EXHIBIT 10.2
Prototype Cash or Deferred
Profit-Sharing Plan #001
STANDARDIZED
ADOPTION AGREEMENT
PROTOTYPE CASH OR DEFERRED
PROFIT-SHARING PLAN AND TRUST
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Sponsored by
AMERICAN FUNDS DISTRIBUTORS, INC.
The Employer named below hereby establishes a Cash or Deferred Profit-Sharing
Plan for eligible Employees as provided in this Adoption Agreement and the
accompanying Basic Prototype Plan and Trust/Basic Plan Document #03 (the
"Plan"). If multiple Employers are adopting the Plan, complete Section l
based on the lead Employer. Additional Employers may adopt this Plan by
attaching executed signature pages to the back of the Employer's Adoption
Agreement
1. EMPLOYER INFORMATION
Employer's Name: Photoelectron Corporation
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Address: 400-1 Totten Pond Road
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Waltham, MA 02154
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Principal Address (if different):___________________________________________
____________________________________________________________________________
____________________________________________________________________________
Telephone Number: (617) 290 -5366 ext 401
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Tax ID Number: 04 -3035323 Employer's Fiscal Year: December 31
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Form of Business:
[_] Sole Proprietor [_]Partnership [_]"S" Corporation
[X] Corporation [_] Other_______
Member of:
[_] Controlled Group [_] Affiliated Service Croup
[_] Group of trades or businesses under common control
Date of Incorporation:
Name of Plan: Photoelectron Corp, 401(k) Retirement Plan
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Three Digit Plan Number for Annual Return/Report: 001.
2. EFFECTIVE DATE
2. (a) This is a new Plan having an effective date of 04/0l/95
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2. (b) This is an amended Plan.
The effective date of the original plan was ____. The effective
date of the amended Plan is____.
2. (c) If different from above, the Effective Date for the Plan's
Elective Deferral provisions shall be__________.
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Profit-Sharing Plan #001
3. DEFINITIONS
3. (a) "Allocation Date(s)" Allocations to Participant Accounts will
be done in accordance with Article V of the Plan:
[ ] (i) daily.
[X] (ii) monthly.
[ ] (iii) quarterly
[ ] (iv) semi-annually.
[ ] (v) annually.
3. (b) "Compensation" Compensation shall be determined on the basis of
the Plan Year. Compensation [X] shall [ ] shall not include
Employer contributions made pursuant to a Salary Savings
Agreement, for this Plan or any other plan, which are not
includable in the gross income of the Employee for the reasons
indicated in the definition of Compensation at paragraph 1.13 of
the Plan.
Compensation [X] shall [ ] shall not be limited to Compensation
earned while a Participant in the Plan.
Compensation shall be determined on the basis of the following
safe-harbor definition of Compensation in IRS Regulation Section
1.414(s)-1(c):
[X] (i) Code Section 3401(a) - W-2 income subject to
income tax withholding.
[ ] (ii) Code Section 415 - W-2 income, share of
profits and other taxable income,
3. (c) "Entry Date"
[ ] (i) The first day of the Plan Year nearest the date
on which an Employee meets the eligibility
requirments.
[X] (ii) The earlier of the first day of the Plan Year or
the first day of the seventh month of the Plan
Year coinciding with or following the date on
which an Employee meets the eligibility
requirements.
[ ] (iii) The first day of the Plan Year following the date
on which the Employee meets the eligibility
requirements. If this election is made, the
Service requirement at 4(a) may not exceed 1/2
year and the age requirement at 4(b) may not
exceed 20-1/2.
[ ] (iv) The first day of the month or if earlier the
first day of the Plan Year coinciding with or
following the date on which an Employee meets the
eligibility requirements.
[ ] (v) The first day of the Plan Year, or the first day
of the fourth, seventh or tenth month, of the
Plan Year coinciding with or following the date
on which an Employee meets the eligibility
requirements.
3. (d) "Hours of Service" shall be determined on the basis of the method
selected below. Only one method may be selected. The method
selected shall be applied to all Employees covered under the Plan
as follows:
[ ] (i) On the basis of actual hours for which an
Employee is paid or entitled to payment.
[ ] (ii) On the basis of days worked. An Employee shall be
credited with ten (10) Hours of Service if under
paragraph 1.43 of the Plan such Employee would be
credited with at least one (1) Hour of Service
during the day.
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[ ] (iii) On the basis of weeks worked.
An Employee shall be credited wit forty-five (45)
Hours of Service if under paragraph 1.43 of the
Plan such Employee would be credited with at
least one (1) Hour of Service during the week.
[ ] (iv) On the basis of semi-monthly payroll periods.
