Xxxxxxx Co. Cleveland
Hourly Retirement Savings
and Investment Plan
ADOPTION AGREEMENT 002
USE ONLY WITH BASIC PLAN
DOCUMENT NO. 01
ADOPTION AGREEMENT
XXXXXXX, PROCTER & XXXX REGIONAL PROTOTYPE NON-STANDARD
PROFIT SHARING SECTION 401(k) PLAN
1. THE EMPLOYER (Note: The term "Employer" includes all
Related Employers as defined in Section
2.12 of the Plan)
Name: Tyco International Ltd. Employer Identification
-----------------------
Number
Address Tyco Park 00-0000000
--------- ----------
Xxxxxx, XX 00000 Plan Number 026
---------------- ---------
(001 or next available number)
Nature of Business: Fiscal Year Ends:
Manufacturing 6/30
-------------------- ---------------
Type of Employer:
X corporation partnership
--- ---
sole proprietor other
--- ---
2. THE PLAN
A. The Plan or Amendment adopted by this Adoption Agreement is effective
July 1, 1993. (Should ordinarily be the first day of a Fiscal Year.)
This adoption is (check one):
( ) An original adoption of an entirely new plan.
(X) An amendment to and continuation of a plan originally effective
January 1, 1991 and entitled Xxxxxxx Co. Cleveland Hourly Retirement
--------------- ---------------------------------------
Savings and Investment Plan.
---------------------------
B. Top-Heavy status (check one):
( ) i. The Plan will always be administered as if it were top-heavy.
(X) ii. The Employer will determine each year whether or not the Plan is
top-heavy. For purposes of determining the top-heavy ratio, any
benefit shall be discounted only for mortality and interest based on
the following (complete if you maintain or ever maintained a defined
benefit plan):
Interest rate %
----
Mortality table .
-----------------------------
Valuation date for purposes of computing the top-heavy ratio shall
be of each year.
--------
3. PLAN YEAR, LIMITATION YEAR
The Plan Year shall be the twelve consecutive month period ending on December
31 of each year. The Limitation Year for all qualified plans of the Employer
shall be the twelve consecutive month period ending on December 31 of each
year.
4. TRUSTEE
The Employer hereby designates the following to act as Trustee under the
Plan: Mellon Bank
5. PERMISSIBLE INVESTMENTS
The Permissible Investments shall include (check any options you wish to
elect):
( ) A. Such stocks, bonds, or other marketable securities, including
certificates of participation or shares of any regulated mutual
investment company, trust or fund, put and call
2
options, certain hedged covered option positions, limited
partnership interests, private letter stock, as the Trustee from
time to time selects; provided that the Trustee shall not invest
in securities of an Employer; and that the Trustee may hold funds
of the Trust uninvested if and to the extent it deems advisable
from time to time, and provided further that the Trustee is
authorized to commingle part or all of the assets of the Trust in
one or more trusts, including trusts of which the Trustee is
trustee, whether now existing or hereafter created, for the
collective investment of funds held under employees' pension or
profit sharing plans or trusts which are qualified within the
meaning of and exempt from tax under the revenue laws of the
United States, and permitted by existing or future rulings of the
United States Treasury Department to pool their respective funds
in a group trust, in which event the instrument pursuant to which
such trust is established shall be deemed to be a part of the Plan.
( ) B. Such guaranteed income contracts and similar products, if any,
whether issued by an insurance company or other financial
institution, as the Trustee from time to time selects.
( ) C. Such short-term obligations from time to time selected by the
Trustee, including but not limited to savings accounts,
certificates of deposit, variable demand notes, short-term
commercial paper, U.S. Treasury bills and notes, other obligations
with short maturities on which interest income may vary from day
to day, and shares of mutual funds investing principally in the
foregoing.
( ) D. Such shares of one or more mutual funds or interests in other
pooled investment funds as the Trustee from time to time selects.
(X) E. Other: Such shares of one or more mutual funds and such guaranteed
income contracts and similar products, if any, whether issued by an
insurance company or other financial institution, as the Plan
Administrator from time to time selects.
6. CONTRIBUTIONS AND FORFEITURES
(X) A. Elective Deferrals
-------------------
If this paragraph is checked, Elective Deferrals not in excess
see of 15% of a Member's Compensation shall be contributed
attachment to the Trust by the Employer in accordance with a Salary Adjustment
Agreement with the Member.
