EXHIBIT 10.7
ADOPTION AGREEMENT #011
NONSTANDARDIZED CODE SS.401(K) PROFIT SHARING PLAN
The undersigned, BENCHMARK ELECTRONICS, INC. ("Employer"), by executing
this Adoption Agreement, elects to become a participating Employer in the TEXAS
COMMERCE BANK NATIONAL ASSOCIATION Defined Contribution Master Plan (basic plan
document 1903 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 BENCHMARK
ELECTRONICS, INC. 401(K) EMPLOYEE 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 ss.911(d)(2)) from the Employer which constitutes United States
source income (as defined in Code ss.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
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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.
[_] (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.
[x] (j) (SPECIFY) W-2 WAGES MEANS WAGES FOR FEDERAL INCOME TAX WITHHOLDING
PURPOSES, AS DEFINED UNDER CODESS.3401(A), PLUS ALL OTHER PAYMENTS TO
AN EMPLOYEE IN THE COURSE OF THE EMPLOYER'S TRADE OR BUSINESS, FOR
WHICH THE EMPLOYER MUST FURNISH THE EMPLOYEE A WRITTEN STATEMENT UNDER
CODE &SS.6041(D) AND 6051(A)(3), DISREGARDING ANY RULES LIMITING THE
REMUNERATION INCLUDED AS WAGES UNDER THIS DEFINITION BASED ON THE
NATURE OR LOCATION OF THE EMPLOYMENT OR SERVICE PERFORMED. AS LONG AS
THE INSTRUCTIONS TO BOX 10 OF FORM W-2 ARE CONSISTENT WITH THE
INSTRUCTIONS FOR THE 1991 FORM W-2, THE EMPLOYER MAY TREAT THE AMOUNT
REPORTED IN BOX 10 AS SATISFYING THIS DEFINITION. IN ADDITION, THE PLAN
EXCLUDES REIMBURSEMENT OR OTHER EXPENSE ALLOWANCES, FRINGE BENEFITS
(CASH AND NONCASH), MOVING EXPENSES, DEFERRED COMPENSATION AND WELFARE
BENEFITS.
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 Nonhighly
Compensated Employee.
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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 DECEMBER 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 APRIL 1, 1997.
This Plan is a substitution and amendment of an existing retirement
plan(s)originally established JANUARY 1, 1990. [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.
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[_] (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): ELECTRONICS
ACQUISITION, INC., EMD ASSOCIATES, INC. 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))
[x] (a) For purposes of participation under Article II.
[x] (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))
[N/A] (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.
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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) JANUARY 1, APRIL 1, JULY 1, OCTOBER 1
COINCIDENT WITH COMPLETION OF ELIGIBILITY REQUIREMENTS OR UNDER (G)
BELOW, WHICHEVER IS EARLIER.
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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 applicable) 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 SS.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 ss.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 a Year of
Service. [NOTE: THE HOURS OF SERVICE REQUIREMENT MAY NOT EXCEED 1,000.]
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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))
[_] (c) The 12 consecutive month period beginning with each anniversary of
an Employee's Employment Commencement Date.
[x] (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 re-election 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 the ____________Plan Year following the
Plan Year in which the re-election first was
effective.
(4) (SPECIFY)_____________________________ [INSERT "NIA"
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 (Codess.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.
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[_] (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.
[x] (c) DESIGNATED QUALIFIED NONELECTIVE CONTRIBUTIONS. The Employer, in
its sole discretion, may contribute an amount which it designates as a
qualified nonelective contribution.
[x] (d) NONELECTIVE CONTRIBUTIONS. (CHOOSE ANY COMBINATION OF (1) THROUGH
(4))
[x] (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
11 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 (0 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).
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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 "NIA" 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))
[x] (1) An amount equal to 50% 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 .
[_] (3) Discretionary formula.
[_] (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 contributions for 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: ________________________________.
