Exhibit 10.4
Flexible Nonstandardized Safe Harbor 401(k) Profit Sharing Plan
ADOPTION AGREEMENT
SECTION 1. EMPLOYER INFORMATION
Name of Employer Eastern Resorts Company, LLC
Address 000 Xxxx Xxxxx
Xxxx Xxxxxxx Xxxxx
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RI Zip ________02840
Telephone 000-000-0000 Employer's Federal Tax Identification Number 00-0000000
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Type of Business (Check only one) Sole Proprietorship Partnership C
Corporation S Corporation
Other (Specify) Limited Liability Company
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Check here if Related Employers may participate in this Plan and attach a
Related Employer Participation Agreement for each
Related Employer who will participate in this Plan.
Business Code_____________
Name of Plan Eastern Resorts Company LLC Tax Deferred Savings Plan
Name of Trust (if different from Plan name)
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Plan Sequence Number 001 (Enter 001 if this is the first
qualified plan the Employer has ever maintained, enter
002 if it is the
second, etc.)
Trust Identification Number (if
applicable) Account
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Number (Optional)___________________
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SECTION 2. EFFECTIVE DATES
Complete Parts A and B
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General Effective Dates (Check and Complete Option 1 or 2):
Option 1: This is the initial adoption of a profit sharing plan by the
Employer.
The Effective Date of this Plan
is .
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NOTE: The effective date is usually the first day of
the Plan Year in which this Adoption Agreement
Part A. is signed.
Option 2: This is an amendment and restatement of an existing
profit sharing plan (a Prior Plan).
The Prior Plan was initially effective on
06-01-1995 The Effective Date of this
amendment and restatement
is 01-01-2000 .
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NOTE: The effective date is usually the first day of
the Plan Year in which this Adoption Agreement
is signed.
Part B. Commencement of Elective Deferrals:
Elective Deferrals may commence on 01-01-2000 .
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NOTE: This date may be no earlier than the date this Adoption Agreement is signed
because Elective Deferrals cannot be made retroactively.
SECTION 3. RELEVANT TIME PERIODS
Complete Parts A through C
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Part A. Employer's Fiscal Year:
The Employer's fiscal year ends (Specify month and date) 12-31
Part B. Plan Year Means:
Option 1: The 12-consecutive month period which coincides with the
Employer's fiscal year.
Option 2: The calendar year.
Option 3: Other 12-consecutive month period (Specify) NOTE: If no option
is selected, Option 1 will be deemed to he selected. If the initial Plan Year is
less than 12 months (a short Plan Year) specify such Plan Year's beginning and
ending dates
Exhibit 10.4
Part C. Limitation Year Means:
Option 1: ? The Plan Year.
Option 2: ? The calendar year.
Option 3: ? Other 12-consecutive month period
(Specify)
NOTE: If no option is selected, Option 1 will be deemed to be
selected.
Part D. Measuring Period For Vesting:
Years of Vesting Service shall be measured over the
following 12-consecutive month period:
Option 1: ? The Plan Year.
Option 2: ? The 12-consecutive month period
commencing with the Employee's Employment Commencement Date
and each successive 12-month
period commencing on the anniversaries of the Employee's Employment
Commencement Date.
NOTE: If no option is selected, Option 2 will be deemed to be selected.
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SECTION 4. ELIGIBILITY REQUIREMENTS
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Complete Parts A through G
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Part A. Years of Eligibility Service Requirement:
1. Elective Deferrals.
An Employee will be eligible to become a Contributing Participant
in the Plan (and thus be eligible to make Elective Deferrals) and
receive Matching Contributions (including Qualified Matching
Contributions, if applicable) after completing (enter 0, 1 or any
fraction less than 1) Years of Eligibility Service.
2. Employer Profit Sharing Contributions.
An Employee will be eligible to become a Participant in the Plan
for purposes of receiving an allocation of any Employer Profit
Sharing Contribution made pursuant to Section 10 of the Adoption
Agreement after completing
1 (enter 0, 1, 2 or any fraction less than 2) Years of Eligibility
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Service.
NOTE: If more than 1 year is selected for Item 2, the immediate 100%
vesting schedule of Section 12 will automatically apply for
contributions described in such item. If either item is left blank, the
Years of Eligibility Service required for such item will be deemed to
be 0. If a fraction is selected, an Employee will not be required to
complete any specified number of Hours of Service to receive credit for
a fractional year. If a single Entry Date is selected in Section 4,
Part G for an item, the Years of Eligibility Service required for such
item cannot exceed 1.5 (.5 for Elective Deferrals).
Part B. Age Requirement:
1. Elective Deferrals.
An Employee will be eligible to become a Contributing Participant
(and thus be eligible to make Elective Deferrals) and receive
Matching Contributions (including Qualified Matching Contributions,
if applicable) after attaining age 21 (no more than 21).
2. Employer Profit Sharing Contributions.
An Employee will be eligible to become a Participant in the Plan
for purposes of receiving an allocation of any Employer Profit
Sharing Contribution made pursuant to Section 10 of the Adoption
Agreement after attaining age 21 (no more than 21).
