certain
circumstances, the "ACP" test.
(b) [_] Additional Matching Employer Contributions - The Employer may at
Plan Year end make an additional Matching Employer Contribution
equal to a percentage declared by the Employer, through a Board
of Directors' Resolution (or by a Letter of Intent for a sole
proprietor or partnership), of the Deferral Contributions made by
each Participant during the Plan Year. (Only if Option 1.10(a)(1)
or (3) is checked.) The Board of Directors' Resolution (or Letter
of Intent, if applicable) may limit the Deferral Contributions
matched to a specified percentage of Compensation or limit the
amount of the match to a specified dollar amount.
(1) [_] 4% Limitation on Discretionary Matching Employer
Contributions for Deemed Satisfaction of "ACP" Test -
Effective only for Plan Years beginning on or after January
1, 2000, in no event may the dollar amount of the additional
Matching Employer Contribution made on a Participant's
behalf for the Plan Year exceed 4% of the Participant's
Compensation for the Plan Year. (Only if Option 1.11(a)(3),
Safe Harbor Formula, with respect to Nonelective Employer
Contributions is checked.)
Note: If the Employer elected Option 1.10(a)(3), Safe Harbor Matching
Employer Contributions, above and wants to be deemed to have satisfied
the "ADP" test for Plan Years
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beginning on or after January 1, 1999, the additional Matching
Employer Contribution must meet the requirements of Section 6.10. In
addition to the foregoing requirements, if the Employer elected either
Option 1.10(a)(3), Safe Harbor Matching Employer Contributions, or
Option 1.11(a)(3), Safe Harbor Formula, with respect to Nonelective
Employer Contributions, and wants to be deemed to have satisfied the
"ACP" test with respect to Matching Employer Contributions for Plan
Years beginning on or after January 1, 1999, the Deferral
Contributions matched may not exceed 6% of a Participant's
Compensation.
(c) Contribution Period for Matching Employer Contributions - The
Contribution Period for purposes of calculating the amount of basic
Matching Employer Contributions described in Subsection 1.10(a)(1) or
(2) is:
(1) [X] each Plan Year.
(2) [_] each payroll period.
The Contribution Period for safe harbor Matching Employer
Contributions described in Subsection 1.10(a)(3) and additional
Matching Employer Contributions described in Subsection 1.10(b) is the
Plan Year.
(d) Continuing Eligibility Requirement(s) - A Participant who makes
Deferral Contributions during a Contribution Period shall only be
entitled to receive Matching Employer Contributions under Section 1.10
for that Contribution Period if the Participant satisfies the
following requirement(s) (Check the appropriate box(es). Options (3)
and (4) may not be elected together; Option (5) may not be elected
with Option (2), (3), or (4); Options (2), (3), (4), (5) and (7) may
not be elected if Option 1.10(a)(3), Safe Harbor Matching Employer
Contributions, is checked):
(1) [X] No requirements.
(2) [_] Is employed by the Employer or a Related Employer on the last
day of the Plan Year.
(3) [_] Earns at least 501 Hours of Service during the Plan Year.
(Only if the Contribution Period is the Plan Year.)
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(4) [X] Earns at least 1,000 Hours of Service during the Plan Year.
(Only if the Contribution Period is the Plan Year.)
(5) [_] Either earns at least 501 Hours of Service during the Plan
Year or is employed by the Employer or a Related Employer on
the last day of the Plan Year. (Only if the Contribution
Period is the Plan Year.)
(6) [_] Is not a Highly Compensated Employee for the Plan Year.
(7) [_] Is not a partner or a member of the Employer, if the Employer
is a partnership or an entity taxed as a partnership.
(8) [_] Special continuing eligibility requirement(s) for additional
Matching Employer Contributions. (Only if Options 1.10(a)(3),
Safe Harbor Matching Employer Contributions, and (b),
Additional Matching Employer Contributions, are checked.)
