EXHIBIT 10.6
INGRAM MICRO
401(k) INVESTMENT SAVINGS PLAN
- --------------------------------------------------------------------------------
(Amended and Restated Effective April 1, 2005)
TABLE OF CONTENTS
INTRODUCTION
ARTICLE I DEFINITIONS
1.1 "Account" I-1
1.2 "Actual Deferral Percentage" I-1
1.3 "Adjustment Factor" I-2
1.4 "Administrator" I-2
1.5 "After-Tax Contribution Account" I-2
1.6 "After-Tax Contributions" I-2
1.7 "Annual Addition" I-2
1.8 "Average Actual Deferral Percentage" I-3
1.9 "Average Contribution Percentage" I-3
1.10 "Before-Tax Contribution Account" I-3
1.11 "Before-Tax Contributions" I-3
1.12 "Beneficiary" I-3
1.13 "Board of Directors" I-3
1.14 "Catch-Up Contribution Account" I-3
1.15 "Catch-Up Contributions" I-4
1.16 "Code" I-4
1.17 "Company" I-4
1.18 "Compensation" I-4
1.19 "Contribution Percentage" I-5
1.20 "Disability" I-6
1.21 "Effective Date" I-6
1.22 "Eligible Employee" I-6
1.23 "Employee" I-7
1.24 "Employer" I-8
1.25 "Entry Date" I-8
1.26 "ERISA" I-9
1.27 "Excess Aggregate Contributions" I-9
1.28 "Excess Contributions" I-9
1.29 "Excess Deferrals" I-9
1.30 "Fund" or "Investment Fund" I-9
1.31 "Highly Compensated Employee" I-9
1.32 "Hour of Service" I-10
1.33 "Limitation Year" I-12
1.34 "Matching Contribution Account" I-12
1.35 "Matching Contributions" I-12
1.36 "Non-highly Compensated Employee" I-12
1.37 "Normal Retirement Age" I-12
1.38 "Participant" I-12
1.39 "Period of Service" I-12
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401(k) Investment Savings Plan
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1.40 "Period of Severance" I-13
1.41 "Plan" I-13
1.42 "Plan Year" I-14
1.43 "QMAC" I-14
1.44 "QMAC Account" I-14
1.45 "QNEC" I-14
1.46 "QNEC Account" I-14
1.47 "Regulations" I-14
1.48 "Rollover Account" I-14
1.49 "Rollover Contribution" I-14
1.50 "Severance Date" I-15
1.51 "Severance from Employment" I-15
1.52 "Spouse" I-15
1.53 "Trust Agreement" I-15
1.54 "Trust Fund" I-16
1.55 "Trustee" I-16
1.56 "Valuation Date" I-16
1.57 "Year of Service" I-16
ARTICLE II ELIGIBILITY AND PARTICIPATION
2.1 Eligibility II-1
2.2 Beneficiary Designation II-1
2.3 Eligibility Upon Reemployment II-2
2.4 Transferred Employees II-2
2.5 Termination of Participation II-3
ARTICLE III CONTRIBUTIONS AND ALLOCATIONS
3.1 Employee Contributions III-1
3.2 Employer Contributions III-4
3.3 Catch-Up Contributions III-5
3.4 Rollover Contributions III-6
3.5 Actual Deferral Percentage Test III-7
3.6 Reductions During Plan Year III-10
3.7 Return or Recharacterization of Excess Contributions After End of Plan Year III-9
3.8 Actual Contribution Percentage Test III-12
3.9 Return of Excess Aggregate Contributions III-14
3.10 Distribution of Excess Deferrals III-16
3.11 Maximum Annual Additions III-17
3.12 Return of Contributions to Employer III-20
3.13 Rights of Reemployed Veterans III-20
3.14 Early Participation Testing Rule III-23
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I-ii
ARTICLE IV MAINTENANCE AND VALUATION OF ACCOUNTS
4.1 Maintenance of Accounts IV-1
4.2 Valuation of Accounts IV-1
4.3 Account Statements IV-1
ARTICLE V INVESTMENT OF CONTRIBUTIONS
5.1 Investment Funds V-1
5.2 Investment of Participant's Accounts V-2
5.3 Responsibility for Investments V-2
5.4 Changing Investment Elections - Future Contributions V-3
5.5 Transfer Among Funds V-3
ARTICLE VI VESTING
6.1 Vesting in After-Tax Contribution, Before-Tax Contribution, Catch-Up
Contribution, QMAC, QNEC and Rollover Accounts VI-1
6.2 Vesting in Matching Contribution Account VI-1
6.3 Forfeiture of Non-vested Interest VI-2
6.4 Restoration of Forfeitures and Service VI-2
ARTICLE VII WITHDRAWALS AND LOANS DURING EMPLOYMENT
7.1 General Rules Applicable to All In-Service Withdrawals VII-1
7.2 Rollover Contribution Account Withdrawals VII-1
7.3 Age 59 1/2 Withdrawals VII-1
7.4 Hardship Withdrawals VII-2
7.5 Loans to Participants VII-3
ARTICLE VIII DISTRIBUTIONS UPON SEVERANCE FROM EMPLOYMENT
8.1 Eligibility for Distribution VIII-1
8.2 Forms of Payment VIII-1
8.3 Timing of Payment VIII-1
8.4 Minimum Distribution Requirements VIII-2
8.5 Special Timing Rules VIII-6
8.6 Proof of Death VIII-6
8.7 Direct Rollovers VIII-6
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ARTICLE IX TOP HEAVY PROVISIONS
9.1 When Applicable IX-1
9.2 Top Heavy Determination IX-1
9.3 Minimum Contribution IX-3
9.4 Vesting Rules IX-4
9.5 Dual Plan Special Limitations IX-4
9.6 Aggregation Groups IX-4
9.7 Key Employee Defined IX-5
9.8 Determination Date IX-5
ARTICLE X ADMINISTRATION OF PLAN
10.1 Records and Notices X-1
10.2 Powers and Duties X-1
10.3 Compensation and Expenses X-3
10.4 Bonding of Fiduciaries X-3
10.5 Standard of Conduct X-4
10.6 Claims Procedure X-5
ARTICLE XI MANAGEMENT OF FUNDS
11.1 Appointment of Trustees XI-1
11.2 Investment of Trust Fund by Trustees XI-1
11.3 Investment of Trust Fund by Investment Manager XI-2
11.4 Exclusive Benefit Rule XI-3
ARTICLE XII AMENDMENT, MERGER, TERMINATION OF PLAN
12.1 Amendment of Plan XII-1
12.2 Merger or Consolidation XII-2
12.3 Additional Participating Employers XII-2
12.4 Termination of Plan XII-3
ARTICLE XIII MISCELLANEOUS PROVISIONS
13.1 Limitation of Liability XIII-1
13.2 Indemnification XIII-1
13.3 Compliance with ERISA XIII-2
13.4 Nonalienation of Benefits XIII-2
13.5 Employment Not Guaranteed By Plan XIII-3
13.6 Protected Benefits XIII-3
13.7 Form of Communication XIII-4
13.8 Facility of Payment XIII-4
13.9 Reduction for Overpayment XIII-5
13.10 Unclaimed Benefits XIII-5
13.11 Receipt and Release XIII-6
13.12 Reliance on Information Provided to the Plan XIII-6
13.13 Service in More Than One Fiduciary Capacity XIII-6
13.14 Binding Effect of Company's Actions XIII-7
13.15 Military Service XIII-7
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13.16 Limitation on Rights XIII-7
13.17 Governing Law XIII-7
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401(k) Investment Savings Plan
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INGRAM MICRO
401(k) INVESTMENT SAVINGS PLAN
INTRODUCTION
Ingram Micro Inc. has adopted this amendment and restatement of the Ingram Micro
401(k) Investment Savings Plan (the "Plan") effective as of April 1, 2005. The
Plan was last amended and restated in its entirety effective as of January 1,
1999 (the "1999 Restatement"). Among other changes, the 1999 Restatement changed
the name of the Plan from the Ingram Micro Thrift Plan to the Ingram Micro
401(k) Investment Savings Plan. The 1999 Restatement was subsequently amended by
the First, Second, Third and Fourth Amendments. The Second Amendment to the 1999
Restatement reflects certain provisions of the Economic Growth and Tax Relief
Reconciliation Act of 2001 ("EGTRRA"). Such Amendment is intended as good faith
compliance with the requirements of EGTRRA and is to be construed in accordance
with EGTRRA and guidance issued thereunder. Except as otherwise provided, such
Amendment is effective as of the first day of the first Plan Year beginning
after December 31, 2001. The Plan includes the provisions of such Second
Amendment and is intended to continue such good faith compliance with the
requirements of EGTRRA. The Plan is to be construed in accordance with EGTRRA
and guidance issued thereunder. Except as otherwise provided, Plan provisions
related to EGTRRA shall be effective as of the first day of the first Plan Year
beginning after December 31, 2001. The Plan was adopted effective as of November
6, 1996 as the Ingram Micro Thrift Plan and amended several times thereafter
prior to the 1999 Restatement.
The Plan is intended to provide eligible participants with a convenient way to
save on a regular and long-term basis, all as set forth herein and in the trust
agreement adopted as a part of the Plan. The benefits provided to any individual
under the Plan will depend upon the investment results achieved under such
agreement and, accordingly, may vary with respect to each individual. The Plan
is a profit-
Ingram Micro Inc. Introduction
401(k) Investment Savings Plan
sharing plan which includes a cash or deferred arrangement and provides for
employer matching contributions. It is intended that the Plan and trust shall at
all times be qualified and tax-exempt within the meaning of Sections 401(a),
401(k), 401(m) and 501(a) of the Internal Revenue Code of 1986, as now in effect
or hereafter amended, and any other applicable provisions of law.
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401(k) Investment Savings Plan
ARTICLE I
DEFINITIONS
When used herein the following terms shall have the following meanings:
1.1 "Account" means the account or accounts established and maintained in
respect of a Participant pursuant to Section 4.1.
1.2 "Actual Deferral Percentage" means, for a specified group of Participants
(either Highly Compensated Employees or Non-highly Compensated Employees)
for a Plan Year, the average of the ratios (calculated separately for each
Participant in the group) of (1) the amount of Employer contributions
actually paid over to the Trust on behalf of such Participant for the Plan
Year to (2) the Participant's Compensation for the Plan Year.
Compensation, for purposes of this Section 1.2, shall mean compensation
within the meaning of Section 414(s) of the Code for the Plan Year.
Employer contributions on behalf of any Participant shall include: (1) any
Before-Tax Contributions (but not Catch-up Contributions) made pursuant to
the Participant's deferral election (including Excess Deferrals of Highly
Compensated Employees), but excluding (a) Excess Deferrals of Non-highly
Compensated Employees that arise solely from Before-Tax Contributions made
under the Plan or plans of the Employer and (b) Before-Tax Contributions
that are taken into account in the Contribution Percentage test (provided
the Actual Deferral Percentage test is satisfied both with and without
these Before-Tax Contributions), and (2) any QNECs or QMACs that are taken
into account in the Actual Deferral Percentage Test in accordance with
Section 3.5. For purposes of calculating Actual Deferral Percentages, an
Employee who would be a Participant but for the failure to make Before-Tax
Contributions shall be treated as a Participant on whose behalf no
Before-Tax Contributions are made.
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1.3 "Adjustment Factor" means the cost of living adjustment factor prescribed
by the Secretary of the Treasury under Section 415(d) of the Code, as
applied to such items and in such manner as the Secretary shall provide.
1.4 "Administrator" (as defined in ERISA Section 3(16)(A)) means the Company
which also shall be a named fiduciary (as defined in ERISA Section
402(a)(2)).
1.5 "After-Tax Contribution Account" means the Account to which are credited a
Participant's After-Tax Contributions and earnings and losses on those
contributions.
1.6 "After-Tax Contributions" means amounts contributed by a Participant
pursuant to Section 3.1(b) that were included or includible in the
Participant's gross income at the time contributed.
1.7 "Annual Addition" means, for any Limitation Year, the sum of any Employer
contributions, Employee contributions, forfeitures and amounts allocated
to an individual medical account, as defined in Section 415(I)(2) of the
Code, which is part of a pension or annuity plan maintained by the
Employer. Also, amounts derived from contributions paid or accrued which
are attributable to post-retirement medical benefits, allocated to a
separate account of a Key Employee, as defined in Section 419A(d)(3) of
the Code, under a welfare benefit fund, as defined in Section 419(e) of
the Code, maintained by the Employer are treated as Annual Additions.
Employee contributions, for this purpose, shall be determined without
regard to any rollover contributions (as defined in Sections 402(c),
403(a)(4), 403(b)(8), 408(d)(3), and 457(e)(16) of the Code) and without
regard to Employer contributions to a simplified employee pension which
are not excludable from gross income under Section 408(k)(6) of the Code.
Section 415(c)(1)(B) shall not apply to any contribution
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for medical benefits (within the meaning of Section 419(f)(2) of the Code)
after separation from service which is treated as an Annual Addition.
1.8 "Average Actual Deferral Percentage" means the average (expressed as a
percentage) of the Actual Deferral Percentages of the Eligible Employees
in a group.
1.9 "Average Contribution Percentage" means the average (expressed as a
percentage) of the Contribution Percentages of the Eligible Employees in a
group.
1.10 "Before-Tax Contribution Account" means the Account to which are credited
Before-Tax Contributions made on behalf of a Participant pursuant to
Section 3.1 and earnings or losses on those contributions.
1.11 "Before-Tax Contributions" means the contributions made to the Plan by the
Employer on behalf of a Participant who has elected to reduce his
Compensation by a like amount pursuant to Section 3.1(a).
1.12 "Beneficiary" means the beneficiary or beneficiaries designated pursuant
to Section 2.2 to receive the amount, if any, payable under the Plan upon
the death of a Participant.
1.13 "Board of Directors" means the Board of Directors of the Company.
1.14 "Catch-Up Contribution Account" means the account to which are credited
Catch-Up Contributions made on behalf of a Participant pursuant to Section
3.3 and earnings and losses on those contributions.
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1.15 "Catch-Up Contributions" means the contributions made to the Plan by the
Employer on behalf of a Participant in accordance with Section 3.3.
1.16 "Code" means the Internal Revenue Code of 1986, as now in effect or
hereafter amended.
1.17 "Company" means Ingram Micro Inc. or any successor by merger,
consolidation or otherwise.
1.18 "Compensation" means, with respect to each Participant for purposes of
calculating and allocating contributions to the Plan, the total amount of
Box 1 Form W-2 wages as base salary including commissions, shift
differentials, over-time pay, annual bonuses, amounts paid under the
Long-Term Executive Cash Incentive Award Program and special and incentive
bonuses, but excluding benefits under the Plan, benefits under any other
pension, profit sharing, stock bonus, phantom stock, nonstatutory stock
option, hospitalization, life insurance, long-term disability, or other
employee benefit plan (including without limiting the foregoing, the
Ingram Micro Inc. Supplemental Investment Savings Plan), travel,
entertainment, and other business expense allowances from which an
accounting is made to the Company, living allowances, imputed income
attributable to employer-provided group term life insurance and such
other imputed non-cash income recognized as such by the Code and the
Company for purposes of the Plan, any home sale costs, reimbursed moving
costs, employer-reimbursed or employer-subsidized meals, employer
payments for the use of his or her personal car for business purposes,
location adjustments or any other similar supplemental type of pay,
voluntary or involuntary cashouts under the Paid Time Off (PTO) Program,
and severance pay (even if such severance pay takes the form of continued
payroll compensation after the Participant actually no longer is
performing services
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for the Company). Compensation shall include elective deferrals and any
amount which is contributed by the Company pursuant to a salary reduction
agreement, which is not includible in the gross income of the Employee
under Code Section 125, 402(e)(3), 402(h), 403(b) or 132(f).
The annual Compensation of each Participant taken into account for all
Plan purposes shall not exceed $210,000, as adjusted by the Secretary of
the Treasury for increases in the cost of living in accordance with
Section 401(a)(17)(B) of the Code. The cost-of-living adjustment in
effect for a calendar year applies to any period, not exceeding twelve
(12) months, over which Compensation is determined (the "determination
period") beginning in such calendar year. If a determination period
consists of fewer than twelve (12) months, the limit referred to above
will be multiplied by a fraction, the numerator of which is the number of
months in the determination period and the denominator of which is 12.
For other specific purposes described in the Plan, such as in Sections
1.2, 1.19, 1.23, 1.31, 3.11, 3.13, 9.3 and 9.7, "Compensation" shall have
the meanings set forth in the respective sections in which the term is
referenced.