An Employee shall be credited with ninety-five
(95) Hours of Service if under paragraph l.43 of
the Plan such Employee would be credited with at
least one (1) Hour of Service during the semi-
monthly payroll period.
[X] (v) On the basis of months worked.
An Employee shall be credited with one-hundred-
ninety (190) Hours of Service if under paragraph
1.43 of the Plan such Employee would be credited
with at least one (1) Hour of Service during the
month.
[ ] (vi) On the basis of Elapsed Time, as provided in
Article XVI of the Plan.
3. (e) "Limitation Year" The 12-consecutive month period commencing on
January 1 and ending on December 31.
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If applicable, the Limitation Year will he a short Limitation
Year commencing on 04/01/95 and ending on 12/31/95. Thereafter,
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the Limitation Year shall end on the date last specified above.
3. (f) "Net Profit"
[X] (i) Not applicable. Profits will not be required
for any contributions to the Plan.
[_] (ii) As defined in paragraph 1.50 of the Plan.
3. (g) "Plan Year" The 12-consecutive month period commencing on
January 1 and ending on December 31. If applicable, the first
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Plan Year will be a short Plan Year commencing on
04/01/95 and ending on 12/31/95. Thereafter, the Plan Year shall
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end on the date last specified.
3. (h) "Qualified Early Retirement Age" For purposes of making
distributions under the provisions of a Qualified Domestic
Relations Order, the Plan's Qualified Early Retirement Age with
regard to the Participant against whom the Order is entered
shall be the date the Order is determined to be qualified. This
will only allow payout to the alternate payee(s).
3. (i) "Qualified Joint and Survivor Annuity" The safe-harbor
provisions of paragraph 8.7 of the Plan [X] are [ ] are not
applicable. If not applicable, the survivor annuity shall be __%
(50%, 66-2/3% 75% or 100%) of the annuity payable during the
lives of the Participant and Spouse. If no answer is specified,
50% will be used.
3. (j) "Taxable Wage Base" [paragraph 1.81]
[x] (i) Not Applicable-Plan is not integrated with Social
Security.
[ ] (ii) The maximum earnings considered wages for such
Plan Year under Code Section 3121(a).
[ ] (iii) __% (not more than 100%) of the amount considered
wages for such Plan Year under Code Section
3121(a).
[ ] (iv) $____ provided that such amount is not in excess
of the amount determined under subsection
(ii)above.
[ ] (v) For the 1989 Plan Year $10,000. For all
subsequent Plan Years, 20% of the maximum
earnings considered wages for such Plan Year
under Code Section 3121(a).
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NOTE: Using less than the maximum at subsection (ii) may result in a
change in the allocation formula in Section 7(f) hereof.
4. ELIGIBILITY REQUIREMENTS
Employees meeting the following Service and Age requirements shall be
eligible to participate in the Plan:
4. (a) Service 1/4 [not more than one (1)] Year of Service. [A Year of
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Service is a l2-consecutive month period during which a
Participant is credited with 1,000 hours.] If the Year of Service
selected is a fractional year, an Employee will not be required
to complete any specified number of Hours of Service to receive
credit for such fractional year.
4. (b) Age: Attainment of age 21 (not more than age 21).
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4. (c) Initial Participants: Employees employed on the Plan's Effective
Date [_]do [X] do not have to satisfy the eligibility
requirements specified above.
NOTE: Employees covered under the terms of a collective bargaining
agreement (the agreement should indicate that retirement benefits
were the subject of good faith bargaining and the agreement
should benefit Employees of whom two percent or less are
professionals, as defined in Section 1.410(b)-9 of the
Regulations) between the Employer and Employee representatives
(does not include any organization more than half of whose
members are owners, officers, or executives of the Employer) and
nonresident aliens [within the meaning of Section 770(b)(1)(B)]
with no U.S. Income [within the meaning of Section 911(d)(2)]
from the Employer which constitutes income from sources within
the United States [within the meaning of Section 86(a)(3)] are
excluded from the Plan participation.
5. RETIREMENT AGES
If the Employer imposes a requirement that Employees retire upon reaching a
specified age, the Normal Retirement Age selected below may not exceed the
Employer imposed mandatory retirement age.
5. (a) Normal Retirement Age shall be 65 (not to exceed age 65).
5. (b) Normal Retirement Age shall be the later of attaining age __ (not
to exceed age 65) or the __ (not to exceed the 5th) anniversary
of the first day of the first Plan Year in which the Participant
commenced participation in the Plan.
5. (c) Early Retirement Age:
[ ] (i) Not applicable.
[X] (ii) The Plan shall have an Early Retirement Age of 62
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(not less than 55) and completion of 5 Years of
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Service.