(A) The continuing eligibility requirement(s) for additional
Matching Employer Contributions is/are:_____ (Fill in number
of applicable eligibility requirement(s) from above.)
Note: If Option (2), (3), (4), (5), (6) or (7) above is selected, then
Matching Employer Contributions can only be funded by the Employer
after the Plan Year ends. Matching Employer Contributions funded
during the Plan Year shall not be subject to the eligibility
requirements of Option (2), (3), (4), (5), (6) or (7). If Option (2),
(3), (4), (5), (6) or (7) is adopted during a Plan Year, as
applicable, such Option shall not become effective until the first day
of the next Plan Year.
(e) [X] Qualified Matching Employer Contributions - The Employer may make
a Qualified Matching Employer Contribution that may be used to
satisfy the "ADP" test on Deferral Contributions in an amount
equal to the percentage declared for the Plan Year, if any, by a
Board of Directors' Resolution (or by a Letter of Intent for a
sole proprietor or partnership) of the Deferral Contributions
made by each eligible Participant during the Plan Year. The Board
of Directors' Resolution (or Letter of Intent, if applicable) may
limit the contributions matched to a specified percentage of
Compensation or limit the amount of the match to a specified
dollar amount. Qualified Matching Employer Contributions shall be
allocated to Participants who meet the continuing eligibility
requirement(s) for basic Matching Employer Contributions
described in Subsection 1.10(d) above and who are Non-Highly
Compensated Employees for the Plan Year.
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Note: Qualified Matching Contributions may not be excluded in
applying the "ACP" test for a Plan Year if the Employer elected
Option 1.10(a)(3), Safe Harbor Matching Employer Contributions,
or Option 1.11(a)(3), Safe Harbor Formula, with respect to
Nonelective Employer Contributions, and the "ADP" test is deemed
satisfied under Section 6.10 for such Plan Year.
1.11 NONELECTIVE EMPLOYER CONTRIBUTIONS
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Note: An Employer who has elected the safe harbor formula in Subsection
1.11(a)(3) may also elect a discretionary formula. If both are selected,
the discretionary formula shall be treated as an additional Nonelective
Employer Contribution and allocated separately in accordance with the
allocation formula selected by the Employer.
(a) [_] Fixed Formula (check one):
(1) [_] Fixed Percentage Employer Contribution - For each Plan Year,
the Employer shall contribute for each eligible Active
Participant an amount equal to _____% (not to exceed 15%) of
such Active Participant's Compensation.
(2) [_] Fixed Flat Dollar Employer Contribution - For each Plan
Year, the Employer shall contribute for each eligible Active
Participant an amount equal to $____.
(3) [_] Safe Harbor Formula - Effective only with respect to Plan
Years that begin on or after January 1, 1999, the
Nonelective Employer Contribution is intended to satisfy the
safe harbor contribution requirements under the Code such
that the "ADP" test is deemed satisfied. Please complete the
Safe Harbor Nonelective Employer Contribution Addendum to
the Adoption Agreement. (Choose only if Option 1.07(a),
Deferral Contributions, is checked.)
(b) [X] Discretionary Formula - The Employer may decide each Plan Year
whether to make a discretionary Nonelective Employer Contribution
on behalf of eligible Active Participants in accordance with
Section 5.10. Such contributions shall be allocated to eligible
Active Participants based upon the following (check (1) or (2)):
(1) [X] Non-integrated Allocation Formula - In the ratio that each
eligible Active Participant's Compensation bears to the
total Compensation paid to all eligible Active Participants
for the Plan Year.
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(2) [_] Integrated Allocation Formula - As (A) a percentage of each
eligible Active Participant's Compensation plus (B) a percentage
of each eligible Active Participant's Compensation in excess of
the "integration level" as defined below. The percentage of
Compensation in excess of the "integration level" shall be equal
to the lesser of the percentage of the Active Participant's
Compinsation allocated under (A) above or the "permitted
disparity limit" as defined below.