1.19 "Contribution Percentage" means the ratio (expressed as a percentage) of
the Participant's After-Tax Contributions, Matching Contributions, QNECs
and QMACs (to the extent not taken into account for purposes of the Actual
Deferral Percentage test) made under the Plan on behalf of the Participant
for the Plan Year to the Participant's Compensation for the Plan Year.
Compensation, for purposes of this Section 1.19, shall mean compensation
within the meaning of Section 414(s) of the Code for the Plan Year. For
this purpose, Matching Contributions that are forfeited either to correct
Excess Aggregate Contributions or because the contributions to which they
relate are Excess Deferrals, Excess Contributions or Excess Aggregate
Contributions
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shall not be included. The Employer may also elect to include Before-Tax
Contributions, provided the Actual Deferral Percentage test is met before
the Before-Tax Contributions are used in the Average Contribution
Percentage and continues to be met following the exclusion of those
Before-Tax Contributions that are used to meet the Average Contribution
Percentage Test.
1.20 "Disability" means a physical or mental condition which entitles a
Participant to benefits under the Employer's long-term disability plan.
The Administrator will apply the provisions of this Section 1.20 in a
nondiscriminatory, consistent and uniform manner.
1.21 "Effective Date" means April 1, 2005, the date as of which this amendment
and restatement of the Plan is effective except as otherwise specifically
provided herein. The original Effective Date of the Plan was November 6,
1996.
1.22 "Eligible Employee" means any Employee maintained on the United States
payroll of the Employer other than: (a) a leased employee within the
meaning of Section 1.23, (b) any person who is included in a unit of
employees covered by an agreement recognized for purposes of collective
bargaining with the Employer, provided retirement benefits have been the
subject of good faith bargaining and such bargaining does not provide for
coverage under the Plan, (c) an Employee who is a nonresident alien
deriving no earned income from the Employer which constitutes income from
sources within the United States; and (d) an Employee who is employed on a
temporary or nonpermanent basis, that is, hired for the duration of a
particular project or projects, unless such Employee becomes eligible to
participate in this Plan in accordance with Section 2.1(c).
Notwithstanding any other provision of the Plan, the term 'Eligible
Employee' shall not include any
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employee, independent contractor, leased employee or other individual
unless such individual is contemporaneously treated by the Employer as an
Employee for purposes of the Plan (without regard to any subsequent
recharacterization or inconsistent determination made by any person or
entity or by any court, agency or other authority with respect to such
individual whenever effective).
1.23 "Employee" means any person employed by the Employer, other than an
independent contractor or self-employed individual within the meaning of
Section 401(c)(1) or an owner-employee within the meaning of Section
401(c)(3). Employee shall also include any leased employee. The term
'leased employee' means any person (other than an employee of the
recipient) who, pursuant to an agreement between the recipient and any
other person (the 'leasing organization'), has performed services for the
recipient (or for the recipient and related persons determined in
accordance with Section 414(n)(6) of the Code) on a substantially
full-time basis for a period of at least one (1) year, and such services
are performed under primary direction or control by the recipient.
Contributions or benefits provided to a leased employee by the leasing
organization which are attributable to services performed for the
recipient employer shall be treated as provided by the recipient employer.
A leased employee shall not be considered an Employee if: leased employees
do not constitute more than twenty percent (20%) of the recipient's
non-highly compensated workforce and the leased employee is covered by a
money purchase pension plan providing (a) a nonintegrated employer
contribution rate of at least ten percent (10%) of Compensation within the
meaning of Section 415(c)(3) of the Code as defined in Section 3.11; (b)
immediate participation; and (c) full and immediate vesting.
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1.24 "Employer" means the Company and any subsidiary or affiliated organization
of the Company that, with the approval of the Board of Directors and
subject to such considerations as the Board of Directors may impose,
adopts the Plan.
In determining Compensation for the purposes of determining who is a
leased employee under Section 1.23, in determining who is a Highly
Compensated Employee under Section 1.31, in determining a Participant's
Hours of Service, in determining whether an election to change the
Limitation Year has been made in accordance with Section 1.33, in
determining a Participant's Period of Service under Section 1.39, in
determining a Participant's Severance Date under Section 1.50, in
determining a Participant's Severance from Employment under Section 1.51,
in determining the limitation on Before-Tax Contributions under Section
3.1(b), in determining the Average Actual Deferral Percentages under
Section 3.5 and the Average Contribution Percentages under Section 3.8, in
determining the limitations on Annual Additions under Section 3.11, in
determining the maximum loan in Section 7.5(f) and in determining whether
the Plan is Top-Heavy under Article IX, the term "Employer" shall include
any other corporation or other business entity that must be aggregated
with the Employer under Section 414(b), (c), (m) or (o) of the Code, but
only for such periods of time when the Employer and such other corporation
or other business entity must be aggregated as aforesaid. For purposes of
Section 3.11, such definition of "Employer" shall be modified by Section
415(h) of the Code.
1.25 "Entry Date" means each business day of the year. Notwithstanding the
above, in the case of an Employee described in Section 1.22(d), Entry Date
means the date the Employee becomes eligible to participate in this Plan
in accordance with Section 2.1(c).
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1.26 "ERISA" means the Employee Retirement Income Security Act of 1974, as now
in effect or as hereafter amended.
1.27 "Excess Aggregate Contributions" means After-Tax Contributions and
Matching Contributions in excess of the Contribution Percentage limit, as
described in Section 401(m)(6)(B) of the Code.
1.28 "Excess Contributions" means Before-Tax Contributions in excess of the
Actual Deferral Percentage limit, as described in Section 401(k)(8)(B) of
the Code.
1.29 "Excess Deferrals" means Before-Tax Contributions in excess of the limits
imposed by Section 402(g) of the Code.
1.30 "Fund" or "Investment Fund" means the investment funds established under
Article V, or any of them.
1.31 "Highly Compensated Employee" means any Employee who performs services for
the Employer during the determination year and who (a) was a five percent
(5%) owner, as defined in Section 9.7(a), during the determination year or
look-back year, or (b), during the look-back year received Compensation
from the Employer in excess of $90,000, multiplied by the Adjustment
Factor, and, if the Employer so elects by Plan amendment, was in the 'top
paid group' for the look-back year.
For purposes of this definition, the determination year is the Plan Year;
the look-back year is the twelve (12) month period preceding the Plan
Year.
An Employee is in the 'top paid group' if the Employee is one of the top
twenty percent (20%) of Employees ranked by compensation. In determining
the top
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paid group, any reasonable method of rounding or tie breaking is
permitted. For purposes of determining the number of Employees in the top
paid group for any year, Employees described in Section 414(q)(5) of the
Code or applicable Regulations may be excluded.
A highly compensated former Employee shall be treated as a Highly
Compensated Employee if he separated from service (or is deemed to have
separated) prior to the determination year, performs no service for the
Employer during the determination year and was a highly compensated active
Employee for either the separation year or any determination year ending
on or after the Employee's 55th birthday.
The determination of who is a Highly Compensated Employee, including the
determination of the compensation that is considered, will be made in
accordance with Section 414(q) of the Code and the Regulations thereunder.
For purposes of this Section 1.31, Compensation means Compensation within
the meaning of Section 415(c)(3) of the Code as defined in Section 3.11.
1.32 "Hour of Service" means:
(a) each hour for which an Employee is directly or indirectly paid or entitled
to payment for the performance of duties for the Employer;
(b) each hour for which an Employee is directly or indirectly paid or entitled
to payment by the Employer on account of a period during which no duties
are performed, whether or not the employment relationship has terminated,
due to vacation, holiday, illness, incapacity (including disability),
layoff, jury duty, military duty or leave of absence, but not more than
501 such hours on account of any single continuous period during which no
duties are
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performed; and
(c) each hour for which back pay, irrespective of mitigation of damages, has
been awarded or agreed to by the Employer.
No hours shall be credited on account of any period during which an
Employee performs no duties and receives payment solely for the purpose of
reimbursement for medical or medically related expenses incurred by the
Employee for the purpose of complying with applicable worker's
compensation, unemployment compensation or disability insurance laws.
Solely to the extent required by the Family and Medical Leave Act of 1993
(FMLA), an Employee shall be credited with Hours of Service while on a
leave of absence protected under FMLA.
The same Hours of Service shall not be credited under more than one of the
above clauses (a), (b) or (c); and each hour credited to an Employee under
clause (a), (b) or (c) above shall be credited in accordance with Section
2530.200b-2(b) and (c) of the U.S. Department of Labor's Regulations,
which hereby are incorporated by reference.
Hours of Service shall be credited for any individual considered an
Employee under Section 414(n) or Section 414(o) of the Code and the
related Regulations. Pursuant to Section 414(n)(4)(B) of the Code, Hours
of Service shall be determined by taking into account any period for which
an Employee would have been a leased employee as defined in Section 1.23
but for the fact that the Employee failed to perform services for the
Employer on a substantially full-time basis for a period of at least one
year.
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1.33 "Limitation Year" means the calendar year, unless otherwise selected by
the Employer in a manner consistent with that described in Section
1.415-2(b)(2) of the Regulations.
1.34 "Matching Contribution Account" means the Account to which are credited
any Matching Contributions made on behalf of the Participant and earnings
or losses on those contributions.
1.35 "Matching Contributions" means the amounts contributed on behalf of a
Participant pursuant to Section 3.2.
1.36 "Non-highly Compensated Employee" means an Employee who is not a Highly
Compensated Employee.
1.37 "Normal Retirement Age" means the date the Participant attains age 65.
However, if a Participant was first hired by the Employer on or after
January 1, 1994, Normal Retirement Age means the later of: (a) the date
the Participant attains age 65, and (b) the earlier of (i) the date the
Participant completes five Years of Service, and (ii) the fifth
anniversary of the date the Participant commenced participation in the
Plan.
1.38 "Participant" means any Participant participating in the Plan as provided
in Article II or any former Employee whose participation has not ceased
pursuant to Section 2.5.
1.39 "Period of Service" means a period of employment with the Employer
determined under the following rules:
(a) General Rule - An Employee's Period of Service begins on his
Employment Commencement Date or Reemployment
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Commencement Date and ends on his Severance Date subject to the
Service Spanning rules in Section 1.39(b).
(b) Service Spanning Rules - The Period of Service of an Employee
who severs from service with the Employer by reason of retirement,
quit or discharge, and who thereafter performs an Hour of Service
within twelve months of his Severance Date shall include the
intervening Period of Severance. The Period of Service of an
Employee who severs from service by reason of retirement, quit or
discharge occurring during an absence from service of twelve months
or less which began for any reason other than retirement, quit or
discharge, and who thereafter performs an Hour of Service within
twelve months of the first day of such absence shall include the
period intervening between his Severance Date and the date on which
he again performs an Hour of Service.
(c) Employment or Reemployment
Commencement Date- An Employee's Employment Commencement Date is the
date on which an Employee is first credited with an Hour of Service.
An Employee's Reemployment Commencement Date is the date on which an
Employee who has incurred a Period of Severance that is not taken
into account as a Period of Service first performs an Hour of
Service following such Period of Severance.
1.40 "Period of Severance" means any period commencing on an Employee's
Severance Date except as provided in Section 1.50.
1.41 "Plan" means the Ingram Micro Inc. 401(k) Investment Savings Plan, as set
forth herein and as amended from time to time.
Ingram Micro Inc. Article I-13
401(k) Investment Savings Plan
1.42 "Plan Year" means the twelve (12) month period commencing on each January
1st on or after the Effective Date and ending on the next following
December 31st.
1.43 "QMAC" means a qualified matching contribution made to the Plan pursuant
to Section 3.8(f).
1.44 "QMAC Account" means the Account to which are credited QMACs made on
behalf of a Participant pursuant to Section 3.8(f) and earnings or losses
on those contributions.
1.45 "QNEC" means a qualified non-elective contribution made to the Plan
pursuant to Section 3.5(f).
1.46 "QNEC Account" means the Account to which are credited QNECs made on
behalf of a Participant pursuant to Section 3.5(f) and earnings or losses
on those contributions.
1.47 "Regulations" means the Treasury regulations issued under the Code or any
other applicable law by the Internal Revenue Service and any proposed or
temporary regulations or rules pending the issuance of such regulations.
1.48 "Rollover Account" means the Participant's Account to which is credited
any Rollover Contribution made by the Participant and earnings or losses
on that contribution.
1.49 "Rollover Contribution" means a contribution made by a Participant
pursuant to Section 3.4.
Ingram Micro Inc. Article I-14
401(k) Investment Savings Plan
1.50 "Severance Date" means the earlier of (a) the date on which an Employee
separates from service with the Employer by reason of his retirement,
death, quit or discharge or (b) the first anniversary of the date on which
the Employee begins an absence from active employment for any reason other
than his retirement, death, quit or discharge. Solely for purposes of
determining the extent of an Employee's Period of Severance, the Severance
Date of an Employee who is absent from work for more than twelve months
due to the pregnancy of the Employee, the birth of a child of the Employee
or the placement of a child with the Employee in connection with the
adoption of the child by the Employee or for purposes of caring for that
child immediately following the child's birth or placement, shall be
deemed to be the second anniversary of the first day of such absence. The
period between the first and second anniversaries of the first day of such
absence (or between the first anniversary and the date of the Employee's
return to active employment if he returns before the second anniversary)
shall be neither a Period of Service nor a Period of Severance.
1.51 "Severance from Employment" means the termination of the Employee's
employment relationship with the Employer.
1.52 "Spouse" means the person to whom a Participant is legally married on the
earlier of (a) the date on which the Participant's Account balances are
distributed due to the Participant's Severance from Employment, or (b) the
Participant's date of death.
1.53 "Trust Agreement" means the agreement entered into between the Company and
the Trustee to carry out the purposes of the Plan.
Ingram Micro Inc. Article I-15
401(k) Investment Savings Plan
1.54 "Trust Fund" means the assets of the Plan held in trust by the Trustee in
accordance with the Trust Agreement.
1.55 "Trustee" means the trustee or trustees by whom the assets of the Plan are
held in accordance with the Trust Agreement.
1.56 "Valuation Date" means any business day on which the New York Stock
Exchange is open for and conducting business, or any more frequent date
designated by the Administrator or the Trustee.
1.57 "Year of Service" means a Period of Service of 365 days, with less than
whole year Periods of Service aggregated on the basis of days. A
Participant shall receive a credit for a day of service for each day for
which he is credited with an Hour of Service. A day of service counted in
one Year of Service shall not be included in another Year of Service.
Wherever used herein, the singular includes the plural and the masculine
includes the feminine, unless the context clearly requires otherwise.
Ingram Micro Inc. Article I-16
401(k) Investment Savings Plan
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility
(a) Each Eligible Employee who was a Participant in the Plan on March 31, 2005
shall continue to participate on the Effective Date.
(b) Each other Eligible Employee shall be eligible to become a Participant on
any Entry Date on or after the date on which he is first credited with an
Hour of Service.
(c) If an Employee described in Section 1.22(d) completes at least 1,000 Hours
of Service in a computation period, the Employee shall be eligible to
become a Participant on the earlier of the first day of the Plan Year
beginning after the computation period, or six months after the completion
of such computation period. For purposes of this Section 2.1(c),
computation period means the twelve month period beginning on the
Employee's date of hire or any Plan Year beginning after his date of hire.
2.2 Beneficiary Designation
Each Participant may file a designation in accordance with procedures
established by the Administrator naming as Beneficiary a person, persons
or entity to receive benefits payable upon his death. A Participant may at
any time revoke or change his Beneficiary designation by filing a new
designation in accordance with procedures established by the
Administrator. Any Beneficiary designation or revocation or change thereof
naming as primary Beneficiary a person, persons or entity other than the
Participant's Spouse must be made with the written consent of the
Ingram Micro Inc. Article II-17
401(k) Investment Savings Plan
Participant's Spouse acknowledging the effect of such designation,
revocation or change and witnessed by a notary public. Written consent of
the Participant's Spouse shall not be required if it is established in
accordance with procedures established by the Administrator and applied on
a uniform and nondiscriminatory basis that there is no Spouse, the Spouse
cannot be located or under other circumstances as may be prescribed in
Regulations. If the Participant is unmarried and fails to designate a
Beneficiary or the Beneficiary does not survive the Participant, the
benefits payable upon the death of the Participant will be paid to the
Participant's estate.
2.3 Eligibility Upon Reemployment
Any person reemployed by an Employer as an Eligible Employee shall again
be eligible to become a Participant as of his date of rehire.
2.4 Transferred Employees
(a) A Participant who remains in the employ of the Employer but ceases to be
an Eligible Employee shall continue to be a Participant and shall be
credited with Hours of Service, but he shall not be eligible to have
Before-Tax Contributions, After-Tax Contributions, Catch-up Contributions
or Employer contributions made on his behalf for as long as his employment
status is other than that of an Eligible Employee. Any Compensation of
such a Participant while he has an employment status other than that of an
Eligible Employee shall be disregarded for all Plan purposes.