3
The minimum Elective Deferrals per Member shall be $ per
----
week/month.
( ) B. Employee Contributions
----------------------
If this paragraph is checked, a Member may contribute up to %
----
of his Compensation to the Trust on a nondeductible basis.
The minimum Employee Contributions per Member shall be $ per
----
week/month.
(X) C. Matching Contributions
----------------------
If this paragraph is checked, the Employer shall make Matching
Contributions to the Trust on behalf of all Members who make (check
(i) or (ii) or both)
(X) (i) Elective Deferrals
( ) (ii) Employee Contributions
to the Trust.
The amount of Matching Contribution shall be (check one or more
below)
(X) (a) 300 percent of the Member's Elective Deferrals.
( ) (b) percent of the Member's Employee Contributions.
-------
( ) (c) such amount voted or declared by the Employer each
-------
Fiscal Year.
The Employer shall not match the Member's Elective Deferrals and/or
Employee Contributions in excess of $ , or in excess of 1 percent of
the Member's Compensation.
The Matching Contributions
( ) will (X) will not
be limited to the Employer's Net Profits.
( ) D. Employer Contributions
-----------------------
4
If this paragraph is checked, the Employer shall make Employer
Contributions to the Trust each Fiscal Year in an amount determined
as follows:
( ) (i) the amount voted or declared by the Employer on account
of such Fiscal Year.
( ) (ii) % of each eligible Member's Compensation, plus the
----
amount voted or declared by the Employer on account of
such Fiscal Year.
( ) If this paragraph is checked, a Member is eligible to share in
the allocation of the Employer Contribution for any Plan Year if he
is an Employee on the last day of the Plan Year, or if he died,
retired, became disabled during such Plan Year, or terminated
employment during such Plan Year after being credited with more than
500 Hours of Service.
The Employer Contributions
( ) will ( ) will not
be limited to the Employer's Net Profits.
The Employer Contributions will be allocated to each eligible Member
as follows:
( ) NOT INTEGRATED: The allocation will be made on a pro rata
basis in accordance with each eligible Member's Compensation.
( ) INTEGRATED: The allocation will be integrated with Social
Security as set forth in Section 5.05B(b) of the Plan.
( ) E. Qualified Non-Elective Contributions
------------------------------------
( ) If this paragraph is checked, in any Plan Year in which the Plan
cannot satisfy either the ADP or ACP test, the Employer may make
Qualified Non-Elective Contributions to the Trust on behalf of
Non-Highly Compensated Employees in an amount sufficient to enable
the Plan to satisfy such tests.
(X) F. Forfeitures
-----------
Forfeitures for each Plan Year shall be (check i or ii)
5
(X) (i) applied to reduce Matching Contributions for such Plan Year.
( ) (ii) allocated in the same manner as Employer Contributions.
( ) G. In any year in which the Plan is or is deemed to be top-heavy, a
minimum contribution in the amount determined under Section 14.05(a)
of the Plan is required. To avoid inappropriate omissions or
duplication of minimum benefits or contributions if the Employer
maintains more than one plan, the rules checked or specified below
shall apply (check one)
( ) (i) Minimum contributions shall be provided in this Plan
without regard to the benefits or contributions
provided to the Member under the Employer's other plans
(subject to the limitations of Article XII).
( ) (ii) Any Member who is also covered under the Employer's
other defined contribution plan and who is employed on
the last day of the Plan Year shall receive minimum
contributions in the amount determined under Section
14.05(a) of the Plan under the Employer's other defined
contribution plan
( ) (iii) Any Member who is also covered under the Employer's
defined benefit plan and who is employed on the last
day of the Plan Year shall receive minimum
contributions or benefits as follows:
( ) 1. A minimum contribution under this Plan in an
amount equal to 5% of the Member's
Compensation.
( ) 2. A minimum contribution under this Plan in an
amount equal to 7.5% of the Member's
Compensation.
( ) 3. A minimum benefit under the Employer's defined
benefit plan equal to the product of (a) the
Member's average Compensation for the period of
consecutive years (not exceeding five) when the
Member had the highest aggregate Compensation
from the Employer and (b) the lesser of 2% per year
of service with the Employer or 20%.