6. EMPLOYEE CONTRIBUTIONS
[X] 6.(a)Participants shall be permitted to make Elective Deferrals in any
amount from 2 % up to 15 % of their Compensation. Participants may
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amend their Salary Savings Agreements to change the contribution
percentage as provided below:
[X] (i) on the first day of each month of the Plan Year. [_]
(ii) on the first day of the Plan Year and on the first day of
the fourth, seventh, and tenth months of the Plan Year.
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Profit-Sharing Plan #001
[ ] (iii) on the first day of the Plan Year and on the first day
of the seventh month of the Plan Year.
[ ] 6.(b)Participants shall be required to make after-tax Voluntary
Contributions as follows (Thrift Savings Plan):
[ ] (i) in any amount from __% up to __% of Compensation.
[ ] (ii) a percentage determined by the Employee on his or her
enrollment form.
NOTE: Elective Deferrals may not be recharacterized as Voluntary
Contributions for purposes of the Average Deferral Percentage (ADP)
Test. The ADP Test will apply to contributions under (a) above. The
Average Contribution Percentage (ACP) Test will apply to contributions
under (b) above, and may apply to (a).
7. EMPLOYER CONTRIBUTIONS AND ALLOCATION
The Employer shall make contributions to the Plan in accordance with the
formula or formulas selected below. The Employer's contribution shall be
subject to the limitations contained in Articles III and X of the Plan. For
this purpose, a contribution for a Plan Year shall be limited for the
Limitation Year which ends with or within such Plan Year. Also, the
allocation formulas below are for Plan Years beginning in 1989 and later.
The Employers allocation for earlier years shall be as specified in its Plan
prior to amendment for the Tax Reform Act of 1986.
7.(a) Profits Requirement - Current or Accumulated Net Profits are not
required unless otherwise indicated below:
[ ] (i) Matching Contributions.
[ ] (ii) Qualified Non-Elective Contributions.
[ ] (iii) discretionary contributions.
NOTE: Elective Deferrals and any contribution category not checked above may
always be contributed regardless of profits. Complete this Item in
conjunction with Item 3(f).
7.(b) Salary Savings Agreement:
The Employer shall contribute and allocate to each Participant's
account an amount equal to the amount withheld from the Compensation
of such Participant pursuant to his or her Salary Savings Agreement.
If applicable, the maximum percentage is specified in Section 6 above.
An Employee who has terminated his or her election under the Salary
Savings Agreement other than for hardship reasons may not make another
Elective Deferral:
[ ] (i) until the first day of the next Plan Year.
[X] (ii) for a period of 1 month(s) (not to exceed 12 months).
[X] 7(c) Matching Contribution [See Section (g) and (h)]:
[ ] (i) Percentage Match On Elective Deferrals: the Employer
shall contribute and allocate to each eligible
Participant's account an amount equal to __% of the
amount contributed and allocated in accordance with
Section 7(b) above. The Employer shall not match
Participant Elective Deferrals as provided above in
excess of $___or in excess of __% of the Participant's
Compensation.
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Profit-Sharing Plan #001
[ ] (ii) Percentage Match on Voluntary Contributions: The
Employer shall contribute and allocate to each eligible
Participant's account an amount equal to ___% of the
amount of Voluntary Contributions (if provided for
under Section 6(b) above) made in accordance with 4.7
of the Plan. The Employer shall not match Participant
Voluntary Contributions as provided above in excess of
$_____ or in excess of ____% the Participant's
Compensation
[X] (iii) Discretionary Match: The Employer shall contribute and
allocate to each eligible Participant's account a
percentage of the Participant's Elective Deferral
contributed and allocated in accordance with Section
7(b) above. The Employer shall set such percentage
prior to the end of the Plan Year. The Employer shall
not match the Participant Elective Deferrals in excess
of $n/a or in excess of 6% of the Participant's
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Compensation.
[X] (iv) Qualified Match: Matching Contributions will be treated
as Qualified Matching Contributions to the extent
specified below:
[ ] (A) all Matching Contributions.
[ ] (B) none.
[X] (C) the amount necessary to meet [ ] the ADP
test, [ ] the ACP test, [X] both the ADP
and ACP tests.
[X] (v) Eligibility for Matching Contributions: Matching
Contributions, whether or not Qualified, will only be
made on Employee Contributions:
[ ] (A) not withdrawn prior to the end of the
valuation period.
[ ] (B) not withdrawn prior to the end of the
Plan Year.
[X] (C) without regard to their withdrawal.
[X] (vi) Matching Contribution Computation Period: The time
period upon which Matching Contributions will be based
shall be:
[ ] (A) weekly.
[ ] (B) bi-weekly.