NOTE: If either of the above items in this Section 4, Part B is left
blank, it will be deemed there is no age requirement for such item. If
a single Entry Date is selected in Section 4, Part G for an item, no
age requirement can exceed 20.5 for such item.
Part C. Employees Employed As Of Effective Date:
Will all Employees employed as of the Effective Date of this Plan who have not
otherwise met the requirements of Part A or Part B above be considered to have
met those requirements as of the Effective Date? ? Yes ? No
NOTE: If a box is not checked in this Section 4, Part C, "No" will be deemed
to be selected.
Part D. Exclusion of Certain Classes of Employees:
All Employees will be eligible to become Participants in the Plan except:
a. X Those Employees included in a unit of Employees covered by a
collective bargaining agreement between the Employer and
Employee representatives, if retirement benefits were the
subject of good faith bargaining and if two percent or less of
the Employees who are covered pursuant to that agreement are
professionals as defined in Section 1.410(b)-9 of the
regulations. For this purpose, the term "employee
representatives" does not include any organization more than
half of whose members are Employees who are owners, officers, or
executives of the Employer.
b. X Those Employees who are non-resident aliens (within the
meaning of Section 7701(b)(l)(B) of the Code) and who received
no earned income (within the meaning of Section 91 l(d)(2) of
the Code) from the Employer which constitutes income from
sources within the United States (within the meaning of Section
861(a)(3) of the Code)
c. ? Those Employees of a Related Employer that has not executed a
Related Employer Participation Agreement.
d. X Other (Define) Leased Employers
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Part E. Election Not To Participate:
May an Employee or a Participant elect not to participate in this Plan
pursuant to Section 2.08 of the Plan?
Option 1: ? Yes.
Option 2: ? No.
NOTE: If no option is selected, Option 2 will be deemed to be selected.
Part F. Hours Required For Eligibility Purposes:
1. 1000 Hours of Service (no more than 1,000) shall be required to
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constitute a Year of Eligibility Service.
2. 500 Hours of Service (no more than 500 but less than the
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number specified in Section 4, Part F, Item 1, above) must be exceeded to
avoid a Break in Eligibility Service.
3. For purposes of determining Years of Eligibility Service, Employees shall be
given credit for Hours of Service with the following predecessor
employer(s): (Complete if applicable)
Part G. Entry Dates:
The Entry Dates for participation shall be (Choose one):
Option 1: ? The first day of the Plan Year and the first day of the
seventh month of the Plan Year.
Option 2: ? Other (Specify) January l, April l, July
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1, and October 1
NOTE: If no option is selected, Option 1 will be deemed to be selected.
Option 2 can be selected only if the eligibility requirements and Entry
Dates are coordinated such that each Employee will become a Participant
in the Plan no later than the earlier of: (1) the first day of the Plan
Year beginning after the date the Employee satisfies the age and
service requirements of Section 410(a) of the Code; or (2) 6 months
after the date the Employee satisfies such requirements.
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SECTION 5. METHOD OF DETERMINING SERVICE
Complete Part A or B
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Part A. Hours of Service Equivalencies:
Service will be determined on the basis of the method selected below.
Only one method may be selected. The method selected will be applied to
all Employees covered under the Plan. (Choose one):
Option 1: ? On the basis of actual hours for which an Employee is paid
or entitled to payment.
Option 2: ? On the basis of days worked. An Employee will be credited
with 10 Hours of Service if under Section 1.24 of the Plan
such Employee would be credited with at least l Hour of
Service during the day.
Option 3: ? On the basis of weeks worked. An Employee will be credited
with 45 Hours of Service if under Section 1.24 of the Plan such Employee would
be credited with at least l Hour of Service during the week.
Option 4: ? On the basis of months worked. An Employee will be
credited with 190 Hours of Service if under Section 1.24 of
the Plan such Employee would he credited with at least l
Hour of Service during the month.
NOTE: If no option is selected, Option l will be deemed no be selected.
This Section 5, Part A will not apply if the Elapsed Time Method of
Section 5, Part B is selected.
Part B. Elapsed Time Method:
In lieu of tracking Hours of Service of Employees, will the elapsed time method
described in Section 2.07 of the Plan be used? (Choose one)
Option 1: ? No.
Option 2: ? Yes.
NOTE:If no option is selected, Option l will be deemed no be selected.
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SECTION 6. ELECTIVE DEFERRALS
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Part A. Authorization of Elective Deferrals:
Will Elective Deferrals be permitted under this Plan? (Choose one)
Option 1: ? Yes.
Option 2: ? No.
NOTE:If no option is selected, Option l will be deemed to be selected.
Complete the remainder of Section 6 only if Option l is selected.
Part B. Limits on Elective Deferrals:
If Elective Deferrals are permitted under the Plan, a Contributing
Participant may elect under a salary reduction agreement to
have his or her Compensation reduced by an amount as described below (Choose
one):
Option 1: ? An amount equal to a percentage of the Contributing
Participant's Compensation from 1 % to 15% in increments of
1 %. Option 2: ? An amount of the Contributing Participant's
Compensation not less than and not more than__________. The amount of
such reduction shall be contributed to the Plan by the Employer on
behalf of the Contributing Participant. For any taxable year, a
Contributing Participant's Elective Deferrals shall not exceed the
limit contained in Section 402(g) of the Code in effect at the
beginning of such taxable year.
