NON-STANDARDIZED 401(k) PLAN
XXXX XXXXXX VIP PLUS
ADOPTION AGREEMENT #009
NON-STANDARDIZED 401(k) PLAN
(Pages 1 to 18)
(PAIRED PROFIT SHARING PLAN)
The undersigned, Spice Entertainment Companies, Inc. ("Employer"), by
executing this Adoption Agreement, elects to become a participating Employer in
the Xxxx Xxxxxx Versatile Investment Program Defined Contribution Master Plan
(basic plan document #01) by adopting the accompanying Plan and Trust in full as
if the Employer were a signatory to that Agreement. The Employer makes the
following elections granted under the provisions of the Master Plan.
ARTICLE I
DEFINITIONS
1.02 TRUSTEE. The Trustee executing this Adoption Agreement is:
[Choose (a) or (b)]
[ ] (a) A discretionary Trustee. See Section 10.03(A) of the Plan.
[X] (b) A nondiscretionary Trustee. See Section 10.03(B) of the Plan.
[Note: The Employer may not elect Option (b) if a Custodian
executes the Adoption Agreement.]
1.03 PLAN. The name of the Plan as adopted by the Employer is Spice
Entertainment Companies, Inc. 401 (k) Tax Deferred Savings Plan.
1.07 EMPLOYEE. The following Employees are not eligible to participate in
the Plan: [Choose (a) or at least one of (b) through (g)]
[ ] (a) No exclusions.
[X] (b) Collective bargaining employees (as defined in Section 1.07 of the
Plan). [Note: If the Employer excludes union employees
from the Plan, the Employer must be able to provide evidence that
retirement benefits were the subject of good faith
bargaining.]
[X] (c) Nonresident aliens who do not receive any earned income [as
defined in Code Section 911(d)(2)] from the Employer which
constitutes United States source income [as defined in Code Section
861(a)(3)].
[ ] (d) Commission Salesmen.
[ ] (e) Any Employee compensated on a salaried basis.
[ ] (f) Any Employee compensated on an hourly basis.
[ ] (g) (Specify) ___________________________________.
Leased Employees. Any Leased Employee treated as an Employee under Section 1.31
of the Plan, is: [Choose (h) or (i)]
[X] (h) Not eligible to participate in the Plan.
[ ] (i) Eligible to participate in the Plan, unless excluded by reason of
an exclusion classification elected under this Adoption Agreement
Section 1.07.
Related Employers. If any member of the Employer's related group (as defined in
Section 1.30 of the Plan) executes a Participation Agreement to this Adoption
Agreement, such member's Employees are eligible to participate in this Plan,
unless excluded by reason of an exclusion classification elected under this
Adoption Agreement Section 1.07. In addition:
[Choose (j) or (k)]
[X] (j) No other related group member's Employees are eligible to participate
in the Plan.
[ ] (k) The following nonparticipating related group member's Employees
are eligible to participate in the Plan unless excluded by reason of an
exclusion classification elected under this Adoption Agreement Section
1.07: _______________________________________________________________.
1.12 COMPENSATION.
Treatment of elective contributions. [Choose (a) or (b)]
[X] (a) "Compensation" includes elective contributions made by the Employer on
the Employee's behalf.
[ ] (b) "Compensation" does not include elective contributions.
Modifications to Compensation definition. [Choose (c) or at least one of (d)
through (j)]
[ ] (c) No modifications other than as elected under Options (a) or (b).
[ ] (d) The Plan excludes Compensation in excess of $__________________.
[ ] (e) In lieu of the definition in Section 1.12 of the Plan,
Compensation means any earnings reportable as W-2 wages for Federal
income tax withholding purposes, subject to any other election under
this Adoption Agreement Section 1.12.
[X] (f) The Plan excludes bonuses.
[ ] (g) The Plan excludes overtime.
[ ] (h) The Plan excludes Commissions.
[ ] (i) Compensation will not include Compensation from a related employer
(as defined in Section 1.30 of the Plan) that has not executed
a Participation Agreement in this Plan unless, pursuant to Adoption
Agreement Section 1.07, the Employees of that related employer are
eligible to participate in this Plan.
[ ] (j) (Specify) ____________________________.
If, for any Plan Year, the Plan uses permitted disparity in the contribution or
allocation formula elected under Article III, any election of Options (f), (g),
(h) or (j) is ineffective for such Plan Year with respect to any Non highly
Compensated Employee.
Special definition for matching contributions. "Compensation" for purposes of
any matching contribution formula under Article III means: [Choose (k) or (l)
only if applicable]
[X] (k) Compensation as defined in this Adoption Agreement Section 1.12.
[ ] (l) (Specify) _____________________________________________________.
Special definition for salary reduction contributions. An Employee's salary
reduction agreement applies to his Compensation determined prior to the
reduction authorized by that salary reduction agreement, with the following
exceptions: [Choose (m) or at least one of (n) or (o), if applicable]
[X] (m) No exceptions.
[ ] (n) If the Employee makes elective contributions to another plan
maintained by the Employer, the Advisory Committee
will determine the amount of the Employee's salary reduction
contribution for the withholding period: [Choose (1) or (2)]
[ ] (1) After the reduction for such period of elective contributions to the
other plan(s).
[ ] (2) Prior to the reduction for such period of
elective contributions to the other plan(s).
[ ] (o) (Specify) _________________________________.
1.17 PLAN YEAR/LIMITATION YEAR.
Plan Year. Plan Year means:
[Choose (a) or (b)]
[X] (a) The 12 consecutive month period ending every 12/31.
[ ] (b) (Specify) _________________________________________.
Limitation Year. The Limitation Year is: [Choose (c) or (d)]
[X] (c) The Plan Year.
[ ] (d) The 12 consecutive month period ending every
.
1.18 EFFECTIVE DATE.
New Plan. The "Effective Date" of the Plan is ___________________.
Restated Plan. The restated Effective Date is 11/1/97.
This Plan is a substitution and amendment of an existing retirement plan(s)
originally established 1/1/93.
[Note: See the Effective Date Addendum.]
1.27 HOUR OF SERVICE. The crediting method for Hours of Service is:
[Choose (a) or (b)]
[X] (a) The actual method.
[ ] (b) The ________________________________ equivalency method, except:
[ ] (1) No exceptions.
[ ] (2) The actual method applies for purposes of:
(Choose at least one)
[ ] (i) Participation under Article II.
[ ] (ii) Vesting under Article V.
[ ] (iii) Accrual of benefits under Section 3.06.
[Note: On the blank line, insert "daily," "weekly," "semi-monthly payroll
periods" or "monthly."]
1.29 SERVICE FOR PREDECESSOR EMPLOYER. In addition to the predecessor
service the Plan must credit by reason of Section 1.29 of the Plan,
the Plan credits Service with the following predecessor employer(s):
N/A. Service with the designated predecessor employer(s) applies:
[Choose at least one of (a) or (b); (c) is available only in addition
to (a) or (b)].
[ ] (a) For purposes of participation under Article II.
[ ] (b) For purposes of vesting under Article V.
[ ] (c) Except the following Service: _____.
[Note: If the Plan does not credit any predecessor service under this
provision, insert "N/A" in the first blank line. The Employer
may attach a schedule to this Adoption Agreement, in the same format
as this Section 1.29, designating additional predecessor employers
and the applicable service crediting elections.]
1.31 LEASED EMPLOYEES. If a Leased Employee is a Participant in the Plan
and also participates in a plan maintained by the leasing
organization:
[Choose (a) or (b)]
[X] (a) The Advisory Committee will determine the Leased Employee's
allocation of Employer contributions under Article III without taking
into account the Leased Employee's allocation, if any, under the
leasing organization's plan.
[ ] (b) The Advisory Committee will reduce a Leased Employee's allocation
of Employer nonelective contributions (other than designated qualified
nonelective contributions) under this Plan by the Leased Employee's
allocation under the leasing organization's plan, but only to the
extent that allocation is attributable to the Leased Employee's service
provided to the Employer. The leasing organization's plan:
[ ] (1) Must be a money purchase plan which would satisfy the definition
under Section 1.31 of a safe harbor plan, irrespective of whether
the safe harbor exception applies.
[ ] (2) Must satisfy the features and, if a defined benefit plan, the method
of reduction described in an addendum to this Adoption Agreement,
numbered 1.31.
ARTICLE II
EMPLOYEE PARTICIPANTS
2.01 ELIGIBILITY.
Eligibility conditions. To become a Participant in the Plan, an
Employee must satisfy the following eligibility conditions:
[Choose (a) or (b) or both; (c) is optional as an additional election]
[X] (a) Attainment of age 21 (specify age, not exceeding 21).
[X] (b) Service requirement. [Choose one of (1) through (3)]
[X] (1) One Year of Service.
[ ] (2) ___________________________________ months (not exceeding 12)
following the Employee's Employment Commencement Date.
[ ] (3) One Hour of Service.
[ ] (c) Special requirements for non-401(k) portion of plan. [Make elections
under (1) and under (2)]
(1) The requirements of this Option (c) apply to participation in:
[Choose at least one of (i) through (iii)]
[ ] (i) The allocation of Employer nonelective contributions and
Participant forfeitures.