[ ] (C) semi-monthly.
[ ] (D) monthly.
[X] (E) quarterly.
[ ] (F) semi-annually.
[ ] (G) annually.
[X] 7.(d) Qualified Non-Elective Contribution -[See Sections (f) and (g)]
These contributions are fully vested when contributed.
The Employer shall have the right to make an additional discretionary
contribution which shall be allocated to each eligible Employee in
proportion to his or her Compensation as a percentage of the
Compensation of all eligible Employees. This part of the Employer's
contribution and the allocation thereof shall be unrelated to any
Employee contributions made hereunder. The amount of Qualified non-
Elective Contributions taken into account for purposes of meeting the
ADP or ACP test requirements is:
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Profit-Sharing Plan #001
[ ] (i) all Qualified non-Elective Contributions.
[ ] (ii) none.
[X] (iii) the amount necessary to meet [ ]the ADP test, [ ] the
ACP test, [X] both the ADP and ACP tests.
Qualified non-Elective Contributions will be made to:
[ ] (iv) all Employees eligible to participate.
[X] (v) only non-Highly-Compensated Employees eligible to
participate.
[ ] 7.(e) Additional Employer Contribution Other Than Qualified Non-
Elective Contributions - Non-integrated [See Sections (g) and
(h)]:
The Employer shall have the right to make an additional discretionary
contribution which shall be allocated to each eligible Employee in
proportion to his or her Compensation as a percentage of the
Compensation of all eligible Employees. This part of the Employer's
contributions and the allocation thereof shall be unrelated to any
Employee contributions made hereunder.
[ ] 7.(f) Additional Employer Contribution - Integrated Allocation
Formula (See Sections (g)and (h)]
The Employer shall have the right to make an additional discretionary
contribution. The Employer's contribution for the Plan Year plus any
forfeitures shall be allocated to the accounts of eligible
Participants as follows:
(i) First, to the extent contributions and forfeitures are
sufficient, all Participants will receive an allocation equal
to 3% of their Compensation.
(ii) Next, any remaining Employer Contributions and forfeitures will
be allocated to Participants who have Compensation in excess of
the Taxable Wage Base (excess Compensation). Each such
Participant will receive an allocation in the ratio that his or
her excess Compensation bears to the excess Compensation of all
Participants. Participants may only receive an allocation of 3%
of excess Compensation.
(iii) Next, any remaining Employer contributions and forfeitures will
be allocated to all Participants in the ratio that their
Compensation plus excess Compensation bears to the total
Compensation plus excess Compensation of all Participants.
Participants may only receive an allocation of up to 2.7% of
their Compensation plus excess Compensation, under this
allocation method. If the Taxable Wage Base defined at Section
3(j) is less than or equal to the greater of $10,000 or 20% of
the maximum, the 2.7% need not be reduced. If the amount
specified is greater than the greater of $10,000 or 20% of the
maximum Taxable Wage Base, but not more than 80%, 2.7% must be
reduced to 1.3%. If the amount specified is greater than 80%
but less than 100% of the maximum Taxable Wage Base, the 2.7%
must be reduced to 2.4%.
NOTE: If the Plan is not Top-Heavy or if the Top-Heavy minimum contribution
or benefit is provided under another Plan [see Section 11(c)(ii)]
covering the same Employees, subsection (i) and (ii) above may be
disregarded and 5.7%, 4.3% or 5.4% may be substituted for 2.7%, 1.35%
or 2.4% where it appears in (iii) above.
(iv) Next, any remaining Employer contributions and forfeitures will
be allocated to all Participants (whether or not they received
an allocation under the preceding paragraphs) in the ratio that
each Participants Compensation bears to all Participants'
Compensation.
NOTE: Only one plan maintained by the Employer may be integrated with Social
Security.
7.(g) Allocation of Excess Amounts (Annual Additions):
In the event that the allocation formula above results in an Excess
Amount, such excess shall be distributed to the Participant to the
extent such excess does not exceed the Participant's Elective
Deferrals, non-deductible Required Voluntary Contributions. To the
extent the Excess Amount exceeds the sum of the aforementioned
Employee contributions, such excess shall be:
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Profit-Sharing Plan #001
[X] (i) placed in a suspense account accruing no gains or losses for
the benefit of the Participant.
[ ] (ii) reallocated as additional Employer contributions to all
other Participants to the extent that they do not have any
Excess Amount.
7.(h) Minimum Employer Contribution Under Top-Heavy Plans:
For any Plan Year during which the Plan is Top-Heavy, the sum of the
contributions and forfeitures as allocated to eligible Employees under
sections 7(e), 7(f) and 9 of this Adoption Agreement shall not be less
than the amount required under paragraph 14.2 of the Plan. Top-Heavy
minimums will be allocated to:
[X] (i) all eligible Participants.