6
( ) 4. A minimum benefit under the Employer's defined
benefit plan equal to the product of (a) the
Member's average Compensation for the period of
consecutive years (not exceeding five) when the
Member had the highest aggregate Compensation
from the Employer and (b) the lesser of 3% per year
of service with the Employer or 30%.
Note: The total employer contributions (Elective Deferrals, Matching
Contributions, Employer Contributions and Qualified Non-elective
Contributions) to the Trust each Fiscal Year may generally not exceed
15% of aggregate Members' compensation. The Annual Additions to a
Member's accounts in any Limitation Year cannot exceed the lesser of
$30,000 or 25% of the Member's Compensation.
7. CLAIM FOR EXCESS ELECTIVE DEFERRALS
Members who claim Excess Elective Deferrals pursuant to Section 6.02 of the
Plan for the preceding calendar year must submit their claims in writing to
the Plan Administrator by March 1.
Note: Excess Elective Deferrals distributed after April 15 are not only
includable in the Member's gross income for the year made, but are also
includable in income again in the year distributed.
8. COMPENSATION
Compensation shall mean all of each Member's
(X) W-2 earnings
( ) Compensation (as that term is defined in Section 12.05(c))
which is actually paid to the Member during
(X) the Plan Year.
( ) the calendar year ending with or within the Plan Year.
( ) the Limitation Year ending with or within the Plan Year.
7
Compensation
(X) shall include ( ) shall not include
any amount which is contributed by the Employer pursuant to a salary reduction
agreement and which is not includible in the gross income of the Employee
under Section 125, 402(a)(8), 402(h) or 403(b) of the Code.
Compensation
( ) shall include (X) shall not include
any amount paid before the Member becomes eligible to participate in the Plan.
For a Self-Employed Individual covered under the Plan, Compensation means
Earned Income.
9. MEMBERSHIP/NORMAL RETIREMENT AGE
A. Each Employee will be eligible to become a Member in this plan in
accordance with Article III, except the following (check any options you
wish to elect):
( ) i. Employees who have not attained the age of (cannot exceed
----
21).
(X) ii. Employees hired after January 1, 1991 who have not completed 1
Year of Eligibility Service.
( ) iii. Employees who have not been employed for at least 6 months.
( ) iv. Employees covered by a collective bargaining agreement which
does not include this Plan, if retirement benefits were the
subject of good faith bargaining.
(X) v. Employees employed in the following classes shall be
excluded from eligibility:
( ) hourly-paid employees.
( ) salaried employees.
( ) commissioned employees.
8
( ) all employees other than employees covered by a
collective bargaining agreement which includes this
Plan.
( ) employees of Related Employers, except that employees
of the following Related Employers shall be eligible
-----------------------------------
.
----------------------------------------
( ) leased employees.
(X) all employees other than hourly employees employed at
the Cleveland plant of Xxxxxxx Company.
Note: The term "Employee" includes any employee of the employer maintaining
the plan or of any other employer required to be aggregated under
Section 414(b), (c), (m) or (o) of the Code. Any individual who is a
"leased employee" of any such employer (see Section 2.11 of the Plan)
shall also be considered an Employee.
B. Entry Date is generally defined as the first day of the Plan Year and
the first day of the seventh month of the Plan Year. Check one of the
following options if you prefer an alternate definition.
( ) If this paragraph is checked, Entry Date shall mean the first day
of the Plan Year, and the first day of the fourth, seventh and
tenth month of the Plan Year.
( ) If this paragraph is checked, Entry Date shall mean the first day
of each payroll period.
C. Normal Retirement Age under the Plan shall be
(check one):
(X) Age 65
( ) Age 62
( ) Other .
--------
10. VESTING FORMULA
A. The Vesting Formula applicable to Plan Years in which the Plan is or is
deemed to be top-heavy shall be: (check one)
9
( ) i. 100% vesting immediately upon participation.
(X) ii. 100% vesting after 3 (not to exceed 3) Years of Vesting Service.
( ) iii. 0% (zero or higher) vesting after 1 Year of Vesting Service.
20% (20 or higher) vesting after 2 Years of Vesting Service.
40% (40 or higher) vesting after 3 Years of Vesting Service.
