EXHIBIT 10.9
North Bay Bancorp 401(k) and Profit Sharing Plan
Secretary's Certificate
of
Resolutions of the Board of Directors of
North Bay Bancorp
The undersigned, as the Secretary of North Bay Bancorp (the
"Corporation"), hereby certifies BY WRITTEN ACTION IN LIEU OF A MEETING OF TILE
BOARD OF DIRECTORS, the following resolutions were adopted:
RESOLVED, that the Corporation amend its retirement plan and trust, known
as the North Bay Bancorp 401(k) Profit Sharing Retirement Plan (the
"Plan"), effective January 1, 2005, to revise certain provisions of the
plan as follows:
o Eligibility Section 2.01 will provide that the Period of Service
for Plan Eligibility will be 90-days (3 Months) of Service. Plan
Entry Date to be the first of the Calendar Month following
satisfaction of Eligibility Service.
o Employer Match Contribution Section 3.06 will contain no
allocation conditions and will be funded quarterly, EXCEPT
PARTICIPANT MUST BE EMPLOYED BY EMPLOYER ON THE LAST DAY OF THE
CALENDAR QUARTER.
o Allocation Condition Section 3.06 will contain no allocation
conditions for Employer Contributions in the event of Death,
Disability & Retirement for purposes of Employer Match and
Employer Profit Sharing Contributions.
o Definition of Compensation Section 1.07 - Eligible Compensation
will have no exclusions.
o Vesting Schedule Section 5.03 for both Employer Match and
Employer Profit Sharing Contribution will be based on the
Top-Heavy Vesting Schedule, which is 2-6 year graded schedule.
o Distribution Method Section 6.03 will eliminate the Joint &
Survivor Annuity distribution option from the Plan.
RESOLVED FURTHER, that the officers of the Corporation, and each of them,
are hereby authorized and directed to take all actions necessary and
desirable to implement the Plan into full force and effect, amend the Plan
from time to time as may be needed to serve the interests of the
Corporation, and delegate to others in writing the authority to perform any
activity on behalf of the Plan, exercising their discretion as they shall
deem appropriate in determining questions which may arise; and that they
are hereby authorized to certify these resolutions to such persons or
agencies as they shall deem necessary or advisable.
I further certify that the Board of Directors of the Corporation has,
and at the time of adoption of said resolutions had, full power and lawful
authority to adopt the foregoing resolutions and to confer the powers therein
granted to the persons named, and that such persons have full power and
authority to exercise the same.
- ------------------------------------
Secretary
Date:
-------------------------------
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NORTH BAY BANCORP 401(K) & PROFIT SHARING PLAN
S478421.1 Copyright 2001 WELLS FARGO BANK, N.A. 12/04
North Bay Bancorp 401(k) & Profit Sharing Plan
ADOPTION AGREEMENT #003
NONSTANDARDIZED 401(k) PROFIT SHARING PLAN
The undersigned, NORTH BAY BANCORP ("Employer"), by executing this
Adoption Agreement, elects to establish a retirement plan and trust ("Plan")
under the WELLS FARGO BANK, N.A. DEFINED CONTRIBUTION MASTER PLAN (basic plan
document #01). The Employer, subject to the Employer's Adoption Agreement
elections, adopts fully the Prototype Plan and Trust provisions. This Adoption
Agreement, the basic plan document and any attached appendices or addenda,
constitute the Employer's entire plan and trust document. All section references
within this Adoption Agreement are Adoption Agreement section references unless
the Adoption Agreement or the context indicate otherwise. All article references
are basic plan document and Adoption Agreement references as applicable. Numbers
in parenthesis which follow headings are references to basic plan document
sections. The Employer makes the following elections granted under the
corresponding provisions of the basic plan document.
ARTICLE I
DEFINITIONS
1. PLAN (1.21). The name of the Plan as adopted by the Employer is NORTH BAY
BANCORP 401(K) & PROFIT SHARING PLAN.
2. TRUSTEE (1.33). The Trustee executing this Adoption Agreement is: (Choose
one of (a), (b) or (c))
[_] (a) A discretionary Trustee. See Plan Section 10.03[A].
[X] (b) A nondiscretionary Trustee. See Plan Section 10.03[B].
[_] (c) A Trustee under a separate trust agreement. See Plan Section 10.03[G].
3. EMPLOYEE (1.11). The following Employees are not eligible to participate in
the Plan: (Choose (a) or one or more of (b) through (g) as applicable)
[_] (a) No exclusions.
[X] (b) Collective bargaining Employees.
[X] (c) Nonresident aliens.
[X] (d) Leased Employees.
[X] (e) Reclassified Employees.
[_] (f) Classifications:
[_] (g) Exclusions by types of contributions. The following classification(s)
of Employees are not eligible for the specified contributions:
Employee classification: ____
Contribution type: ____
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4. COMPENSATION (1.07). The Employer makes the following election(s) regarding
the definition of Compensation for purposes of the contribution allocation
formula under Article III: (Choose one of (a), (o) or (c))
[_] (a) W-2 wages increased by Elective Contributions.