Note: An Employer that has elected the Safe Harbor formula in Subsection
1.11(a)(3) above may not take Nonelective Employer Contributions made to
satisfy the safe harbor into account in applying the integrated
allocation formula described above.
"Integration level" means the Social Security taxable wage base for the
Plan Year, unless the Employer elects a lesser amount in (A) or (B)
below.
(A) ______% (not to exceed 100%) of the Social Security taxable wage
base for the Plan Year, or
(B) $_____(not to exceed the Social Security taxable wage base).
"Permitted disparity limit" means the percentage provided by the
following table:
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If the "Integration Level" But Less Than The "Permitted
is at least ____% of the _____% of the Disparity
Taxable Wage Base Taxable Wage Base Limit" is
_____________________________________________________________________
0% 20% 5.7%
____________________________________________________________________
20% 80% 4.3%
____________________________________________________________________
80% 100% 5.4%
____________________________________________________________________
100% N/A 5.7%
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Note: An Employer who maintains any other plan that provides for Social
Security Integration (permitted disparity) may not elect 1.11(b)(2).
16
(c) Continuing Eligibility Requirement(s) - A Participant shall only be
entitled to receive Nonelective Employer Contributions for a Plan
Year under this Section 1.11 if the Participant satisfies the
following requirement(s) (Check the appropriate box(es) - Options
(3) and (4) may not be elected together; Option (5) may not be
elected with Option (2), (3), or (4); Options (2), (3), (4) and (5)
may not be elected with respect to Nonelective Employer
Contributions under the fixed formula if Option 1.11(a)(3), Safe
Harbor Formula, is checked):
(1) [X] No requirements.
(2) [X] Is employed by the Employer or a Related Employer on the
last day of the Plan Year.
(3) [_] Earns at least 501 Hours of Service during the Plan Year.
(4) [X] Earns at least 1,000 Hours of Service during the Plan
Year.
(5) [_] Either earns at least 501 Hours of Service during the
Plan Year or is employed by the Employer or a Related
Employer on the last day of the Plan Year.
(6) [_] Special continuing eligibility requirement(s) for
discretionary Nonelective Employer Contributions. (Only
if both Options 1.11(a)(3), Safe Harbor Formula, and 1.11
(b), Discretionary Formula, are checked.)
(A) The continuing eligibility requirement(s) for additional
discretionary Nonelective Employer Contributions is/are:
__________ (Fill in number of applicable eligibility
requirement(s) from above.)
Note: If Option (2), (3), (4), or (5) above is selected then
Nonelective Employer Contributions can only be funded by the Employer
after the Plan Year ends. Nonelective Employer Contributions funded
during the Plan Year shall not be subject to the eligibility
requirements of Option (2), (3), (4), or (5). If Option (2), (3), (4),
or (5) is adopted during a Plan Year, such Option shall not become
effective until the first day of the next Plan Year.
1.12 EXCEPTIONS TO CONTINUING ELIGIBILITY REQUIREMENTS
-------------------------------------------------
[X] Death, Disability, and Retirement Exception to Eligibility
Requirements - Active Participants who do not meet any last day or
Hours of Service requirement under Subsection 1.10(d) or 1.11(c)
because they become disabled, as defined in Section 1.14, retire, as
provided in Subsection 1.13(a) or (b), or die shall nevertheless
receive an allocation of Nonelective Employer and/or Matching
Employer Contributions. No Compensation shall be imputed to Active
Participants who become disabled for the period following their
disability.
1.13 RETIREMENT
----------
17
(a) The Normal Retirement Age under the Plan is (check one);
(1) [X] age 65.
(2) [_] age _____ (specify between 55 and 64).
(3) [X] later of age 65.0 (not to exceed 65) or the fifth
----
anniversary of the Participant's Employment Commencement
Date.