(b) If an Employee transfers from an employment status with an Employer other
than as an Eligible Employee and thereby becomes an Eligible Employee, he
shall be eligible to become a Participant and have Before-
Ingram Micro Inc. Article II-18
401(k) Investment Savings Plan
Tax, After-Tax Contributions, Catch-up Contributions and Employer
contributions made on his behalf as of the next following Entry Date.
2.5 Termination of Participation
A Participant's participation shall cease upon distribution to him of his
entire vested Account or upon his death prior to such distribution.
Ingram Micro Inc. Article II-19
401(k) Investment Savings Plan
ARTICLE III
CONTRIBUTIONS AND ALLOCATIONS
3.1 Employee Contributions
An Eligible Employee who meets the requirements of Section 2.1 may make
Before-Tax Contributions and/or After-Tax Contributions in accordance with
the respective provisions of this Section 3.1.
(a) Before-Tax Contributions
(1) An Eligible Employee who meets the requirements of Section 2.1 may,
by advance notice in accordance with procedures prescribed by the
Administrator, elect to have his subsequent Compensation reduced by
means of payroll reduction as of any Entry Date and to have an equal
amount contributed to the Plan on his behalf as Before-Tax
Contributions. The reduction shall commence effective with the first
payroll period that begins as soon as administratively practicable
thereafter.
(2) An Eligible Employee who is not a Highly Compensated Employee may
elect to make Before-Tax Contributions of up to fifty percent (50%)
of his Compensation, in one percent (1%) increments, reduced by the
amount of any After-Tax Contributions made on his behalf pursuant to
Section 3.1(b).
(3) An Eligible Employee who is a Highly Compensated Employee may elect
to make Before-Tax Contributions of up to the whole percentage of
his Compensation designated as permissible by the Administrator,
reduced by the amount of any After-Tax Contributions made on his
Ingram Micro Inc. Article III-1
401(k) Investment Savings Plan
behalf pursuant to Section 3.1(b). In no event shall the percentage
so designated by the Administrator exceed the maximum percentage of
Compensation that an Eligible Employee who is not a Highly
Compensated Employee may elect to contribute for such Plan Year.
(4) In no event will the Before-Tax Contributions made on behalf of a
Participant exceed the dollar limit in effect under Section 402(g)
of the Code, reduced by the amount of the Participant's other
Before-Tax Contributions made through the Employer for the calendar
year.
(5) The percentage of contributions designated by a Participant pursuant
to Section 3.1(a) shall automatically apply to increases and
decreases in his Compensation. A Participant may, in accordance with
applicable administrative procedures, change the percentage of his
Compensation to be contributed to the Plan as Before-Tax
Contributions as of any Entry Date. The change shall commence
effective with the first payroll period that begins as soon as
administratively practicable thereafter. The changed percentage
shall remain in effect until subsequently changed.
(6) A Participant may, by giving advance notice in accordance with
applicable administrative procedures, elect to suspend his
Before-Tax Contributions at any time. The suspension shall commence
effective with the next payroll period that begins as soon as
administratively practicable thereafter. A Participant who has
suspended his Before-Tax Contributions may, by giving advance notice
in accordance with applicable administrative procedures, elect to
resume making Before-Tax Contributions as of any Entry Date
thereafter. The resumption shall commence effective with the first
payroll period that begins as soon as administratively practicable
thereafter.
Ingram Micro Inc. Article III-2
401(k) Investment Savings Plan
(7) A Before-Tax Contribution may be taken into account for purposes of
determining the Actual Deferral Percentage only if each of the
following requirements is satisfied: (1) the Before-Tax Contribution
is allocated to the Participant's Account as of a date within the
Plan Year; and (2) the Before-Tax Contribution relates to
Compensation that either (i) would have been received by the
Participant in the Plan Year but for the Participant's election to
defer, or (ii) is attributable to services performed by the
Participant in the Plan Year and, but for the Participant's election
to defer, would have been received by the Participant within two and
one-half months after the close of the Plan Year. For purposes of
(1), a Before-Tax Contribution is considered allocated as of a date
within a Plan Year only if (i) the allocation is not contingent upon
the Participant's participation in the Plan or performance of
services on any date subsequent to that date, and (ii) the
Before-Tax Contribution is actually paid to the Trust no later than
the end of the twelve month period immediately following the Plan
Year to which the Before-Tax Contribution relates.
(8) If Before-Tax Contributions are returned to the Employer under
Section 3.12, the elections to reduce Compensation that were made by
Participants on whose behalf those contributions were made shall be
void retroactively to the beginning of the period for which returned
contributions were made.
(b) After-Tax Contributions
(1) An Eligible Employee who meets the requirements of Section 2.1 may,
by advance notice in accordance with procedures prescribed by the
Ingram Micro Inc. Article III-3
401(k) Investment Savings Plan
Administrator, elect to contribute After-Tax Contributions to the
Plan by means of payroll deduction as of any Entry Date.
(2) An Eligible Employee who is not a Highly Compensated Employee may
elect to make After-Tax Contributions of up to fifty percent (50%)
of his Compensation, in one percent (1%) increments, reduced by the
amount of any Before-Tax Contributions made on his behalf pursuant
to Section 3.1(a).
(3) An Eligible Employee who is a Highly Compensated Employee may elect
to make After-Tax Contributions of up to the whole percentage of his
Compensation designated as permissible by the Administrator, reduced
by the amount of any Before-Tax Contributions made on his behalf
pursuant to Section 3.1(a). In no event shall the percentage so
designated by the Administrator exceed the maximum percentage of
Compensation that an Eligible Employee who is not a Highly
Compensated Employee may elect to contribute for such Plan Year.
3.2 Employer Contributions
The Employer may make a Matching Contribution for each Participant who
makes Before-Tax Contributions and/or After-Tax Contributions for the
payroll period equal to fifty percent (50%) of the Participant's
Before-Tax Contributions and/or After-Tax Contributions for the payroll
period not exceeding five percent (5%) of the Participant's Compensation
for the payroll period. Matching Contributions shall not be made on
account of Catch-Up Contributions.
For purposes of determining the Matching Contribution, if any, for a Plan
Year, any amounts paid under the Annual Incentive Award Program and the
Ingram Micro Inc. Article III-4
401(k) Investment Savings Plan
Long-Term Executive Cash Incentive Award Program shall be excluded from
Compensation.
The Employer shall determine, in its absolute discretion, whether Matching
Contributions shall be made for a Plan Year. The Employer is not required
to contribute Matching Contributions for any Plan Year.
Notwithstanding the foregoing, the Employer may discontinue Matching
Contributions for Participants who are Highly Compensated Employees if it
is determined that continuation of such contributions in accordance with
this Section 3.2 might cause the Plan to exceed the limitations of Section
401(m) of the Code and Section 3.8 of the Plan. The Employer, in its
discretion, may make additional Matching Contributions with respect to
Participants who are Non-highly Compensated Employees in the event such
contributions are necessary to pass the Actual Contribution Percentage
Test in Section 3.8.
3.3 Catch-Up Contributions
Each Participant who has attained age 50 before the close of the Plan Year
shall be eligible to make Catch-Up Contributions of up to twenty-five
(25%) of Compensation in accordance with, and subject to, the limitations
of Section 414(v) of the Code. Such Catch-Up Contributions shall not be
taken into account for purposes of the provisions of the Plan implementing
the required limitations of Sections 402(g) and 415 of the Code. The Plan
shall not be treated as failing to satisfy the provisions of the Plan
implementing the requirements of Section 401(k)(3), 401(k)(11),
401(k)(12), 410(b), or 416 of the Code, as applicable, by reason of making
such Catch-Up Contributions.
Ingram Micro Inc. Article III-5
401(k) Investment Savings Plan
3.4 Rollover Contributions
(a) An Eligible Employee may, by notice received by the Administrator and
under such terms and conditions as the Administrator shall determine, make
a Rollover Contribution to the Plan and Trust Fund. The Administrator may
require the individual to submit such evidence and documentation as the
Administrator determines necessary to be assured that the proposed
contribution qualifies as a Rollover Contribution.
A Rollover Contribution is (1) a distribution of an "eligible rollover
distribution" (as defined in Section 402(c)(4) of the Code) from a
qualified plan described in Section 401(a) or 403(a) of the Code, an
annuity contract described in Section 403(b) of the Code or an eligible
plan under Section 457(b) of the Code which is maintained by a state
political subdivision of a state, or an agency or instrumentality of a
state or political subdivision of a state, (2) a distribution from an
individual retirement account or individual retirement annuity described
in Section 408 of the Code that is eligible to be rolled over and would
otherwise be includible as gross income, or (3) a direct rollover of an
eligible rollover distribution from (i) a qualified plan described in
Section 401(a) or 403(a) of the Code excluding after-tax employee
contributions, (ii) an annuity contract described in Section 403(b) of the
Code excluding after-tax employee contributions, or (iii) an eligible plan
under Section 457(b)of the Code which is maintained by a state, political
subdivision of a state, or an agency or instrumentality of a state of
political subdivision of a State. Section 402(c)(9) shall apply in
determining whether a distribution is a Rollover Contribution for purposes
of Section 3.4.
Ingram Micro Inc. Article III-6
401(k) Investment Savings Plan
(b) A distribution described in (a)(1) or (2) above must be received by the
Trust Fund on or before the 60th day following the Employee's receipt of
the distribution from the distributing plan or contract.
(c) The amount received pursuant to this Section 3.4 shall be transferred to
the Trust Fund and credited to a separate Rollover Contribution Account
maintained by the Administrator for the Employee in accordance with
Article IV herein.
3.5 Actual Deferral Percentage Test
(a) For the Plan Year, the Average Actual Deferral Percentage for the group of
all Highly Compensated Employees who are Eligible Employees must satisfy
at least one of the following tests:
(1) the Average Actual Deferral Percentage for said group of Highly
Compensated Employees for that Plan Year shall not be more than the
Average Actual Deferral Percentage for the group of Non-highly
Compensated Employees who were Eligible Employees for the prior Plan
Year multiplied by 1.25; or
(2) the Average Actual Deferral Percentage for said group of Highly
Compensated Employees for that Plan Year shall not exceed two (2)
percentage points more than the Average Actual Deferral Percentage
for the group of Non-highly Compensated Employees who were Eligible
Employees for the prior Plan Year, and the Average Actual Deferral
Percentage for said group of Highly Compensated Employees for that
Plan Year shall not be more than the Average Actual Deferral
Percentage for the group of Non-highly Compensated Employees who
were Eligible Employees for the prior Plan Year multiplied by 2.
Ingram Micro Inc. Article III-7
401(k) Investment Savings Plan
For Plan Years beginning on or after January 1, 2006, the Average Actual
Deferred Percentage for the group of Non-highly Compensated Employees for
purposes of the foregoing tests shall be based on the Average Actual
Deferral Percentage for the group of Non-highly Compensated Employees who
are eligible to participate in the Plan in the current Plan Year.
(b) If Before-Tax Contributions are made to the Plan for a Plan Year for a
Highly Compensated Employee who also is eligible to have salary reduction
contributions allocated to his account under another plan maintained by
the Employer that provides a cash or deferred arrangement described in
Section 401(k) of the Code, the Actual Deferral Percentage for that
Highly Compensated Employee shall be calculated as if all such other plans
are part of the Plan. However, if a Highly Compensated Employee
participates in two (2) or more cash or deferred arrangements that are
parts of plans that have different plan years, the cash or deferred
arrangements shall be treated as a single arrangement with respect to the
plan years ending with or within the same calendar year.
(c) If the Plan satisfies the requirements of Section 401(k), 401(a)(4) or
410(b) of the Code only if aggregated with one or more other plans, or if
one or more plans satisfy the requirements of such sections of the Code
only if aggregated with the Plan, this Section 3.5 shall be applied by
determining the Actual Deferral Percentages of Employees as if all such
plans were a single plan. However, plans may be aggregated in order to
satisfy Section 401(k) of the Code only if they have the same plan year.
(d) For the purposes of satisfying the requirements of Section 401(k),
401(a)(4) or 410(b) of the Code, the Plan may be disaggregated into two or
more plans or the Plan may be aggregated with one or more other plans, to
the extent
Ingram Micro Inc. Article III-8
401(k) Investment Savings Plan
permitted by Sections 401(k), 401(a)(4) and 410(b) of the Code and the
Regulations thereunder.
(e) For purposes of determining the Actual Deferral Percentage, Before-Tax
Contributions must be made before the last day of the twelve (12)
consecutive month period immediately following the Plan Year to which
those contributions relate.
(f) To enable the Plan to satisfy the test described in Section 3.5(a), the
Employer may elect to make a QNEC to the Plan for each Plan Year in an
amount, if any, that the Employer, in its sole discretion, determines. All
QNECs will be one hundred percent (100%) vested and subject to the
distribution requirements applicable to Before-Tax Contributions as
described in Section 401(k)-1(d) of the Treasury Regulations. QNECs will
be allocated to the Participant's QNEC Account as of the end of the Plan
Year with respect to which the QNEC is made. QNECs will be paid to the
Trustee after such contribution is authorized by the Employer but no later
than twelve (12) months after the end of the Plan Year in which such
contribution is allocated.
3.6 Reductions During Plan Year
If, during the Plan Year, the Administrator determines that the Actual
Deferral Percentage test provided in Section 3.5 is not met at the time of
its review or would not be met if part or all of Before-Tax Contributions
continue to be made on behalf of Participants who are Highly Compensated
Employees, the Administrator, in its sole discretion, may reduce the rate
(to zero (0) if necessary) of Before-Tax Contributions that would have
been made during the remainder of the Plan Year. The Administrator may, in
its sole and absolute discretion, limit or discontinue the Before-Tax
Contributions of Highly Compensated Employees to comply with the
contribution limits set forth herein.
Ingram Micro Inc. Article III-9
401(k) Investment Savings Plan
3.7 Return or Recharacterization of Excess Contributions After End of Plan
Year
(a) If, after the last day of the Plan Year, the Administrator determines that
the Average Actual Deferral Percentage requirements of Section 3.5 have
not been satisfied, the Administrator, within two and one-half (2 1/2)
months after the end of the Plan Year (but not later than the last day of
the next Plan Year), shall distribute the Excess Contributions, adjusted
for any income or loss, to all affected Participants who are Highly
Compensated Employees. The Administrator shall calculate any Excess
Contributions after determining the amount of Excess Deferrals pursuant to
Section 3.10. The amount of Excess Contributions to be distributed shall
be reduced by any Excess Deferrals previously distributed to the
Participant for the tax year ending with or within the Plan Year. The
amount of Excess Deferrals to be distributed for a tax year shall be
reduced by any Excess Contributions previously distributed for the Plan
Year beginning with or within the Participant's tax year.
(b) The income or loss allocable to Excess Contributions for the Plan Year
shall be determined by multiplying the income or loss allocable to the
Participant's Before-Tax Contributions for the Plan Year by a fraction,
the numerator of which is the Excess Contribution on behalf of the
Participant for the Plan Year and the denominator of which is the
Participant's Account balance attributable to Before-Tax Contributions on
the last day of the Plan Year, without regard to any income or loss during
the Plan Year. No income or loss shall be attributable to the period
between the end of the Plan Year and the date of the distribution.
(c) The amount of Excess Contributions for Highly Compensated Employees shall
be determined as provided in this paragraph. First, the Actual Deferral
Percentage of the Highly Compensated Employee with the highest such
Ingram Micro Inc. Article III-10
401(k) Investment Savings Plan
Percentage will be reduced to the extent necessary to satisfy the Actual
Deferral Percentage test or cause the percentage for that Highly
Compensated Employee to equal the percentage for the Highly Compensated
Employee with the next highest such Percentage. Second, this process will
be repeated until the Actual Deferral Percentage test is satisfied. The
total of such Excess Contributions shall then be distributed to Highly
Compensated Employees in descending order commencing with the Highly
Compensated Employee with the highest dollar amount of Before-Tax
Contributions and other contributions to be distributed in order to
satisfy the Actual Deferral Percentage test, consistent with the
provisions of Notice 97-2 issued by the Internal Revenue Service.
(d) Excess Contributions distributed to Participants in accordance with this
Section 3.7 shall be distributed in the following order: (1) from the
Participant's Before-Tax Contribution Account, to the extent such
Contributions are not subject to Matching Contributions, and (2) from the
Participant's Before-Tax Contribution Account, to the extent such
contributions are subject to Matching Contributions. If Excess
Contributions are distributed to Participants in accordance with this
Section 3.7, the Participant shall immediately forfeit all Matching
Contributions that were made to match such distributed Excess
Contributions.