Part C. Elective Deferrals Based on Bonuses:
Instead of or in addition to making Elective Deferrals through payroll
deduction, may a Contributing Participant elect to contribute to the Plan, as an
Elective Deferral, part or all of a bonus rather than receive such bonus in
cash? (Choose one)
Option 1: ? Yes.
Option 2: ? No.
NOTE: lf no option is selected, Option 2 will be deemed to be selected.
Part D. Return As A Contributing Participant After Ceasing Elective Deferrals:
A Participant who ceases Elective Deferrals by revoking a salary
reduction agreement may return as a Contributing Participant as of such
times established by the Plan Administrator in a uniform and
nondiscriminatory manner.
Part E. Changing Elective Deferral Amounts:
A Contributing Participant may modify a salary reduction agreement to
prospectively increase or decrease the amount of his or her Elective
Deferrals as of such times established by the Plan Administrator in a
uniform and nondiscriminatory manner.
Part F. Claiming Excess Elective Deferrals:
Participants who claim Excess Elective Deferrals for the preceding
calendar year must submit their claims in writing to the Plan
Administrator by (Choose one):
Option 1: ? March 1.
Option 2: ? Other (Specify a date not later than April 15) NOTE: If no
option is selected, Option l will be deemed no be selected.
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SECTION 7. MATCHING CONTRIBUTIONS
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Part A. Authorization of Matching Contributions:
Will the Employer make Matching Contributions to the Plan on behalf of
Qualifying Contributing Participants? (Choose one)
Option 1: ? Yes, but only with respect to a Contributing
Participant's Elective Deferrals.
Option 2: ? Yes, but only with respect to a Participant's
Nondeductible Employee Contributions.
Option 3: ? Yes, with respect to both Elective Deferrals and
Nondeductible Employee Contributions.
Option 4: ? No.
NOTE: lf no option is selected, Option 4 will be deemed to be selected. Complete
the remainder of Section 7 only if Option 1, 2 or 3 is selected.
Part B. Matching Contribution Formula:
lf the Employer will make Matching Contributions, then the amount of
such Matching Contributions made on behalf of a Qualifying Contributing
Participant each Plan Year shall be (Choose one):
Option 1: ? An amount equal to _______ % of such
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Contributing Participant's Elective Deferral (and/or Nondeductible
Employee Contribution, if applicable).
Option 2: ? An amount equal to the sum of _______ % of the portion of such
Contributing Participant's Elective
Deferral (and/or Nondeductible Employee Contribution, if applicable)
which does not exceed _______ % of the Contributing Participant's
Compensation plus_______ % of the portion of such Contributing
Participant's
Elective Deferral (and/or Nondeductible Employee Contribution,
if applicable) which exceeds . % of
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the Contributing Participant's Compensation.
Option 3: ? Such amount, if any, equal to that percentage of each Contributing
Participant's Elective Deferral (and/or
Nondeductible Employee Contribution, if applicable) which the
Employer, in its sole discretion, determines from year to year.
Option 4: ? Other formula. (Specify) 25% up to the first 6% of a
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Contributing Participant's Elective
Deferrals
NOTE: If Option 4 is selected, the formula specified can only allow
Matching Contributions to be made with respect to a Contributing
Participant's Elective Deferrals (and/or Nondeductible Employee
Contribution, if applicable).
Part C. Limit on Matching Contributions:
Notwithstanding the Matching Contribution formula specified above, no
Matching Contribution will be made with respect to a Contributing
Participant's Elective Deferrals (and/or Nondeductible Employee
Contributions, if applicable) in excess of _______________ or 6% of
such Contributing Participant's Compensation.
Exhibit 10.4
Part D. Qualifying Contributing Participants:
A Contributing Participant who satisfies the eligibility requirements
described in Section 4 will be a Qualifying Contributing Participant
and thus entitled to share in Matching Contributions for any Plan Year
only if the Participant is a Contributing Participant and satisfies the
following additional conditions (Check one or more Options):
Option 1: X No Additional Conditions.
Option 2: ? Hours of Service Requirement. The Contributing Participant completes at
least ________ Hours of
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Service during the Plan Year. However, this condition will be
waived for the following reasons
(Check at least one):
? The Contributing Participant's Death.
? The Contributing Participant's Termination of
Employment after having incurred a Disability.
? The Contributing Participant's Termination of Employment
after having reached Normal Retirement
Age.
? This condition will not be waived.
Option3: ? Last Day Requirement. The Participant is an Employee of the Employer on
the last day of the Plan Year.
However, this condition will be waived for the following reasons
(Check at least one):
? The Contributing Participant's Death.
? The Contributing Participant's Termination of
Employment after having incurred a Disability.
? The Contributing Participant's Termination of
Employment after having reached Normal Retirement
Age.
? This condition will not be waived.
NOTE: lf no option is selected, Options l will be deemed to be selected.
SECTION 8. QUALIFIED NONELECTIVE CONTRIBUTIONS
Part A. Authorization of Qualified Nonelective Contributions:
Will the Employer make Qualified Nonelective Contributions to the Plan? (Choose
One)
Option 1: ? Yes.
