EXHIBIT 10.3
The CORPORATEplan for RetirementSM
ADDENDUM
RE: Code Sections 401(k) and 401(m) 2004 Final Regulations, Roth 401(k)
Amendments for Fidelity Basic Plan Document No. 02
PREAMBLE
Adoption and Effective Date of Amendment. This amendment of the Plan is
adopted to reflect the final regulations under Internal Revenue Code (Code)
sections 401(k) and 401(m) and to reflect Code section 402A as added by
section 617 of the Economic Growth and Tax Relief Reconciliation Act of
2001. This amendment is intended as good faith compliance with the
requirements of Code sections 401(k), 401(m) and 402A and is to be
construed in accordance with guidance issued thereunder. Except as
otherwise provided in the numbered paragraphs below, this amendment shall
be effective as determined pursuant to the rules in paragraphs A and B
immediately below:
A. Except as otherwise provided in paragraph B below, this amendment
shall be effective for plan years that begin on or after January
1, 2006.
B. If the Plan is maintained pursuant to one or more collective
bargaining agreements between employee representatives and one or
more employers in effect on the date described in paragraph A
above, this amendment shall be effective beginning with the later
of the first plan year beginning after the termination of the
last such agreement or the first plan year described in paragraph
A above.
Supersession of Inconsistent Provisions. This amendment shall supersede the
provisions of the Plan to the extent those provisions are inconsistent with
the provisions of this amendment.
1. Section 5.03, "Deferral Contributions," is hereby amended,
effective January 1, 2006, by adding a new subsection (c) to the
end thereof to provide as follows:
(c) Roth Deferral Contributions.
(1) General Application.
(A) This subsection (c) will apply to contributions
beginning with the effective date specified in
the Roth Deferral Contributions Addendum to the
Adoption Agreement but in no event before the
first day of the first taxable year beginning on
or after January 1, 2006.
(B) As of the effective date under subparagraph (A)
hereof, the Plan will accept Roth Deferral
Contributions made on behalf of Participants. A
Participant's Roth Deferral Contributions will be
allocated to a separate account maintained for
such contributions as described in paragraph (2)
of this Section 5.03(c).
(C) Unless specifically stated otherwise, Roth
Deferral Contributions will be treated as
Deferral Contributions for all purposes under the
Plan.
(2) Separate Accounting.
(A) Contributions and withdrawals of Roth Deferral
Contributions will be credited and debited to the
Roth Deferral Contributions sub-account
maintained for each Participant within the
Participant's Account.
(B) The Plan will maintain a record of the amount of
Roth Deferral Contributions in each such sub-
account.
(C) Gains, losses, and other credits or charges must
be separately allocated on a reasonable and
consistent basis to each Participant's Roth
Deferral Contributions sub-account and the
Participant's other sub-accounts within the
Participant's Account under the Plan.
(D) No contributions other than Roth Deferral
Contributions and properly attributable earnings
will be credited to each Participant's Roth
Deferral Contributions sub-account.
(3) Direct Rollovers.
(A) Notwithstanding anything to the contrary in
Section 13.04, a direct rollover of a
distribution from a Roth Deferral Contributions
sub-account under the Plan will only be made to
another Roth Deferral Contributions account under
an applicable retirement plan described in Code
section 402A(e)(l) or to a Roth IRA described in
Code section 408A and only to the extent the
rollover is permitted under the rules of Code
section 402(c).
(B) Notwithstanding anything to the contrary in
Section 5.06, and provided the Employer so elects
in the Roth Deferral Contributions Addendum to
the Adoption Agreement, the Plan will accept a
rollover contribution to a Roth Deferral
Contributions sub-account, but only if it is a
direct rollover from another Roth Deferral
Contributions account under an applicable
retirement plan described in Code section
402A(e)(1) and only to the extent the rollover is
permitted under the rules of Code section 402(c).
(C) The Plan will not provide for a direct rollover
(including an automatic rollover) for
distributions from a Participant's Roth Deferral
Contributions sub-account if the amounts of the
distributions that are eligible rollover
distributions are reasonably expected to total
less than $200 during a year. In addition, any
distribution from a Participant's Roth Deferral
Contributions sub-account is not taken into
account in determining whether distributions from
a Participant's other sub-accounts are reasonably
expected to total less than $200 during a year.
However, eligible rollover distributions from a
Participant's Roth Deferral Contributions sub-
account are taken into account in determining
whether the total amount of the Participant's
account balances under the Plan exceeds $1,000
for purposes of mandatory distributions from the
Plan.