(b) [X] The Early Retirement Age is the first day of the month after
the Participant attains age 59.5 (specify 55 or greater) and
----
completes 4.0 years of Vesting Service.
---
Note: If this Option is elected, Participants who are employed by
the Employer or a Related Employer on the date they reach Early
Retirement Age shall be 100% vested in their Accounts under the
Plan.
(c) [X] A Participant who becomes disabled, as defined in
Section 1.14, is eligible for disability retirement.
Note: If this Option is elected, Participants who are employed by
the Employer or a Related Employer on the date they become
disabled shall be 100% vested in their Accounts under the
Plan.
1.14. DEFINITION OF DISABLED
----------------------
A Participant is disabled if he/she (check the appropriate box(es)):
(a) [_] satisfies the requirements for benefits under the Employer's
Long-Term Disability Plan.
(b) [_] satisfies the requirements for Social Security disability
benefits.
Note: If this Option is elected, Participants who are employed by
the Employer or a Related Employer on the date they reach Early
Retirement Age shall be 100% vested in their Accounts under the
Plan.
(c) [X] is determined to be disabled by a physician approved by the
Employer.
1.15 VESTING
-------
A Participant's vested interest in Matching Employer Contributions and/or
Nonelective Employer Contributions, other than Safe Harbor Matching
Employer and/or Nonelective Employer Contributions elected in Subsection
1.10(a)(3) or 1.11(a)(3), shall be based upon his years of Vesting
Service and the schedule selected below.
(a) Vesting Schedule (check one):
18
(1) [_] N/A - No Nonelective Employer Contributions or Matching
Employer Contributions
(2) [_] 100% Vesting immediately
(3) [_] 3 year cliff (see 3 below)
(4) [_] 6 year graduated (see 4 below)
(5) [X] Other vesting (complete 5 below)
Years of
Vesting Service Applicable Vesting Schedule(s)
============================================================
3 4 5
============================================================
0 0% 0% 0.00%
----
-------------------------------------------------------------
1 0% 0% 25.00%
-----
-------------------------------------------------------------
2 0% 20% 50.00%
-----
-------------------------------------------------------------
3 100% 40% 75.00%
-----
-------------------------------------------------------------
4 100% 60% 100.00%
------
-------------------------------------------------------------
5 100% 80% 100.00%
------
-------------------------------------------------------------
6 or more 100% 100% 100.00%
------
=============================================================
Note: A schedule elected under 5 above must be at least as favorable as
one of the schedules in 3 or 4 above.
1.16 PREDECESSOR EMPLOYER SERVICE
----------------------------
[_] Service for purposes of eligibility in Subsection 1.04(b) and
vesting in Subsection 1.15(a) of this Plan shall include service
with the following predecessor employer(s);
(a) Reading Entertainment Inc.
-------------------------------------------------
(b) Citadel Holding Corportaion
-------------------------------------------------
(c) City Cinemas Corporation, a New York Corporation
-------------------------------------------------
(Fed. Tax ID 00-0000000)
-------------------------------------------------
(d)
-------------------------------------------------
1.17 PARTICIPANT LOANS
-----------------
19
Participants loans (check one);
(a) [X] are allowed in accordance with Article 9 and loan procedures
outlined in the Service Agreement.
(b) [_] are not allowed.
---
1.18 IN-SERVICE WITHDRAWALS
----------------------
Participants may make withdrawals prior to termination of employment
under the following circumstances (check the appropriate box(es)):
(a) [X] Hardship Withdrawals - Hardship withdrawals from a
Participant's Deferral Contributions Account shall be allowed
in accordance with Section 10.05, subject to a $500 minimum
amount.
(b) [X] Age 59 l/2 - Participants shall be entitled to receive a
distribution of all or any portion of the following Accounts
upon attainment of age 59 l/2 (check one):
(1) [X] Deferral Contributions Account
(2) [_] All Accounts
(c) Withdrawal of Employee Contributions and Rollover Contributions -
The Plan provides for in-service withdrawals of Employee
Contributions under Section 1.08 and Rollover Contributions at any
time.