[ ] (ii) The allocation of Employer matching contributions (including
forfeitures allocated as matching contributions).
[ ] (iii) The allocation of Employer qualified nonelective contributions.
(2) For participation in the allocations described in (1), the eligibility
conditions are:
[Choose at least one of (i) through (iv)]
[ ] (i) _________ (one or two) Year(s)of Service, without an
intervening Break in Service (as described in Section
2.03(A) of the Plan) if the requirement is two Years of
Service.
[ ] (ii) _________________________________ months (not exceeding 24)
following the Employee's Employment Commencement Date.
[ ] (iii) One Hour of Service.
[ ] (iv) Attainment of age __________________. (Specify age, not
exceeding 21.)
Plan Entry Date. "Plan Entry Date" means the Effective Date and: [Choose (d),
(e) or (f)]
[ ] (d) Semi-annual Entry Dates. The first day of the Plan Year and the first
day of the seventh month of the Plan Year.
[ ] (e) The first day of the Plan Year.
[X] (f) (Specify entry dates): As of 1/1, 4/1, 7/1 and 10/1.
Time of Participation. An Employee will become a Participant [and, if
applicable, will participate in the allocations described in Option (c)(1)],
unless excluded under Adoption Agreement Section 1.07, on the Plan Entry Date
(if employed on that date): [Choose (g), (h) or (i)]
[X] (g) immediately following
[ ] (h) immediately preceding
[ ] (i) nearest
the date the Employee completes the eligibility conditions described in Options
(a) and (b) [or in Option (c)(2) if applicabl of this Adoption Agreement
Section 2.01. [Note: The Employer must coordinate the selection of (g), (h) or
(i) with the "Plan Entry Date" selection in (d), (e) or (f). Unless otherwise
excluded under Section 1.07, the 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 Section 410(a); or
(2) 6 months after the date the Employee completes those requirements.]
Dual eligibility. The eligibility conditions of this Section 2.01 apply to:
[Choose (j) or (k)]
[X] (j) All Employees of the Employer, except:
(Choose (1) or (2)]
[X] (1) No exceptions.
[ ] (2) Employees who are Participants in the Plan as of the Effective Date.
[ ] (k) Solely to an Employee employed by the Employer after ________________.
If the Employee was employed by the Employer on or before the specified
date, the Employee will become a Participant: [Choose (1), (2) or (3)]
[ ] (1) On the latest of the Effective Date, his Employment Commencement
Date or the date he attains age (not to exceed 21).
[ ] (2) Under the eligibility conditions in effect under the Plan
prior to the restated Effective Date. If the restated Plan
required more than one Year of Service to participate, the
eligibility condition under this Option (2) for participation in
the Code Section 401(k) arrangement under this Plan is one Year of
Service for Plan Years beginning after December 31, 1988. (For
restated plans only.)
[ ] (3) (Specify) _______________________________________________________.
2.02 YEAR OF SERVICE - PARTICIPATION.
Hours of Service. An Employee must complete:
[Choose (a) or (b)]
[X](a) 1,000 Hours of Service.
[ ](b) _______________________Hours of Service during an eligibility
computation period to receive credit for Year of Service.
[Note: The Hours of Service requirement may not exceed 1,000.]
Eligibility computation period. After the initial eligibility computation
period described in Section 2.02 of the Plan, the Plan measures the eligibility
computation period as: [Choose (c) or (d)]
[X] (c) The 12 consecutive month period beginning with each anniversary of an
Employee's Employment Commencement Date.
[ ] (d) The Plan Year, beginning with the Plan Year which includes the first
anniversary of the Employee's Employment Commencement Date.
2.03 BREAK IN SERVICE - PARTICIPATION. The Break in Service rule described
in Section 2.03(B) of the Plan:
[Choose (a) or (b)]
[X] (a) Does not apply to the Employer's Plan.
[ ] (b) Applies to the Employer's Plan.
2.06 ELECTION NOT TO PARTICIPATE. The Plan: [Choose (a) or (b)]
[X] (a) Does not permit an eligible Employee or a Participant to elect not to
participate.
[ ] (b) Does permit an eligible Employee or a Participant to elect not to
participate in accordance with Section 2.06 and with the following
rules:
[Complete (1), (2), (3) and (4)]
(1) An election is effective for a Plan Year if filed no later than
______________________________. .
(2) An election not to participate must be effective for at least
__________ Plan Year(s).
(3) Following a reelection to participate, the Employee or Participant:
[ ] (i) May not again elect not to participate for any subsequent Plan Year.
[ ] (ii) May again elect not to participate, but not earlier than
_____________________ following the Plan Year in which the reelection
first was effective.
(4) (Specify) ___________________________________________________
____________________________________________________________.
(Insert "N/A" if no other rules apply.)
ARTICLE III
EMPLOYER CONTRIBUTIONS AND FORFEITURES
3.01 AMOUNT.
Part I. [Options (a) through (g)] Amount of Employer's
contribution. The Employer's annual contribution to the
Trust will equal the total amount of deferral contributions,
matching contributions, qualified nonelective contributions and
nonelective contributions, as determined under this Section 3.01.
[Choose any combination of (a), (b), (c) and (d), or choose (e)]
[X] (a) Deferral contributions (Code Section 401(k) arrangement). [Choose (1)
or (2) or both]
[X] (1) Salary reduction arrangement. The Employer must contribute the amount
by which the Participants have reduced their Compensation for the Plan
Year, pursuant to their salary reduction agreements on file with the
Advisory Committee. A reference in the Plan to salary reduction
contributions is a reference to these amounts.
[ ] (2) Cash or deferred arrangement. The Employer will contribute on behalf
of each Participant the portion of the Participant's proportionate
share of the cash or deferred contribution which he has not elected to
receive in cash. See Section 14.02 of the Plan. The Employer's cash
or deferred contribution is the amount the Employer may from time to
time deem advisable which the Employer designates as a cash or
deferred contribution prior to making that contribution to the Trust.
[X] (b) Matching contributions. The Employer will make matching
contributions in accordance with the formula(s) elected in Part II of
this Adoption Agreement Section 3.01.
[ ] (c) Designated qualified nonelective contributions. The Employer, in
its sole discretion, may contribute an amount which it designates as
a qualified nonelective contribution.
[ ] (d) Nonelective contributions.
[Choose any combination of (1) through (4)]
[ ] (1) Discretionary contribution. The amount (or additional amount) the
Employer may from time to time deem advisable.
[ ] (2) The amount (or additional amount) the Employer may from time to
time deem advisable, separately determined for each of the following
classifications of Participants: [Choose (i) or (ii)]
[ ] (i) Nonhighly Compensated Employees and Highly Compensated
Employees.
[ ] (ii)(Specify classifications.
Under this Option (2), the Advisory Committee will allocate the amount
contributed for each Participant classification in accordance with Part II of
Adoption Agreement Section 3.04, as if the Participants in that classification
were the only Participants in the Plan.
[ ] (3) ________________ % of the Compensation of all Participants under
the Plan, determined for the Employer's taxable year for which
it makes the contribution.
[Note: The percentage selected may not exceed 15%.]
[ ] (4) _________________% of Net Profits but not more than $________________.
[ ] (e) Frozen Plan. This Plan is a frozen Plan effective ____________. The
Employer will not contribute to the Plan with respect to any period
following the stated date.
Net Profits. The Employer: [Choose (f) or (g)]
[X] (f) Need not have Net Profits to make its annual contribution under this
Plan.
[ ] (g) Must have current or accumulated Net Profits exceeding $_____________
to make the following contributions: (Choose at least one)
[ ] (1) Cash or deferred contributions described in Option (a)(2).
[ ] (2) Matching contributions described in Option (b), except:
______________________________________________________________.
[ ] (3) Qualified nonelective contributions described in Option (c).
[ ] (4) Nonelective contributions described in Option (d).
The term "Net Profits" means the Employer's net income or profits for any
taxable year determined by the Employer upon the basis of its books of account
in accordance with generally accepted accounting practices consistently applied
without any deductions for Federal and state taxes upon income or for
contributions made by the Employer under this Plan or under any other employee
benefit plan the Employer maintains. The term "Net Profits" specifically
excludes N/A . [Note: Enter "N/A" if no exclusions apply.]
If the Employer requires Net Profits for matching contributions and the Employer
does not have sufficient Net Profits under Option (g), it will reduce the
matching contribution under a fixed formula on a prorata basis for all
Participants. A Participant's share of the reduced contribution will bear the
same ratio as the matching contribution the Participant would have received if
Net Profits were sufficient bears to the total matching contribution all
Participants would have received if Net Profits were sufficient. If more than
one member of a related group (as defined in Section 1.30) execute this Adoption
Agreement, each participating member will determine Net Profits separately but
will not apply this reduction unless, after combining the separately determined
Net Profits, the aggregate Net Profits are insufficient to satisfy the matching
contribution liability. "Net Profits" includes both current and accumulated Net
Profits.
Part II. [Options (h) through (j)] Matching contribution formula.