(e) For purposes of this Section 3.7, Excess Contributions means Before-Tax
Contributions in excess of the Actual Deferral Percentage limit as
described in Section 401(k)(8)(B) of the Code.
(f) A Participant may elect to treat his or her Excess Contributions as an
amount distributed to the Participant and then contributed by the
Participant to the Plan as an After-Tax Contribution. Such recharacterized
amounts will remain nonforfeitable and subject to the same distribution
requirements as Before-
Ingram Micro Inc. Article III-11
401(k) Investment Savings Plan
Tax Contributions. Amounts may not be recharacterized by a Highly
Compensated Employee to the extent that such amount in combination with
other Participant contributions made by that Employee under all plans
maintained by the Employer would exceed any stated limit under the Plan
for Participant contributions. Excess Contributions may not be
recharacterized under this paragraph any later than 2 1/2 months after the
last day of the Plan Year in which the Excess Contributions arise.
Recharacterization will be deemed to occur on the date the last Highly
Compensated Employee is informed in writing of the amount to be
recharacterized and the consequences thereof. Recharacterized amounts will
be taxable to the Participant for the Participant's tax year in which the
Participant would have received such amounts in cash.
3.8 Actual Contribution Percentage Test
(a) For any Plan Year beginning before January 1, 2006, the Average
Contribution Percentage for the group of all Highly Compensated Employees
who are Eligible Employees must satisfy at least one of the following
tests:
(1) The Average Contribution Percentage for said group of Highly
Compensated Employees for that Plan Year shall not be more than the
Average Contribution Percentage for the group of Non-highly
Compensated Employees who were Eligible Employees for the prior Plan
Year multiplied by 1.25; or
(2) The Average Contribution Percentage for said group of Highly
Compensated Employees for that Plan Year shall not exceed 2
percentage points more than the Average Contribution Percentage for
the group of Non-highly Compensated Employees who were Eligible
Employees for the prior Plan Year, and the Average Contribution
Percentage for said group of Highly Compensated Employees for that
Ingram Micro Inc. Article III-12
401(k) Investment Savings Plan
Plan Year shall not be more than the Average Contribution Percentage
for the group of Non-highly Compensated Employees who were Eligible
Employees for the prior Plan Year multiplied by 2.
For Plan Years beginning on or after January 1, 2006, the Average
Contribution Percentage for the group of Non-highly Compensated Employees
for purposes of the foregoing tests shall be based on the Average
Contribution Percentage for the group of Non-highly Compensated Employees
who are eligible to participate in the Plan in the current Plan Year.
(b) If After-Tax and/or Matching Contributions are made to the Plan for a Plan
Year for a Highly Compensated Employee who also is eligible to have
after-tax contributions and/or matching contributions allocated to his
account under another plan maintained by the Employer that is qualified
under Section 401(a) of the Code, the Contribution Percentage for that
Highly Compensated Employee shall be calculated as if all such other plans
are part of the Plan. However, plans that are not permitted to be
aggregated under Reg. Sec. 1.410(b)-7(c), as modified by Reg. Sec.
1.401(k)-1(g)(11), are not aggregated for this purpose. If a Highly
Compensated Employee participates in two or more plans that have different
plan years, this Section 3.8 shall be applied by treating all plans that
have plan years ending with or within the same calendar year as a single
plan.
(c) If the Plan satisfies the requirements of Sections 401(m), 401(a)(4) and
410(b) of the Code only if aggregated with one or more other plans, or if
one or more other plans satisfy the requirements of such sections of the
Code only if aggregated with the Plan, this Section shall be applied by
determining the Contribution Percentages of Employees as if all such plans
were a single plan. However, plans may be aggregated in order to satisfy
Section 401 (m) of the Code only if they have the same plan years.
Ingram Micro Inc. Article III-13
401(k) Investment Savings Plan
(d) For the purposes of satisfying the requirements of Section 401(m),
401(a)(4) or 410(b) of the Code, the Plan may be disaggregated into two or
more plans or the Plan may be aggregated with one or more other plans, to
the extent permitted by Sections 401(m), 401(a)(4) and 410(b) of the Code
and the Regulations thereunder.
(e) For purposes of determining the Contribution Percentage, (i) After-Tax
Contributions are considered to have been made in the Plan Year as of
which they are contributed to the Trust Fund and (ii) Matching
Contributions will be considered made for a Plan Year if made before the
last day of the twelve (12) consecutive month period immediately following
the Plan Year to which those contributions relate.
(f) To enable the Plan to satisfy the test described in Section 3.8(a), the
Employer may elect to make a QMAC to the Plan for each Plan Year in an
amount, if any, as determined by the Employer in its sole discretion. All
QMACs made pursuant to this Section 3.8(f) will be one hundred percent
(100%) vested and subject to the distribution requirements applicable to
Before-Tax Contributions as described in Section 1.401(k)-1(d) of the
Treasury Regulations. QMACs will be allocated to the Participant's QMAC
Account as of the end of the Plan Year with respect to which the QMAC is
made. QMACs will be paid to the Trustee after such contribution is
authorized by the Employer, but no later than twelve (12) months after the
end of the Plan Year in which such contribution is allocated.
3.9 Return of Excess Aggregate Contributions
(a) If, after the last day of the Plan Year, the Administrator determines that
the Average Contribution Percentage requirements of Section 3.8 have not
been
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401(k) Investment Savings Plan
satisfied, the Administrator, within two and one-half (2 1/2) months after
the end of the Plan Year (but not later than the last day of the next Plan
Year), shall first cause to be forfeited, if forfeitable, or if not
forfeitable, distribute the Excess Aggregate Contributions, adjusted for
any income or loss, to all affected Participants who are Highly
Compensated Employees. The Administrator shall calculate any Excess
Aggregate Contributions after determining the amount of Excess Deferrals
pursuant to Section 3.10 and the amount of Excess Contributions pursuant
to Section 3.7.
(b) The income or loss allocable to Excess Aggregate Contributions for the
Plan Year shall be determined by multiplying the income or loss allocable
to Matching Contributions and After-Tax Contributions made on behalf of
the Participant for the Plan Year by a fraction, the numerator of which is
the Excess Aggregate Contribution on behalf of the Participant for the
Plan Year and the denominator of which is the Participant's Matching
Contribution Account and After-Tax Contribution Account balances on the
last day of the Plan Year, without regard to any income or loss during the
Plan Year. No income or loss shall be attributable to the period between
the end of the Plan Year and the date of the distribution.
(c) The amount of Excess Aggregate Contributions for Highly Compensated
Employees shall be determined as provided in this Section 3.9. First, the
Contribution Percentage of the Highly Compensated Employee with the
highest such Percentage will be reduced to the extent necessary to satisfy
the Contribution Percentage test or cause the percentage for that Highly
Compensated Employee to equal the percentage for the Highly Compensated
Employee with the next highest such Percentage. Second, this process will
be repeated until the Contribution Percentage test is satisfied. The total
of such Excess Aggregate Contributions to be distributed shall then be
distributed to Highly Compensated Employees in descending order
Ingram Micro Inc. Article III-15
401(k) Investment Savings Plan
commencing with the Highly Compensated Employee with the highest dollar
amount of Excess Aggregate Contributions and other contributions to be
distributed in order to satisfy the Contribution Percentage test,
consistent with the provisions of Notice 97-2 issued by the Internal
Revenue Service.
(d) Excess Aggregate Contributions forfeited in accordance with this Section
3.9 shall be treated as Annual Additions under Section 3.11 and shall be
applied to reduce subsequent Matching Contributions.
(e) Excess Aggregate Contributions distributed to Participants in accordance
with this Section 3.9 shall be distributed in the following order: (1)
from the Participant's After-Tax Contribution Account, and (2) from the
Participant's Matching Contribution Account.
3.10 Distribution of Excess Deferrals
(a) A Participant may state a claim for the return of Excess Deferrals and
such Excess Deferrals, adjusted for any income or loss, shall be
distributed if administratively practicable no later than the April 15th
following the calendar year for which such allocable Excess Deferrals are
made. The Participant's claim shall be made in accordance with procedures
established by the Administrator, shall be submitted to the Administrator
no later than March 1st (or as late as April 14 if allowed by the
Administrator), shall specify the Participant's Excess Deferrals for the
preceding calendar year, and shall be accompanied by the Participant's
statement that such amounts, if not distributed, will constitute Excess
Deferrals.
(b) The income or loss allocable to Excess Deferrals for the Plan Year shall
be determined by multiplying the income or loss allocable to the
Participant's Before-Tax Contributions for the Plan Year by a fraction,
the numerator of
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401(k) Investment Savings Plan
which is the Excess Deferrals on behalf of the Participant for the Plan
Year and the denominator of which is the Participant's Account
attributable to Before-Tax Contributions on the last day of the Plan Year,
without regard to any income or loss during the Plan Year. No income or
loss shall be attributable to the period between the end of the Plan Year
and the date of the distribution.
(c) If Excess Deferrals have previously been distributed within the Plan
Year, the Plan shall offset such distribution from the amount of the
Participant's Excess Contributions, if any, to be distributed for such
Plan Year. In addition, the amount of Excess Deferrals that may be
distributed for a Participant by the Plan for a Plan Year shall be reduced
by the amount of Excess Contributions previously distributed.
(d) Excess Deferrals are Before-Tax Contributions in excess of the limit
imposed by Section 402(g) of the Code.
(e) Excess Deferrals shall be taken first from unmatched Before-Tax
Contributions and then from matched Before-Tax Contributions. Any Matching
Contributions attributable to refunded Excess Deferrals, adjusted for
investment gain or loss, shall be forfeited and used in the manner
described in Section 6.3.
3.11 Maximum Annual Additions
(a) The Annual Addition to a Participant's Accounts for any Limitation Year,
when added to the annual additions for such year under any other defined
contribution plans (including voluntary employee contribution accounts in
a defined benefit plan and key employee accounts under a welfare benefit
plan described in Section 419 of the Code as well as employer
contributions
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allocated to an IRA) maintained by the Employer, shall not exceed the
lesser of:
(1) one hundred percent (100%) of the Participant's Compensation as
defined in Section 415(c)(3) of the Code for that Limitation Year,
or
(2) $42,000 multiplied by the Adjustment Factor.
The Compensation limitation referred to in (1) shall not apply to any
contribution for medical benefits after separation from service (within
the meaning of Section 401(h) or 419A(f)(2) of the Code) which is
otherwise treated as an Annual Addition.
Effective January 1, 2005, Compensation as defined in Section 415(c)(3) of
the Code means wages within the meaning of Section 3401(a) of the Code
and all other payments of compensation to an Employee by the Employer (in
the course of Employer's trade or business) for which the Employer is
required to furnish the Employee a written statement under Sections
6041(d), 6051(a)(3), and 6052 of the Code. Compensation must be determined
without regard to any rules under Section 3401(a) that limit the
remuneration included in wages based on the nature or location of the
employment or the services performed (such as the exception for
agricultural labor in Section 3401(a)(2) of the Code).
Compensation for a Limitation Year is the compensation actually paid or
made available during such Limitation Year.
Compensation for a Participant in a defined contribution plan who is
permanently and totally disabled (as defined in Section 22(e)(3) of the
Code) is the compensation such Participant would have received for the
Limitation
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Year if the Participant was paid at the rate of compensation paid
immediately before becoming permanently and totally disabled.
Compensation paid or made available during a Limitation Year shall include
any elective deferral as defined in Section 402(g)(3) of the Code and any
amount which is contributed or deferred by the Employer at the election of
the Participant and which is not includible in the gross income of the
Participant by reason of Section 125, 132(f)(4) or 457 of the Code.
The Trustees shall, pursuant to the Administrator's directions, distribute
the excess of a Participant's Annual Additions comprising (i) After-Tax
Contributions and (ii) Before-Tax Contributions, in that order, over the
limits stated above to the Participant in the event that such excess is
caused by the allocation of forfeitures, a reasonable error in estimating
a Participant's Compensation or in determining the amount of After-Tax
Contributions and/or Before-Tax Contributions that may be made with
respect to the Participant for the Plan Year or other circumstances
approved by the Commissioner of Internal Revenue. Any contributions to be
so distributed shall include any income but not any loss attributable
thereto, to the extent permitted by Regulations, and the Participant shall
immediately forfeit all Matching Contributions, including any income but
not any loss attributable thereto, that were made to match such
distributed After-Tax Contributions and/or Before-Tax Contributions. Such
forfeited Matching Contributions shall be held unallocated in a suspense
account and credited as part of Matching Contributions for the next and
succeeding Limitation Years, as necessary, for all Participants in the
Plan. Investment income less loss attributable to amounts held in such
suspense account shall be similarly applied and shall be treated as Annual
Additions when allocated to Participants' Accounts.
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3.12 Return of Contributions to Employer
(a) If all or part of the Employer's contributions hereunder are conditioned
upon their deductibility under Section 404 of the Code and the deduction
for all or any part of such contributions to the Plan is disallowed by the
Internal Revenue Service, the portion of the contributions to which such
disallowance applies shall be returned to the Employer without interest,
but reduced by any investment loss attributable to those contributions.
The return shall be made as soon as practicable within one (1) year after
the disallowance. All Contributions to the Plan are conditioned on their
deductibility.
(b) If a contribution is made due to a mistake of fact, the Employer may
require the Trustee to return the contribution, without interest but
reduced by any investment loss allocable to the contribution. The return
shall be made as soon as practicable within one (1) year after the date
the contribution was made.
(c) If, upon termination of the Plan, there remain Trust assets held in
suspense accounts, the Trustee shall return such assets to the Employer.
Notwithstanding the foregoing, the Employer may elect to reallocate the
assets held in suspense accounts to those Employees who are Participants
under the Plan as of the date of termination of the Plan in proportion to
their Compensation.
3.13 Rights of Reemployed Veterans
In accordance with Section 13.15, a Reemployed Veteran shall be entitled
to the restoration of certain benefits under the Plan that would have
accrued, or that he or she would have received, under the Plan but for his
or her absence from the employ of the Employer due to Qualified Military
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Service. A Reemployed Veteran is defined as an Employee who left the
employ of the Employer to perform service in the Armed Services of the
United States, and subsequently was reemployed by the Employer pursuant to
the Uniformed Services Employment and Reemployment Rights Act of 1994
("USERRA"). 'Qualified Military Service' is defined as service in the
uniformed services (as defined in chapter 43 of title 38, United States
Code) performed by the Reemployed Veteran whose entitlement to
reemployment rights pursuant to USERRA arose with respect to such service.
(a) Crediting of Period of Qualified Military Service
To the extent required by USERRA and Section 414(u) of the Code, the
Reemployed Veteran, for all purposes under the Plan, shall be credited
Hours of Service for his or her absence from the employ of the Employer
due to Qualified Military Service, in accordance with the regulations or
other rules provided by the Internal Revenue Service.
(b) "Make-Up" Contributions
To the extent required by USERRA and Section 414(u) of the Code, the
Reemployed Veteran shall be permitted to make additional contributions and
receive related Matching Contributions during the period which (1) begins
on the Reemployed Veteran's date of reemployment with the Employer, and
(2) has the same length as the lesser of: (i) the period of Qualified
Military Service multiplied by 3, or (ii) five (5) years.
The maximum amount of additional contributions that the Reemployed Veteran
is permitted to make is the maximum amount of such contributions that the
Reemployed Veteran would have been permitted to make had he or she
continued to be employed by the Employer during the period of Qualified
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Military Service and received Compensation. Compensation for purposes of
this Section 3.13 shall be based on the rate of pay that the Reemployed
Veteran would have received during the period of Qualified Military
Service had he remained employed by the Employer. If such rate of pay was
not reasonably certain, such Compensation shall be based on the Reemployed
Veteran's average Compensation from the Employer during (1) the twelve
(12) month period immediately before the Qualified Military Service, or
(2) if shorter, the period of employment immediately before the Qualified
Military Service.
If any contribution is made by an Employer or an Employee under the Plan
with respect to an Employee whose reemployment is governed by
USERRA:
(i) Such contribution shall not be subject to any otherwise applicable
limitation contained in Section 402(g), 402(h), 403(b), 404(a),
404(h), 408, 415 or 457 of the Code and shall not be taken into
account in applying such limitations to other contributions or
benefits under such plan or any other plan, with respect to the year
in which the contribution is made;
(ii) Such contribution shall be subject to the limitations referred to in
(i) above with respect to the year to which the contribution relates
(in accordance with rules prescribed by the Secretary of the
Treasury); and
(iii) The Plan shall not be treated as failing to meet the requirements of
Section 401(a)(4), 401(a)(26), 401(k)(3), 401(k)(11), 401(k)(12),
401(m), 403(b)(12), 408(k)(3), 408(k)(6), 408(p), 410(b) or 416 of
the Code by reason of the making of (or the right to make) such
contribution.