(d) [_] Protected Inc-Service Withdrawal Provisions - Check if the Plan
was converted by plan amendment or received transfer
contributions from another defined contribution plan, and
benefits under the other defined contribution plan were payable
as (check the appropriate box(es)):
20
(1) [_] an in-service withdrawal of vested employer contributions
maintained in a Participant's Account (check (A) and/or (B)):
(A) [_] for at least _________ (24 or more) months.
(B) [_] after the Participant has at least 60 months of
participation.
(2) [_] another in-service withdrawal option that is a "protected
benefit" under Code Section 411(d)(6). The other in-service
withdrawal options available under the plan are:
-------------------------------------------------------------
-------------------------------------------------------------
1.19 FORM OF DISTRIBUTIONS
---------------------
Subject to Article 14, distributions under the Plan shall be paid as
(check the appropriate box(es) with respect to optional forms):
(a) Lump Sum Payments - Lump sum payments are always available under the
Plan. If a Participant's account balance is less than or equal to
the "cashout limit", distribution shall be made to the Participant
as soon as reasonably practicable following his termination of
employment in a lump sum payment. Effective the first day of the
first Plan Year beginning on or after August 5, 1997 (or the date
the Plan is first operated in compliance with the increase, if
later, but not later than the effective date specified in Subsection
1.01(g)(1) or (2)), the "cashout limit" is $5,000 (increased from
$3,500).
(b) [X] Installments Payments - In lieu of a lump sum, Participants
may elect distribution under a systematic withdrawal plan
(installments).
(c) [_] Protected Benefit Forms - Check if the Plan was converted by
plan amendment or received transfer contributions from another
defined contribution plan, and benefits under the other defined
contribution plan were payable in any other form. The following
protected benefit forms shall apply to the Accounts of all
Participants (check the appropriate box(es)):
(1) [_] The prior plan provided a life annuity form of payment.
(A) The normal annuity form for unmarried Participants is a
-------------------------------------------------------.
The normal annuity form for married Participants is a
_____ % (must be at least 50%, but not more than
100%)"qualified joint and survivor annuity".
21
(B) The normal form of distribution under the Plan is:
(i) [_] A lump sum payment.
(ii) [_] A "qualified joint and survivor annuity".
(C) The qualified preretirement survivor annuity provided to a
Participant's spouse is purchased with ___% (must be at
least 50%) of the Participant's Account.
(2) [_] The prior plan provided other optional annuity forms. The
other optional annuity forms available under the Plan are:
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
(3) [_] The prior plan provided other forms of distribution that
are protected benefits. The other forms of distribution
available under the Plan are:
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
1.20 TIMING OF DISTRIBUTIONS
-----------------------
Distribution shall be made to an eligible Participant from his vested
interest in his Account as soon as reasonably practicable following the
date the Participant's application for distribution is received by the
Administrator, but in no event later than his Required Beginning Date, as
defined in Subsection 2.01(ss).
(a) Required Beginning Date - The Required Beginning Date of a
Participant who is not a five percent owner shall be determined
under Code Section 401(a)(9) as amended by the Small Business Job
Protection Act.
(1) [_] If a Participant attained age 70 1/2 before January 1,
1999 (or such later date as may be specified below), he
may elect to have his Required Beginning Date
22
determined under Code Section 401(a)(9) as in effect prior to
the amendment. (Choose only if the Plan was originally
effective before January 1, 1997.)
(A) [_] later effective date applies for grandfathering the prior
Code Section 401(a)(9) rules. Please complete Section (c)
of the Special Effective Dates Addendum to the Adoption
Agreement indicating the late effective date.