60% (60 or higher) vesting after 4 Years of Vesting Service.
100% vesting after 5 Years of Vesting Service.
B. (Complete this Paragraph only if you checked Paragraph 2(B)(ii).) The
Vesting Formula applicable to Plan Years in which the Plan is not
top-heavy shall be: (check one)
( ) i. % (zero or higher) vesting after 1 Year of Vesting Service.
---
% (zero or higher) vesting after 2 Years of Vesting Service.
---
% (20 or higher) vesting after 3 Years of Vesting Service.
---
% (40 or higher) vesting after 4 Years of Vesting Service.
---
% (60 or higher) vesting after 5 Years of Vesting Service
---
% (80 or higher) vesting after 6 Years of Vesting Service
---
100% vesting after 7 Years of Vesting Service.
(X) ii. 100% after 5 (not to exceed 5) Years of Vesting Service.
11. SERVICE
A. Hours of Service shall be determined for all Employees on the basis of
actual hours for which an Employee is paid or entitled to payment,
unless the following alternative is selected (check if you do not wish
to maintain detailed records of hours paid):
( ) On the basis of weeks worked. An Employee shall be credited with
forty-five (45) hours if under Section 2.16 of the Plan such
Employee would be credited with at least one Hour of Service during
the week.
10
( ) On the basis of months worked. An Employee shall be credited with
one hundred-ninety (190) hours if under Section 2.16 of the Plan
such Employee would be credited with at least one Hour of Service
during the month.
B. (Complete i and ii; 1000 Hours of Service will be required if the blanks
are not completed.)
i. The minimum number of Hours of Service required for a "Year of
Eligibility Service" shall be 1000.
ii. The minimum number of Hours of Service required for a
"Year of Vesting Service" shall be 1000.
C. Service for the following Predecessor Employer(s) shall be treated as
service for the Employer:
Xxxxxxx Company .
--------------------------------------------------
D. All of an Employee's Years of Vesting Service with the Employer are
counted to determine the vested percentage in the Employee's Employer
Account and Matching Account except: (check if you wish to elect this
option)
( ) Years of Vesting Service before the Employer maintained this plan
or a predecessor plan.
( ) Years of Vesting Service completed before the Employee attained age
18.
E. The computation period for determining an Employee's Years of Vesting
Service is the Plan Year unless the following is checked (check if you
wish to elect this option):
(X) For purposes of determining an Employee's Years of Vesting Service,
the computation periods shall be the Employee's employment years. An
employment year for an Employee is a twelve consecutive month period
beginning on his employment commencement date. His employment
commencement date is the date on which he first performed an Hour of
Service.
12. INVESTMENT AND WITHDRAWALS: (check any options you wish to elect)
(X) A. If this paragraph is checked, Members may elect the investment of
their Accounts pursuant to Section 5.08B of the Plan.
11
( ) B. If this paragraph is checked, Members may make the following
withdrawals pursuant to Section 7.06(b) of the Plan (check the
options you wish to elect):
( ) Withdrawals will be permitted from the Member's
----------
Employee Account and/or Rollover Account pursuant
----------
to Section 7.06(b)(i) of the Plan.
( ) Withdrawals will be permitted from the Member's
-----------
Employer Account and/or Matching Account pursuant
--------
to Section 7.06(b)(ii) of the Plan; provided
( ) i. the Member has participated in the Plan for at least
sixty (60) months; or
( ) ii. the Member has attained age [fill in an age no less
---
than 59-1/2].
( )iii. the Member experiences a "Financial Hardship" as
defined in Section 7.06(b) of the Plan.
Note: Fully vested Employer Contributions and Matching Contributions will not be
considered Qualified Non-Elective Contributions and Qualified Matching
Contributions, respectively, if the Employer elects the above withdrawal
provision, and such contributions cannot be used to help the Plan
satisfy the ADP or ACP test.
( ) Withdrawals will be permitted from the Member's Elective
Deferral Account for purposes of a "Financial Hardship"
pursuant to Section 7.06(b)(iii) of the Plan.
( ) C. If this paragraph is checked, the Trustee shall invest a portion of
the Employer contribution in Insurance Policies. The percentage of
the Employer contribution allocable to each insurable Member's
Employer Account and Matching Account to be so invested shall be
(complete i, ii or iii):
( ) i. % (not to exceed 25%) in a term life insurance policy.