[Note: If the Employer elected Option (b), complete Options (h),
(i) and (j).]
[X] (h) Amount of matching contributions. For each Plan Year, the Employer's
matching contribution is:
[Choose any combination of (1), (2), (3), (4) and (5)]
[ ] (1) An amount equal to ________% of each Participant's eligible
contributions for the Plan Year.
[ ] (2) An amount equal to _____% of each Participant's first tier of
eligible contributions for the Plan Year, plus the following
matching percentage(s) for the following subsequent tiers of
eligible contributions for the Plan Year: ________.
[X] (3) Discretionary formula.
[X] (i) An amount (or additional amount) equal to a matching
percentage the Employer from time to time may deem
advisable of the Participant's eligible contributions
for the Plan Year.
[ ] (ii) An amount (or additional amount) equal to a
matching percentage the Employer from time to time may
deem advisable of each tier of the Participant's
eligible contributions for the Plan Year.
[ ] (4) An amount equal to the following percentage of each
Participant's eligible contributionsfor the Plan Year, based
on the Participant's Years of Service:
Number of Years of Service Matching Percentage
__________________________ ___________________
__________________________ ___________________
__________________________ ___________________
__________________________ ___________________
The Advisory Committee will apply this formula by determining Years of Service
as follows: _________________________________________________________________
______________________________________________________________________________.
[ ] (5) A Participant's matching contributions may not: [Choose (i) or (ii)]
[ ] (i) Exceed.
[ ] (ii) Be less than __________.
Related Employers. If two or more related employers (as defined in Section 1.30)
contribute to this Plan, the related employers may elect different matching
contribution formulas by attaching to the Adoption Agreement a separately
completed copy of this Part II. [Note: Separate matching contribution formulas
create separate current benefit structures that must satisfy the minimum
participation test of Code Section 401(a)(26).]
[X] (i) Definition of eligible contributions. Subject to the requirements
of Option (j), the term "eligible contributions "means:
[Choose any combination of (1) through (3)].
[X] (1) Salary reduction contributions.
[ ] (2) Cash or deferred contributions (including any part of
the Participant's proportionate share of the cash or deferred
contribution which the Employer defers without the
Participant's election).
[ ] (3) Participant mandatory contributions, as designated in Adoption
Agreement Section 4.01. See Section 14.04 of the Plan.
[X] (j) Amount of eligible contributions taken into account. When
determining a Participant's eligible contributions taken
into account under the matching contributions formula(s),
the following rules apply: [Choose any combination of (1)
through (4)]
[X] (1) The Advisory Committee will take into account all eligible
contributions credited for the Plan Year.
[ ] (2) The Advisory Committee will disregard eligible contributions
exceeding: ______________________.
[ ] (3) The Advisory Committee will treat as the first tier of eligible
contributions, an amount not exceeding: ________________________.
The subsequent tiers of eligible contributions are: _____________
_________________________________________________________________.
[ ] (4) (Specify) _______________________________________________________.
Part III. [Options (k) and (l)]. Special rules for Code Section 401(k)
Arrangement. [Choose (k) or (l), or both, as applicable]
[X] (k) Salary Reduction Agreements. The following rules and restrictions
apply to an Employee's salary reduction agreement:
[Make a selection under (1), (2), (3) and (4)]
(1) Limitation on amount. The Employee's salary reduction
contributions:
[Choose (i) or at least one of (ii) or (iii)]
[ ] (i) No maximum limitation other than as provided in the Plan.
[X] (ii) May not exceed 15% of Compensation for the Plan
Year, subject to the annual additions limitation described in
Part 2 of Article III and the 402(g)limitation described in
Section 14.07 of the Plan.
[X] (iii) Based on percentages of Compensation must equal at least 1%.
(2) An Employee may revoke, on a prospective basis, a salary reduction
agreement:
[Choose (i), (ii), (iii) or (iv)]
[ ] (i) Once during any Plan Year but not later than _______ of the Plan Year.
[ ] (ii) As of any Plan Entry Date.
[ ] (iii) As of the first day of any month.
[X] (iv) (Specify, but must be at least once per Plan Year) as of any
pay period with 30 days prior notice.
(3) An Employee who revokes his salary reduction agreement may
file a new salary reduction agreement with an effective date:
[Choose (i), (ii), (iii) or (iv)]
[ ] (i) No earlier than the first day of the next Plan Year.
[X] (ii) As of any subsequent Plan Entry Date.
[ ] (iii) As of the first day of any month subsequent to the month in which he
revoked an Agreement.
[ ] (iv) (Specify, but must be at least once per Plan Year following the Plan
Year of revocation) ________________________________________________.
(4) A Participant may increase or may decrease, on a prospective
basis, his salary reduction percentage or dollar amount:
[Choose (i), (ii), (iii) or (iv)]
[ ] (i) As of the beginning of each payroll period.
[ ] (ii) As of the first day of each month.
[X] (iii) As of any Plan Entry Date.
[ ] (iv) (Specify, but must permit an increase or a decrease at least once
per Plan Year:) ____________________________________________________.
[ ] (l) Cash or deferred contributions. For each Plan Year for which the
Employer makes a designated cash or deferred contribution, a
Participant may elect to receive directly in cash not more than the
following portion [or, if less, the 402(g) limitation described in
Section 14.07 of the Plan] of his proportionate share of that cash or
deferred contribution: [Choose (1) or (2)]
[ ] (1) All or any portion.
[ ] (2) _____________________%.
3.04 CONTRIBUTION ALLOCATION. The Advisory Committee will allocate
deferral contributions, matching contributions, qualified nonelective
contributions and nonelective contributions in accordance with Section
14.06 and the elections under this Adoption Agreement Section 3.04.
Part I. [Options (a) through (d)]. Special Accounting Elections. (Choose
whichever elections are applicable to the Employer's Plan)
[X] (a) Matching Contributions Account. The Advisory Committee will allocate
matching contributions to a Participant's:
[Choose (1) or (2); (3) is available only in addition to (1)]
[X] (1) Regular Matching Contributions Account.
[ ] (2) Qualified Matching Contributions Account.
[ ] (3) Except, matching contributions under Option(s) __________ of Adoption
Agreement Section 3.01 are allocable to the Qualified Matching
Contributions Account.
[X] (b) Special Allocation Dates for Salary Reduction Contributions. The
Advisory Committee will allocate salary reduction contributions
as of the Accounting Date and as of the following additional
allocation dates: monthly.
[X] (c) Special Allocation Dates for Matching Contributions. The Advisory
Committee will allocate matching contributions as of the
Accounting Date and as of the following additional allocation dates:
N/A.
[ ] (d) Designated Qualified Nonelective Contributions - Definition of
Participant. For purposes of allocating the designated
qualified nonelective contribution, "Participant" means:
[Choose (1), (2) or (3)]
[ ] (1) All Participants.
[ ] (2) Participants who are Nonhighly Compensated Employees for the Plan Year.
[ ] (3) (Specify) ____________________________________________________________.
Part II. Method of Allocation - Nonelective Contribution. Subject to any
restoration allocation required under Section 5.04, the Advisory Committee will
allocate and credit each annual nonelective contribution (and Participant
forfeitures treated as nonelective contributions) to the Employer Contributions
Account of each Participant who satisfies the conditions of Section 3.06, in
accordance with the allocation method selected under this Section 3.04. If the
Employer elects Option (e)(2), Option (g)(2) or Option (h), for the first 3% of
Compensation allocated to all Participants, "Compensation" does not include any
exclusions elected under Adoption Agreement Section 1.12 (other than the
exclusion of elective contributions), and the Advisory Committee must take into
account the Participant's Compensation for the entire Plan Year. [Choose an
allocation method under (e), (f), (g) or (h); (i) is mandatory if the Employer
elects (f), (g) or (h); (j) is optional in addition to any other election.]
[ ] (e) Non-integrated Allocation Formula. [Choose (1) or (2)]
[ ] (1) The Advisory Committee will allocate the annual nonelective
contributions in the same ratio that each Participant's
Compensation for the Plan Year bears to the total Compensation of
all Participants for the Plan Year.
[ ] (2) The Advisory Committee will allocate the annual nonelective
contributions in the same ratio that each Participant's
Compensation for the Plan Year bears to the total Compensation of
all Participants for the Plan Year. For purposes of this Option
(2), "Participant" means, in addition to a Participant who
satisfies the requirements of Section 3.06 for the Plan Year, any
other Participant entitled to a top heavy minimum allocation under
Section 3.04(B), but such Participant's allocation will not exceed
3% of his Compensation for the Plan Year.
[ ] (f) Two-Tiered Integrated Allocation Formula - Maximum Disparity.
First, the Advisory Committee will allocate the annual Employer
nonelective contributions in the same ratio that each Participant's
Compensation plus Excess Compensation for the Plan Year bears to the
total Compensation plus Excess Compensation of all Participants for the
Plan Year. The allocation under this paragraph, as a percentage of each
Participant's Compensation plus Excess Compensation, must not exceed
the applicable percentage (5.7%, 5.4% or 4.3%) listed under the Maximum
Disparity Table following Option (i).