[_] (b) Code ss.3401(a) federal income tax withholding wages increased by
Elective Contributions.
[X] (c) 415 compensation.
[Note: Each of the Compensation definitions in (a), (b) and (c) includes
Elective Contributions. See Plan Section 1.07(D). To exclude Elective
Contributions, the Employer must elect (g).]
Compensation taken into account. For the Plan Year in which an Employee first
becomes a Participant, the Plan Administrator will determine the allocation of
Employer contributions (excluding deferral contributions) by taking into
account: (Choose one of (d) or (e))
[_] (d) Plan Year. The Employee's Compensation for the entire Plan Year.
[X] (e) Compensation while a Participant. The Employee's Compensation only for
the portion of the Plan Year in which the Employee actually is a
Participant.
Modifications to Compensation definition. The Employer elects to modify the
Compensation definition elected in (a), (b) or (c) as follows. (Choose one or
more of (f) through (n) as applicable. If the Employer elects to allocate its
nonelective contribution under Plan Section 3.04 using permitted disparity, (i),
(j), (k) and (l) do not apply):
[_] (f) Fringe benefits. The Plan excludes all reimbursements or other expense
allowances, fringe benefits (cash and noncash), moving expenses,
deferred compensation and welfare benefits.
[_] (g) Elective Contributions. The Plan excludes a Participant's Elective
Contributions. See Plan Section 1.07(D).
[_] (h) Exclusion. The Plan excludes Compensation in excess of: ____
[_] (i) Bonuses. The Plan excludes bonuses.
[_] (j) Overtime. The Plan excludes overtime.
[_] (k) Commissions. The Plan excludes commissions.
[_] (l) Nonelective contributions. The following modifications apply to the
definition of Compensation for nonelective contributions:
[_] (m) Deferral contributions. The following modifications apply to the
definition of Compensation for deferral contributions: _____
[_] (n) Matching contributions. The following modifications apply to the
definition of Compensation for matching contributions: _____
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5. PLAN YEAR/LIMITATION YEAR (1.24). Plan Year and Limitation Year mean the
12-consecutive month period (except for a short Plan Year) ending every: (Choose
(a) or (b). Choose (c) if applicable)
[_] (a) December 31.
[_] (c) Short Plan Year: commencing on: _____ and ending on: _____
6. EFFECTIVE DATE (1.10). The Employer's adoption of the Plan is a: (Choose
one of (a) or (b))
[_] (a) New Plan. The Effective Date of the Plan is: _____
[X] (b) Restated Plan. The restated Effective Date is: JANUARY 1, 2005
This Plan is an amendment and restatement of an existing retirement plan(s)
originally established effective as of: SEPTEMBER 29, 2002
7. HOUR OF SERVICE/ELAPSED TIME METHOD (1.15). The crediting method for Hours
of Service is: (Choose one or more of (a) through (d) as applicable)
[X] (a) Actual Method. See Plan Section 1.15(B).
[_] (b) Equivalency Method. The Equivalency Method is: _____. [Note: Insert
"daily," "weekly," "semi-monthly payroll periods" or "monthly."] See
Plan Section 1.15(C).
[_] (c) Combination Method. In lieu of the Equivalency Method specified in (b),
the Actual Method applies for purposes of: _____
[_] (d) Elapsed Time Method. In lieu of crediting Hours of Service, the Elapsed
Time Method applies for purposes of crediting Service for: (Choose one
or more of (1), (2) or (3) as applicable)
[_] (1) Eligibility under Article II.
[_] (2) Vesting under Article V.
[_] (3) Contribution allocations under Article III.
8. PREDECESSOR EMPLOYER SERVICE (1.30). In addition to the predecessor service
the Plan must credit by reason of Section 1.30 of the Plan, the Plan credits as
Service under this Plan, service with the following predecessor employer(s): N/A
[Note: If the Plan does not credit any additional predecessor service under this
Section 1.30, insert "N/A" in the blank line. The Employer also may elect to
credit predecessor service with specified Participating Employers only. See the
Participation Agreement.] Service with the designated predecessor employer(s)
applies: (Choose one or more of (a) through (d) as applicable)
[_] (a) Eligibility. For eligibility under Article II. See Plan Section 1.30
for time of Plan entry.
[_] (b) Vesting. For vesting under Article V.
[_] (c) Contribution allocation. For contribution allocations under Article
III.
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[_] (d) Exceptions. Except for the following Service:
ARTICLE II
ELIGIBILITY REQUIREMENTS
9. ELIGIBILITY (2.01).
Eligibility conditions. To become a Participant in the Plan, an Employee must
satisfy the following eligibility conditions: (Choose one or more of (a) through
(e) as applicable) [Note: If the Employer does not elect (c), the Employer's
elections under (a) and (b) apply to all types of contributions. The Employer as
to deferral contributions may not elect (b)(2) and may not elect more than 12
months in (b)(4) and (b)(5).]