1.21 TOP HEAVY STATUS
----------------
(a) The Plan shall be subject to the Top-Heavy Plan requirements of
Article 15 (check one):
(1) [_] for each Plan Year, whether or not the Plan is a
"top-heavy plan" as defined in Subsection 15.01(f).
(2) [X] for each Plan Year, if any, for which the Plan is a
"top-heavy plan" as defined in Subsection 15.01(f).
(3) [_] Not applicable. (Choose only if Plan covers only employees
subject to a collective bargaining agreement.)
(b) In determining whether the Plan is a "top-heavy plan" for an
Employer with at least one defined benefit plan, the following
assumptions shall apply:
(1) [_] Interest rate: ______% per annum.
(2) [_] Mortality table:_______.
(3) [X] Not applicable. (Choose only if either (A) Plan covers
only employees subject to a collective bargaining
agreement or (B) Employer does not maintain and has never
maintained any defined benefit plans.)
23
(c) If the Plan is or is treated as a "top-heavy plan" for a Plan Year, each
non-key Employee shall receive an Employer Contribution of at least 3.0
(3, 4, 5, or 7 1/2)% of Compensation for the Plan Year in accordance
with Section 15.03. The minimum Employer Contribution provided in this
Subsection 1.21(c) shall be made under this Plan only if the Participant
is not entitled to such contribution under another qualified plan of the
Employer, unless the Employer elects otherwise in (1) or (2) below:
(1) [_] The minimum Employer Contribution shall be paid under
this Plan in any event.
(2) [_] Not applicable. (Choose only if Plan covers only
employees subject to a collective bargaining agreement.)
Note: The minimum Employer contribution may be less than the
percentage indicated in Subsection 1.21(c) above to the extent
provided in Section 15.03.
(d) If the Plan is or is treated as a "top-heavy plan" for a Plan Year and
Section 1.15(a)(1)(A) was elected,the following vesting schedule shall
apply to required top-heavy Employer contributions for such Plan Year
and each Plan Year thereafter (check one):
(1) [X] Not applicable. (Choose only if either (A) Section
1.15(a)(1)(A) was not selected or (B) Plan covers only
---
employees subject to a collective bargaining agreement.)
(2) [_] 100% vested after______(not in excess of 3) years of
Vesting Service.
(3) [_] Graded vesting:
====================================================
Years of Vesting Vesting Must be
Service Percentage at least
____________________________________________________
0 0.00% 0%
____________________________________________________
1 25.00% 0%
____________________________________________________
2 50.00% 20%
____________________________________________________
3 75.00% 40%
_____________________________________________________
4 100.00% 60%
______________________________________________________
5 100.00% 80%
______________________________________________________
6 or more 100.00% 100%
=======================================================
24
1.22 CORRECTION TO MEET 415 REQUIREMENTS UNDER MULTIPLE DEFINED CONTRIBUTION
-----------------------------------------------------------------------
PLANS
-----
If the Employer maintains other defined contribution plans, annual
additions to a Participant's Account shall be limited as provided in
Section 6.11 of the Plan to meet the requirements of Code Section 415.
1.23 INVESTMENT DIRECTION
--------------------
(a) Investment Directions - Participant Accounts shall be invested in
accordance with investment directions provided to the Trustee by
each Participant for allocating his entire Account among the
-----------
Options listed in the Service Agreement.
(b) [X] 404(c) Election - The Administrator intends to treat this
Plan as being subject to ERISA Section 404(c).
1.24 RELIANCE ON OPINION LETTER
--------------------------
An adopting Employer may not rely on the opinion letter issued by the
National Office of the Internal Revenue Service as evidence that this
Plan is qualified under Code Section 401. If the Employer wishes to
obtain reliance that its Plan is qualified, application for a
determination letter should be made to the appropriate Key District
Director of the Internal Revenue Service. Failure to fill out the
Adoption Agreement properly may result in disqualification of the Plan.