[ ] (ii) only eligible non-Key Employees who are Participants.
7.(i) Return of Excess Contributions and/or Excess Aggregate Contributions:
In the event that one or more Highly-Compensated Employees is subject
to both the ADP and ACP tests and the sum of such tests exceeds the
Aggregate Limit, the limit will be satisfied by reducing the ADP
and/or ACP of the affected Highly Compensated Employees.
8. ALLOCATIONS TO TERMINATED EMPLOYEES
(This option is not applicable if Hours of Service are determined on the
basis of Elapsed Time selected under Section 3(d)(vi) above.)
8.(a) For Plan Years beginning prior to 1993:
[ ] (i) the Employer will not allocate Employer-related
contributions to any Participant who terminates
employment during the Plan Year.
[ ] (ii) the Employer will allocate Employer-related
contributions to Employees who terminate during the
Plan Year as a result of:
[ ] (A) retirement.
[ ] (B) Disability
[ ] (C) death.
[ ] (D) other termination provided that the
Participant has completed a Year of
Service.
[ ] (E) other termination.
8.(b) For Plan Years beginning in 1993 and thereafter, the Employer will
allocate Employer-related contributions, except Matching
Contributions, to any Participant who is (i) credited with more than
500 Hours of Service, or (ii) employed on the last day of the Plan
Year without regard to the number of Hours of Service. The Employer
will also allocate Employer-related contributions to any Participant
who terminates during the Plan Year without accruing the necessary
Hours of Service if he or she terminates as a result of:
[X] (i) retirement.
[X] (ii) Disability.
[X] (iii) death.
Matching Contributions will be allocated to each Participant without
regard to whether he or she is employed on the last day of the Plan
Year and without regard to his or her Hours of Service.
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Profit-Sharing Plan #001
9. ALLOCATION OF FORFEITURES
NOTE: Forfeitures of Excess Aggregate Contributions shall be applied at the
end of the Plan Year in which they occur to reduce Employer
Contributions. Subsections (a), (b) and (c) below apply to
forfeitures of amounts other than Excess Aggregate Contributions.
9.(a) Allocation Alternatives:
Forfeitures shall be applied to reduce the Employer's contribution
for such Plan Year. If forfeitures were reallocated, pursuant to a
prior document's provisions, they will continue to be reallocated in
the same manner until the end of the Plan year in which this Adoption
Agreement is signed.
9.(b) Date for Reallocation of Forfeitures:
NOTE: If no distribution has been made to a former Participant, subsection
(i) below will automatically apply to such Participant
[ ] (i) Forfeitures shall be applied to reduce the Employer's
contribution at the end of the Plan year during which the
former Participant incurs his or her fifth consecutive
one-year Break In Service.
[X] (ii) Forfeitures shall be applied to reduce the Employer's
contribution at the end of the next Plan Year during
which the Participant has received distribution of his or
her vested interest.
9.(c) Restoration of Forfeitures:
If amounts are forfeited prior to five consecutive one-year Breaks in
Service, the Funds for restoration of account balances will be
obtained from the following resources in the order indicated (fill in
the appropriate number):
[1] (i) current year's forfeitures.
[2] (ii) additional Employer contributions.
10. LIMITATIONS ON ALLOCATIONS
This Section is not applicable if this is the only Plan you maintain or ever
maintained. Plans include Welfare Benefit Funds as described in Code Section
419(e) or an individual medical account as defined under Code Section
415(1)(2) under which amounts are treated as Annual Additions.
l0.(a) If the Participant is covered under another qualified Defined
Contribution Plan maintained by the Employer, other than a Master or
Prototype Plan, the provisions of Article X of the Plan will apply as
if the other plan were a Master or Prototype Plan.
l0.(b) If a Participant is or ever has been a Participant in a Defined
Benefit Plan maintained by the Employer, attach provisions which will
satisfy the 1.0 limitation of Code Section 415(e). Such language must
preclude Employer discretion The Employer must also specify the
interest and mortality assumptions used in determining present value
in the Defined Benefit Plan.
10.(c) The minimum contribution or benefit required under Code Section 416
relating to Top-Heavy Plans shall be satisfied by either:[ ] this
Plan or [ ]
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(Name of other qualified plan of the Employer). If a Defined Benefit
Plan is or was maintained, an attachment must be provided showing
interest and mortality assumptions used in determining the Top-Heavy
Ratio.
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11. VESTING
11.(a) Computation Period: (This option is not applicable if Hours of
Service are determined on the basis of Elapsed Time selected under
Section 3(d)(vi) above.)