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[_] (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
SS.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))
[_] (1) The Advisory Committee will take into account all eligible
contributions credited for thePlan Year.
[x] (2) The Advisory Committee will disregard eligible
contributions exceeding 6 % .
[_] (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 111. [OPTIONS (K) AND (1)]. SPECIAL RULES FOR CODESS.401(K) ARRANGEMENT.
(CHOOSE (K) OR (1), 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.
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[x] (ii) May not exceed 17% 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.
[_] (iii) Based on percentages of Compensation must equal
at least ________________.
(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 THE FIRST DAY OF ANY PAYROLL PERIOD.
(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) ___.
[_] (1) 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) _____________________% .
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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: AS SOON AS ADMINISTRATIVELY FEASIBLE FOLLOWING RECEIPT BY THE
TRUSTEE.
[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: AS SOON AS
ADMINISTRATIVELY FEASIBLE FOLLOWING RECEIPT BY THE TRUSTEE.
[x] (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.
[x] (3) (SPECIFY) PARTICIPANTS EMPLOYED ON THE LAST DAY OF THE
PLAN YEAR WHO ARE NONHIGHLY COMPENSATED EMPLOYEES FOR THE PLAN
YEAR.
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.)
[x] (e) Nonintegrated Allocation Formula. (CHOOSE (1) OR (2))
[x] (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.
12
[_] (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.
13
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 (AS APPLICABLE PERCENTAGES FOR APPLICABLE PERCENTAGES
PERCENTAGE OF TAXABLE WAGE BASE) OPTION (F) 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) or less 5 .7% 2.7%
[_] (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:_____________________________________.
14
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 3.040).
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 (1))
[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.
[_] (1) 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 (1). 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 ss.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))
[x] (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.
15
[_] (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.
[x] (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).
[x] (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), (0 OR (G))
[x] (e) To reduce Employer matching contributions for the Plan Year:
(CHOOSE (1) OR (2))
[x] (1) in which the forfeiture occurs.
[_] (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.
16
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))
[x] (a) The Employee's Compensation for the entire Plan Year.
[_] (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).
[x] (5) No Hour of Service requirement for an allocation of the
following contributions: MATCHING 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.
17
[x] (4) Termination of employment following attainment of Normal
Retirement Age.
[x] (5) No employment condition for the following
contributions: MATCHING 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))
[_] (g) Applies to the Employer's Plan.
[x] (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 (1), 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
(1))
[_] (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.
[x] (l) (SPECIFY) EXCESS MATCHING CONTRIBUTIONS WILL BE FORFEITED UNLESS
DISTRIBUTED PURSUANT TO SECTION 14.08 OR 14.09.
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 ss.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 ss.415).
[x] (b) The total Excess Amount.
[_] (c) None of the Excess Amount.
18
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)
or 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 CODESS.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 ss.416,
the Employer must provide the appropriate provisions in an addendum to this
Adoption Agreement.
19
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) _____________________________.
20
ARTICLE V
TERMINATION OF SERVICE - PARTICIPANT VESTING
5.01 NORMAL RETIREMENT. Normal Retirement Age under the Plan is:
(CHOOSE (A) OR (B))
[x] (a) 65 [STATE AGE, BUT MAY NOT EXCEED AGE 65].
[_] (b) The later of the date the Participant attains _________ years of
age or the _________ 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 OPTIONS)
[_] (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.]
21
[x] (b) Graduated Vesting Schedules.
TOP HEAVY SCHEDULE NOT TOP HEAVY SCHEDULE
(MANDATORY) (OPTIONAL)
Years of Nonforfeitable Years of Nonforfeitable
SERVICE PERCENTAGE SERVICE PERCENTAGE
--------- -------------- --------- ------------
Less than 1 0% Less than 1 %
1 0% 1 %
2 20% 2 %
3 40% 3 %
4 60% 4 %
5 80% 5 %
6 or more 100% 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 SS.416. THE EMPLOYER, AT ITS OPTION, MAY COMPLETE
A NON TOP HEAVY SCHEDULE. THE NON TOP HEAVY SCHEDULE MUST SATISFY CODESS.411
(A)(2). ALSO SEE SECTION 7.05 OF THE PLAN.]