This Adoption Agreement may be used only in conjunction with Fidelity
Basic Plan Document No. 10. The Prototype Sponsor shall inform the
adopting Employer of any amendments made to the Plan or of the
discontinuance or abandonment of the prototype plan document.
1.25 PROTOTYPE INFORMATION:
---------------------
Name of Prototype Sponsor: Fidelity Management & Research Company
Address of Prototype Sponsor: 00 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Questions regarding this prototype document may be directed to the
following telephone number: 0-000-000-0000.
25
EXECUTION PAGE
(Employer's Copy)
IN WITNESS WHEREOF, the Employer has caused this Adoption Agreement to be
executed this 24th day of January, 2000.
---- ------- ----
Employer: Xxxxx Corporation
-------------------------------------------
By: /s/ [ILLEGIBLE]
-------------------------------------------
Title: President
-------------------------------------------
Employer: Xxxxx Corporation
--------------------------------------------
By: /s/ [ILLEGIBLE]
--------------------------------------------
Title: Chief Financial Officer
--------------------------------------------
Accepted by:
Fidelity Management Trust Company, as Trustee
By: /s/ Xxxxx X. Xxxx Date: 1-28-00
----------------------------- ---------------
Title: Xxxxx X. Xxxx
Authorized Signatory
-----------------------------
27
ADDENDUM
Re: SPECIAL EFFECTIVE DATES
for
Plan Name: The Xxxxx Corporation Employee Savings Plan
-------------------------------------------
(a) [_] Plan Merger Effective Dates - The following plan(s) were merged into
the Plan after the Effective Date indicated in Subsection 1.O1
(g)(1) or (2), as applicable. The provisions of the Plan are
effective with respect to the merged plan(s) as of the date(s)
indicated below:
(1) Name of merged plan:
-------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
Effective
date:
---------------------------------------------------------------
(2) Name of merged plan:
-------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
Effective
date:
----------------------------------------------------------------
(3) Name of merged plan:
-------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------------
Effective
date:
----------------------------------------------------------------
28
(b) HCE Determination - HCE determinations for prior Plan Years shall be made
applying the following rules:
(1) [_] HCE Determination: Look Back Year Elections - Prior to the
effective date of this amendment, the Plan was administered in
accordance with the following look back year election(s):
(A) [_] No calendar year election - For the following Plan Years,
the look back year was the 12-consecutive-month period
immediately preceding the Plan Year:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(B) [_] Calendar year election - For the following Plan Years,
the look back year was the calendar year beginning within the
preceding Plan Year:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(2) [_] HCE Determination: Top Paid Group Elections - For Plan Years
prior to the effective date of this amendment, the Plan was
administered in accordance with the following top paid group
election(s):
(A) [_] For the following Plan Years, Highly Compensated
Employees included only the top 20% of Employees ranked
by Compensation:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
29
(B) [_] For the following Plan Years, Highly Compensated
Employees included all Employees with Compensation
exceeding $80,000 (as indexed):
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(c) [_] Late Effective Date for Grandfathering Prior Required
Beginning Date Rules
Effective date: January 1, (Must be first day of the calendar year
beginning after the date the Plan was first amended to comply with
the new Required Beginning Date rules, but not later than the first
day of the calendar year beginning after the end of the Employer's
remedial amendment period for making changes to comply with the Small
Business Job Protection Act.)