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3.14 Early Participation Testing Rule
If the Employer elects to apply Section 410(b)(4)(B) of the Code in
determining whether the Plan satisfies the requirements of Section 410(b)
of the Code, the Employer may, in determining whether the Plan meets the
requirements of Section 3.5 and/or Section 3.8 exclude from consideration
all Eligible Employees (other than Highly Compensated Employees) who have
not met the minimum age and service requirements of Section 410(a)(1)(A)
of the Code.
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401(k) Investment Savings Plan
ARTICLE IV
MAINTENANCE AND VALUATION OF ACCOUNTS
4.1 Maintenance of Accounts
A separate After-Tax Contribution Account, Before-Tax Contribution
Account, Catch-Up Contribution Account, Matching Contribution Account, and
if necessary, QMAC Account, QNEC Account and Rollover Contribution Account
shall be maintained for each Participant as well as any other accounts or
subaccounts as the Administrator deems necessary or desirable.
4.2 Valuation of Accounts
As of each Valuation Date, the Accounts of each Participant shall be
adjusted to reflect contributions, withdrawals, distributions, income
earned or accrued, expenses paid from the assets of the Plan and any
increase or decrease in the fair market value of the assets of the Plan
since the preceding Valuation Date.
4.3 Account Statements
At least once a year, each Participant shall be furnished with a statement
stating the dollar value of his Accounts and the vested portion of his
Accounts.
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ARTICLE V
INVESTMENT OF CONTRIBUTIONS
5.1 Investment Funds
(a) The Administrator from time to time shall direct the Trustee to establish
and maintain one or more Investment Funds, hereinafter referred to as
Funds, for the investment of assets of the Trust Fund. The number and type
of Funds shall be determined by the Administrator, which may, in its
discretion, direct the Trustee to establish and maintain one or more
additional Funds or to delete one or more existing Funds.
(b) Pending the investment of any amounts in a Fund, the Trustee may invest
assets of the Trust Fund temporarily in interest-bearing accounts,
certificates of deposit, Treasury bills, commercial paper, money market
funds, short-term obligations of the United States Government, short-term
investment funds or other short-term obligations selected by the Trustee.
The Trustee may keep such amounts of cash as it, in its sole discretion,
shall deem necessary or advisable as part of such Funds, all within the
limitations specified in the Trust Agreement.
(c) All interest, dividends and proceeds from the disposition of and other
income received with respect to assets held with respect to each of the
Funds shall be reinvested in the respective Fund and all expenses of the
Trust that are properly allocable to a particular Fund shall be so
allocated and charged.
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401(k) Investment Savings Plan
5.2 Investment of Participant Accounts
A Participant may, in accordance with applicable administrative
procedures, specify the percentages of his Accounts that shall be invested
in each Fund maintained under the Plan. If a Participant fails to make an
election pursuant to this Section 5.2, all of his Accounts shall be
invested in the Fund that the Administrator determines, in its sole
discretion, is consistent with the prudent discharge of its fiduciary
duties. A Participant may not invest more than fifty percent (50%) of his
Before-Tax Contributions and After-Tax Contributions in the Ingram Micro
Stock Fund. Rollover Contributions may not be invested in the Ingram Micro
Stock Fund.
5.3 Responsibility for Investments
Each Participant is solely responsible for the selection of his investment
options. The Trustee, the Administrator, the Employer and the officers,
supervisors and other employees of the Employer are not empowered to
advise a Participant as to the manner in which his Accounts shall be
invested. The fact that a particular Fund is available to Participants for
investment under the Plan shall not be construed as a recommendation for
investment in that Fund. The Trustee shall be the named fiduciary for the
purposes of carrying out the Participant's investment instructions.
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5.4 Changing Investment Elections - Future Contributions
A Participant may, in accordance with applicable administrative
procedures, change his investment election as to subsequent contributions,
subject to the limitations of Section 5.2, as of any Valuation Date.
5.5 Transfer Among Funds
A Participant may, in accordance with applicable administrative procedures
and subject to any restrictions that may imposed by particular Funds,
elect to transfer all or a portion of the balance in all of his Accounts
between and among Funds as of any Valuation Date. The Employer, however,
reserves the right, in its sole discretion, to implement reasonable
restrictions on a Participant's right to transfer among Funds. A
Participant is not permitted to transfer other investment options to the
Ingram Micro Stock Fund.
A Participant is permitted to transfer all or any portion of his
investment in the Ingram Micro Stock Fund in five percent (5%) increments
out of that Fund and into other investment options. A Participant who is
subject to Rule 16b-3 of the Securities and Exchange Commission or who is
designated by the Employer as a window group person is only permitted to
transfer contributions invested in the Ingram Micro Stock Fund out of that
Fund during a special open window period established by the Employer.
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401(k) Investment Savings Plan
ARTICLE VI
VESTING
6.1 Vesting in After-Tax Contribution, Before-Tax Contribution, Catch-Up
Contribution, QMAC, QNEC and Rollover Accounts
A Participant shall at all times have a one hundred percent (100%)
nonforfeitable vested right to the value of his After-Tax Contribution,
Before-Tax Contribution Account, Catch-Up Contribution Account, QMAC
Account, QNEC Account and Rollover Account.
6.2 Vesting in Matching Contribution Account
(a) A Participant shall have a nonforfeitable vested right to the value of his
Matching Contribution Account in accordance with the following schedule:
YEARS OF SERVICE VESTED PERCENTAGE
- ---------------- -----------------
Less than 1 year 0
1 year but less than 2 20
2 years but less than 3 40
3 years but less than 4 60
4 years but less than 5 80
5 or more years 100
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401(k) Investment Savings Plan
(b) Notwithstanding the provisions of (a) above, a Participant shall have a
one hundred percent (100%) nonforfeitable vested right to the value of his
Matching Contribution Account upon the occurrence of any of the following
events prior to his Severance from Employment: (1) Normal Retirement Age,
(2) Disability, (3) death, or (4) in accordance with Section 12.4.
6.3 Forfeiture of Non-vested Interest
Upon a Participant's Severance from Employment, the non-vested portion of
a Participant's Matching Contribution Account shall be forfeited at the
earlier of the date he receives a distribution of the vested portion of
his Account or the date he incurs five (5) consecutive One-Year Breaks in
Service. For purposes of this Article VI, a One-Year Break in Service
means a twelve (12) consecutive month period beginning on an Employee's
Severance Date or an anniversary thereof and ending on the first
anniversary of such date during which the Participant does not receive
credit for an Hour of Service. The Administrator shall apply all
forfeitures by first restoring the amount of previous forfeitures, in
accordance with Section 6.4(b) or (c), then by reducing the amount of
Employer contributions required under the Plan for the then current Plan
Year and allocating such forfeitures in a manner consistent with Section
3.2, and, finally, by paying reasonable administrative expenses to the
extent not paid by the Employer.
6.4 Restoration of Forfeitures and Service
(a) If a former Participant whose Severance from Employment resulted in a
forfeiture of the entire non-vested portion of his Account pursuant to
Section 6.3 resumes participation in the Plan after at least five (5)
consecutive One-Year Breaks in Service, with respect to Matching
Contributions, he shall have
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no right to restoration of any previously forfeited portion of his
Account. Such Participant's Years of Service or period of employment after
the break in service or period of absence shall not be taken into account
in determining the Participant's vested nonforfeitable right to the value
of his Matching Contribution Account attributable to contributions made by
the Employer before he resumed participation in the Plan.
(b) If a former Participant (1) whose Severance from Employment resulted in a
forfeiture of the entire non-vested portion of his Account pursuant to
Section 6.3 did not receive a distribution pursuant to Section 8.3 and
resumes employment as an Eligible Employee or (2) whose Severance from
Employment resulted in a forfeiture of the entire non-vested portion of
his Account pursuant to Section 6.3 resumes employment as an Eligible
Employee, in either case prior to incurring five (5) consecutive One-Year
Breaks in Service, the previously forfeited portion of his Account shall
be restored upon his Reemployment Commencement Date. Such Participant's
Years of Service or period of employment before and after the break in
service shall be taken into account in determining the Participant's
vested nonforfeitable right to the value of his Matching Contribution
Account.
(c) If a former Participant whose Severance from Employment resulted in a
forfeiture of the entire non-vested portion of his Account pursuant to
Section 6.3 received a distribution pursuant to Section 8.3 and resumes
employment as an Eligible Employee prior to incurring five (5) consecutive
One-Year Breaks in Service, the previously forfeited portion of his
Account shall be restored upon the date on which the Participant repays in
cash to the Plan the full amount of the distribution, in accordance with
applicable administrative procedures. Such repayment must be made prior to
the earlier of (i) the end of the five (5) year period commencing on the
Participant's Reemployment Commencement Date or (ii) the close of the
first period of five consecutive
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One-Year Breaks in Service. Such Participant's Years of Service before and
after the Break in Service shall be taken into account in determining the
Participant's vested nonforfeitable right to the value of his Matching
Contribution Account.
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ARTICLE VII
WITHDRAWALS AND LOANS DURING EMPLOYMENT
7.1 General Rules Applicable to all In-Service Withdrawals
The only in-service withdrawals permitted by the Plan are those described
in this Article VII.
Each in-service withdrawal request must be filed in accordance with
applicable administrative procedures. Each withdrawal shall be determined
as of the Valuation Date as soon as practicable after the withdrawal
request is approved and shall be drawn, to the extent available, pro rata
from the Investment Funds in which the Account is invested or in which the
Accounts are invested if the withdrawal is taken from multiple Accounts.
Only a Participant who has not incurred a Severance from Employment may
request an in-service withdrawal.
7.2 Rollover Contribution Account and After-Tax Contribution Account
Withdrawals
A Participant may, in accordance with applicable administrative
procedures, request a withdrawal of all or any portion of his Rollover
Contribution Account and/or his After-Tax Contribution Account at any
time. The Participant may make only two withdrawals from his After-Tax
Contribution Account and two withdrawals from his Rollover Contribution
Account in any Plan Year.
7.3 Age 59 1/2 Withdrawals
A Participant who has attained age 59 1/2 may, in accordance with
applicable administrative procedures, request a withdrawal of all or any
portion of his
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vested Account each quarter. A withdrawal pursuant to this Section 7.3
shall not affect the Participant's continued participation in the Plan.
7.4 Hardship Withdrawals
(a) A Participant who has suffered a Hardship may request a withdrawal of all
or any portion of the value of his Before-Tax Contribution Account
(excluding all earnings comprising part of such Account that were credited
after 1988), his Catch-Up Contribution Account and his vested Matching
Contribution Account. For purposes of this Section 7.4, Hardship means an
immediate and heavy financial need, as determined by the Administrator on
a uniform and nondiscriminatory basis, that arises on account of (a)
expenses for (or necessary to obtain) medical care that would be
deductible under Section 213(d) of the Code (determined without regard to
whether the expenses exceed 7.5% of adjusted gross income), (b) the
purchase (excluding mortgage payments) of a principal residence for the
Participant, (c) tuition expenses for the next twelve (12) month period of
post-secondary education for the Participant, his Spouse, or any
dependents of the Participant (as defined in Section 152 of the Code but
without regard to Section 152(d)(1)(B) of the Code)), (d) the need to
prevent the eviction of the Participant from his principal residence or
foreclosure on the mortgage of the Participant's principal residence, (e)
any other immediate and heavy financial need that the Administrator, in
its sole discretion, determines qualifies as a Hardship, and effective for
Hardships incurred on or after January 1, 2006, (f) burial or funeral
expenses for the Participant's deceased parent, spouse, children or
dependents (as defined in Section 152 of the Code but without regard to
Section 152(d)(1)(B) of the Code), or (g) the repair of damage to the
Participant's principal residence that would qualify for the casualty
deduction under Section 165 of the Code (determined without regard to
whether the loss exceeds 10% of adjusted gross income). A Participant may
make two Hardship withdrawals in each calendar year.
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(b) Before requesting a withdrawal pursuant to this Section 7.4, a Participant
must first obtain all distributions, other than hardship distributions,
and all nontaxable loans currently available to him under all qualified
plans maintained by the Employer.
(c) The amount of any Hardship withdrawal shall not exceed the amount required
to meet the immediate and heavy financial need created by the hardship,
including the amount necessary to pay any income taxes and related
penalties resulting from the distribution. The determination of the
existence of the financial need and the amount necessary to meet that need
shall be made by the Administrator in accordance with objective standards
on a uniform and nondiscriminatory basis.
(d) A Participant who obtains a Hardship withdrawal pursuant to this Section
7.4 shall be prohibited from making Before-Tax, After-Tax and Catch-Up
Contributions to the Plan and to all other plans maintained by the
Employer for six (6) months from the date of the withdrawal.
(e) Any Hardship withdrawal made pursuant to this Section 7.4 shall be taken
to the extent available, prorata from the Investment Funds in which the
following are invested in this order: vested Matching Contribution
Account, Before-Tax Contribution Account and Catch-up Contribution
Account. All Hardship withdrawal payments shall be made in a lump sum in
cash as soon as practicable after the Administrator makes its
determination.
7.5 Loans to Participants
(a) Loans
The Administrator or its delegate may, in accordance with a uniform and
nondiscriminatory policy, direct the Trustee to loan a Participant amounts
from
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the vested portion of his Accounts. All loans shall be in accordance with
the terms, conditions, requirements and limitations specified in this
Section 7.5 and any separate written document adopted by the Administrator
and forming part of the Plan. It is intended that all loans made to
Participants under this Section 7.5 shall meet the requirements of Section
72(p) of the Code.
(b) Loan Administration
The loan provision of the Plan shall be administered on a uniform and
nondiscriminatory basis in accordance with terms and conditions
established by the Administrator. The Administrator is authorized to
delegate to the Trustee the authority to review loan requests, execute
loan agreements and collect loan payments.
In administering the loan provisions of this Section 7.5, the
Administrator or its delegate shall:
(1) adopt such rules and regulations as it deems necessary for the
proper and efficient administration of loans, including, but not
limited to, appropriate adjustments in the accounting provisions of
the Plan as it deems necessary and advisable to facilitate and
account for loans;
(2) establish standards that shall be used to determine if a loan
request should be approved;
(3) determine how the interest rate to be charged on outstanding loans
is to be calculated and when the rate to be charged for new loans is
to be changed;
(4) determine, from time to time, the minimum loan amount;
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(5) employ agents, attorneys, accountants, and other persons to
administer the loan provision and to collect outstanding loans; and
(6) take all other actions necessary or advisable to carry out the
provisions of this Section 7.5.
(c) Loan Eligibility
Any Participant who is either (1) an Employee paid on the payroll system
of the Employer or (2) a former Employee who is a party in interest as
defined in Section 3(14) of ERISA with respect to the Plan may request a
loan subject to the terms, conditions and limitations prescribed in this
Section 7.5.
(d) Loan Request
Each loan request must be made in accordance with procedures prescribed by
the Administrator.
(e) Term of Loan and Payment
Each loan shall be evidenced by a legally enforceable agreement in a form
approved by the Administrator and shall provide for payment of principal
and interest based on substantially level amortization payments. All loans
shall be subject to a specific repayment schedule with payments to be made
not less frequently than quarterly over the term of the loan. The period
of repayment for any home loan within the meaning of Section
72(p)(2)(B)(ii) shall not exceed one hundred and twenty (120) months. The
period of repayment for all other loans shall in no event exceed sixty
(60) months.
A loan to a Participant shall be secured by the Participant's Account.
Except in the case of Participants described in Section 7.5(c)(2), loan
payments shall
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be required to be made through payroll deductions, and each Participant
shall be required to execute an irrevocable authorization directing the
Employer to deduct the loan payments from the Participant's wages or
salary, which amounts shall be transmitted to the Trustee and applied
against the outstanding loan balance. Participants may prepay the entire
amount of the remaining unpaid principal balance (and all remaining
interest due thereon) at any time without penalty. Loan payments in the
case of Participants described in Section 7.5(c)(2) shall be made in a
manner approved by the Administrator.
(f) Maximum Loan
Loans to a Participant (when added to the outstanding balance of all other
loans from the Plan and any other qualified plan maintained by the
Employer) shall not be in an amount that exceeds the lesser of:
(1) $50,000, reduced by the excess (if any) of the highest outstanding
balance of loans from the Plan during the one (1) year period ending
on the day before the date on which such loan is made, over the
outstanding balance of other loans from the Plan on the date the new
loan is made, or
(2) fifty percent (50%) of the vested portion of the Participant's
Account reduced by the then outstanding balance of any other loans
that the Participant received from the Plan.
(g) Interest
Each loan shall bear interest at a rate to be fixed by the Administrator
and, in determining the interest rate, the Administrator shall take into
consideration interest rates currently being charged by commercial lending
institutions.