(D) The provisions of the Plan that allow a
Participant to elect a direct rollover of only a
portion of an eligible rollover distribution but
only if the amount rolled over is at least $500
is applied by treating any amount distributed
from the Participant's Roth Deferral
Contributions sub-account as a separate
distribution from any amount distributed from the
Participant's other sub-accounts in the Plan,
even if the amounts are distributed at the same
time.
(4) Correction of Excess Contributions. In the case of a
distribution of excess contributions to a Highly
Compensated Employee, such excess contributions shall
be deemed to be pre-tax Deferral Contributions to the
extent such Highly Compensated Employee made pre-tax
Deferral Contributions for the year, and any remainder
shall be deemed to be Roth Deferral Contributions.
(5) Roth Deferral Contributions Defined. A Roth Deferral
Contribution is an elective deferral contribution that
is:
(A) Designated irrevocably by the participant at the
time of the cash or deferred election as a Roth
Deferral Contribution that is being made in lieu
of all or a portion of the pre-tax elective
deferrals the participant is otherwise eligible
to make under the Plan; and
(B) Treated by the employer as includible in the
participant's income at the time the participant
would have received that amount in cash if the
participant had not made a cash or deferred
election.
2. Section 5.07, "Qualified Nonelective Employer Contributions," is
hereby amended in its entirety to provide as follows:
The Employer may, in its discretion, make a Qualified Nonelective
Employer Contribution for the Plan Year in any amount necessary
to satisfy or help to satisfy the "ADP" test, described in
Section 6.03, and/or the "ACP" test, described in Section 6.06.
Qualified Nonelective Employer-contributions shall be allocated
based on Participant's "testing compensation," as defined in
Subsection 6.01(t), rather than Compensation, as defined in
Subsection 2.01(j). Any Qualified Nonelective Employer
Contribution shall be allocated only as provided in this Section
5.07 (notwithstanding anything to the contrary in Section 1.09 or
in any other Plan provision).
Notwithstanding anything to the contrary in Section 1.09 or in
any other Plan provision, Qualified Nonelective Employer
Contributions shall be allocated to Participants who were Active
Participants at any time during the Plan Year and are Non-Highly
Compensated Employees pursuant to either (a) or (b) below.
(a) If the Employer has not elected Section 1.09(a)(1) in
the Adoption Agreement, Qualified Nonelective Employer
Contributions shall be allocated in the ratio which each
such Participant's "testing compensation," as defined in
Subsection 6.01(t), for the Plan Year bears to the total of
all such Participants' "testing compensation" for the Plan
Year.
(b) If the Employer has elected Section 1.09(a)(l) in the
Adoption Agreement, Qualified Nonelective Employer
Contributions shall be allocated as provided in such
Section 1.09(a)(l), provided, however, that in no event
shall any such allocation to an eligible Participant exceed
5% of the "testing compensation" of such Participant for
the Plan Year, and, provided further that, notwithstanding
the above, in the event the Employer elects to disaggregate
the Plan pursuant to Treasury Regulation Section 1.401(k)-
l(b)(4) and consistent with Code section 410(b)(4)(B), the
Employer may choose to provide Qualified Nonelective
Employer Contributions to only those otherwise eligible
Participants who are covered by the resulting component
plan that covers the non-excludable Participants.
Subject to subsection (b) hereof, Active Participants shall not
be required to satisfy any Hours of Service or employment
requirement for the Plan Year in order to receive an allocation
of Qualified Nonelective Employer Contributions.
Qualified Nonelective Employer Contributions shall be
distributable only in accordance with the distribution
provisions that are applicable to Deferral Contributions;
provided, however, that a Participant shall not be permitted to
take a hardship withdrawal of amounts credited to his Qualified
Nonelective Employer Contributions Account after the later of
December 31, 1988 or the last day of the Plan Year ending before
July 1, 1989.
3. Section 6.09, "Income or Loss on Distributable Contributions," is
hereby amended in its entirety to provide as follows:
The income or loss allocable to "excess deferrals", "excess
contributions", and "excess aggregate contributions" shall be
determined under the following method: The income or loss
attributable to such distributable contributions shall be the sum
of (i) the income or loss on such contributions for the
"determination year", determined under any reasonable method,
plus (ii) the income or loss on such contributions for the "gap
period", determined under such reasonable method. Any reasonable
method used to determine income or loss hereunder shall be used
consistently for all Participants in determining the income or
loss allocable to distributable contributions hereunder and shall
be the same method that is used by the Plan in allocating income
or loss to Participants' Accounts. For purposes of this
paragraph, the "gap period" means the period between the end of
the "determination year" and the date of distribution; provided,
however, that income or loss for the "gap period" may be
determined as of a date that is no more than seven days before
the date of distribution.