The computation period for purposes of determining Years of Service and
Breaks in Service for purposes of computing a Participant's
nonforfeitable right to his or her account balance derived from
Employer contributions:
[ ] (i) shall not be applicable since Participants are always
fully vested.
[X] (ii) shall commence on the first day of the Plan Year during
which an Employee first performs an Hour of Service for
the Employer and each subsequent 12-consecutive month
period shall commence on the anniversary thereof.
A Participant shall receive credit for a Year of Service if he or she
completes at least 1,000 Hours of Service at any time during the 12-
consecutive month computation period. Consequently, a Year of Service
may be earned prior to the end of the 12-consecutive month computation
period and the Participant need not be employed at the end of the 12-
consecutive month computation period to receive credit for a Year of
Service.
1l.(b) Vesting Schedules:
NOTE: Contributions under Sections 6(a), (b), 7(c)(iv) and (d) are always
fully vested. The vesting schedules below only apply to a Participant
who has at least one Hour of Service during or after the 1989 Plan
Year. If applicable, Participants who separated from Service prior to
the 1989 Plan Year will remain under the vesting schedule as in effect
in the Plan prior to amendment for the Tax Reform Act of 1986.
[ ] (i) Full and Immediate Vesting.
Years of Service
----------------
1 2 3 4 5 6 7
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[ ] (ii) ___% 100%
[ ] (iii) ___% ___% 100%
[ ] (iv) ___% 20% 40% 60% 80% 100%
[ ] (v) ___% ___% 20% 40% 60% 80% 100%
[ ] (vi) 10% 20% 30% 40% 60% 80% 100%
[X] (vii) 20% 40% 60% 80% 100%
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[ ] (viii) ___% ___% ___% ___% ___% ___% 100%
NOTE: The percentages selected for schedule (viii) may not be less for any year
than the percentages shown at schedule (v).
[X] (A) All contributions other than those which
are fully vested when contributed will vest
under schedule vii above.
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[ ] (B) All Matching Contributions will vest under schedule
___ above. All other Employer contributions other
than those which are fully vested when contributed
will vest under schedule ___above.
11.(c) Service disregarded for Vesting:
[X] (i) Not applicable. All Service shall be considered.
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[ ] (ii) Service prior to the Effective Date of this Plan or a
predecessor plan shall be disregarded when computing a
Participant's vested and nonforfeitable interest.
[ ] (iii) Service prior to a Participant having attained age 18 shall
be disregarded when computing a Participant's vested and
nonforfeitable interest.
11.(d) Top-Heavy Vesting:
Each Participant shall acquire a vested and nonforfeitable percentage
in his or her account balance attributable to Employer contributions
and the earnings thereon under the procedures selected above except
with respect to any Plan Year during which the Plan is Top-Heavy, in
which case the [X] Two-twenty vesting schedule [Section 11(b)(iv)] or
[ ] Three-Year Cliff vesting schedule [Section 11 (b)(iii)] shall
automatically apply unless the Employer has already elected a faster
vesting schedule. If the Plan is switched to Section 11 (b)(iii) or
11(b)(iv) because of its Top-Heavy status, that vesting schedule will
remain in effect, even if the Plan later becomes non-Top-Heavy, until
the Employer executes an amendment of this Adoption Agreement
indicating otherwise.
12. SERVICE WITH PREDECESSOR ORGANIZATION
For purposes of satisfying the Service requirements for eligibility and
vesting, Hours of Service shall include Service with the following predecessor
organization(s).
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13. ROLLOVER/TRANSFER CONTRIBUTIONS
13.(a) Rollover Contributions, as described in paragraph 4.3 of the Plan, [X]
shall [ ] shall not be permitted. If permitted, Employees [X] may [ ]
may not make rollover contributions prior to meeting the eligibility
requirements for participation in the Plan
13.(b) Transfer Contributions, as described in paragraph 4.4 of the Plan, [X]
shall [ ] shall not be permitted. If permitted, Employees [X] may [ ]
may not Transfer Contributions prior to meeting the eligibility
requirements for participation in the Plan.
NOTE: Even if available, the Employer may refuse to accept such contributions
if its Plan meets the safe-harbor rules of paragraph 8.7 of the Plan.
14. HARDSHIP WITHDRAWALS
Hardship withdrawals, as provided for in paragraph 6.9 of the Plan, [X] are
[ ] are not permitted.
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15. PARTICIPANT LOANS
Participant loans, provided for in paragraph 13.4 of the Plan, [X] are [ ] are
not permitted. If permitted, repayments of principal and interest shall be
repaid to the Participant's segregated account.