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Interest rates shall be fixed for the terms of the loan at the time the
loan is made, and the Administrator shall determine periodically the
interest rate to be charged on new loans.
(h) Failure to Repay Loans
The Administrator shall establish uniform rules to apply where a
Participant fails to repay any portion of a loan made to him and accrued
interest thereon in accordance with the terms of the loan, or where any
portion of a loan and accrued interest thereon remains unpaid on a
Participant's Severance from Employment. Such rules shall not be
inconsistent with Section 72(p) of the Code and Regulations thereunder.
Loan repayments with respect to qualified military service will be
suspended as permitted under Section 414(u)(4) of the Code.
Notwithstanding the foregoing provisions of this Section 7.5(h), if a
Participant loan remains unpaid at the time that a distribution is due the
Participant (or his Beneficiary) under the Plan, the Administrator shall
reduce the amount otherwise distributable to the Participant or
Beneficiary by the unpaid balance of principal and accrued interest on the
Participant's loan and distribute (in kind) the promissory note or other
agreement evidencing such loan in full or partial satisfaction of the
obligation to distribute the Participant's vested Account.
The requirement that loan repayments be made on an amortized basis, not
less frequently than quarterly, may be suspended for up to one year while
a Participant is on a leave of absence approved by the Employer, either
without pay or at a rate of pay (after income and employment tax
withholding) that is less than the amount of the installment payments
required under the terms of the Participant loan. A suspension of
regularly scheduled loan payments shall not in any event extend the due
date of the
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Participant loan beyond the due date in effect immediately prior to the
leave of absence (or an accelerated due date in the case of the
Participant's termination of employment) and the installments due after
the leave of absence ends (or, if earlier, after the first year of the
leave of absence) must not be less than the installments required under
the terms of the original loan.
A default in repayment of a Participant loan shall occur when a
Participant fails to make any payment when due under the terms of a
Participant loan. Notwithstanding the above, the Administrator may
establish a grace period, during which Participants may make past due
payments without incurring a default. If a grace period is established, it
shall in no event continue beyond the last day of the calendar quarter
following the calendar quarter in which the required payment was initially
due from the Participant. Such grace period, if any, shall be applied in a
uniform and nondiscriminatory manner, taking into account commercially
reasonable factors concerning whether (or to what extent) a grace period
should be allowed based on all of the facts and circumstances of the
particular case.
Upon the occurrence of a default, as described above, there shall be a
deemed distribution to the Participant equal to the entire outstanding
balance of the Participant loan at the time of such default.
(i) Directed Investment
Any loan to a Participant under this Section 7.5 shall be made pro rata
from the Investment Funds in which the Participant's individual Account is
invested, shall be charged against said Account and shall be treated as a
segregated investment of the Participant's Account. Any loan to a
Participant who is subject to Rule 16b-3 of the Securities and Exchange
Commission or who is designated by the Employer as a window group person
shall be made pro-rata from the Investment Funds in which the
Participant's individual Account is
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invested other than the Ingram Micro Stock Fund. Any principal and
interest paid on the loan shall be paid in accordance with the
Participant's investment elections in effect at the time of the loan
repayment. Loan repayments shall be applied first to satisfy accrued loan
interest and the remainder shall be applied to principal. If and to the
extent required by the Sarbanes-Oxley Act or other applicable law, loans
shall not be made to officers of the Employer or other prohibited
classifications of Participants.
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ARTICLE VIII
DISTRIBUTIONS UPON SEVERANCE FROM EMPLOYMENT
8.1 Eligibility for Distribution
A Participant's vested Account balance shall become payable upon Severance
from Employment for any reason including death or Disability.
8.2 Forms of Payment
Benefits shall be payable in a single lump sum payment. The Participant or
Beneficiary may elect to receive distributions from the Ingram Micro Stock
Fund in cash or in kind. Fractional shares must be settled in cash.
8.3 Timing of Payment
Benefits that become payable in accordance with Section 8.1 shall be
distributed as soon as administratively feasible after the Participant or
the Beneficiary, as the case may be, elects, in accordance with procedures
established by the Administrator, to receive a distribution. If the vested
value of the Participant's Account is more than $5,000 at the time
benefits become distributable in accordance with Section 8.1, the
Participant must consent to the distribution. Such consent must be
obtained within the ninety (90) day period ending on the date the
Participant elects to receive a distribution. If the vested value of the
Participant's Account is $5,000 or less at the time benefits become
distributable in accordance with Section 8.1, the Participant or
Beneficiary, as the case may be, shall be required to receive a
distribution as soon as administratively practicable of the balance
payable in a single lump sum payment. Effective for benefits that become
payable on or after March 28, 2005, if the vested value of the
Participant's Account is $5,000 or
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less but greater than $1,000 at the time benefits become distributable in
accordance with Section 8.1 and the Participant does not elect to have
such distribution paid in the manner described in Section 8.2 or 8.7, the
Employer will pay the distribution in a direct rollover to an individual
retirement plan designated by the Employer. The vested value of the
Participant's Account for this purpose shall be determined with regard to
that portion of the Account that is attributable to Rollover Contributions
(and earnings allocable thereto) within the meaning of Sections 402(c),
403(a)(4), 403(b)(8), and 457(e)(16) of the Code.
8.4 Minimum Distribution Requirements
The requirements of this Section 8.4 shall take precedence over any
inconsistent provisions of the Plan. All distributions required under this
Section 8.4 shall be determined and made in accordance with the
Regulations under Section 401(a)(9) of the Code.
(a) Time and Manner of Distribution
(1) The Participant's entire interest will be distributed, or begin to
be distributed, to the Participant no later than the Participant's
'Required Beginning Date'. The Required Beginning Date, for purposes
of this Section 8.4, means April 1st of the calendar year following
the later of (i) the calendar year in which the Participant attains
age 70 1/2, or (ii) the calendar year in which the Participant
retires. A Participant who is a five percent (5%) owner as defined
in Section 416 of the Code with respect to the Plan Year ending in
the calendar year in which the Participant attains age 70 1/2 shall
have his Required Beginning Date determined pursuant to (i) above.
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(2) If the Participant dies before distributions begin, the
Participant's entire interest will be distributed in a single lump
sum payment no later than December 31st of the calendar year
containing the fifth anniversary of the Participant's death.
(b) Required Minimum Distributions During Participant's Lifetime
(1) During the Participant's lifetime, the minimum amount that will be
distributed for each distribution calendar year is the lesser of:
(i) the quotient obtained by dividing the Participant's account
balance (as defined below in Section 8.4(d)(3)) by the
distribution period in the Uniform Lifetime Table set forth in
Section 1.401(a)(9)-9 of the Regulations, using the
Participant's age as of the Participant's birthday in the
distribution calendar year; or
(ii) if the Participant's sole designated beneficiary for the
distribution calendar year is the Participant's Spouse, the
quotient obtained by dividing the Participant's account
balance by the number in the Joint and Last Survivor Table set
forth in Section 1.401(a)(9)-9 of the Regulations, using the
Participant's and Spouse's attained ages as of the
Participant's and Spouse's birthdays in the distribution
calendar year.
(2) Required minimum distributions will be determined under this Section
8.4(b) beginning with the first distribution calendar year and up to
and including the distribution calendar year that includes the
Participant's date of death.
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(c) Required Minimum Distributions After Participant's Death
(1) If the Participant dies on or after the date distributions begin,
the Participant's entire remaining interest will be distributed in a
single lump sum payment no later than December 31st of the calendar
year immediately following the calendar year in which the
Participant died.
(2) If the Participant dies before the date distributions begin, the
Participant's entire interest will be distributed in a single lump
sum payment no later than December 31st of the calendar year
containing the fifth anniversary of the Participant's death.
(d) Definitions
The following definitions apply for purposes of this Section 8.4:
(1) Designated Beneficiary: The individual who is designated as the
beneficiary under Section 2.2(b) of the Plan and is the designated
beneficiary under Section 401(a)(9) of the Code and Section 1.401
(a)(9)-1, Q&A-4, of the Regulations.
(2) Distribution Calendar Year: A calendar year for which a minimum
distribution is required. For distributions beginning before the
Participant's death, the first distribution calendar year is the
calendar year immediately preceding the calendar year which contains
the Participant's Required Beginning Date. For distributions
beginning after the Participant's death, the first distribution
calendar year is the calendar year in which distributions are
required to begin under Section 8.4(a)(2). The required minimum
distribution for the Participant's first distribution calendar year
will be made on or before
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the Participant's Required Beginning Date. The required minimum
distribution for other distribution calendar years, including the
required minimum distribution for the distribution calendar year in
which the Participant's Required Beginning Date occurs, will be made
on or before December 31st of that distribution calendar year.
(3) Participant's account balance: The account balance as of the last
valuation date in the calendar year immediately preceding the
distribution calendar year (valuation calendar year) increased by
the amount of any contributions made and allocated or forfeitures
allocated to the account balance as of dates in the valuation
calendar year after the valuation date and decreased by
distributions made in the valuation calendar year after the
valuation date. The account balance for the valuation calendar year
includes any amounts rolled over or transferred to the plan either
in the valuation calendar year or in the distribution calendar year
if distributed or transferred in the valuation calendar year.
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8.5 Special Timing Rules
Unless a Participant elects otherwise, his vested Account shall be
distributed to him no later than sixty (60) days after the close of the
Plan Year in which occurs the latest of his Normal Retirement Age (or age
65, if earlier), the tenth (10th) anniversary of the year in which he
commenced participation in the Plan or the date of his Severance from
Employment. A Participant must, however, file a claim for benefits before
benefits will be distributed to him in accordance with this Section 8.5.
The failure of a Participant to consent to a distribution while his
benefit is immediately distributable within the meaning of Section 411
(a)(11) of the Code shall be deemed to be an election to defer
commencement of payment of any benefit sufficient to satisfy this Section
8.5.
8.6 Proof of Death
The Administrator may require and rely upon such proof of death and such
evidence of the right of any Beneficiary or other person to receive the
value of the Accounts of a deceased Participant as the Administrator may
deem proper, and its determination of death and of the right of that
Beneficiary or other person to receive payment shall be conclusive.
8.7 Direct Rollovers
(a) In General
Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a Distributee's election under this Section 8.7, a
Distributee may elect, at the time and in the manner prescribed by the
Administrator, to have any
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portion of an Eligible Rollover Distribution paid directly to an Eligible
Retirement Plan specified by the Distributee in a Direct Rollover.
(b) Eligible Rollover Distribution
An Eligible Rollover Distribution is any distribution of all or any
portion of the balance to the credit of the Distributee, except that an
Eligible Rollover Distribution does not include: any distribution that is
one of a series of substantially equal periodic payments (no less
frequently than annually) made for the life (or life expectancy) of the
Distributee or the joint lives (or joint life expectancies) of the
Distributee and the Distributee's designated beneficiary, or for a
specified period of ten (10) years or more; any distribution to the extent
such distribution is required under Section 401(a)(9) of the Code; except
as otherwise provided below, the portion of any distribution that is not
includible in gross income; and, any hardship distribution described in
Section 401 (k)(2)(B)(i)(IV). A portion of a distribution shall not fail
to be an Eligible Rollover Distribution merely because the portion
consists of after-tax employee contributions which are not includible in
gross income. However, such portion may be transferred only to an
individual retirement account or annuity described in Section 401 (a) or
(b) of the Code, or to a defined contribution plan described in Section
401 (a) or 403(a) of the Code that agrees to separately account for
amounts so transferred, including separately accounting for the portion of
such distribution which is includible in gross income and the portion of
such distribution which is not includible.
(c) Eligible Retirement Plan
An Eligible Retirement Plan is an individual retirement account described
in Section 408(a) of the Code, an individual retirement annuity described
in Section 408(b) of the Code, an annuity plan described in Section 403(a)
of the
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Code, an annuity contract described in Section 403(b) of the Code, an
eligible plan under Section 457(b) which is maintained by a state,
political subdivision of a state, or any agency or instrumentality of a
state and which agrees to separately account for amounts transferred into
such plan for the Plan or a qualified trust described in Section 401 (a)
of the Code, that accepts the Distributee's Eligible Rollover
Distribution.
(d) Distributee
A Distributee includes an Employee or former Employee. In addition, the
Employee's or former Employee's surviving Spouse and the Employee's or
former Employee's Spouse or former Spouse who is the alternate payee under
a qualified domestic relations order, as defined in Section 414(p) of the
Code, are Distributees with regard to the interest of the Spouse or former
Spouse.
(e) Direct Rollover
A Direct Rollover is a payment by the Plan to the Eligible Retirement Plan
specified by the Distributee.
(f) Waiver of Thirty (30) Day Notice
If a distribution is not subject to Sections 401(a)(11) and 417 of the
Code, the distribution may be made less than thirty (30) days after the
notice required by Reg. Sec. 1.411(a)-11(c) is given provided:
(1) the Administrator clearly informs the Participant that the
Participant has the right to a period of at least thirty (30) days
after receiving the notice to consider the decision whether or not
to elect a distribution (and, if
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applicable, a particular distribution option); and
(2) the Participant, after receiving the notice, affirmatively, elects
to receive a distribution.
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ARTICLE IX
TOP HEAVY PROVISIONS
9.1 When Applicable
If the Plan is determined to be "Top Heavy" for any Plan Year, the
provisions of this Article shall supersede any conflicting provisions of
the Plan.
9.2 Top Heavy Determination
(a) The Plan shall be Top Heavy with respect to any Plan Year in which, as of
the "Determination Date", the ratio of the present value of accrued
benefits under all defined benefit plans in the "Aggregation Group" for
"Key Employees" plus all Account balances attributable to Employer and
Employee contributions (except as otherwise noted below) under the Plan
and all other defined contribution plans in the Aggregation Group, exceeds
sixty percent (60%) of such present value of accrued benefits and such
Account balances for all Key Employees and Non-Key Employees under all
plans in the Aggregation Group. The present values of accrued benefits and
the amounts of account balances of an Employee as of the determination
date shall be increased by the distributions made with respect to the
Employee under the Plan and any plan aggregated with the Plan under
Section 416(g)(2) of the Code during the one (1) year period ending on the
determination date. The preceding sentence shall also apply to
distributions under a terminated plan which, had it not terminated, would
have been aggregated with the Plan under Section 416(g)(2)(A)(i) of the
Code. In the case of a distribution for a reason other than separation
from service, death or disability, this provision shall be applied by
substituting a five (5) year period for the one (1) year period. The
accrued benefits and accounts of any individual who has not performed
services for the Employer during the one (1) year period ending on the
determination date
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shall not be taken into account. The accrued benefits and account balances
of any individual who is not a Key Employee but who was a Key Employee in
a prior year will be disregarded. In any event, the calculation of the Top
Heavy ratio and the extent to which distributions, tax deductible
qualified employee contributions, rollovers and transfers are taken into
account shall be in accordance with Section 416 of the Code and the
Regulations thereunder. When aggregating plans, accrued benefits and
account balances under other plans will be calculated as of determination
dates that are within the same calendar year.
(b) In determining the cumulative accrued benefits under a defined benefit
plan for purposes of this Section 9.2, the actuarial assumptions specified
by the defined benefit plan for this purpose shall be utilized. If
differing actuarial assumptions are specified for two or more defined
benefit plans, the actuarial assumptions for the defined benefit plan
including the largest number of employees in the first year any defined
benefit plan is included within the Aggregation Group shall be utilized.
Solely for the purpose of determining if the Plan or any other plan in a
required aggregation group of which the Plan is a part is a Top Heavy
Plan, the accrued benefit of an Employee other than a Key Employee shall
be determined (1) under the method, if any, that uniformly applies for
accrual purposes under all plans maintained by the Employer, or (2) if
there is no such method, as if such benefit accrued not more rapidly than
the slowest accrual rate permitted under the fractional accrual rate of
Section 411(b)(1)(C) of the Code.
(c) The term Top Heavy shall not include a plan which consists solely of (1) a
cash or deferred arrangement which meets the requirements of Section
401(k)(12) and (2) matching contributions with respect to which the
requirements of Section 401(m)(11) are met. If, but for the foregoing, a
plan would be treated as a Top Heavy plan because it is a member of an
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aggregation group which is a Top Heavy group, contributions under the plan
may be taken into account in determining whether any other plan in the
group meets the requirements of Section 416(c)(2) of the Code.