The Advisory Committee then will allocate any remaining nonelective
contributions in the same ratio that each Participant's Compensation
for the Plan Year bears to the total Compensation of all Participants
for the Plan Year.
[ ] (g) Three-Tiered Integrated Allocation Formula. First, the Advisory
Committee will allocate the annual Employer nonelective contributions
in the same ratio that each Participant's Compensation for the Plan
Year bears to the total Compensation of all Participants for the Plan
Year. The allocation under this paragraph, as a percentage of each
Participant's Compensation may not exceed the applicable percentage
(5.7%, 5.4% or 4.3%) listed under the Maximum Disparity Table following
Option (i). Solely for purposes of the allocation in this first
paragraph, "Participant" means, in addition to a Participant who
satisfies the requirements of Section 3.06 for the Plan Year: [Choose
(1) or (2)]
[ ] (1) No other Participant.
[ ] (2) Any other Participant entitled to a top heavy minimum
allocation under Section 3.04(B), but such Participant's
allocation under this Option (g) will not exceed 3% of his
Compensation for the Plan Year.
As a second tier allocation, the Advisory Committee will allocate the
nonelective contributions in the same ratio that each Participant's Excess
Compensation for the Plan Year bears to the total Excess Compensation of all
Participants for the Plan Year. The allocation under this paragraph, as a
percentage of each Participant's Excess Compensation, may not exceed the
allocation percentage in the first paragraph.
Finally, the Advisory Committee will allocate any remaining nonelective
contributions in the same ratio that each Participant's Compensation for the
Plan Year bears to the total Compensation of all Participants for the Plan Year.
[ ] (h) Four-Tiered Integrated Allocation Formula. First, the Advisory
Committee will allocate the annual Employer nonelective contributions
in the same ratio that each Participant's Compensation for the Plan
Year bears to the total Compensation of all Participants for the Plan
Year, but not exceeding 3% of each Participant's Compensation. Solely
for purposes of this first tier allocation, a "Participant" means, in
addition to any Participant who satisfies the requirements of Section
3.06 for the Plan Year, any other Participant entitled to a top heavy
minimum allocation under Section 3.04(B) of the Plan.
As a second tier allocation, the Advisory Committee will allocate the
nonelective contributions in the same ratio that each Participant's Excess
Compensation for the Plan Year bears to the total Excess Compensation of all
Participants for the Plan Year, but not exceeding 3% of each Participant's
Excess Compensation.
As a third tier allocation, the Advisory Committee will allocate the annual
Employer contributions in the same ratio that each Participant's Compensation
plus Excess Compensation for the Plan Year bears to the total Compensation plus
Excess Compensation of all Participants for the Plan Year. The allocation under
this paragraph, as a percentage of each Participant's Compensation plus Excess
Compensation, must not exceed the applicable percentage (2.7%, 2.4% or 1.3%)
listed under the Maximum Disparity Table following Option (i).
The Advisory Committee then will allocate any remaining nonelective
contributions in the same ratio that each Participant's Compensation for the
Plan Year bears to the total Compensation of all Participants for the Plan Year.
[ ] (i) Excess Compensation. For purposes of Option (f), (g) or (h),
"Excess Compensation" means Compensation in excess of the following
Integration Level: [Choose (1) or (2)]
[ ] (1) ____________________% (not exceeding 100%) of the taxable wage base,
as determined under Section 230 of the Social Security Act, in
effect on the first day of the Plan Year: [Choose any combination
of (i) and (ii) or choose (iii)]
[ ] (i) Rounded to _________________ (but not exceeding the taxable wage
base).
[ ] (ii) But not greater than $_________________.
[ ] (iii) Without any further adjustment or limitation.
[ ] (2) $__________________________________
[Note: Not exceeding the taxable wage base for the Plan Year in which
this Adoption Agreement first is effective.]
Maximum Disparity Table. For purposes of Options (f), (g) and (h), the
applicable percentage is:
Integration Level Applicable Percentages Applicable
(as percentage of for Option (f) Percentages
taxable wage base) or Option (g) for Option (h)
100% 5.7% 2.7%
More than 80%
but less than 100% 5.4% 2.4%
More than 20%
(but not less than
$10,001) and not
more than 80% 4.3% 1.3%
20% (or $10,000,
if greater) 5.7% 2.7%
or less
[ ] (j) Allocation offset. The Advisory Committee will reduce a
Participant's allocation otherwise made under Part II of this
Section 3.04 by the Participant's allocation under the following
qualified plan(s) maintained by the Employer:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________.
The Advisory Committee will determine this allocation reduction:
[Choose (1) or (2)]
[ ] (1) By treating the term "nonelective contribution" as including all
amounts paid or accrued by the Employer during the Plan Year to the
qualified plan(s) referenced under this Option (j). If a
Participant under this Plan also participates in that other plan,
the Advisory Committee will treat the amount the Employer contributes
for or during a Plan Year on behalf of a particular Participant under
such other plan as an amount allocated under this Plan to that
Participant's Account for that Plan Year. The Advisory Committee
will make the computation of allocation required under the
immediately preceding sentence before making any allocation of
nonelective contributions under this Section 3.04.
[ ] (2) In accordance with the formula provided in an addendum to this
Adoption Agreement, numbered 3.04(j).
Top Heavy Minimum Allocation - Method of Compliance. If a Participant's
allocation under this Section 3.04 is less than the top heavy minimum allocation
to which he is entitled under Section 3.04(B): [Choose (k) or (l)]
[X] (k) The Employer will make any necessary additional contribution to the
Participant's Account, as described in Section 3.04(B)(7)(a) of the
Plan.
[ ] (l) The Employer will satisfy the top heavy minimum allocation under the
following plan(s) it maintains:______________________________________.
However, the Employer will make any necessary additional contribution
to satisfy the top heavy minimum allocation for an employee covered
only under this Plan and not under the other plan(s) designated in this
Option (l). See Section 3.04(B)(7)(b) of the Plan.
If the Employer maintains another plan, the Employer may provide in an addendum
to this Adoption Agreement, numbered Section 3.04, any modifications to the Plan
necessary to satisfy the top heavy requirements under Code Section 416.
Related employers. If two or more related employers (as defined in Section 1.30)
contribute to this Plan, the Advisory Committee must allocate all Employer
nonelective contributions (and forfeitures treated as nonelective contributions)
to each Participant in the Plan, in accordance with the elections in this
Adoption Agreement Section 3.04: [Choose (m) or (n)]
[X] (m) Without regard to which contributing related group member employs the
Participant.
[ ] (n) Only to the Participants directly employed by the contributing
Employer. If a Participant receives Compensation from more than one
contributing Employer, the Advisory Committee will determine the
allocations under this Adoption Agreement Section 3.04 by prorating
among the participating Employers the Participant's Compensation and,
if applicable, the Participant's Integration Level under Option (i).
3.05 FORFEITURE ALLOCATION. Subject to any restoration allocation required
under Sections 5.04 or 9.14, the Advisory Committee will allocate a
Participant forfeiture in accordance with Section 3.04:
[Choose (a) or (b); (c) and (d) are optional in addition to (a) or (b)]
[ ] (a) As an Employer nonelective contribution for the Plan Year in
which the forfeiture occurs, as if the Participant forfeiture were an
additional nonelective contribution for that Plan Year.
[ ] (b) To reduce the Employer matching contributions and nonelective
contributions for the Plan Year:
[Choose (1) or (2)]
[ ] (1) in which the forfeiture occurs.
[ ] (2) immediately following the Plan Year in which the forfeiture occurs.
[ ] (c) To the extent attributable to matching contributions: [Choose (1), (2)
or (3)].
[ ] (1) In the manner elected under Options (a) or (b).
[ ] (2) First to reduce Employer matching contributions for the Plan Year:
[Choose (i) or (ii)]
[ ] (i) in which the forfeiture occurs.
[ ] (ii) immediately following the Plan Year in which the
forfeiture occurs, then as elected in Options (a) or (b).
[ ] (3) As a discretionary matching contribution for the Plan Year in which
the forfeiture occurs, in lieu of the manner elected under Options
(a) or (b).
[ ] (d) First to reduce the Plan's ordinary and necessary administrative
expenses for the Plan Year and then will allocate any remaining
forfeitures in the manner described in Options (a), (b) or (c),
whichever applies.
If the Employer elects Option (c), the forfeitures used to reduce Plan expenses:
[Choose (1) or (2)]
[ ] (1) relate proportionately to forfeitures described in Option (c) and to
forfeitures described in Options (a) or (b).
[ ] (2) relate first to forfeitures described in Option ____________.
Allocation of forfeited excess aggregate contributions. The Advisory Committee
will allocate any forfeited excess aggregate contributions (as described in
Section 14.09): [Choose (e), (f) or (g)]
[X] (e) To reduce Employer matching contributions for the Plan Year:
[Choose (1) or (2)].
[ ] (1) in which the forfeiture occurs.
[X] (2) immediately following the Plan Year in which the forfeiture
occurs.