Option 2: ? No.
lf the Employer elects to make Qualified Nonelective Contributions,
then the amount, if any, of such contribution to the Plan for each Plan
Year shall be an amount determined by the Employer. NOTE: If no option
is selected, Option l will be deemed to be selected. Complete the
remainder of Sections 8 only if Options l is selected.
Part B. Participants Entitled to Qualified Nonelective Contributions:
Allocation of Qualified Nonelective Contributions shall be made to the
Individual Accounts of (Choose one):
Option 1: ? Only Participants who are not Highly Compensated Employees.
Option 2: ? All Participants.
NOTE: If no option is selected, Options l will be deemed to be selected.
Part C. Allocation of Qualified Nonelective Contributions:
Allocation of Qualified Nonelective Contributions to Participants
entitled thereto shall be made (Choose one):
Option 1: ? In the ratio which each Participant's
Compensation for the Plan Year bears to the total Compensation of all
Participants for such Plan Year.
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Option 2: ? In the ratio which each Participant's Compensation
not in excess of
for the Plan Year
bears to the total Compensation of all Participants not in
excess of for such
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Plan Year.
NOTE: If no option is selected, Options l will be deemed to be
selected.
Exhibit 10.4
SECTION 9. QUALIFIED MATCHING CONTRIBUTIONS
Part A. Authorization of Qualified Matching Contributions:
Will the Employer make Qualified Matching Contributions to the Plan on behalf of
Qualifying Contributing Participants? (Choose One)
Option 1: ? Yes, but only with respect to a Contributing Participant's
Elective Deferrals.
Option 2: ? Yes, but only with respect to a Participant's Nondeductible
Employee Contributions.
Option 3: ? Yes, with respect to both Elective Deferrals and Nondeductible
Employee Contributions.
Option 4: ? No.
NOTE: lf no option is selected, Option 3 will be deemed to be selected.
Complete the remainder of Section 9 only if Option 1, 2 or 3 is selected.
Part B. Qualified Matching Contribution Formula:
lf the Employer will make Qualified Matching Contributions, then the
amount of such Qualified Matching Contributions made on behalf of a
Qualifying Contributing Participant each Plan Year shall be (Choose
one): Option 1: ? An amount equal to _______ % of such Contributing
Participant's Elective Deferral (and/or Nondeductible Employee
Contribution, if applicable).
Option 2: ? An amount equal to the sum, of_______ % of the portion of
such Contributing Participant's Elective Deferral (and/or
Nondeductible Employee Contribution, if applicable) which does not
exceed _______ of the Contributing Participant's
Compensation plus % of the portion of such Contributing Participant's
Elective Deferral (and/or Nondeductible Employee Contribution, if
applicable) which exceeds_______ % of the Contributing Participant's
Compensation.
Option3: ? Such amount, if any, as determined by the Employer in its sole
discretion, equal to that percentage of the Elective
Deferrals (and/or Nondeductible Employee Contribution,
if applicable) of each Contributing Participant
entitled thereto which would be sufficient to cause the Plan to satisfy
the Actual Contribution Percentage tests (described in Section 11.402
of the Plan) for the Plan Year.
Option 4: ? Other Formula. (Specify)
NOTE: lf no option is selected, Option 3 will be deemed to be selected.
Part C. Participants Entitled to Qualified Matching Contributions:
Qualified Matching Contributions, if made to the Plan, will be made on
behalf of (Choose one): Option 1:? Only Contributing Participants who
make Elective Deferrals who are not Highly Compensated Employees.
Option 2: ? All Contributing Participants who make Elective Deferrals.
NOTE: If no option is selected, Option l will be deemed to be selected.
Part D. Limit On Qualified Matching Contributions:
Notwithstanding the Qualified Matching Contribution formula specified
above, the Employer will not match a Contributing Participant's
Elective Deferrals (and/or Nondeductible Employee Contribution, if
applicable) in excess of _______________ or __% of such Contributing
Participant's Compensation.
Exhibit 10.4
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SECTION 10. EMPLOYER PROFIT SHARING CONTRIBUTIONS
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Complete Parts A. B and C
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Part A. Contribution Formula:
For each Plan Year the Employer will contribute an Amount to be
determined from year to year.
Part B. Allocation Formula (Choose one):
Option 1: ? Pro Rata Formula. Employer Profit Sharing Contributions
shall be allocated to the Individual Accounts of Qualifying
Participants in the ratio that each Qualifying Participant's
Compensation for the Plan Year bears to the total Compensation
of all Qualifying Participants for the Plan Year.
Option 2: ? Integrated Formula. Employer Profit Sharing Contributions shall
be allocated as follows (Start with Step 3 if this Plan is not a
Top-Heavy Plan):
Step 1. Employer Profit Sharing Contributions shall first
be allocated pro rata to Qualifying Participants in
the manner described in Section 10, Part B, Option I.
The percent so allocated shall not exceed 3 % of each
Qualifying Participant's Compensation.
Step 2. Any Employer Profit Sharing Contributions
remaining after the allocation in Step l shall be
allocated to each Qualifying Participant's Individual
Account in the ratio that each Qualifying
Participant's Compensation for the Plan Year in
excess of the integration level bears to all
Qualifying Participants' Compensation in excess of
the integration level, but not in excess of 3%.