9.3 Minimum Contribution
For each year that the Plan is Top Heavy the Employer shall contribute to
the Plan and allocate to the Matching Contribution Account of each
Participant who is a Non-Key Employee (including such an individual who is
eligible to participate but has not elected to do so in accordance with
Article II) an amount that is not less in total than the lesser of three
percent (3%) of the Non-Key Employee's Compensation for the Plan Year or
the greatest amount (expressed as a percentage of Compensation) allocated
to the Account of any Key Employee for that year. Compensation for
purposes of this Article IX shall mean compensation within the meaning of
Section 415(c)(3) of the Code as defined in Section 3.11. This minimum
allocation shall be made even though, under other Plan provisions, the
Eligible Employee would not otherwise be entitled to receive an allocation
or would have received a lesser allocation for the year because of (a) his
failure to be employed on a specified date such as the last day of the
Plan Year, (b) his failure to make mandatory contributions, if any, to the
Plan, or (c) his Compensation being less than a stated amount. This
requirement shall not apply to the extent the Participant is covered under
any other plan or plans of the Employer and such Employer has provided
that the minimum benefit or minimum allocation requirements applicable to
Top Heavy Plans will be satisfied in the other plan or plans.
Matching Contributions described in Article III shall be taken into
account for purposes of satisfying the minimum allocation requirements of
Section 416(c)(2) of the Code and the Plan. Matching Contributions that
are used to satisfy the minimum allocation requirements shall be treated
as Matching
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Contributions of purposes of the actual contribution percentage test and
other requirements of Section 401(m) of the Code.
9.4 Vesting Rules
For any Plan Year in which the Plan is Top-Heavy, the vesting provisions
of Article VI will continue to apply.
9.5 Dual Plan Special Limitations
If a Key Employee participates in both the Plan and a defined benefit plan
maintained by the Employer, then for all years that the Plan and the
defined benefit plan are Top Heavy and the Top Heavy ratio referred to in
Section 9.6(b) does not exceed ninety percent (90%), the minimum benefit
described in Section 416(h)(2)(A) of the Code shall be provided under the
defined benefit plan for each Non-Key Employee.
9.6 Aggregation Groups
(a) A Required Aggregation Group is defined as (1) each qualified plan of the
Employer in which at least one Key Employee participates or participated
during the Determination Period (regardless of whether the plan has
terminated) and (2) any other qualified plan of the Employer which enables
a plan described in (1)to meet the requirements of Section 401(a)(4) or
410(b) of the Code. The Determination Period, for this purpose, is the
Plan Year containing the Determination Date or any of the four preceding
Plan Years. A Permissive Aggregation Group is defined as a Required
Aggregation Group plus any other plan or plans of the Employer which, when
considered as a group with the Required Aggregation Group, would continue
to satisfy the requirements of Section 401(a)(4) and 410(b) of the Code.
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(b) Each plan of the Employer required to be included in an Aggregation Group
shall be treated as a Top Heavy Plan if such group is a Top Heavy group. A
required aggregation will be considered a Top Heavy group if the present
value of the cumulative accrued benefits for Key Employees under all
defined benefit plans included in such group and the aggregate of the
accounts of Key Employees under all defined contribution plans included in
such group exceed sixty percent (60%) of a similar sum determined for all
Employees.
9.7 Key Employee Defined
(a) A Key Employee means any Employee or former Employee (including any
deceased Employee) who at any time during the Plan Year that includes the
determination date was an officer of the Employer having annual
Compensation greater than $130,000 (as adjusted under Section 416(i)(1) of
the Code for Plan Years beginning after December 31, 2002), a five percent
(5%) owner of the Employer, or a one percent (1%) owner of the Employer
having annual compensation of more than $150,000. For this purpose, annual
Compensation means compensation within the meaning of Section 415(c)(3) of
the Code. The determination of who is a Key Employee will be made in
accordance with Section 416(i)(1) of the Code and the applicable
Regulations of general applicability issued thereunder.
(b) A Non-Key Employee is an Employee who is not a Key Employee.
9.8 Determination Date
Determination Date means with respect to the initial Plan Year, the last
day of the first Plan Year and, for each other Plan Year, the last day of
the preceding Plan Year.
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ARTICLE X
ADMINISTRATION OF PLAN
10.1 Records and Notices
The Administrator shall keep a record of all its proceedings and acts with
respect to its administration of the Plan and shall maintain all such
books of accounts, records and other data as may be necessary for the
proper administration of the Plan. The Administrator shall have the
discretionary authority to interpret the provisions of the Plan and Trust
Agreement. The Administrator shall notify the Trustees of any action taken
by the Administrator affecting the Trustees and its obligations or rights
regarding the Plan and, when required, shall notify any other interested
person or persons.
10.2 Powers and Duties
The Administrator has the following powers and duties:
(a) To determine the rights of eligibility of an Employee to participate in
the Plan, the value of a Participant's Account and the nonforfeitable
percentage of each Participant's Account;
(b) To adopt rules of procedure and regulations necessary for the proper and
efficient administration of the Plan provided the rules are not
inconsistent with the terms of the Plan;
(c) To construe and enforce the terms of the Plan and the rules and
regulations it adopts, including interpretation of the Plan documents and
documents related to the Plan's operation;
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(d) To direct the Trustee as respects the crediting and distribution of the
Trust Fund;
(e) To review and render decisions respecting a claim for (or denial of a
claim for) a benefit under the Plan;
(f) To furnish the Employer with information which the Employer may require
for tax or other purposes;
(g) To engage the service of agents whom it may deem advisable to assist it
with the performance of its duties;
(h) To engage the services of an Investment Manager or Managers, as defined in
Section 11.3, each of whom will have power and authority to manage,
acquire or dispose (or direct the Trustee with respect to acquisition or
disposition) of any Plan asset under its control;
(i) To establish, in its sole discretion, a nondiscriminatory policy which the
Trustee must observe in making loans, if any, to Participants and
Beneficiaries; and
(j) To delegate administrative authority to a committee of individuals and to
establish rules of procedure for such committee, including rules regarding
how such committee is to act, the vote required for action by the
committee and other procedures for the operation of the committee as
deemed appropriate by the Administrator.
All rules, procedures and decisions of the Administrator shall be
uniformly and consistently applied to all Participants in similar
circumstances. Such rules, procedures and decisions so made shall be
conclusive and binding on all
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persons having an interest in the Plan. The Administrator shall be a named
fiduciary as defined in ERISA Sec. 402(a)(2).
The Administrator and any representative that the Administrator chooses to
assist it to carry out its responsibilities under the Plan shall have the
maximum discretionary authority permitted by the law to interpret,
construe and administer the Plan, to make determinations regarding Plan
participation, enrollment and eligibility for benefits, to evaluate and
determine the validity of benefit claims, and to resolve any and all
claims and disputes regarding the rights and entitlements of individuals
to participate in the Plan and to receive benefits and payments pursuant
to the Plan. The decisions of the Administrator and its representatives
shall be given the maximum deference permitted by law.
10.3 Compensation and Expenses
The Administrator shall serve without compensation for its services
hereunder. All expenses of the Administrator may be paid by the Trust Fund
unless paid by the Employer. The Employer shall furnish the Administrator
with such clerical and other assistance as is necessary in the performance
of its duties and any expense incurred in connection therewith may be paid
by the Employer or out of the Trust Fund. The reasonable expenses of
administering the Plan may be advanced by the Employer, and then
reimbursed to the Employer by the Trust.
10.4 Bonding of Fiduciaries
The Administrator shall be responsible for seeing that every fiduciary of
the Plan and Trust and every person who handles Trust assets shall be
covered by a fidelity bond or similar policy of insurance to the extent
required by
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Section 412 of ERISA. The cost of such coverage shall be paid by the
Trustee out of Trust assets, upon direction of the Administrator, if the
cost thereof shall not be timely paid by the Employer.
10.5 Standard of Conduct
The Administrator and any other person to whom any fiduciary
responsibility with respect to the Plan or Trust is allocated or delegated
shall discharge his duties and responsibilities with respect to the Plan
or Trust in accordance with the standards set forth in Section 404(a)(1)
of ERISA, which provides, subject to the Sections 403(c) and (d), 4042,
and 4044 of ERISA, that a fiduciary shall discharge his duties with
respect to a plan solely in the interest of the participants and
beneficiaries and
(a) For the exclusive purpose of
(i) providing benefits to participants and their beneficiaries;
and
(ii) defraying reasonable expenses of administering the plan;
(b) With the care, skill, prudence and diligence under the circumstances
then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise
of a like character and with like aims;
(c) By diversifying the investments of the plan so as to minimize the
risk of large losses, unless under the circumstances it is clearly
prudent not to do so; and
(d) In accordance with the documents and instruments governing the plan
insofar as such documents and instruments are consistent with the
provisions of this title.
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10.6 Claims Procedure
(a) Definitions
For purposes of this Section 10.6, the following words or phrases in
quotes when capitalized will have the meaning set forth below:
(1) "Adverse Benefit Determination" means a denial, reduction or the
termination of, or a failure to provide or make payment (in whole or
in part) with respect to a Claim for a benefit, including any such
denial, reduction, termination, or failure to provide or make
payment that is based on a determination of a Participant's or
Beneficiary's eligibility to participate in the Plan.
(2) "Claim" means a request for a benefit or eligibility to participate
in the Plan, made by a Claimant in accordance with the Plan's
procedures for filing Claims, as described in this Section 10.6.
(3) "Claimant" is defined in Section 10.6(b)(2).
(4) "Claims Administrator" means the party designated by the
Administrator to review Claims.
(5) "Notice" or "Notification" means the delivery or furnishing of
information to an individual in a manner that satisfies applicable
Department of Labor regulations with respect to material required to
be furnished or made available to an individual.
(6) "Relevant Documents" include documents, records or other information
with respect to a Claim that:
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(i) were relied upon by the Claims Administrator in making the
benefit determination;
(ii) were submitted to, considered by or generated for, the Claims
Administrator in the course of making the benefit
determination, without regard to whether such documents,
records or other information were relied upon by the Claims
Administrator in making the benefit determination;
(iii) demonstrate compliance with administrative processes and
safeguards required in making the benefit determination; or
(iv) constitute a statement of policy or guidance with respect to
the Plan concerning the denied benefit for the Participant's
circumstances, without regard to whether such advice was
relied upon by the Claims Administrator in making the benefit
determination.
(b) Procedure for Filing a Claim
In order for a communication from a Claimant to constitute a valid Claim,
it must satisfy the following paragraphs (1) and (2) of this paragraph
(b).
(1) Any Claim submitted by a Claimant must be in writing on the
appropriate Claim form (or in such other manner acceptable to the
Claims Administrator) and delivered, along with any supporting
comments, documents, records and other information, to the Claims
Administrator in person, or by mail postage paid, to the address for
the Claims Administrator provided in the Summary
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Plan Description.
(2) Claims and appeals of denied Claims may be pursued by a Participant
or an authorized representative of the Participant (each of whom
will be referred to in this section as a "Claimant"). However, the
Claims Administrator may establish reasonable procedures for
determining whether an individual has been authorized to act on
behalf of a Participant.
(c) Initial Claim Review
The initial Claim review will be conducted by the Claims Administrator,
with or without the presence of the Claimant, as determined by the Claims
Administrator in its discretion. The Claims Administrator will consider
the applicable terms and provisions of the Plan and amendments to the
Plan, information and evidence that is presented by the Claimant and any
other information it deems relevant. In reviewing the Claim, the Claims
Administrator will also consider and be consistent with prior
determinations of Claims from other Claimants who were similarly situated
and which have been processed through the Plan's claims and appeals
procedures within the past twenty-four (24) months.
(d) Initial Benefit Determination
(1) The Claims Administrator will notify the Claimant of the Claim
Administrator's determination within a reasonable period of time,
but in any event (except as described in paragraph (2) below) within
ninety (90) days after receipt of the Claim by the Claims
Administrator.
(2) The Claims Administrator may extend the period for making the
benefit determination by ninety (90) days if it determines that such
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an extension is necessary due to matters beyond the control of the
Plan and if it notifies the Claimant, prior to the expiration of the
initial ninety (90) day period, of circumstances requiring the
extension of time and the date by which the Claims Administrator
expects to render a decision.
(e) Manner and Content of Notification of Adverse Benefit Determination
(1) The Claims Administrator will provide a Claimant with written or
electronic Notice of any Adverse Benefit Determination, in
accordance with applicable Department of Labor regulations.
(2) The Notification will set forth in a manner calculated to be
understood by the Claimant:
(i) The specific reason or reasons for the Adverse Benefit
Determination;
(ii) Reference to the specific provision(s) of the Plan on which
the determination is based;
(iii) Description of any additional material or information
necessary for the Claimant to perfect the Claim and an
explanation of why such material or information is necessary;
and
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(iv) A description of the Plan's review procedures and the time
limits applicable to such procedures, including a statement of
the Claimant's right to bring a civil action under Section
502(a) of ERISA following an Adverse Benefit Determination on
review.
(f) Procedure for Filing a Review of an Adverse Benefit Determination
(1) Any appeal of an Adverse Benefit Determination by a Claimant must be
brought to the Claims Administrator within sixty (60) days after
receipt of the Notice of the Adverse Benefit Determination. Failure
to appeal within such sixty (60) day period will be deemed to be a
failure to exhaust all administrative remedies under the Plan. The
appeal must be in writing utilizing the appropriate form provided by
the Claims Administrator (or in such other manner acceptable to the
Claims Administrator); provided, however, that if the Claims
Administrator does not provide the appropriate form, no particular
form is required to be utilized by the Participant. The appeal must
be filed with the Claims Administrator at the address listed in the
Summary Plan Description.
(2) A Claimant will have the opportunity to submit written comments,
documents, records and other information relating to the Claim.
(g) Review Procedures for Adverse Benefit Determinations
(1) The Claims Administrator will provide a review that takes into
account all comments, documents, records and other information
submitted by the Claimant without regard to whether such information
was submitted or considered in the initial benefit determination.
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(2) The review procedure may not require more than two levels of appeals
of an Adverse Benefit Determination.
(h) Timing and Notification of Benefit Determination on Review
The Claims Administrator will notify the Claimant within a reasonable
period of time, but in any event within sixty (60) days after the
Claimant's request for review, unless the Claims Administrator determines
that special circumstances require an extension of time for processing the
review of the Adverse Benefit Determination. If the Claims Administrator
determines that an extension is required, written Notice will be furnished
to the Claimant prior to the end of the initial sixty (60) day period
indicating the special circumstances requiring an extension of time and
the date by which the Claims Administrator expects to render the
determination on review, which in any event will be within sixty (60) days
from the end of the initial sixty (60) day period. If such an extension is
necessary due to a failure of the Claimant to submit the information
necessary to decide the Claim, the period in which the Claims
Administrator is required to make a decision will be tolled from the date
on which the notification is sent to the Claimant until the Claimant
adequately responds to the request for additional information.
(i) Manner and Content of Notification of Benefit Determination on Review
(1) The Claims Administrator will provide a written or electronic Notice
of the Plan's benefit determination on review, in accordance with
applicable Department of Labor regulations.
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(2) The Notification will set forth:
(i) The specific reason or reasons for the Adverse Benefit
Determination;
(ii) Reference to the specific provision(s) of the Plan on which
the determination is based;
(iii) A statement that the Claimant is entitled to receive, upon
request and free of charge, reasonable access to and copies of
all Relevant Documents; and
(iv) A statement of the Claimant's right to bring a civil action
under Section 502(a) of ERISA following an Adverse Benefit
Determination of review.
(j) Collectively Bargained Benefits
(1) Where benefits are provided pursuant to a collective bargaining
agreement and such collective bargaining agreement maintains or
incorporates by specific reference: (i) provisions concerning the
filing of a Claim for a benefit and the initial disposition of a
Claim; and (ii) a grievance and arbitration procedure to which
Adverse Benefit Determinations are subject, then Section 10.6(c)
through and including Section 10.6(i) will not apply to such Claim.
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(2) Where benefits are provided pursuant to a collective bargaining
agreement and such collective bargaining agreement maintains or
incorporates by specific reference a grievance and arbitration
procedure to which Adverse Benefit Determinations are subject, then
Sections 10.6(f) through and including Section 10.6(i) will not
apply to such Claim.
(k) Exhaustion of Administrative Remedies
The claims procedures set forth in this Section 10.6 shall be strictly
adhered to by each Participant or Beneficiary under the Plan and no
judicial or arbitration proceedings with respect to any claim for Plan
benefits hereunder shall be commenced by any such Participant or
Beneficiary until the proceedings set forth herein have been exhausted in
full.
(l) Statute of Limitations
No cause of action may be brought by a claimant who has received an
Adverse Benefit Determination later than two (2) years following the date
of such Adverse Benefit Determination.
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ARTICLE XI
MANAGEMENT OF FUNDS
11.1 Appointment of Trustees
Subject to the provisions of Section 11.4, the Company shall appoint one
or more Trustees to receive and hold in trust all contributions paid into
the Trust Fund. Such Trustee or Trustees shall serve at the pleasure of
the Board of Directors and shall have such rights, powers and duties as
the Board of Directors shall from time to time determine including but not
limited to those stated below.