[x] (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.
[x] (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).
22
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))
[_] (a) Does not apply.
[x] (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))
[x] (a) Plan Years.
[_] (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))
[x] (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.
23
ARTICLE VI
TIME AND METHOD OF PAYMENTS OF BENEFITS
CODE SS.411(D)(6) PROTECTED BENEFITS. The elections under this Article VI may
not eliminate Code ss.411(d)(6) protected benefits. To the extent the elections
would eliminate a Code ss.41l(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 ANY DY OF THE PLAN
YEAR . [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.
[x] (b) AS SOON AS ADMINISTRATIVELY FEASIBLE FOLLOWING RECEIPT BY THE
TRUSTEE OF THE LAST PARTICIPANT DEPOSIT 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.
[_] (e) (SPECIFY) ______________________________________.
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
(0, (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.
24
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 591/2 .
[_] (1) 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))
[_] (a) No modifications.
[_] (b) Except as required under Section 6.01 of the Plan, a lump sum
distribution is not available: ____.
[x] (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.
[x] (3) (SPECIFY) ONLY A SERIES OF INSTALLMENTS CHOSEN BY THE
MEMBER WITH A MINIMUM PAYMENT EACH YEAR BEGINNING WITH THE
YEAR THE MEMBER TURNS AGE 70'H.
[x] (d) The Plan permits the following annuity options: A STRAIGHT LIFE
ANNUITY; SINGLE LIFE ANNUITIES WITH CERTAIN PERIODS OF FIVE, TEN, OR
FIFTEEN YEARS; A SINGLE LIFE ANNUITY WITH INSTALLMENT REFUND;
SURVIVORSHIP LIFE ANNUITIES WITH INSTALLMENT REFUND AND SURVIVOR
PERCENTAGES OF 50, 66 2/3, OR 100; FIXED PERIOD ANNUITIES FOR ANYNERIOD
OF WHOLE MONTHS WHICH IS NOT LESS THAN SIXTY AND DOES NOT EXCEED THE
LIFE EXPECTANCY OF THE MEMBER AND THE NAMED BENEFICIARY AS PROVIDED
WHERE THE LIFE EXPECTANCY IS NOT RECALCULATED.
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).]
[x] (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).
25
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.
[x] (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).
[_] (6) (SPECIFY) ______________________________________________.
[_] (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.
[_] (2) ______years of age and is at least ____% 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.]
26
[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 (1))
[_] (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 591/2.
[x] (2) Age 591/2(at least 591/2).
[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.
[_] (1) (SPECIFY) ___________________________________________________.
[NOTE: OPTION (1) MAY NOT PERMIT IN SERVICE DISTRIBUTIONS PRIOR TO AGE
59~'Z (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 ss.409(d)(2)) used in a trade or business
or sells a subsidiary (within the meaning of Code ss.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))
[_] (m) only as described in this Adoption Agreement Section 6.03 for
distributions prior to Separation from Service.
27
[x] (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 ss.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))
[_] (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).
[x] (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 bill 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.
[_] (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 salary reduction
contributions: (CHOOSE (I) OR (II))
[_] (i) made during that valuation period.
[_] (ii) made by the following specified time:
[x] (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.
28
[_] (2) Use the weighted average method described in Section
14.12, based on a ____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.
[x] (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 (S))
[_] (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))
[_] (a) May not exceed 10% of Plan assets.
[x] (b) May not exceed 100 % 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) ANY DAY OF THE PLAN YEAR UPON WHICH ASSETS CAN BE
PURCHASED OR SOLD, COMMONLY REFERRED TO AS "DAILY" ACCOUNTING.
29
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 ___________________.
[_] (t) 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.
30
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______________________, 1997.