Step 3. Any Employer Profit Sharing Contributions
remaining after the allocation in Step 2 shall be
allocated to each Qualifying Participant's Individual
Account in the ratio that the sum of each Qualifying
Participant's total Compensation and Compensation in
excess of the integration level bears to the sum of
all Qualifying Participants' total Compensation and
Compensation in excess of the integration level, but
not in excess of the profit sharing maximum disparity
rate as described in Section 3.0l(B)(3) of the Plan.
Step 4. Any Employer Profit Sharing Contributions
remaining after the allocation in Step 3 shall be
allocated pro rata to Qualifying Participants in the
manner described in Section 10, Part B, Option 1.
The integration level shall be (Choose one):
Suboption (a): 0 The Taxable Wage Base.
Suboption (b): 0 _____________ (a dollar amount less than the
Taxable Wage Base).
Suboption (c): 0_____________% (not more than 100%) of the
Taxable Wage Base.
NOTE: If no option is selected, Suboption (a) will be deemned to be selected.
NOTE: If no option is selected, Option l will be deemed no be selected,
Part C. Qualifying Participants:
A Participant will be a Qualifying Participant and thus entitled to
share in the Employer Profit Sharing Contribution for any Plan Year
only if the Participant is a Participant on at least one day of such
Plan Year and satisfies the following additional conditions (Check one
or more Options): Option 1: X No Additional Conditions.
Option 2: ? Hours of Service Requirement. The Participant
completes at least ______ Hours of Service during the Plan
Year. However, this condition will be waived for the
following reasons (Check at least one):
? The Participant's Death.
? The Participant's Termination of Employment after having
incurred a Disability. ? The Participant's Termination of
Employment after having reached Normal Retirement Age.
? This condition will not be waived.
Option 3: ? Last Day Requirement. The Participant is an Employee of the
Employer on the last day of the Plan Year. However, this condition will
be waived for the following reasons (Check at least one):
? The Participant's Death.
? The Participant's Termination of Employment after having
incurred a Disability. ? The Participant's Termination of
Employment after having reached Normal Retirement Age.
? This condition will not be waived.
Note: If no option is selected, Option 1 will be deemed to be
selected.
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SECTION 11. COMPENSATION
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Complete Parts A through E
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Part A. Basic Definition:
Compensation will mean all of each Participant's (Choose one):
Option 1: 0 W-2 wages.
Option 2: 0 Section 3401(a) wages.
Option 3: ? 415 safe-harbor compensation.
NOTE: lf no option is selected, Option l will be deemed to be selected.
Part B. Measuring Period for Compensation:
Compensation shall be determined over the following applicable period (Choose
one):
Option 1: ? The Plan Year.
Option 2: 0 The calendar year ending with or within the Plan Year.
NOTE: lf no option is selected, Option l will be deemed to be selected.
Part C. Inclusion of Elective Deferrals:
Does Compensation include Employer Contributions made pursuant to a
salary reduction agreement which are not includible in the gross income
of the Employee under Sections 125, 402(e)(3), 402(h)(l)(B) and 403(b)
of the Code?
? Yes ONo
NOTE: lf neither box is checked, "Yes" will be deemed to be selected.
Part D. Pre-Entry Date Compensation:
For the Plan Year in which an Employee enters the Plan, the Employee's
Compensation which shall be taken into account for purposes of the Plan
shall be (Choose one):
Option 1: ? The Employee's Compensation only from the time the Employee became
a Participant in the Plan.
Option 2: O The Employee's Compensation for the whole of such Plan Year.
NOTE: lf no option is selected, Option l will be deemed to be selected.
Part E. Exclusions From Compensation:
Compensation shall not include the following (Check any that apply):
? Bonuses ? Commissions
? Overtime ? Other (Specify)
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NOTE: No exclusions from Compensation are permitted if the integrated allocation
formula in Section 10, Part B is selected.
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SECTION 12. VESTING AND FORFEITURES
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Complete Parts A through G
Part A. Vesting Schedule For Employer Profit Sharing Contributions. A
Participant shall become Vested in his or her Individual Account
derived from Profit Sharing Contributions made pursuant to Section 10
of the Adoption Agreement as follows (Choose one):
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YEARS OF VESTED PERCENTAGE
Option (Complete if
VESTING SERVICE l O Option 2 0 Option 3 0 Option 4 0 Option 5 ? Chosen)
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20%
40%
(not less than
60% 20%)
(not less than
1 0% 0% 100% 0% 80% 40%)
2 0% 20% 100% 0% 100 (not less than
3 0% 40% 100% 20% % 60%)
4 0% 60% 100% 40% (not less than
5 100% 80% 100% 60% % 80%)
6 100% 100% 100% 80% (not less than
7 100% 100% 100% 100% % 100%)
NOTE: If no option is selected, Option 3 will be
deemed to be selected.