[ ] (f) As Employer discretionary matching contributions for the Plan
Year in which forfeited, except the Advisory Committee will not
allocate these forfeitures to the Highly Compensated Employees who
incurred the forfeitures.
[ ] (g) In accordance with Options (a) through (d), whichever applies,
except the Advisory Committee will not allocate these forfeitures under
Option (a) or under Option (c)(3) to the Highly Compensated Employees
who incurred the forfeitures.
3.06 ACCRUAL OF BENEFIT.
Compensation taken into account. For the Plan Year in which the
Employee first becomes a Participant, the Advisory Committee will
determine the allocation of any cash or deferred contribution,
designated qualified nonelective contribution or nonelective
contribution by taking into account: [Choose (a) or (b)]
[ ] (a) The Employee's Compensation for the entire Plan Year.
[X] (b) The Employee's Compensation for the portion of the Plan Year in which
the Employee actually is a Participant in the Plan.
Accrual Requirements. Subject to the suspension of accrual requirements of
Section 3.06(E) of the Plan, to receive an allocation of cash or deferred
contributions, matching contributions, designated qualified nonelective
contributions, nonelective contributions and Participant forfeitures, if any,
for the Plan Year, a Participant must satisfy the conditions described in the
following elections: [Choose (c) or at least one of (d) through (f)]
[ ] (c) Safe harbor rule. If the Participant is employed by the Employer
on the last day of the Plan Year, the Participant must complete at
least one Hour of Service for that Plan Year. If the Participant is not
employed by the Employer on the last day of the Plan Year, the
Participant must complete at least 501 Hours of Service during the Plan
Year.
[X] (d) Hours of Service condition. The Participant must complete the
following minimum number of Hours of Service during the Plan Year:
[Choose at least one of (1) through (5)]
[X] (1) 1,000 Hours of Service.
[ ] (2) (Specify, but the number of Hours of Service may not exceed 1,000)
____________________________.
[X] (3) No Hour of Service requirement if the Participant terminates
employment during the Plan Year on account of:
[Choose (i), (ii) or (iii)]
[X] (i) Death.
[X] (ii) Disability.
[X] (iii) Attainment of Normal Retirement Age in the current Plan Year or in a
prior Plan Year.
[ ] (4) ______ Hours of Service (not exceeding 1,000) if the Participant
terminates employment with the Employer during the Plan Year,
subject to any election in Option (3).
[ ] (5) No Hour of Service requirement for an allocation of the following
contributions: ___________________.
[X] (e) Employment condition. The Participant must be employed by the
Employer on the last day of the Plan Year, irrespective of whether
he satisfies any Hours of Service condition under Option (d),
with the following exceptions:
[Choose (1) or at least one of (2) through (5)]
[ ] (1) No exceptions.
[X] (2) Termination of employment because of death.
[X] (3) Termination of employment because of disability.
[X] (4) Termination of employment following attainment of Normal Retirement Age.
[ ] (5) No employment condition for the following contributions: _____________.
[ ] (f) (Specify other conditions, if applicable) ____________________________
______________________________________________________________________.
Suspension of Accrual Requirements. The suspension of accrual requirements of
Section 3.06(E) of the Plan:
[Choose (g), (h) or (i)]
[X] (g) Applies to the Employer's Plan.
[ ] (h) Does not apply to the Employer's Plan.
[ ] (i) Applies in modified form to the Employer's Plan, as described in
an addendum to this Adoption Agreement, numbered Section 3.06(E).
Special accrual requirements for matching contributions. If the Plan allocates
matching contributions on two or more allocation dates for a Plan Year, the
Advisory Committee, unless otherwise specified in Option (l), will apply any
Hours of Service condition by dividing the required Hours of Service on a
prorata basis to the allocation periods included in that Plan Year. Furthermore,
a Participant who satisfies the conditions described in this Adoption Agreement
Section 3.06 will receive an allocation of matching contributions (and
forfeitures treated as matching contributions) only if the Participant satisfies
the following additional condition(s):
[Choose (j) or at least one of (k) or (l)]
[X] (j) No additional conditions.
[ ] (k) The Participant is not a Highly Compensated Employee for the Plan Year.
This Option (k) applies to:
[Choose (1) or (2)]
[ ] (1) All matching contributions.
[ ] (2) Matching contributions described in Option(s)_______________of Adoption
Agreement Section 3.01.
[ ] (l) (Specify) ___________________________________________________________
_____________________________________________________________________
_____________________________________________________________________.
3.15 MORE THAN ONE PLAN LIMITATION. If the provisions of Section 3.15
apply, the Excess Amount attributed to this Plan equals:
[Choose (a), (b) or (c)]
[ ] (a) The product of:
(i) the total Excess Amount allocated as of such date (including any
amount which the Advisory Committee would have allocated but for
the limitations of Code Section 415), times.
(ii) the ratio of (1) the amount allocated to the Participant as of
such date under this Plan divided by (2) the total amount
allocated as of such date under all qualified defined contribution
plans (determined without regard to the limitations of Code
Section 415).
[ ] (b) The total Excess Amount.
[X] (c) None of the Excess Amount.
3.18 DEFINED BENEFIT PLAN LIMITATION.
Application of limitation. The limitation under Section 3.18 of the
Plan: [Choose (a) or (b)]
[X] (a) Does not apply to the Employer's Plan because the Employer does
not maintain and never has maintained a defined benefit plan covering
any Participant in this Plan.
[ ] (b) Applies to the Employer's Plan. To the extent necessary to satisfy
the limitation under Section 3.18, the Employer will reduce:
[Choose (1) or (2)]
[ ] (1) The Participant's projected annual benefit under the defined benefit
plan under which the Participant participates.
[ ] (2) Its contribution or allocation on behalf of the Participant to the
defined contribution plan under which the Participant participates and
then, if necessary, the Participant's projected annual benefit under
the defined benefit plan under which the Participant participates.
[Note: If the Employer selects (a), the remaining options in this Section 3.18
do not apply to the Employer's Plan.]
Coordination with top heavy minimum allocation. The Advisory Committee will
apply the top heavy minimum allocation provisions of Section 3.04(B) of the Plan
with the following modifications: [Choose (c) or at least one of (d) or (e)]
[ ] (c) No modifications.
[ ] (d) For Non-Key Employees participating only in this Plan, the top
heavy minimum allocation is the minimum allocation described in Section
3.04(B) determined by substituting ____%(not less than 4%) for "3%,"
except: [Choose (i) or (ii)].
[ ] (i) No exceptions.
[ ] (ii) Plan Years in which the top heavy ratio exceeds 90%.
[ ] (e) For Non-Key Employees also participating in the defined benefit plan,
the top heavy minimum is: [Choose (1) or (2)]
[ ] (1) 5% of Compensation (as determined under Section 3.04(B) of the Plan)
irrespective of the contribution rate of any Key Employee, except:
[Choose (i) or (ii)]
[ ] (i) No exceptions.
[ ] (ii) Substituting "7 1/2%" for "5%" if the top heavy ratio does
not exceed 90%.
[ ](2) 0%.
[Note: The Employer may not select this Option (2) unless the
defined benefit plan satisfies the top heavy minimum benefit
requirements of Code Section 416 for these Non-Key Employees.]
Actuarial Assumptions for Top Heavy Calculation. To determine the top heavy
ratio, the Advisory Committee will use the following interest rate and mortality
assumptions to value accrued benefits under a defined benefit plan: __________.
If the elections under this Section 3.18 are not appropriate to satisfy the
limitations of Section 3.18, or the top heavy requirements under Code
Section 416, the Employer must provide the appropriate provisions in an
addendum to this Adoption Agreement.
ARTICLE IV
PARTICIPANT CONTRIBUTIONS
4.01 PARTICIPANT NONDEDUCTIBLE CONTRIBUTIONS. The Plan:
[Choose (a) or (b); (c) is available only with (b)]
[X] (a) Does not permit Participant nondeductible contributions.
[ ] (b) Permits Participant nondeductible contributions, pursuant to Section
14.04 of the Plan.
[ ] (c) The following portion of the Participant's nondeductible contributions
for the Plan Year are mandatory contributions under Option (i)(3) of
Adoption Agreement Section 3.01: [Choose (1) or (2)]
[ ] (1) The amount which is not less than: _____________.
[ ] (2) The amount which is not greater than: __________.
Allocation dates. The Advisory Committee will allocate nondeductible
contributions for each Plan Year as of the Accounting Date and the following
additional allocation dates: [Choose (d) or (e)]
[ ] (d) No other allocation dates.
[ ] (e) (Specify) __________________________________________________________
____________________________________________________________________.
As of an allocation date, the Advisory Committee will credit all nondeductible
contributions made for the relevant allocation period. Unless otherwise
specified in (e), a nondeductible contribution relates to an allocation period
only if actually made to the Trust no later than 30 days after that allocation
period ends.
4.05 PARTICIPANT CONTRIBUTION - WITHDRAWAL/DISTRIBUTION. Subject to the
restrictions of Article VI, the following distribution options
apply to a Participant's Mandatory Contributions Account, if any,
prior to his Separation from Service:
[Choose (a) or at least one of (b) through (d)]
[ ] (a) No distribution options prior to Separation from Service.