----
( ) ii. % (not to exceed 49%) in an ordinary life insurance policy.
----
( ) iii. (1) % in a term life insurance policy and
----
(2) % in an ordinary life insurance policy.
----
12
The percentage in (1) plus one-half of the percentage in (2)
shall not exceed 25%.
If Paragraph 12(A) has been checked, the percentage specified
above shall constitute the maximum percentage of the Employer
Contribution and Matching Contribution which each Member may
elect to have applied to the purchase of Insurance Policies.
( ) D. If this paragraph is checked, loans are permitted under Section
7.10 of the Plan.
Note: Loans may not be made to Owner-Employees of an unincorporated
---
Employer or shareholder-employees of an Employer which is an S
Corporation.
13. FORMS OF DISTRIBUTION
Each Member may choose to have the distribution of his Accounts made
under Section 7.07 of the Plan in accordance with one of the following options
(check any options you wish to offer under the Plan):
(X) A. One lump sum payment in cash or in kind or part in cash and part in
kind.
( ) B. Payments in cash or in kind in annual, quarterly or monthly
installments over a period not exceeding one of the following
periods selected by the Member:
(i) the life expectancy of the Member;
(ii) the joint life and last survivor expectancy of the Member and
a Designated Beneficiary.
( ) C. Payments in cash or in kind in annual, quarterly or monthly
installments over a period up to 15 years as selected by the Member.
( ) D. Purchase of an immediate nontransferable annuity which meets the
requirements of Section 401(a)(9) of the Code and the regulations
promulgated thereunder.
14. TIMING OF DISTRIBUTIONS
The distribution of the Member's Accounts whose employment terminates
for reasons other than retirement, disability or death and whose
Accounts exceed $3,500 (insert
13
$3,500 or more) will commence within a reasonable time after the end of
the Plan Year in which the following occurs (check one):
(X) A. The Member's termination of employment.
( ) B. The date the Member attains (or would have attained) Normal
Retirement Age.
( ) C. years from the Member's termination of employment.
----
15. LIMITATION ON CONTRIBUTIONS
If the Employer maintains or ever maintained another qualified plan in which
any Member of this Plan is (or was) a participant or could possibly become a
participant, complete this section.
A. If the Member is covered under another qualified defined contribution
plan maintained by the Employer, other than a regional prototype (check
i or ii):
( ) i. The provisions of Section 12.02 will apply as if the other
plan were a regional prototype plan.
( ) ii. (Provide the method under which the plans will limit Annual
Additions to the Maximum Permissible Amount, and will
properly reduce any Excess Amounts, in a manner that
precludes Employer discretion) .
------------ ----------------
B. If the Member is or has ever been a participant in a defined benefit
plan maintained by the Employer (provide the method under which the
plans will satisfy Section 415(e) of the Code):
-----------------------
----------------------
16. ADOPTION BY EMPLOYER:
The employer named in Paragraph 1 (the "Employer") hereby adopts the Xxxxxxx
Co. Cleveland Hourly Retirement Savings and Investment Plan consisting of this
Adoption Agreement and the Xxxxxxx, Procter & Xxxx Regional Prototype Defined
Contribution Basic Plan Document.
It is understood that the Employer assumes full responsibility for the legal
and tax aspects of its adoption of this Plan. Failure by the Employer to
complete this Adoption Agreement properly may result in disqualification of the
Plan.
14
TYCO INTERNATIONAL LTD.
By: /s/ Xxxx X. Xxxxxxxx
--------------------
Authorized Signature
Date: November 15, 1994
------------------
The Employer may not rely on the opinion letter obtained by Xxxxxxx, Procter &
Xxxx from 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 of the Internal Revenue Service for a determination letter.
If the Employer has any questions regarding plan provisions, the procedure for
adoption of this regional prototype plan, and the effect of the notification
letter, please contact a member of the ERISA Department of Xxxxxxx, Procter &
Xxxx at Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or by calling (617)
570-1000.
Xxxxxxx, Procter & Xxxx will inform the Employer of any amendments made to the
prototype plan or of the discontinuance or abandonment of the prototype plan.
15
77904.b1