Name and EIN of Employer: BENCHMARK ELECTRONICS, INC. EIN: #74-2211011
Signed: _______________________________________________________________________
Name(s) of Trustee: TEXAS COMMERCE BANK NATIONAL ASSOCIATION
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 (see page 1) 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: P.O. BOX 2558, AVE$TA DIVISION, HOUSTON, TEXAS 77252-8342
(713) 750-7906.
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.
31
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 BENCHMARK ELECTRONICS, INC., 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: APRIL 1, 1997.
2. The undersigned Employer's adoption of this Plan constitutes:
[_] (a) The adoption of a new plan by the Participating Employer.
[x] (b) The adoption of an amendment and restatement of a plan currently
maintained by the Employer, identified as Benchmark Electronics, Inc.
401(k) Employee Savings Plan, and having an original effective date of
JANUARY 1, 1990.
Dated this _________ day of _____________________, 1997.
Name of Participating Employer: ELECTRONICS ACQUISITION, INC.
Signed:_______________________________________________
Participating Employer's EIN: 76-0511592
ACCEPTANCE BY THE SIGNATORY EMPLOYER TO THE EXECUTION PAGE OF THE ADOPTION
AGREEMENT AND BY THE TRUSTEE.
Name of Signatory Employer: BENCHMARK ELECTRONICS, INC.
Accepted:_____________________
[Date] Signed:______________________________________
Name(s) of Trustee: Texas Commerce Bank National
Association
Accepted:_____________________
[Date] Signed:______________________________________
[NOTE: EACH PARTICIPATING EMPLOYER MUST EXECUTE A SEPARATE PARTICIPATION
AGREEMENT. SEE THE EXECUTION PAGE OF THE ADOPTION AGREEMENT FOR IMPORTANT MASTER
PLAN INFORMATION.]
32
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 BENCHMARK ELECTRONICS, INC., 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: APRIL 1, 1997.
2. The undersigned Employer's adoption of this Plan constitutes:
[_] (a) The adoption of a new plan by the Participating Employer.
[x] (b) The adoption of an amendment and restatement of a plan currently
maintained by the Employer, identified as Benchmark Electronics Inc.
401(k) Employee Savings Plan, and having an original effective date of
JANUARY 1, 1990.
Dated this ____________ day of __________________, 1997.
Name of Participating Employer: EMD ASSOCIATES, INC.
Signed:________________________________________
Participating Employer's EIN: 41-1235318
ACCEPTANCE BY THE SIGNATORY EMPLOYER TO THE EXECUTION PAGE OF THE ADOPTION
AGREEMENT AND BY THE TRUSTEE.
Name of Signatory Employer: BENCHMARK ELECTRONICS, INC.
Accepted:______________
[Date] Signed:_____________________________________
Name(s) of Trustee: Texas Commerce Bank National
Association
Accepted:______________
[Date] Signed:_____________________________________
[NOTE: EACH PARTICIPATING EMPLOYER MUST EXECUTE A SEPARATE PARTICIPATION
AGREEMENT. SEE THE EXECUTION PAGE OF THE ADOPTION AGREEMENT FOR IMPORTANT MASTER
PLAN INFORMATION.]
33
ADDENDUM 5.03(A)
ADOPTION AGREEMENT #011
NONSTANDARDIZED CODE SS.401(K) PROFIT SHARING PLAN
In lieu of the special vesting formula used in Section 5.03(A), to determine the
Participant's Nonforfeitable Accrued Benefit derived from Employer
contributions, the Advisory Committee will use the following formula: P(AB +
D)-D.
To apply this formula, "P" is the Participant's current vesting percentage at
the relevant time, "AB" is the Participant's Employer-derived Accrued Benefit at
the relevant time and "D" is the amount of the earlier distribution.