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Page
10
Part B. Vesting Schedule For Matching Contributions. A Participant shall
become Vested in his or her Individual Account derived from Matching
Contributions made pursuant to Section 7 of the Adoption Agreement as
follows (Choose one):
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YEARS OF VESTED PERCENTAGE
Option Option Option (Complete if
VESTING SERVICE l 0 2 0 3 0 Option 4 0Option 5(R) Chosen)
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(not less than
20%)
(not less than
1 0% 0% 100% 0% 20% 40%)
2 0% 20% 100% 0% 40% (not less than
3 0% 40% 100% 20% 60 % 60%)
4 0% 60% 100% 40% 80 % (not less than
5 100% 80% 100% 60% 100 % 80%)
6 100% 100% 100% 80% % (not less then
7 100% 100% 100% 100% % 100%)
NOTE: lf no option is selected, Option 3 will be
deemed to be selected.
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Exhibit 10.4
Part C. Hours Required For Vesting Purposes:
1.1000 Hours of Service (no more than 1,000) shall be required to
constitute a Year of Vesting Service.
2. 500 Hours of Service (no more than 500 but less than the number
specified in Section 12, Part C, Item 1, above) must be exceeded to
avoid a Break in Vesting Service.
3. For purposes of determining Years of Vesting Service, Employees shall be given credit for
Hours of Service with the following predecessor employer(s): (Complete if applicable)
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Part D. Exclusion of Certain Years of Vesting Service:
All of an Employee's Years of Vesting Service with the Employer are
counted to determine the vesting percentage in the Participant's
Individual Account except (Check any that apply): [] Years of Vesting
Service before the Employee reaches age l 8. [] Years of Vesting
Service before the Employer maintained this Plan or a predecessor plan.
Part E. Allocation of Forfeitures of Employer Profit Sharing Contributions:
Forfeitures of Employer Profit Sharing Contributions shall be (Choose one):
Option 1: Allocated to the Individual Accounts of the Participants specified below in the
manner as described in Section 10, Part B (for Employer
Profit Sharing Contributions) The Participants entitled to
receive allocations of such Forfeitures shall be (Choose
one):
Suboption (a): O Only Qualifying Participants.
Suboption (b): O All Participants.
Option 2: Applied to reduce Employer Profit Sharing Contributions (Choose one):
Suboption (a): O For the Plan Year for which the Forfeiture arises.
Suboption (b): For any Plan Year subsequent to the Plan Year for which the
Forfeiture arises.
Option 3: Applied first to the payment of the Plan's administrative
expenses and any excess applied to reduce Employer Profit
Sharing Cent ribut ions (Choose one):
Suboption (a): O For the Plan Year for which the Forfeiture arises.
Suboption (b): O For any Plan Year subsequent to the Plan Year for which the
Forfeitures arises.
Note: If no option is selected, Option 1 and Suboption (a) will be deemed to be selected.
Part F. Allocation of Forfeitures of Matching Contributions:
Forfeitures of Matching Contributions shall be (Choose one):
Option 1: O Allocated, after all other Forfeitures under the Plan, to each
Participant's Individual Account in the ratio which each
Participant's Compensation for the Plan Year bears to the
total Compensation of all Participants for such Plan Year.
The Participants entitled to receive allocations of such Forfeitures
shall be (Choose one):
Suboption (a): O Only Qualifying Contributing Participants.
Suboption (b) O Only Qualifying Participants.
Suboption (c): O All Participants.
Option 2: O Applied to reduce Matching Contributions (Choose one):
Suboption (a): O For the Plan Year for which the Forfeiture
arises. Suboption (b): O For any Plan Year subsequent to the
Plan Year for which the Forfeiture arises.
Option3: O Applied first to the payment of the Plan's administrative
expenses and any excess applied to reduce Matching
Contributions (Choose one): Suboption (a): O For the Plan Year
for which the Forfeiture arises. Suboption (b): O For any Plan
Year subsequent to the Plan Year for which the Forfeitures
arises.
NOTE: lf no option is selected, Option l and Suboption (a) will be deemed to be
selected.
Part G. Allocation of Forfeitures of Excess Aggregate Contributions:
Forfeitures of Excess Aggregate Contributions shall be (Choose one):
Option 1: O Allocated, after all other Forfeitures under the Plan, to
each Contributing Participant's Matching Contribution account
in the ratio which each Contributing Participant's
Compensation for the Plan Year bears to the total Compensation
of all Contributing Participants for such Plan Year. Such
Forfeitures will not be allocated to the account of any Highly
Compensated Employee.
Option 2: O Applied to reduce Matching Contributions (Choose one):
Suboption (a): 0 For the Plan Year for which the
Forfeiture arises.
Suboption (b): ? For any Plan Year subsequent to the Plan Year
for which the Forfeiture arises.
Option 3: O Applied first to the payment of the Plan's administrative
expenses and any excess applied to reduce Matching
Contributions (Choose one):
Suboption (a): 0 For the Plan Year for which the Forfeiture arises.
Suboption (b): 0 For any Plan Year subsequent to the Plan Year for
which the Forfeitures arises.
NOTE: lf no option is selected, Option 2 and Suboption (a) will be deemed to be
selected.
SECTION 13. NORMAL RETIREMENT AGE AND EARLY RETIREMENT AGE
The Normal Retirement Age under the Plan shall be (Check and complete one
option):
Option 1: Age 65.