4. Section 6. 1 0, "Deemed Satisfaction of 'ADP' Test," is hereby
amended in its entirety to provide as follows:
Notwithstanding any other provision of this Article 6 to the
contrary, for any Plan Year beginning on or after January 1,
1999, if the Employer has elected one of the safe harbor
contributions in Subsection 1.10(a)(3) or 1.11(a)(3) of the
Adoption Agreement and complies with the notice requirements
described herein for such Plan Year, the Plan shall be deemed to
have satisfied the "ADP" test described in Section 6.03. The
Employer shall provide to each Active Participant during the Plan
Year a comprehensive notice of the Active Participant's rights
and obligations under the Plan. Such notice shall be written in a
manner calculated to be understood by the average Active
Participant. The Employer shall provide the notice to each Active
Participant within one of the following periods, whichever is
applicable:
(a) if the employee is an Active Participant 90 days before the
beginning of the Plan Year, within the period beginning 90
days and ending 30 days before the first day of the Plan
Year; or
(b) if the employee becomes an Active Participant after the
date described in subsection (a) above, within the period
beginning 90 days before and ending on the date he becomes
an Active Participant;
provided, however, that such notice shall not be required to be
provided to an Active Participant earlier than is required under
any guidance published by the Internal Revenue Service.
If an Employer that provides notice that the Plan may be amended
to provide a safe harbor Nonelective Employer Contribution for
the Plan Year does amend the Plan to provide such contribution,
the Employer shall provide a supplemental notice to all Active
Participants stating that a safe harbor Nonelective Employer
Contribution in the specified amount shall be made for the Plan
Year. Such supplemental notice shall be provided to Active
Participants at least 30 days before the last day of the Plan
Year.
Notwithstanding the foregoing, if the Employer has elected a more
stringent eligibility requirement in Section 1.04 of the
Adoption Agreement for such 401(k) safe harbor contributions than
for Deferral Contributions, the Plan may be disaggregated
pursuant to Treasury Regulation section 1.401(k)-3(h)(3),
consistent with Code section 410(b)(4)(B), and deemed to have
satisfied the "ADP" test only with respect to that portion of the
Plan that satisfies Code section 40l(k)(l2). The remainder of the
Plan shall be subjected to the "ADP" test described in Section
6.03.
If the Employer elected to provide safe harbor Matching Employer
Contributions pursuant to Subsection 1.10(a)(3) of the Adoption
Agreement or to have deemed satisfaction of the "ACP" test with
respect to Matching Employer Contributions pursuant to the
Addendum Re Safe Harbor Nonelective Employer Contribution to the
Adoption Agreement, then, notwithstanding any election the
Employer might have made pursuant to Subsection 1.10(d) of the
Adoption Agreement (except for an election to apply paragraph (6)
thereof), no continuing eligibility requirements shall apply to
any Matching Employer Contributions provided under the Plan (but
an election to apply paragraph (6) of Subsection 1.10(d) is
unaffected).
In the event that the Plan provides for Catch-up Contributions
and the Employer elects to make Safe Harbor Matching Employer
Contributions pursuant to Section 1.10(a)(3), then,
notwithstanding anything to the contrary herein, in the event
that the Addendum Re Safe Harbor Matching Employer Contribution
to the Adoption Agreement would otherwise require Matching
Employer Contributions to be made with respect to Catch-up
Contributions, then the Employer shall provide such Matching
Employer Contributions with respect to Catch-up Contributions to
the extent necessary to comply with such Matching Employer
Contribution requirements.
5. Subsection (a) of Section 10.05, "Hardship Withdrawals," is
hereby amended by replacing paragraph (5) thereof and adding new
paragraphs (6) and (7) as provided below:
(5) payments for burial or funeral expenses for the
Participant's deceased parent, spouse, child, or dependent
(as defined in Code section 152, and, for taxable years
beginning on or after January 1, 2005, without regard to
subsection (d)(l)(B) thereof);
(6) expenses for the repair of damage to the Participant's
principal residence that would qualify for the casualty
deduction under Code section 165 (determined without regard
to whether the loss exceeds 10% of adjusted gross income);
or
(7) any other financial need determined to be immediate and
heavy under rules and regulations issued by the Secretary
of the Treasury or his delegate; provided, however, that
any such financial need shall constitute an immediate and
heavy need under this paragraph (7) no sooner than
administratively practicable following the date such rule
or regulation is issued.