34
ADDENDUM 6.02(E) TO
ADOPTION AGREEMENT #011
NONSTANDARDIZED CODE SS.401(K) PROFIT SHARING PLAN
ADDITIONAL PROVISIONS CONCERNING QUALIFYING EMPLOYER SECURITIES
The following additional provisions concerning qualifying employer securities
are included as part of the Adoption Agreement completed by Benchmark
Electronics, Inc. ("Employer"), in accordance with Section 6.02(e) of the
Adoption Agreement:
(1) ESTABLISHMENT OF THE BENCHMARK ELECTRONICS, INC. COMMON STOCK FUND. The
investment options in Section 10.03[F] of the Plan include the ability
to invest in "qualifying employer securities", as defined in section
407(d)(5) of ERISA, which specifically includes shares of common stock
of Benchmark Electronics, Inc., a Texas corporation ("Benchmark
Electronics, Inc. Common Stock"). Texas Commerce Bank National
Association ("Trustee") is expressly authorized to invest so much of
the Trust Fund (up to 100% thereof as provided in Section 10.03 of the
Adoption Agreement) in Benchmark Electronics, Inc. Common Stock as is
necessary to invest Participant Account balances in Benchmark
Electronics, Inc. Common Stock in accordance with the directions of the
Participants under Section 10.03[B] of the Plan.
(2) DIVIDENDS AND INCOME. All cash dividends, stock dividends, stock splits
received by the Trustee with respect to Benchmark Electronics, Inc.
Common Stock previously credited to a Participant's Account shall be
credited to that Account upon receipt by the Trustee. All cash
dividends will be used to purchase shares of Benchmark Electronics,
Inc. Common Stock.
(3) PURCHASES AND SALES OF COMMON STOCK. Except as provided below with
respect to matching purchases and sales, all purchases and sales of
Benchmark Electronics, Inc. Common Stock shall be on the open market,
unless other arrangements are mutually agreed upon in writing by the
Employer and the Trustee. Such purchases and sales of Benchmark
Electronics, Inc. Common Stock shall be made in accordance with the
following rules:
(a) In making purchases of Benchmark Electronics, Inc. Common
Stock on the open market, the Trustee shall execute the
purchases or sales of shares as soon as reasonably possible
following the receipt of instructions from the Participant,
and shall do so, in so far as reasonably possible, in the same
manner for all Participants similarly situated. The Trustee
shall determine, in its sole discretion (but in so far as
reasonably possible, treating all Participants similarly
situated in the same manner) the average price assigned to
shares of Benchmark Electronics, Inc. Common Stock purchased
in the "pricing period" during which such sale or purchase
occurs.
(b) The Trustee may, in its discretion, make separate trades or
may match the pending purchase and sale orders and only
execute the "net" purchase or sale. The price of such "net"
transaction (or the verage price assigned as provided in (a)
if applicable) shall be deemed to be the price paid or
obtained for the shares. The Trustee shall take any action
that it deems to be necessary or appropriate to ensure to the
extent, if any, necessary to comply with applicable law that
there is payment of no more, or receipt of no less, than
"adequate consideration" (as that term is defined in Section
3(18) of ERISA and regulations or other guidance issued
thereunder by the appropriate governmental authority) on the
date of the transaction (as determined by the Trustee) in the
case of the purchase or sale of Benchmark Electronics, Inc.
Common Stock.
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(c) Any brokerage commissions, transfer fees and other similar
expenses actually incurred in any such sale or purchase shall
be equitably allocated among the shares purchased and sold
(including, without limitation, net transaction shares) during
such pricing period.
(d) Purchases shall be made only in full shares. Any cash
allocated to a Participant's Benchmark Electronics, Inc.
Common Stock Account which is not so invested shall be
invested in a money market fund within a reasonable time of
its receipt.
(e) It shall be the responsibility of the Employer to insure that
the Plan is registered under the Federal Securities Act of
1933, and no purchase of shares will be made if the Trustee
knows such registration is not in effect.