Option 2: Age _(not to exceed 65)
------------
Option 3: The later of age____(not to exceed 65) or the________(not to
exceed 5th) anniversary of the first day of
the first Plan Year in which the Participant commenced
participation in the Plan.
NOTE: lf no option is selected, Option l will be deemed to be selected.
Part B. Early Retirement Age (Choose one option):
Option 1: An Early Retirement Age is not applicable under the Plan,
Option 2: Age 55 (not less than 55 nor more than 65).
Option 3: A Participant satisfies the Plan's Early Retirement Age
conditions by attaining age ________ (not less than 55) and
completing _____ Years of Vesting Service.
NOTE: lf no option is selected, Option l will be deemed to be selected.
SECTION 14. DISTRIBUTIONS
Distributable Events. Answer each of the following items.
A, Termination of Employment Before Normal Retirement Age. May a Participant who
has not reached Normal Retirement Age request a distribution from the Plan?
B. Disability, May a Participant who has incurred a Disability request a distribution
from the Plan?
C. Attainment of Normal Retirement Age. May a Participant who has attained Normal
Retirement Age but has not incurred a Termination of Employment request a distribution
from the Plan?
D. Attainment of Age 59 1/2. Will Participants who have attained age 59 1/2 be permitted
to withdraw Elective Deferrals while still employed by the Employer?
E. Hardship Withdrawals of Elective Deferrals. Will Participants be permitted to withdraw
Elective Deferrals on account of hardship pursuant to Section 11.503 of the Plan?
F. In-Service Withdrawals, Will Participants be permitted to request a distribution
during service pursuant to Section 6.01(A)(3) of the Plan?
G. Hardship Withdrawals. Will Participants be permitted to make hardship withdrawals
pursuant to Section 6.01(A)(4) of the Plan?
H. Withdrawals of Rollover or Transfer Contributions. Will Employees be permitted to
withdraw their Rollover or Transfer Contributions at any time?
O Yes O No
O Yes O No
O Yes O No
O Yes O No
O Yes O No
O Yes O No
O Yes O No
O Yes O No
NOTE: lf a box is not checked for an item, Yes" will be deemed to be selected
for that item. Section 411(d)(6) of the Code prohibits the elimination of
protected benefits. In general, protected benefits include the forms and timing
of payout options. lf the Plan is being adopted to amend and replace a Prior
Plan that permitted a distribution option described above, you must answer "Yes
" to that item.
SECTION 15. JOINT AND SURVIVOR ANNUITY
Part A. Retirement Equity Act Safe Harbor:
Will the safe harbor provisions of Section 6.05(F) of the Plan apply? (Choose
only one option)
Option 1: O Yes.
Option 2: O No.
NOTE: You must select "No" if you are adopting this Plan as an
amendment and restatement of a Prior Plan that was subject to the joint
and survivor annuity requirements.
Part B. Survivor Annuity Percentage: (Complete only if your answer in Section IS,
Part A is "No.")
The survivor annuity portion of the Joint and Survivor Annuity shall be
a percentage equal to _____ % (at least 50% but no more than 100%) of
the amount paid to the Participant prior to his or her death.
Page 13
SECTION 16. OTHER OPTIONS
Answer"Yes " or "No " to each of the following questions by checking the
appropriate box. If a box is not checked for a question, the answer will
be deemed to be "No. "
A. Loans: Will loans to Participants pursuant to Section 6.08 of the Plan be permitted?
O Yes O No
B. Insurance: Will the Plan allow for the investment in insurance policies pursuant to
Section O Yes O No
5.13 of the Plan?
C. Employer Securities: Will the Plan allow for the investment in qualifying Employer
O Yes O No
securities or qualifying Employer real property?
D. Rollover Contributions: Will Employees be permitted to make rollover contributions to
the O Yes O No
Plan pursuant to Section 3.03 of thw Plan? O
Yes, but only after
becoming a Participant
E. Transfer Contributions: Will Employees be permitted to make transfer contributions to
the O Yes O No
Plan pursuant to Section 3.04 of the Plan? O
Yes, but only after
becoming a Participant
F. Nondeductible Employee Contributions: Will Employees be permitted to make
O Yes O No
Nondeductible Employee Contributions pursuant to Section l l .305 of the Plan?
Check here if such contributions will be mandatory. [ ]
G. Will Participants be permitted to direct the investment of their Plan assets pursuant
to Section O Yes O No
5.14 of the Plan?
-------------------------------------------------------------------------------------------
SECTION 17. LIMITATION ON ALLOCATIONS
-------------------------------------------------------------------------------------------
More Than One Plan
-------------------------------------------------------------------------------------------
lf you maintain or ever maintained another qualified plan in which any
Participant in this Plan is (or was) a Participant or could become a
Participant, you must complete this section. You must also complete this section
if you maintain a welfare benefit fund, as defined in Section 419(e) of the
Code, or an individual medical account, as defined in Section 4 15(l)(2) of the
Code, under which amounts are treated as annual additions with respect to any
Participant in this Plan.
Part A. Individually Designed Defined Contribution Plan:
lf the Participant is covered under another qualified defined contribution plan
maintained by the Employer, other than a master or prototype plan:
1. O The provisions of Section 3.05(B)(1) through 3.05(B)(6) of the Plan will
apply as if the other plan were a master or prototype plan.