30
ADDENDUM
Re: ADP/ACP TESTING METHODS HISTORY
for
Plan Name: The Xxxxx Corporation Employee Savings Plan
-------------------------------------------
(A) For Plan Years prior to the date of this amendment, the Plan applied the
following testing methods:
(1) [_] Current Year Testing Method - The ADP/ACP tests for the
following Plan Years were applied using the current year
testing method described in Subsection 1.06(a)(l):
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
(2) [_] Prior Year Testing Method - The ADP/ACP tests for the
following Plan Years were applied using the prior year testing
method described in Subsection 1.06(a)(2):
-------------------------------------------------------------------
-------------------------------------------------------------------
-------------------------------------------------------------------
31
ADDENDUM
Re: SAFE HARBOR MATCHING EMPLOYER CONTRIBUTION
for
Plan Name: The Xxxxx Corporation Employee Savings Plan
-------------------------------------------
(a) Safe Harbor Matching Employer Contribution Formula
Note: Matching Employer Contributions made under this Option must be
100% vested when made and may only be distributed because of death,
disability, separation from service, age 59 l/2, or termination of the
Plan without the establishment of a successor plan. In addition, each Plan
Year, the Employer must provide written notice to all Active Participants
of their rights and obligations under the Plan.
(1) [_] 100% of the first 3% of the Active Participant's Compensation
contributed to the Plan and 50% of the next 2% of the Active
Participant's Compensation contributed to the Plan.
(A) [_] Safe harbor Matching Employer Contributions shall not
---
be made on behalf of Highly Compensated Employees.
Note: If the Employer selects this formula and does not elect Option
---
1.10(b), Additional Matching Employer Contributions, Matching
Employer Contributions will automatically meet the safe harbor
contribution requirements for deemed satisfaction of the "ACP" test.
(2) [_] Other Tiered Match:
___% of the first ___% of the Active Participant's Compensation
contributed to the plan,
___% of the next ___% of the Active Participant's Compensation
contributed to the plan,
___% of the next ___% of the Active Participant's Compensation
contributed to the plan.
Note: To satisfy the safe harbor contribution requirement for the
"ADP" test, the percentages specified above for Matching Employer
Contributions may not increase as the percentage of Compensation
contributed increases, and the aggregate amount of Matching Employer
Contributions at such rates must at least equal the aggregate amount
of Matching Employer Contributions which would be made under the
percentages described in (a)(1) of this Addendum.
32
(A) [_] Safe harbor Matching Employer Contributions shall not be made
---
on behalf of Highly Compensated Employees.
(B) [_] The formula specified above is also intended to satisfy the
safe harbor contribution requirement for deemed satisfaction
of the "ACP".
Note: To satisfy the safe harbor contribution requirement for the
"ACP" test, the Deferral Contributions matched cannot exceed 6% of a
Participant's Compensation.
33
ADDENDUM
Re: SAFE HARBOR NONELECTIVE EMPLOYER CONTRIBUTION
for
Plan Name: The Xxxxx Corporation Employee Savings Plan
-------------------------------------------
(a) For each Plan Year, the Employer shall contribute for each eligible Active
Participant an amount equal to ___% (not less than 3% nor more than 15%) of
such Active Participant's Compensation.
Note: Contributions that are intended to satisfy the safe harbor
contribution requirement must be 100% vested when made and may only be
distributed because of death, disability, separation from service, age
59 l/2, or termination of the Plan without the establishment of a successor
plan. In addition, each Plan Year, the Employer must provide written notice
to all Active Participants of their rights and obligations under the Plan.
(1) [_] Safe harbor Nonelective Employer Contributions shall not be
---
made on behalf of Highly Compensated Employees.
(2) [_] In conjunction with its election of the safe harbor described
above, the Employer has elected to make Matching Employer
Contributions under Subsection 1.10 that are intended to meet
the requirements for deemed satisfaction of the "ACP" test
with respect to Matching Employer Contributions (i.e. (1) the
percentage of Deferral Contributions matched does not increase
as the percentage of Compensation contributed increases; (2)
Highly Compensated Employees are not provided a greater
percentage match than Non-Highly Compensated Employees; (3)
Deferral Contributions matched do not exceed 6% of a
Participant's Compensation; and (4) for Plan Years beginning
on or after January 1,2000, the dollar amount of any
discretionary Matching Employer Contributions made on a
Participant's behalf for the Plan Year shall not exceed 4% of
the Participant's Compensation for the Plan Year).
34