16. EMPLOYER INVESTMENT DIRECTION
The Employer investment direction provisions, as set forth in paragraph 13.5
of the Plan [ ] shall [X] shall not be applicable.
17. EMPLOYEE INVESTMENT DIRECTION
The Employee investment direction provisions, as set forth in paragraph 13.6
of the Plan, [X] shall [ ] shall not be applicable.
NOTE: To the extent that Employee investment direction was previously
allowed, the Trustee shall have the right to either make the assets
part of the general Trust, or leave them as separately invested subject
to the provisions of paragraph 13.6 of the Plan.
18. EARLY PAYMENT OPTION
A Participant who separates from Service prior to retirement, death or
Disability may make application to the Employer requesting an early payment of
his or her vested account balance. Amounts under $3,500 [X] will [ ] will not
be cashed out immediately
18(a) A Participant who has not separated from Service [ ] may [X] may not
obtain a distribution of his or her vested Employer contributions.
Distribution can only be made if the Participant has completed five
Years of Service.
18(b) A Participant who has attained age 59-1/2 and has not separated from
Service [X] may [ ] may not obtain a distribution of his or her vested
Employer contributions.
18(c) A Participant who has attained the Plan's Normal Retirement Age
and who has not separated from Service [X] may [ ] may not receive a
distribution of his or her vested account balance.
NOTE: If the Participant has had the right to withdraw his or her
account balance in the past, this right may not be taken away.
Notwithstanding the above, to the contrary, required minimum
distributions will be paid. For timing of distributions, see item 19(a)
below.
19. DISTRIBUTIONS OPTIONS
19(a) Timing of Distributions:
In cases of termination including death, Disability or retirement,
benefits shall be paid:
[ ] (i) as soon as administratively feasible following the close of
the Plan Year during which a distribution is requested or is
otherwise payable.
[X] (ii) as soon as administratively feasible, following the date on
which a distribution is requested or is otherwise payable.
[ ] (iii) as soon as administratively feasible, after the close of the
Plan Year during which the Participant incurs a one-year
Break in Service.
12
Protoype Cash or Deferred
Profit-Sharing Plan #001
19.(b) Optional Forms of Payment:
[X] (i) Lump Sum.
[ ] (ii) Installment Payments.
[ ] (iii) Other form(s) as previously provided
(indicate all forms that apply):
-------------------------------
19.(c) Recalculation of Life Expectancy:
In determining required distributions under the Plan, a Participant
and/or Spouse (Surviving Spouse) [X] shall [ ]shall not have the right
to have their life expectancy recalculated annually. If life expectancy
is recalculated, it will follow the Employer's administrative policy.
20. SPONSOR CONTACT
Employers should direct questions concerning the language contained in and the
qualification of the Prototype to:
Capital Guardian Trust Company
Corporate Employee Benefits Department
(Phone Number) (714)671-7000
In the event that the Sponsor amends, discontinues or abandons this Prototype
Plan, notification will be provided to the Employer's address provided on the
first page of this Agreement
21. SIGNATURES
- -------------------------------------------------------------------------------
Due to the significant tax ramifications, the Sponsor recommends that before
you execute this Adoption Agreement, you contact your attorney or tax advisor.
(a) Employer Delegate or Committee Appointment:
The Employer has appointed the following individual(s) to act on behalf
of the Employer regarding all communications and requests between the
Employer and the Recordkeeper, pursuant to the terms and conditions of
the Plan. Unless otherwise directed by the Employer in written
directions to the Recordkeeper, the Recordkeeper may act upon the
instructions of any one of the persons listed below.
Name(s) (please type or print) Signature(s)
1. /s/John J. Crowley 1. /s/John J. Crowley
--------------------------- ---------------------------
400-1 Totten Pond Rd.
---------------------------
Address Waltham, MA 02154
2. 2.
--------------------------- ---------------------------
---------------------------
Address
3. 3.
--------------------------- ---------------------------
---------------------------
Address
(b) EMPLOYER:
Name and address of Employer if different than specified in
Section 1 above.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
13
Protoype Cash or Deferred
Profit-Sharing Plan #001
The Employer hereby adopts the Plan, appoints Capital Guardian Trust
Company as Trustee and directs that contributions to the Plan shall be
invested in accordance with the instructions provided by it. The
Employer has read the Plan and Trust and Adoption Agreement, agrees to
the Terms and conditions set forth therein and has consulted with an
attorney about the effect of establishing the Plan.
This agreement and the corresponding provisions of the Plan and Trust
Basic Plan Document #03 were adopted by the Employer the 1 day of
April, 1995.
Signed for the Employer by: /s/John J. Crowley
------------------------------------------
Title: Controller
------------------------------------------
Signature: /s/John J. Crowley
------------------------------------------
The Employer understands that its failure to properly complete the
Adoption Agreement may result in disqualification of its Plan.