(4) VOTING AND TENDER OF SHARES. The right to vote ("VOTING RIGHTS") and
the right to tender ("TENDER RIGHTS") shares allocated to a
Participant's Account(s) shall be passed through to such Participant.
The Company may appoint an agent, (hereinafter "DESIGNATED AGENT") who
shall be responsible for soliciting and tabulating proxies and tenders
from Plan Participants or, in the absence of any such appointment, the
Trustee shall perform such functions (future references shall, for
convenience, assume a Designated Agent has been appointed). The Trustee
shall provide Participant data required for such solicitation via
magnetic media to the Designated Agent, to the extent the Participant
account records contain the information required. Such information
includes, but is not limited to: Participant name, Participant social
security number, number of Benchmark Electronics, Inc. Common Stock
shares held on the record date, and Participant mailing address. The
Employer will provide the same information and materials to the
Designated Agent (and to the Trustee for its records) for distribution
to Plan Participants as is provided to other holders of Benchmark
Electronics, Inc. Common Stock, and the Designated Agent shall certify
to the Trustee that all such materials have been mailed or otherwise
sent to all Participants. The results of the Participant's exercise of
his Voting Rights or his Tender Rights will be provided by the
Designated Agent to the Trustee in time for the Trustee to vote or
tender (as the case may be) the shares in accordance with Participants'
instructions.
In the absence of the exercise of his Voting Rights or his Tender
Rights, shares held in a Participant's Account(s) shall not be voted or
tendered (as the case may be) by the Trustee. Shares held in the Trust
other than in Participants' Account(s) shall not be voted or tendered
by the Trustee except at the specific written direction of the
Employer.
Participant voting instructions may be transmitted in any reasonable
form agreed upon by the Trustee and the Designated Agent.
The Trustee and the Designated Agent shall act with respect to all
matters relating to the exercise of Voting Rights and Tender Rights in
such a way as to reasonably insure that there is no disclosure to the
Employer or a related party of a Participant's vote or of acceptance of
a tender offer. Notwithstanding the foregoing, unless otherwise advised
in writing by the representative of the Employer responsible for
working with the Trustee and Designated Agent to maintain
confidentiality, the Trustee may furnish the Employer with information
relating to the overall purchase, sale, voting, tender or similar
matters relating to all of the shares held by the Trustee so long as
such information does not identify, and cannot be reasonably
anticipated as identifying the actions of any specific Participant with
respect to such shares.
Without limiting the generality of the foregoing, the Designated Agent
shall establish procedures for the exercise of Tender Rights which will
insure that a Participant who has directed any Designated Agent to
tender or withhold from tender any or all of the shares may, at any
time prior to the tender offer withdrawal deadline, instruct the
Designated Agent to withdraw or tender, and the Designated Agent shall
withdraw or tender such shares prior to the tender offer or withdrawal
deadline. A Participant shall not be limited as to the number of
instructions to tender or withdraw that the Participant may give to the
Designated Agent.
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Agent shall withdraw or tender such shares prior to the tender offer or
withdrawal deadline. A Participant shall not be limited as to the
number of instructions to tender or withdraw that the Participant may
give to the Designated Agent.
(5) DISTRIBUTION OF ACCRUED BENEFITS. The portion of a Participant's
Accrued Benefit payable under Article VI (other than a Hardship
Withdrawal, which shall always be distributed in cash) shall be
distributed entirely in cash or entirely by delivery of shares as
directed by the Participant. In the event the Participant directs a
distribution in cash, the Trustee shall sell the shares allocated to
his Account as near as reasonably possible (as determined under a
uniform procedure designed to treat Participants similarly situated in
a similar manner) to the date of distribution.
With regards to shares of Benchmark Electronics, Inc. Common Stock
attributable to the Employer Stock Ownership Plan, if such shares are
not readily tradable on an established securities market, the following
provisions would apply:
1) To liquidate Benchmark Electronics, Inc. Common Stock to cash,
the Trustee may sell such Benchmark Electronics, Inc. Common
Stock to the Employer or Participating Employer. The proceeds
of such sales of Benchmark Electronics, Inc. Common Stock
shall be included in such Participant 's Accrued Benefit
payable.