11.2 Investment of Trust Fund by Trustees
All contributions made to the Trust Fund pursuant to the Plan shall be
paid to the Trustees and, except as herein otherwise provided, shall be
held, invested and reinvested by the Trustees without distinction between
principal and income in such securities or such other property, real or
personal, wherever situated, as the Trustees shall deem advisable,
including, but not limited to, shares of stock, common or preferred,
whether or not listed on any exchange, participations in mutual investment
funds, bonds and mortgages, and other evidences of indebtedness or
ownership, or in loans to Participants (consistent with other provisions
hereof), and participations in any common trust fund established or
maintained by the Trustees for the collective investment of fiduciary
funds and shall not be limited by any state statute or judicial decision
prescribing or limiting investments appropriate for trustees. The Trustees
shall hold and retain all the property and assets of the Trust Fund
including income from investments and from all other sources, for the
exclusive benefit of the Participants and their Beneficiaries, as provided
herein, and for paying the costs and expenses of administering the Plan or
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Trust Fund, to the extent that the same are not paid by any Employer.
Reasonable expenses attendant to qualified domestic relations order
determinations shall be allocated to the Account of the Participant or
Beneficiary seeking the determination.
11.3 Investment of Trust Fund by Investment Manager
The Company may enter into one or more agreements for the appointment of
one or more Investment Managers to supervise and direct all the investment
and reinvestment of a portion or all of the Trust Fund in accordance with
the provisions of the Plan in the same manner and with the same powers,
duties, obligations, responsibilities and limitations as apply to the
Trustees. As a condition to its appointment, an Investment Manager shall
acknowledge in writing that it is a fiduciary with respect to the Trust
Fund. An Investment Manager so appointed shall be an investment advisor
registered under the Investment Advisors Act of 1940, a bank as defined in
such Act or an insurance company that is qualified to manage the assets of
employee benefit plans pursuant to the laws of more than one state. The
Trustees shall be bound by the supervision and direction of the Investment
Manager, unless and until the Company amends or revokes the appointment or
authority of the Investment Manager.
The Company may furnish an Investment Manager with written investment
guidelines for investment of the Trust Fund assets, which guidelines may
include directions with respect to diversification of the investments. Any
Investment Manager shall receive such reasonable compensation chargeable
against the Trust Fund or payable by each Employer as shall be agreed upon
by the Company. The Company may revoke any agreement with the Investment
Manager at any time by thirty (30) days' written notice to the Investment
Manager. Any Investment Manager may resign by thirty (30) days' written
notice to the Company.
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11.4 Exclusive Benefit Rule
Except as otherwise provided in the Plan, no part of the corpus or income
of the assets of the Plan shall be used for, or diverted to, purposes
other than for the exclusive benefit of Participants and other persons
entitled to benefits under the Plan. No person shall have any interest in
or right to any part of the earnings of the assets of the Plan, or any
right in, or to, any part of the assets held under the Plan, except as and
to the extent expressly provided in the Plan.
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ARTICLE XII
AMENDMENT, MERGER, TERMINATION OF PLAN
12.1 Amendment of Plan
Subject to the provisions of Section 11.4, the Company (for the Company
and for all other Employers) shall have the right at any time to amend the
Plan, and retroactively if deemed necessary or appropriate, except that no
such amendment shall make it possible for any part of the assets of the
Plan to be used for, or diverted to, purposes other than for the exclusive
benefit of persons entitled to benefits under the Plan. No amendment shall
be made which has the effect of decreasing the balance of the Accounts of
any Participant or of reducing the nonforfeitable percentage computed
under the Plan as in effect on the date on which the amendment is adopted
or, if later, the date on which the amendment becomes effective.
If the Plan's vesting schedule is amended, or the Plan is amended in any
way that directly or indirectly affects the computation of the
Participant's nonforfeitable percentage or if the Plan is deemed amended
by an automatic change to or from a top-heavy vesting schedule, each
Participant with at least three Years of Service with the Employer may
elect, within a reasonable period after the adoption of the amendment or
change, to have the nonforfeitable percentage computed under the Plan
without regard to such amendment or change.
The Company reserves the right to amend the Plan, at any time and from
time to time, in whole or in part, including without limitation,
retroactive amendments necessary or advisable to qualify the Plan and the
Trust under the provisions of Section 401(a) of the Code by action of its
Board of Directors. Notwithstanding the above, the Plan may be amended to
comply
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with technical legal requirements of ERISA or the Code or for any other
reason that does not result in a material increase in cost to the Employer
by a written instrument that is executed by an officer of the Company or a
member or the Plan Committee.
Such amendments shall be as set forth in an instrument in writing executed
by an offer of the Company if adopted by the Company, or by a designated
member of the Plan committee if adopted by the Plan committee. Any
amendment may be current, retroactive or prospective, in each case as
provided therein.
12.2 Merger or Consolidation
The Plan may not be merged or consolidated with, and its assets or
liabilities may not be transferred to, any other plan unless each person
entitled to benefits under the Plan would, if the resulting plan were then
terminated, receive a benefit immediately after the merger, consolidation,
or transfer which is equal to or greater than the benefit he would have
been entitled to receive immediately before the merger, consolidation, or
transfer if the Plan had then terminated.
12.3 Additional Participating Employers
(a) If any company is or becomes a subsidiary of or associated with the
Company, the Company may include any employees of that subsidiary or
associated company in the participation of the Plan upon appropriate
action by that company necessary to adopt the Plan. In that event, or if
any persons become Employees of an Employer as the result of merger or
consolidation or acquisition of all or part of the assets or business of
another company or for purposes of a specific assignment at a specific
location, the Company shall
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determine to what extent, if any, previous service with the subsidiary,
associated or other company or at the specific location shall be
recognized under the Plan, but subject to the continued qualification and
tax-exempt status of the Plan and trust, respectively, under the Code.
(b) Any Employer may terminate its participation in and withdraw from the Plan
upon appropriate action by its board of directors. In that event, the
assets of the Plan held on account of Participants in the employ of that
Employer, and any unpaid balances of the Accounts of all Participants who
have separated from the employ of that Employer, shall be determined by
the Administrator. Those funds shall be distributed as provided in Section
12.4 if the Plan should be terminated with respect to the Employer, or
shall be segregated by the Trustee as a separate trust, pursuant to
certification to the Trustee by the Administrator, continuing the Plan as
a separate plan for the Employees of that Employer under which the board
of directors of that Employer shall succeed to all the powers and duties
of the Company, including the appointment of an administrator for such
separate plan.
12.4 Termination of Plan
(a) The Board of Directors may terminate the Plan or completely discontinue
contributions under the Plan for any reason at any time. In the case of
the termination or partial termination of the Plan, or of the complete
discontinuance of Employer contributions to the Plan, affected
Participants shall be one hundred percent (100%) vested in and have a
nonforfeitable right to the total amount in all of their Accounts under
the Plan as of the date of the termination or discontinuance. The total
amount in each Participant's Account shall be distributed, as the
Administrator shall direct, to him or for his benefit or continued in
trust for his benefit.
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(b) The Plan will be deemed terminated (1) if and when the Company is
judicially declared bankrupt or executes a general assignment to or for
the benefit of its creditors, (2) if and when the Company is a party to a
merger in which it is not the surviving organization unless the surviving
organization adopts the Plan within sixty (60) days after the merger, or
(3) upon dissolution of the Company.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
13.1 Limitation of Liability
Neither the Company, any Employer, the Administrator, nor any of their
respective directors, officers and employees, shall incur any liability
for any act or failure to act unless such act or failure to act
constitutes willful misconduct or gross negligence in relation to the Plan
or the Trust Fund.
13.2 Indemnification
The Employer indemnifies and saves harmless the Administrator from and
against any and all loss resulting from liability to which the
Administrator may be subjected by reason of any act or conduct (except
willful misconduct or gross negligence) in the Administrator's official
capacity in the administration of the Plan, the Trust Fund or both,
including all expenses reasonably incurred in the Administrator's defense,
in case the Employer fails to provide such defense. The indemnification
provisions of this Section 13.2 do not relieve the Administrator from any
liability under ERISA for breach of a fiduciary duty. Furthermore, the
Administrator and the Employer may execute a letter agreement further
delineating the indemnification agreement of this Section 13.2, provided
the letter agreement is consistent with and does not violate ERISA. The
indemnification provisions of this Section 13.2 extend to the Trustee
solely to the extent provided by a letter agreement executed by the
Trustee and the Employer.
The Plan may purchase insurance for its fiduciaries or for itself to cover
liability or losses occurring by reason of the act or omission of a
fiduciary, if such insurance permits recourse by the insurer against the
fiduciary in the
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case of a breach of a fiduciary obligation by such fiduciary. A fiduciary
may purchase insurance to cover liability under ERISA from and for his own
account. An Employer or an employee organization may purchase insurance to
cover potential liability of one or more persons who serve in a fiduciary
capacity with regard to the Plan.
13.3 Compliance with ERISA
Anything herein to the contrary notwithstanding, nothing above or any
other provision contained elsewhere in the Plan shall relieve a fiduciary
or other person of any responsibility or liability for any responsibility,
obligation or duty imposed upon him pursuant to Title I, Part 4 of ERISA.
Furthermore, anything in the Plan to the contrary notwithstanding, if any
provision of the Plan is voided by Sections 410 and 411 of ERISA, such
provision shall be of no force and effect only to the extent that it is
voided by such Section.
13.4 Nonalienation of Benefits
(a) None of the payments, benefits or rights of any Participant shall be
subject to any claim of any creditor of such Participant and, in
particular, shall be free from attachment, garnishment, trustee's process,
or any other legal or equitable process available to any creditor of such
Participant. No Participant shall have the right to alienate, commute,
pledge, encumber or assign any of the benefits or payments which he or she
may expect to receive, contingently or otherwise, under the Plan, except
the right to designate a Beneficiary or Beneficiaries as hereinbefore
provided.
(b) Section 13.4(a) also shall apply to the creation, assignment or
recognition of a right to any benefit payable with respect to a
Participant pursuant to a domestic relations order, unless such order is a
qualified domestic
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relations order as defined in Section 414(p) of the Code. Any fees
associated with the review, processing and administration of a qualified
domestic relations order shall be charged against the Account of the
affected Participant and the account of the affected Alternate Payee. The
Plan's qualified domestic relations order procedures are set forth in a
separate document, which in incorporated herein as if its terms were fully
set forth in this document.
(c) The Plan may offset against the Account of any Participant, any amount
that the Participant is ordered or required to pay under a judgment,
order, decree or settlement described in ERISA Section 206(d)(4) and
Section 401(a)(13)(C) of the Code.
13.5 Employment Not Guaranteed By Plan
Neither the establishment of the Plan nor its amendment nor the granting
of a benefit pursuant to the Plan shall be construed as giving any
Participant the right to continue as an Employee of an Employer, as
limiting the rights of such Employer to dismiss or impose penalties upon
the Participant or as modifying in any other way the terms of employment
of any Participant.
13.6 Protected Benefits
All benefits which are protected by the terms of Section 411(d)(6) of the
Code and Section 204(g) of ERISA, which cannot be eliminated without
adversely affecting the qualified status of the Plan on and after the
Effective Date, will be provided under the Plan to Participants for whom
such benefits are protected.
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13.7 Form of Communication
Any election, application, claim, notice or other communication required
or permitted to be made by or to a Participant, the Administrator, the
Company, or an Employer in writing shall be made in such form as the
Administrator, the Company or the Employer, as the case may be, shall
prescribe. Such communication shall be effective upon mailing if sent
first class, postage prepaid and addressed to the addressee at its
principal office, or to the Participant at his last known address, or upon
personal delivery, if delivered to an officer of the addressee or to the
Participant, as the case may be.
Notwithstanding anything in the Plan to the contrary, any notice, form or
other communication hereunder shall be made in the manner prescribed by
the Administrator in accordance with applicable law, which may include, in
appropriate circumstances, communication by telephone or by electronic or
other means.
13.8 Facility of Payment
If the Participant entitled to receive payments hereunder is unable to
care for his affairs because of illness, accident or disability, and a
duly qualified guardian or legal representative is appointed for such
Participant, the Administrator shall direct the Trustees to pay any amount
to which the Participant is entitled to such duly qualified guardian or
legal representative upon claim of such guardian or legal representative.
If a duly qualified guardian or legal representative is not appointed for
such Participant, the Administrator shall direct the Trustees to pay any
amount to which the Participant is entitled to such person's Spouse,
child, grandchild, parent, brother or sister or to a person deemed by the
Administrator to have incurred expense for such person entitled to
payment. Any payment made pursuant
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to this Section 13.8 in good faith shall be a payment for the account of
the Participant and shall be a complete discharge from any liability of
the Trust Fund or the Trustees therefor.
13.9 Reduction for Overpayment
The Administrator will, whenever it determines that a person has received
a benefit payment under the Plan in excess of the amount to which the
person is entitled under the terms of the Plan, make a reasonable attempt
to collect such overpayment from the person. The amount of any overpayment
may be set off against further amounts payable to or on account of the
person who received the overpayment.
13.10 Unclaimed Benefits
If the Administrator cannot ascertain the whereabouts of any person to
whom a payment is due under the Plan, and if, after five (5) years from
the date such payment is due, a notice of such payment due is mailed to
the last known address of such person, as shown on the records of the
Employer and within three (3) months after such mailing such person has
not made written claim therefor, the Administrator, if it so elects, after
receiving advice from counsel to the Plan, may direct that such payment
and all remaining payments otherwise due to such person be cancelled on
the records of the Plan and the amount thereof applied in any manner
permitted by Section 6.3, and upon such cancellation, the Plan and the
Trust shall have no further liability therefor except that, in the event
such person later notifies the Administrator of his whereabouts and
requests the payment or payments due to him, the amount so applied shall
be paid to him as provided in Article
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VIII without adjustment for gains and losses.
13.11 Receipt and Release
Subject to the provisions of ERISA and to the extent permitted by ERISA,
any final payments or distribution to any Participant, his Beneficiary or
his legal representative in accordance with the Plan shall be in full
satisfaction of all claims against the Trust, the Trustee, the
Administrator, and the Employer. The Trustee, the Employer, the
Administrator, or any combination of them may require a Participant, his
Beneficiary or his legal representative to execute a receipt and release
of all claims under the Plan upon a final payment or distribution or a
receipt to the extent of any partial payment or distribution; and the form
of any such receipt and release shall be determined by the Trustee, the
Employer, the Administrator or any combination of them.
13.12 Reliance on Information Provided to the Plan
Notwithstanding anything contained herein to the contrary, if an
individual is provided a statement in confirmation of any election or
information provided to the Plan by such individual hereunder, the
election or information reflected on such confirmation statement will be
deemed to be accurate and may be conclusively relied upon for all purposes
hereunder unless the individual timely demonstrates to the Administrator,
in the form and manner established by the Administrator, that the election
or information reflected on the confirmation statement is not what the
individual originally delivered to the Administrator.
13.13 Service in More Than One Fiduciary Capacity
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Any individual, entity or group of persons may serve in more than one
fiduciary capacity with respect to the Plan, the Trust Fund or both.
13.14 Binding Effect of Company's Actions
Each Employer shall be bound by any and all decisions and actions taken by
the Company hereunder.
13.15 Military Service
Notwithstanding any other provision of the Plan to the contrary, service
credit and contributions with respect to qualified Military Service will
be provided in accordance with Section 414(u) of the Code.
13.16 Limitation of Rights
All benefits provided hereunder shall be provided solely from the Trust
and a person claiming an interest under the Plan shall not have recourse
towards satisfaction of his or her benefits from other than the assets of
the Trust. Neither the Employer nor the Administrator represents or
guarantees that the value of a Participant's Accounts shall at any time
equal or exceed the amount previously contributed thereto. Neither the
establishment of the Plan and Trust nor any modification thereof, nor the
creating of any fund or account, nor the payment of any benefits shall be
construed as giving to any Participant or other person any legal or
equitable right against the Employer or the Trustee except as provided in
the Plan and Trust Agreement.
13.17 Governing Law
Except to the extent inconsistent with and preempted by ERISA or other
applicable Federal law, the Plan and all matters arising thereunder shall
be
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governed by the laws of the State of California. If any provision of the
Plan is susceptible to more than one interpretation, such interpretation
shall be given thereto as is consistent with the Plan being a qualified
employees' defined contribution plan within the meaning of the Code.
IN WITNESS WHEREOF, and as evidence of the adoption of the Plan, the undersigned
officer duly authorized has appended his signature this 14 day of December,
2005.
Ingram Micro Inc.
By: /s/ Matthew A. Sauer
---------------------------------
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