[ ] (b) The same distribution options applicable to the Deferral
Contributions Account prior to the Participant's Separation from
Service, as elected in Adoption Agreement Section 6.03.
[ ] (c) Until he retires, the Participant has a continuing election to
receive all or any portion of his Mandatory Contributions Account if:
[Choose (1) or at least one of (2) through (4)]
[ ] (1) No conditions.
[ ] (2) The mandatory contributions have accumulated for at least _________
Plan Years since the Plan Year for which contributed.
[ ] (3) The Participant suspends making nondeductible contributions for a
period of _____________ months.
[ ] (4) (Specify) _________________________________________________________
___________________________________________________________________.
[ ] (d) (Specify) _________________________________________________________
___________________________________________________________________.
ARTICLE V
TERMINATION OF SERVICE - PARTICIPANT VESTING
5.01 NORMAL RETIREMENT. Normal Retirement Age under the Plan is:
[Choose (a) or (b)]
[ ] (a) (State age, but may not exceed age 65) _______________.
[X] (b) 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. (The age selected may
not exceed age 65 and the anniversary selected may not exceed the 5th.)
5.02 PARTICIPANT DEATH OR DISABILITY. The 100% vesting rule under Section
5.02 of the Plan:
[Choose (a) or choose one or both of (b) and (c)]
[ ] (a) Does not apply.
[X] (b) Applies to death.
[X] (c) Applies to disability.
5.03 VESTING SCHEDULE.
Deferral Contributions Account/Qualified Matching Contributions
Account/Qualified Nonelective Contributions Account/Mandatory
Contributions Account. A Participant has a 100% Nonforfeitable
interest at all times in his Deferral Contributions Account, his
Qualified Matching Contributions Account, his Qualified Nonelective
Contributions Account and in his Mandatory Contributions Account.
Regular Matching Contributions Account/Employer Contributions Account. With
respect to a Participant's Regular Matching Contributions Account and Employer
Contributions Account, the Employer elects the following vesting schedule:
[Choose (a) or (b); (c) and (d) are available only as additional option)]
[ ] (a) Immediate vesting. 100% Nonforfeitable at all times. [Note: The
Employer must elect Option (a) if the eligibility conditions under
Adoption Agreement Section 2.01(c) require 2 years of service or more
than 12 months of employment.]
[X] (b) Graduated Vesting Schedules.
Top Heavy Schedule
(Mandatory)
Years of Nonforfeitable
Service Percentage
------------- -----------------
Less than 1 0
1 25
2 50
3 75
4 100
5 -----
6 or more
Non Top Heavy Schedule
(Optional)
Years of Nonforfeitable
Service Percentage
----------------- ------------------
Less than 1 _______
1 _______
2 _______
3 _______
4 _______
5 _______
6 _______
7 or more 100%
[ ] (c) Special vesting election for Regular Matching Contributions Account.
In lieu of the election under Options (a) or (b), the Employer elects
the following vesting schedule for a Participant's Regular Matching
Contributions Account: [Choose (1) or (2)]
[ ] (1) 100% Nonforfeitable at all times.
[ ] (2) In accordance with the vesting schedule described in the addendum to
this Adoption Agreement, numbered 5.03(c).
[Note: If the Employer elects this Option (c)(2), the addendum must
designate the applicable vesting schedule(s) using the same format
as used in Option (b).]
[Note: Under Options (b) and (c)(2), the Employer must complete a Top Heavy
Schedule which satisfies Code Section 416. The Employer, at its option, may
complete a Non Top Heavy Schedule. The Non Top Heavy Schedule must satisfy
Code Section 411(a)(2). Also see Section 7.05 of the Plan.]
[ ] (d) The Top Heavy Schedule under Option (b) [and, if applicable, under
Option (c)(2)] applies:
[Choose (1) or (2)]
[ ] (1) Only in a Plan Year for which the Plan is top heavy.
[ ] (2) In the Plan Year for which the Plan first is top heavy and then in all
subsequent Plan Years.
[Note: The Employer may not elect Option (d) unless it has completed a Non Top
Heavy Schedule.]
Minimum vesting. [Choose (e) or (f)]
[X] (e) The Plan does not apply a minimum vesting rule.
[ ] (f) A Participant's Nonforfeitable Accrued Benefit will never be less
than the lesser of ________ or his entire Accrued Benefit,
even if the application of a graduated vesting schedule under
Options (b) or (c) would result in a smaller Nonforfeitable Accrued
Benefit.
Life Insurance Investments. The Participant's Accrued Benefit attributable to
insurance contracts purchased on his behalf under Article XI is: [Choose (g) or
(h)] N/A
[ ] (g) Subject to the vesting election under Options (a), (b) or (c).
[ ] (h) 100% Nonforfeitable at all times, irrespective of the vesting election
under Options (b) or (c)(2).
5.04 CASH-OUT DISTRIBUTIONS TO PARTIALLY-VESTED PARTICIPANTS/RESTORATION OF
FORFEITED ACCRUED BENEFIT. The deemed cash-out rule described in
Section 5.04(C) of the Plan: [Choose (a) or (b)]
[X] (a) Does not apply.
[ ] (b) Will apply to determine the timing of forfeitures for 0% vested
Participants. A Participant is not a 0% vested Participant if he has
a Deferral Contributions Account.
5.06 YEAR OF SERVICE - VESTING.
Vesting computation period. The Plan measures a Year of Service on the
basis of the following 12 consecutive month periods:
[Choose (a) or (b)]
[ ] (a) Plan Years.
[X] (b) Employment Years. An Employment Year is the 12 consecutive
month period measured from the Employee's Employment Commencement Date
and each successive 12 consecutive month period measured from each
anniversary of that Employment Commencement Date. Hours of Service.
The minimum number of Hours of Service an Employee must complete during
a vesting computation period to receive credit for a Year of Service
is: [Choose (c) or (d)]
[ ] (c) 1,000 Hours of Service.
[ ] (d) _____ Hours of Service.
[Note: The Hours of Service requirement may not exceed 1,000.]
5.08 INCLUDED YEARS OF SERVICE - VESTING. The Employer specifically
excludes the following Years of Service: [Choose (a) or at least one
of (b) through (e)]
[X] (a) None other than as specified in Section 5.08(a) of the Plan.
[ ] (b) Any Year of Service before the Participant attained the age of_____.
[Note: The age selected may not exceed age 18.]
[ ] (c) Any Year of Service during the period the Employer did not maintain this
Plan or a predecessor plan.
[ ] (d) Any Year of Service before a Break in Service if the number of
consecutive Breaks in Service equals or exceeds the greater of 5 or the
aggregate number of the Years of Service prior to the Break. This
exception applies only if the Participant is 0% vested in his Accrued
Benefit derived from Employer contributions at the time he has a Break
in Service. Furthermore, the aggregate number of Years of Service
before a Break in Service do not include any Years of Service not
required to be taken into account under this exception by reason of
any prior Break in Service.
[ ] (e) Any Year of Service earned prior to the effective date of ERISA
if the Plan would have disregarded that Year of Service on account of
an Employee's Separation from Service under a Plan provision in effect
and adopted before January 1, 1974.
ARTICLE VI
TIME AND METHOD OF PAYMENTS OF BENEFITS
Code Section 411(d)(6) Protected Benefits. The elections under this Article VI
may not eliminate Code Section 411(d)(6) protected benefits. To the extent the
elections would eliminate a Code Section 411(d)(6) protected benefit, see
Section 13.02 of the Plan. Furthermore, if the elections liberalize the
optional forms of benefit under the Plan, the more liberal options apply on the
later of the adoption date or the Effective Date of this Adoption Agreement.
6.01 TIME OF PAYMENT OF ACCRUED BENEFIT.
Distribution date. A distribution date under the Plan means the first
day of the month following request for distribution, or as soon as
administratively feasible [Note: The Employer must specify the
appropriate date(s). The specified distribution dates primarily
establish annuity starting dates and the notice and consent periods
prescribed by the Plan. The Plan allows the Trustee an
administratively practicable period of time to make the actual
distribution relating to a particular distribution date.]
Nonforfeitable Accrued Benefit Not Exceeding $3,500. Subject to the
limitations of Section 6.01(A)(1), the distribution date for distribution of
a Nonforfeitable Accrued Benefit not exceeding $3,500 is: [Choose (a), (b),
(c), (d) or (e)]
[ ] (a) ________________________________________ of the________________
Plan Year beginning after the Participant's Separation from Service.
[ ] (b) ________________________________________ following the Participant's
Separation from Service.
[ ] (c) ________________________________________ of the Plan Year after the
Participant incurs _____________________________ Break(s) in Service
(as defined in Article V).
[ ] (d) ________________________________________ following the Participant's
attainment of Normal Retirement Age, but not earlier than __________
days following his Separation from Service.
[X] (e) (Specify) The first administratively feasible date after the
end of the quarter in which the participant separates from service.
Nonforfeitable Accrued Benefit Exceeds $3,500. See the elections under Section
6.03.