2) In making sales of Benchnnark Electronics, Inc. Common Stock,
the Trustee shall exercise its discretion with respect to the
timing of such sales. If Benchmark Electronics, Inc. Common
Stock is sold to the Employer or a Participating Employer, the
sales price shall be determined by the Trustee as follows:
Benchmark Electronics, Inc. Common Stock shall be valued by
the Trustee on the basis of independent appraisals obtained
and approved by the Employer on a periodic basis.
3) In making purchases of Benchmark Electronics, Inc. Common
Stock, the Trustee shall exercise its discretion with respect
to the timing of such purchases and the determination of the
average prices assigned to shares of Benchmark Electronics,
Inc. Common Stock purchased over such period of time as the
Trustee deems appropriate. If the Trustee is an officer,
director or affiliate of the Employer, any purchase of
Benchmark Electronics, Inc. Common Stock shall be effected in
accordance with provisions of Rule lOb-18 of the Securities
Exchange Act of 1934.
4) No commissions or other fees shall be payable with respect to
any transaction with the Employer or a Participating Employer.
5) If Company Stock is distributed to a Participant, a
Participant has a right to require the Employer to repurchase
the Company Stock distributed to such Participant under a fair
valuation formula. Such Stock shall be subject to the
provisions of a put option. The put option shall be exercised
only by a Participant, by the Participant's donees, or by a
person (including an estate or its distributee) to whom the
Company Stock passes by reason of the Participant 's death.
The put option must permit a Participant to sale the Company
Stock to the Employer. Under no circumstances may the put
option bind the Plan. However, it shall grant the Plan an
option to assume the rights and obligations of the Employer at
the time that the put option is exercised.
The put option shall commence as of the day following the date
the Company Stock is distributed to the Former Participant and
end on the 60th day thereafter and if not exercised within
such 60 day period, an additional 60 day option shall commence
on the first day of the fifth month of the Plan .Year next
following the date the Stock was distributed to the Former
Participant. However, in the case of Company Stock that was
distributed but ceases to be so
37
traded within either of the 60 day periods described herein,
the Employer must notify each holder of such Company Stock in
writing on or before the tenth day after the date the Company
Stock ceases to be so traded that the remainder of the
applicable 60 day period the Company Stock is subject to the
put option. The number of days between the tenth day and the
date on which the notice is actually given, if later than the
tenth day, must be added to the duration of the put option.
The put option is exercised by the holder notifying the
Employer in writing that the put option is being exercised;
the notice shall state the name and address of the holder and
the number of shares to be sold. The period during which a put
option is exercisable does not include any time when a
distributee is unable to exercise it because the party bound
by the put option is prohibited from honoring it by applicable
Federal or State law. The price at which a put option must be
exercisable is the value of the Company Stock determined by
the Employer and Trustee as described above.
(6) ACCOUNT REALIGNMENT. Participants may realign account investments at
any time, including, without limitation, the Benchmark Electronics,
Inc. Common Stock Account.
(7) PARTIAL ACCOUNT LIQUIDATION. All in-service account liquidations, for
such events as withdrawals, fee payments, or participant loans, shall
be prorata, across all funds in the source or sources liquidated
including, without limitation, Benchmark Electronics, Inc. Common
Stock.
38
ADDENDUM 9.11
ADOPTION AGREEMENT #011
NONSTANDARDIZED CODE SS.401(K) PROFIT SHARING PLAN
Sections 9.11 (a)(5) and (b)(4) apply with the following modifications:
Participants shall not be entitled to share in any earnings allocated after
payment of the entire vested balance except to the extent the funds were
advanced from the Participant's account at the time of payment.
Contributions received in an account subsequent to the distribution of the total
vested balance shall be entitled to earnings until the vested balance is
distributed.
39