Employer's Reliance: All Employer who maintains or has ever maintained
or who later adopts any Plan [including, after December 31, 1985, a
Welfare Benefit Fund, as defined in Section 419(e) of the Code, which
provides post-retirement medical benefits allocated to separate
accounts for Key Employees, as defined in Section 419A(d)(3) or an
individual medical account, as defined in Code Section 415(1)(2)], in
addition to this Plan may not rely on the opinion letter issued by the
National Office of the Internal Revenue Service as evidence that this
Plan is qualified under Section 401 of the Code. If the Employer who
adopts or maintains multiple Plans wishes to obtain reliance that such
Plan(s) are qualified, application for a determination letter should be
made to the appropriate Key District Director of Internal Revenue. The
employer understands that its failure to properly complete the Adoption
Agreement may result in disqualification of its plan.
This Adoption Agreement may only be used in conjunction with Basic Plan
Document #03.
[x] (c) TRUSTEE APPOINTMENT AND ACCEPTANCE:
The Employer hereby appoints Capital Guardian Trust Company to serve as
Trustee, and such Trustee hereby confirms acceptance of the appointment
and duties pursuant to the accompanying Plan and this Adoption
Agreement.
Capital Guardian Trust Company hereby accepts appointment as Trustee
the 21st day of July, 1995.
---- ---- ----
Signed for the Trustee by:
----------------------------------
HERMAN MARTINEZ
Title: ASSISTANT VICE PRESIDENT
----------------------------------
Signature: /s/Herman Martinez
----------------------------------
NOTE: In accordance with paragraph 13.7 of Basic Plan Document #03 an
additional trustee may be appointed to govern Plan assets held outside
the Fund. If so, the additional trustee shall be appointed in a
separate trust agreement.
14
AMENDMENT
TO THE
PHOTOELECTRON CORPORATION
401(K) RETIREMENT PLAN
EFFECTIVE OCTOBER 1, 1995
WHEREAS, effective April 1, 1995, Photoelectron Corporation (The "Company")
adopted a Profit Sharing Plan; and
WHEREAS, Photoelectron Corporation 401(k) Retirement Plan (the "Plan") provides
certain benefits for eligible employees and is intended to qualify under Section
401 and Section 501 of the Internal Revenue Code of 1986; and
WHEREAS, the Company, desires to amend the Plan in order to provide for
quarterly entry dates; and
WHEREAS, the amendment of the Plan, as embodied herein, does not cause any part
of the trust to be used for, or diverted to, any purposes other than for the
exclusive benefit of the plan participants and their beneficiaries.
NOW THEREFORE, effective October, 1995, Item 4.(a) of the Standardized Adoption
Agreement Prototype Cash or Deferred Profit-Sharing Plan and Trust will be
deleted in its entirety and replaced by the following:
3. Definitions
3. (c) "Entry Date"
[ ] (i) The first day of the Plan Year nearest the date
on which an Employee meets the eligibility
requirements.
[ ] (ii) The earlier of the first day of the Plan Year or
the first day of the seventh month of the Plan
Year coinciding with or following the date on
which an Employee meets the eligibility
requirements.
[ ] (iii) The first day of the Plan Year following the date
on which the Employee meets eligibility
requirements. If this electiion is made, the
Service requirement at 4(a) may not exceed 1/2
year and the age requirement at 4(b) may not
exceed 20-1/2.
[ ] (iv) The first day of the month or if earlier the
first day of the Plan Year coinciding with or
following the date on which an Employee meets the
eligibility requirements.
[X] (v) The first day of the Plan Year, or the first day
of the fourth, seventh or tenth month, of the
Plan Year coinciding with or following the date
on which an Employee meets the eligibility
requirements.
IN WITNESS THEREOF, the Company has caused this instrument, this Amendment to
the Plan, be executed as of this _______ day of ____________, 199__.
-------------------------------
(CORPORATE SEAL) Photoelectron Corporation
CERTIFICATE OF CORPORATE RESOLUTION
The undersigned Secretary of Photoelectron Corporation, (the Corporation)
-------------------------
hereby certifies that the following resolutions were duly adopted by the Board
of Directors of the Corporation on _________________ and that the resolutions
have not been modified or rescinded as of the date hereof:
RESOLVED, that the amendment to the Photoelectron Corporation 401(k)
--------------------------------
Retirement Plan (the Plan) is hereby approved and adopted.
- ---------------
The undersigned further certifies that the attached hereto as Exhibit A is
a true copy of the amendment approved and adopted in the foregoing resolution.
------------------------------
Secretary
------------------------------
Date