Disability. The distribution date, subject to Section 6.01(A)(3), is: [Choose
(f), (g) or (h)]
[ ] (f) after the Participant terminates employment because of disability.
[X] (g) The same as if the Participant had terminated employment without
disability.
[ ] (h) (Specify) _______________________________________________________.
Hardship. [Choose (i) or (j)]
[X] (i) The Plan does not permit a hardship distribution to a Participant
who has separated from Service.
[ ] (j) The Plan permits a hardship distribution to a Participant who has
separated from Service in accordance with the hardship
distribution policy stated in:
[Choose (1), (2) or (3)]
[ } (1) Section 6.01(A)(4) of the Plan.
[ ] (2) Section 14.11 of the Plan.
[ ] (3) The addendum to this Adoption Agreement, numbered Section 6.01.
Default on a Loan. If a Participant or Beneficiary defaults on a loan made
pursuant to a loan policy adopted by the Advisory Committee pursuant to Section
9.04, the Plan: [Choose (k), (l) or (m)]
[X] (k) Treats the default as a distributable event. The Trustee, at the
time of the default, will reduce the Participant's Nonforfeitable
Accrued Benefit by the lesser of the amount in default (plus accrued
interest) or the Plan's security interest in that Nonforfeitable
Accrued Benefit. To the extent the loan is attributable to the
Participant's Deferral Contributions Account, Qualified Matching
Contributions Account or Qualified Nonelective Contributions Account,
the Trustee will not reduce the Participant's Nonforfeitable Accrued
Benefit unless the Participant has separated from Service or unless the
Participant has attained age 59 1/2.
[ ] (l) Does not treat the default as a distributable event. When an
otherwise distributable event first occurs pursuant to Section 6.01 or
Section 6.03 of the Plan, the Trustee will reduce the Participant's
Nonforfeitable Accrued Benefit by the lesser of the amount in default
(plus accrued interest) or the Plan's security interest in that
Nonforfeitable Accrued Benefit.
[ ] (m) (Specify) __________________________________________________________
____________________________________________________________________.
6.02 METHOD OF PAYMENT OF ACCRUED BENEFIT. The Advisory Committee will
apply Section 6.02 of the Plan with the following modifications:
[Choose (a) or at least one of (b), (c), (d) and (e)]
[X] (a) No modifications.
[ ] (b) Except as required under Section 6.01 of the Plan, a lump sum
distribution is not available: ________________________________
____________________________________________________________________.
[ ] (c) An installment distribution:
[Choose (1) or at least one of (2) or (3)]
[ ] (1) Is not available under the Plan.
[ ] (2) May not exceed the lesser of ______________________________ years or
the maximum period permitted under Section 6.02.
[ ] (3) (Specify)_____________________________________________________________.
[ ] (d) The Plan permits the following annuity options: ___________________
____________________________________________________________________.
Any Participant who elects a life annuity option is subject to the requirements
of Sections 6.04(A),(B), (C) and (D) of the Plan. See Section 6.04(E).
[Note: The Employer may specify additional annuity options in an addendum to
this Adoption Agreement, numbered 6.02(d).]
[ ] (e) If the Plan invests in qualifying Employer securities, as
described in Section 10.03(F), a Participant eligible to elect
distribution under Section 6.03 may elect to receive that distribution
in Employer securities only in accordance with the provisions of the
addendum to this Adoption Agreement, numbered 6.02(e).
6.03 BENEFIT PAYMENT ELECTIONS.
Participant Elections After Separation from Service. A Participant
who is eligible to make distribution elections under Section 6.03 of
the Plan may elect to commence distribution of his Nonforfeitable
Accrued Benefit: [Choose at least one of (a) through (c)]
[ ] (a) As of any distribution date, but not earlier than _________ of the
______ Plan Year beginning after the Participant's Separation
from Service.
[X] (b) As of the following date(s):
[Choose at least one of Options (1) through (6)]
[ ] (1) Any distribution date after the close of the Plan Year in which the
Participant attains Normal Retirement Age.
[ ] (2) Any distribution date following his Separation from Service with the
Employer.
[ ] (3) Any distribution date in the __________________________________ Plan
Year(s) beginning after his Separation from Service.
[ ] (4) Any distribution date in the Plan Year after the Participant incurs
__________ Break(s) in Service (as defined in Article V).
[ ] (5) Any distribution date following attainment of ____ age _____ and
completion of at least _____________________ Years of Service (as
defined in Article V).
[X] (6) (Specify) As of any distribution date, or as soon as administratively
feasible ____________________________________________________________.
[ ] (c) (Specify) ___________________________________________________________.
The distribution events described in the election(s) made under Options (a), (b)
or (c) apply equally to all Accounts maintained for the Participant unless
otherwise specified in Option (c).
Participant Elections Prior to Separation from Service - Regular Matching
Contributions Account and Employer Contributions Account. Subject to the
restrictions of Article VI, the following distribution options apply to a
Participant's Regular Matching Contributions Account and Employer Contributions
Account prior to his Separation from Service:
[Choose (d) or at least one of (e) through (h)]
[ ] (d) No distribution options prior to Separation from Service.
[ ] (e) Attainment of Specified Age. Until he retires, the Participant has a
continuing election to receive all or any portion of his
Nonforfeitable interest in these Accounts after he attains: [Choose (1)
or (2)]
[ ] (1) Normal Retirement Age.
[X] (2) 59 1/2 years of age and is at least 100% vested in these Accounts.
[Note: If the percentage is less than 100%, see the special vesting
formula in Section 5.03.]
[ ] (f) After a Participant has participated in the Plan for a period of not
less than _____ years and he is 100% vested in these Accounts, until he
retires, the Participant has a continuing election to receive all or
any portion of the Accounts.
[Note: The number in the blank space may not be less than 5.]
[X] (g) Hardship. A Participant may elect a hardship distribution prior
to his Separation from Service in accordance with the hardship
distribution policy:
[Choose (1), (2) or (3); (4) is available only as an additional option]
[ ] (1) Under Section 6.01(A)(4) of the Plan.
[X] (2) Under Section 14.11 of the Plan.
[ ] (3) Provided in the addendum to this Adoption Agreement, numbered Section
6.03.
[ ] (4) In no event may a Participant receive a hardship distribution before he
is at least _____% vested in these Accounts.
[Note: If the percentage in the blank is less than 100%, see the
special vesting formula in Section 5.03.]
[ ] (h) (Specify) __________________________________________________________
___________________________________________________________________.
[Note: The Employer may use an addendum, numbered 6.03, to provide additional
language authorized by Options (b)(6), (c),(g)(3) or (h) of this Adoption
Agreement Section 6.03.]
Participant Elections Prior to Separation from Service - Deferral Contributions
Account, Qualified Matching Contributions Account and Qualified Nonelective
Contributions Account. Subject to the restrictions of Article VI, the following
distribution options apply to a Participant's Deferral Contributions Account,
Qualified Matching Contributions Account and Qualified Nonelective Contributions
Account prior to his Separation from Service: [Choose (i) or at least one of (j)
through (l)]
[ ] (i) No distribution options prior to Separation from Service.
[X] (j) Until he retires, the Participant has a continuing election to
receive all or any portion of these Accounts after he attains:
[Choose (1) or (2)]
[ ] (1) The later of Normal Retirement Age or age 59 1/2.
[X] (2) Age 59 1/2 (at least 59 1/2).
[X] (k) Hardship. A Participant, prior to this Separation from Service,
may elect a hardship distribution from his Deferral Contributions
Account in accordance with the hardship distribution policy under
Section 14.11 of the Plan.
[ ] (l) (Specify) _________________________________________________________
___________________________________________________________________.
[Note: Option (l) may not permit in service distributions prior to
age 59 1/2 (other than hardship) and may not modify the hardship
policy described in Section 14.11.]
Sale of trade or business/subsidiary. If the Employer sells substantially all of
the assets [within the meaning of Code Section 409(d)(2)] used in a trade or
business or sells a subsidiary [within the meaning of Code Section 409(d)(3)],
a Participant who continues employment with the acquiring corporation is
eligible for distribution from his Deferral Contributions Account, Qualified
Matching Contributions Account and Qualified Nonelective Contributions Account:
[Choose (m) or (n)].
[X] (m) Only as described in this Adoption Agreement Section 6.03 for
distributions prior to Separation from Service.
[ ] (n) As if he has a Separation from Service. After March 31, 1988, a
distribution authorized solely by reason of this Option (n) must
constitute a lump sum distribution, determined in a manner
consistent with Code Section 401(k)(10) and the applicable Treasury
regulations.
6.04 ANNUITY DISTRIBUTIONS TO PARTICIPANTS AND SURVIVING SPOUSES. The
annuity distribution requirements of Section 6.04: [Choose (a) or
(b)]
[X] (a) Apply only to a Participant described in Section 6.04(E) of the Plan
(relating to the profit sharing exception to the joint and survivor
requirements).
[ ] (b) Apply to all Participants.