2. O Other method. (Provide the method under which the plans will
limit total annual additions to the maximum permissible amount,
and will properly reduce any excess amounts, in a manner that
precludes Employer discretion.)
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
Part B. Defined Benefit Plan:
lf the Participant is or has ever been a participant in a defined
benefit plan maintained by the Employer, the Employer will provide
below the language which will satisfy the 1.0 limitation of Section
415(e) of the Code. 1.O lf the projected annual addition to this Plan
to the account of a
Participant for any limitation year would cause the 1.0 limitation
of Section 415(e) of the Code to be exceeded, the annual benefit
of the defined benefit plan for such limitation year shall be
reduced so that the l .0 limitation shall be satisfied.
lf it is not possible to reduce the annual benefit of the defined benefit
plan and the projected annual addition to this Plan to the account of a
Participant for a limitation year would cause the 1.0 limitation to be
exceeded, the Employer shall reduce the Employer Contribution which is to
be allocated to this Plan on behalf of such Participant so that the 1.0
limitation will be satisfied. (The
provisions of Section 415(e) of the Code are incorporated herein
by reference under the authority of Section l 106(h) of the Tax
Reform Act of 1986.)
2. O Other method. (Provide language describing another method. Such
language must preclue Employer discretion.)
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Page
14
SECTION 18. TOP-HEAVY MINIMUM
Complete Parts_A and B
Part A. Minimum Allocation or Benefit:
For any Plan Year with respect to which this Plan is a Top-Heavy
Plan, any minimum allocation required pursuant to Section 3.01(E) of
the Plan shall be made (Choose one):
Option 1: O To this Plan.
Option 2: O To the following other plan maintained by the Employer (Specify
name amid plan number of plan)
--------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------
Option 3: O In accordance with the method described on an attachment
to this Adoption Agreement. (Attach language describing the
method that will be used to satisfy Section 416 of the Code. Such
method must preclude Employer discretion.)
NOTE: lf no option is selected, Option l will be deemed to be selected.
Part B. Top-Heavy Vesting Schedule:
Pursuant to Section 6.01(C) of the Plan, the vesting schedule that
will apply when this Plan is a Top-Heavy Plan (unless the Plan's
regular vesting schedule provides for more rapid vesting) shall be
(Choose one): Option 1: O 6 Year Graded.
Option 2: O 3 Year Cliff.
NOTE: lf no option is selected, Option l will be deemed to be selected.
-----------------------------------------------------------------------------------------------
19. PROTOTYPE SPONSOR
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
Name of Prototype Sponsor Eastern Resorts Company
LLC______________________________________________________________
Address 000 Xxxx Xxxxx, Xxxxxxx, XX
02840_________________________________________________________________________
Telephone Number 401 -845-01 00
--------------
----------------------------------------------------------------------------------
Permissible Investments
The assets of the Plan shall be invested only in those investments described
below (To be completed by the Prototype Sponsor):
Mutual Funds - Galaxy Funds and other mutual funds offered for use by fleet in
its daily valuation product.
SECTION 20. TRUSTEE OR CUSTODIAN
Option A:O Financial Organization as Trustee or Custodian
Check One: O Custodian, O Trustee without full trust powers, or O Trustee with full
trust powers
Financial Organization Fleet National
Bank____________________________________________________________________________
Signature________________________________________________________________________________________________________
Type Name Xxxx X. Xxxxxxx
----------------------------------------------------
Option B:O Individual Trustee(s)
Signature __________________________________________ Signature
------------------------------------------
Type Name_________________________________________ Type
Name_________________________________________
Signature __________________________________________ Signature
------------------------------------------
Type Name_________________________________________ Type
Name_________________________________________
Page15
SECTION 21. RELIANCE
The Employer may not rely on an opinion letter issued by the National Office of
the Internal Revenue Service as evidence that the Plan is qualified under
Section 401 of the Internal Revenue Code. In order to obtain reliance with
respect to plan qualification, the Employer must apply to the appropriate Key
District office for a determination letter.
This Adoption Agreement may be used only in conjunction with Basic Plan Document No. 04.
SECTION 22. EMPLOYER SIGNATURE
Important: Please read before signing
I am an authorized representative of the Employer named above and I state the
following:
l .I acknowledge that l have relied upon my own advisors regarding the
completion of this Adoption Agreement and the legal tax implications of
adopting this Plan.
2. I understand that my failure to properly complete this Adoption Agreement
may result in disqualification of the Plan.
3. I understand that the Prototype Sponsor will inform me of any amendments
made to the Plan and will notify me should it discontinue or abandon the
Plan.
4. I have received a copy of this Adoption Agreement and the corresponding
Basic Plan Document.
5. I have received a copy of the prospectus describing the "Galaxy Fund" and,
based on the prospectus and the information contained m the Basic Plan
Document, l APPROVE THE INVESTMENT AND REINVESTMENT OF PLAN ASSETS IN THE
GALAXY FUNDS.
Signature for Employer
Eastern Resorts Company, LLC_______ Date Signed January 4, 2000
Type Name Xxxxxxx X. Winkler___________________________ Title _____________