ARTICLE IX
ADVISORY COMMITTEE - DUTIES WITH RESPECT TO PARTICIPANTS' ACCOUNTS
9.10 VALUE OF PARTICIPANT'S ACCRUED BENEFIT. If a distribution (other than
a distribution from a segregated Account and other than a corrective
distribution described in Sections 14.07, 14.08, 14.09 or 14.10 of the
Plan) occurs more than 90 days after the most recent valuation date,
the distribution will include interest at: [Choose (a), (b) or (c)]
[X] (a) -0-% per annum.
[Note: The percentage may equal 0%.]
[ ] (b) The 90 day Treasury xxxx rate in effect at the beginning of the
current valuation period.
[ ] (c) (Specify)___________________________________________________________
___________________________________________________________________.
9.11 ALLOCATION AND DISTRIBUTION OF NET INCOME GAIN OR LOSS. Pursuant
to Section 14.12, to determine the allocation of net income, gain
or loss: (Complete only those items, if any, which are applicable to
the Employer's Plan)
[X] (a) For salary reduction contributions, the Advisory Committee will:
[Choose (1), (2), (3), (4) or (5)]
[ ] (1) Apply Section 9.11 without modification.
[ ] (2) Use the segregated account approach described in Section 14.12.
[X] (3) Use the weighted average method described in Section 14.12, based
on a daily weighting period.
[ ] (4) Treat as part of the relevant Account at the beginning of the
valuation period ____% of the salary reduction contributions:
[Choose (i) or (ii)]
[ ] (i) made during that valuation period.
[ ] (ii) made by the following specified time: _____________________________
___________________________________________________________________.
[ ] (5) Apply the allocation method described in the addendum to this Adoption
Agreement numbered 9.11(a).
[X] (b) For matching contributions, the Advisory Committee will: [Choose (1),
(2), (3) or (4)]
[ ] (1) Apply Section 9.11 without modification.
[X] (2) Use the weighted average method described in Section 14.12, based on a
daily weighting period.
[ ] (3) Treat as part of the relevant Account at the beginning of the valuation
period ___________% of the matching contributions allocated during the
valuation period.
[ ] (4) Apply the allocation method described in the addendum to this Adoption
Agreement numbered 9.11(b).
[ ] (c) For Participant nondeductible contributions, the Advisory Committee
will: [Choose (1), (2), (3), (4) or (5)]
[ ] (1) Apply Section 9.11 without modification.
[ ] (2) Use the segregated account approach described in Section 14.12.
[ ] (3) Use the weighted average method described in Section 14.12, based on a
_____________________ weighting period.
[ ] (4) Treat as part of the relevant Account at the beginning of the valuation
period___________________% of the Participant nondeductible
contributions: [Choose (i) or (ii)]
[ ] (i) made during that valuation period.
[ ] (ii) made by the following specified time: _________________________
________________________________________________________________.
[ ] (5) Apply the allocation method described in the addendum to this Adoption
Agreement numbered 9.11(c).
ARTICLE X
TRUSTEE AND CUSTODIAN, POWERS AND DUTIES
10.03 INVESTMENT POWERS. Pursuant to Section 10.03[F] of the Plan, the
aggregate investments in qualifying Employer securities and in
qualifying Employer real property:
[Choose (a) or (b)]
[X] (a) May not exceed 10% of Plan assets.
[ ] (b) May not exceed _______% of Plan assets. [Note: The percentage may not
exceed 100%.]
10.14 VALUATION OF TRUST. In addition to each Accounting Date, the Trustee
must value the Trust Fund on the following valuation date(s):
[Choose (a) or (b)]
[ ] (a) No other mandatory valuation dates.
[X] (b) (Specify) 3/31, 6/30 and 9/30.
EFFECTIVE DATE ADDENDUM
(Restated Plans Only)
The Employer must complete this addendum only if the restated Effective Date
specified in Adoption Agreement Section 1.18 is different than the restated
effective date for at least one of the provisions listed in this addendum. In
lieu of the restated Effective Date in Adoption Agreement Section 1.18, the
following special effective dates apply: (Choose whichever elections apply)
[ ] (a) Compensation definition. The Compensation definition of Section 1.12
(other than the $200,000 limitation) is effective for Plan Years
beginning after ____________________________.
[Note: May not be effective later than the first day of the first
Plan Year beginning after the Employer executes this Adoption
Agreement to restate the Plan for the Tax Reform Act of 1986, if
applicable.]
[ ] (b) Eligibility conditions. The eligibility conditions specified in
Adoption Agreement Section 2.01 are effective for Plan Years beginning
after _____________________________.
[ ] (c) Suspension of Years of Service. The suspension of Years of
Service rule elected under Adoption Agreement Section 2.03 is effective
for Plan Years beginning after ____________________________________ .
[ ] (d) Contribution/allocation formula. The contribution formula elected
under Adoption Agreement Section 3.01 and the method of allocation
elected under Adoption Agreement Section 3.04 is effective for Plan
Years beginning after ________________________ .
[ ] (e) Accrual requirements. The accrual requirements of Section 3.06 are
effective for Plan Years beginning after __________________________.
-
[ ] (f) Employment condition. The employment condition of Section 3.06 is
effective for Plan Years beginning after ___________________________
____________________________________________________________________.
[ ] (g) Elimination of Net Profits. The requirement for the Employer not
to have net profits to contribute to this Plan is effective for Plan
Years beginning after ________________________________________________.
[Note: The date specified may not be earlier than December 31, 1985.]
[ ] (h) Vesting Schedule. The vesting schedule elected under Adoption
Agreement Section 5.03 is effective for Plan Years
beginning after _____________________________________________________.
[ ] (i) Allocation of Earnings. The special allocation provisions elected
under Adoption Agreement Section 9.11 are effective for Plan Years
beginning after ____________________________________________________ .
[ ] (j) (Specify) _______________________________________________________.
For Plan Years prior to the special Effective Date, the terms of the
Plan 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 requirements.
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
Master 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) signified its acceptance, on this ____________________ day of
________________, 19__.
Name and EIN of Employer: ____________________________________________________
______________________________________________________________________________
Signed: ______________________________________________________________________
Name(s) of Trustee: XXXX XXXXXX TRUST COMPANY
Signed: ______________________________________________________________________
Name of Custodian: ___________________________________________________________
Signed: ______________________________________________________________________
[Note: A Trustee is mandatory, but a Custodian is optional. See Section 10.03
of the Plan.]
Plan Number. The 3-digit plan number the Employer assigns to this Plan for
ERISA reporting purposes (Form 5500 Series)is: 001.
Use of Adoption Agreement. Failure to complete properly the elections in this
Adoption Agreement may result in disqualification of the Employer's Plan. The
3-digit number assigned to this Adoption Agreement is solely for the Master Plan
Sponsor's recordkeeping purposes and does not necessarily correspond to the plan
number the Employer designated in the prior paragraph.
Master Plan Sponsor. The Master Plan Sponsor identified on the first page of the
basic plan document will notify all adopting employers of any amendment of this
Master Plan or of any abandonment or discontinuance by the Master Plan Sponsor
of its maintenance of this Master Plan. For inquiries regarding the adoption of
the Master Plan, the Master Plan Sponsor's intended meaning of any plan
provisions or the effect of the opinion letter issued to the Master Plan
Sponsor, please contact the Master Plan Sponsor at the following address and
telephone number: Xxxx Xxxxxx, 0 Xxxxx Xxxxx Xxxxxx, XXX, XX 00000 - (212)
392-2222.
Reliance on Opinion Letter. The Employer may not rely on the Master Plan
Sponsor's opinion letter covering this Adoption Agreement. For reliance on the
Plan's qualification, the Employer must obtain a determination letter from the
applicable IRS Key District office.
_____________________________________________________
(Plan Administrator's Xxxx Xxxxxx VIP Account Number)
PARTICIPATION AGREEMENT
For Participation by Related Group Members (Plan Section 1.30)
The undersigned Employer, by executing this Participation Agreement, elects
to become a Participating Employer in the Plan identified in Section 1.03 of the
accompanying Adoption Agreement, as if the Participating Employer were a
signatory to that Agreement. The Participating Employer accepts, and agrees to
be bound by, all of the elections granted under the provisions of the Master
Plan as made by, the Signatory Employer to the Execution Page of the Adoption
Agreement.
1. The Effective Date of the undersigned Employer's participation in the
designated Plan is: _________________________________________________.
2. The undersigned Employer's adoption of this Plan constitutes:
[ ](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 Employer, identified as
_________________________________________________________
_________________________________________________________,
and having an original effective date of ________________.
Dated this __________________________________ day of _______, 19_____.
Name of Participating Employer: ____________________________________________
____________________________________________________________________________
Signed: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------------------------------
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: ________________________________________________
____________________________________________________________________________
Signed : _________________________________________Date _____________________
Name(s) of Trustee: Xxxx Xxxxxx Trust Company ______________________________
____________________________________________________________________________
Signed: /s/Xxxx Van Heuvelen Date 10/31/97
------------------------------------ ----------------
[Note: Each Participating Employer must execute a separate Participation
Agreement. See the Execution Page of the Adoption Agreement for important
Master Plan information.]