[X] (a) Age. Attainment of age 21 (not to exceed age 21).
[X] (b) Service. Service requirement. (Choose one of (1) through (5))
[_] (1) One Year of Service.
[_] (2) Two Years of Service, without an intervening Break in Service. See
Plan Section 2.03(A).
[_] (3) One Hour of Service (immediate completion of Service requirement).
The Employee satisfies the Service requirement on his/her
Employment Commencement Date.
[X] (4) 3 months (not exceeding 24).
[_] (5) An Employee must complete ____ Hours of Service within the ____
time period following the Employee's Employment Commencement Date.
If an Employee does not complete the stated Hours of Service
during the specified time period (if any), the Employee is subject
to the One Year of Service requirement. [Note: The number of hours
may not exceed 1,000 and the time period may not exceed 24 months.
If the Plan does not require the Employee to satisfy the Hours of
Service requirement within a specified time period, insert "N/A"
in the second blank line.]
[_] (c) Alternative 401(k)/401(m) eligibility conditions. In lieu of the
elections in (a) and (b), the Employer elects the following eligibility
conditions for the following types of contributions: (Choose (1) or (2)
or both if the Employer wishes to impose less restrictive eligibility
conditions for deferral/Employee contributions or for matching
contributions)
[_] (1) Deferral/Employee contributions: (Choose one of a. through d.
Choose e. if applicable)
a. [ ] One Year of Service
b. [ ] One Hour of Service (immediate completion of Service
requirement)
c. [_] ____ months (not exceeding 12)
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d. [ ] An Employee must complete ____ Hours of Service within the
____ time period following an Employee's Employment
Commencement Date. If an Employee does not complete the
stated Hours of Service during the specified time period (if
any), the Employee is subject to the One Year of Service
requirement. [Note: The number of hours may not exceed 1,000
and the time period may not exceed 12 months. If the Plan
does not require the Employee to satisfy the Hours of Service
requirement within a specified time period, insert "N/A" in
the second blank line.]
e. [_] Age ____ (not exceeding age 21)
(2) [_] Matching contributions: (Choose one off through i. Choose j. if
applicable)
f. [ ] One Year of Service
g. [ ] One Hour of Service (immediate completion of Service
requirement)
h. [_] ____ months (not exceeding 24)
i. [ ] An Employee must complete ____ Hours of Service within the
____ time period following an Employee's Employment
Commencement Date. If an Employee does not complete the
stated Hours of Service during the specified time period (if
any), the Employee is subject to the One Year of Service
requirement. [Note: The number of hours may not exceed 1,000
and the time period may not exceed 24 months. If the Plan
does not require the Employee to satisfy the Hours of Service
requirement within a specified time period, insert ` " in the
second blank line.]
j. [ ] Age (not exceeding age 21)
[_] (d) Service requirements: ____. [Note: Any Service requirement the Employer
elects in (d) must be available under other Adoption Agreement
elections or a combination thereof ]
[_] (e) Dual eligibility. The eligibility conditions of this Section 2.01 apply
solely to an Employee employed by the Employer after ____. If the
Employee was employed by the Employer by the specified date, the
Employee will become a Participant on the latest of: (i) the Effective
Date; (ii) the restated Effective Date; (iii) the Employee's Employment
Commencement Date; or (iv) on the date the Employee attains age ____
(not exceeding age 21).
Plan Entry Date. "Plan Entry Date" means the Effective Date and: (Choose one of
(1) through (j). Choose (k) if applicable) [Note: If the Employer does not elect
(k), the elections under (f) through (j) apply to all types of contributions.
The Employer must elect at least one Entry Date per Plan Year.]
[_] (f) Semi-annual Entry Dates. The first day of the Plan Year and the first
day of the seventh month of the Plan Year.
[_] (g) The first day of the Plan Year.
[_] (h) Employment Commencement Date (immediate eligibility).
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[X] (i) The first day of each: CALENDAR MONTH (e.g., "Plan Year quarter").
[_] (j) The following Plan Entry Dates:
[_] (k) Alternative 401(k)/401(m) Plan Entry Date(s). For the alternative
401(k)/401(m) eligibility conditions under (c), Plan Entry Date means:
(Choose (1) or (2) or both as applicable))
(1) [ ] Deferral/Employee contributions (2) [ ] Matching contributions
(Choose one of a. through d.) (Choose one of e. through h.)
a. [ ]Semi-annual Entry Dates e. [ ]Semi-annual Entry Dates
b. [ ]The first day of the Plan Year f. [ ]The first day of the Plan Year
c. [ ]Employment Commencement Date g. [ ]Employment Commencement Date
(immediate eligibility (immediate eligibility)
d. [_]The first day of each: ____ h. [_]The first day of each: ____
Time of participation. An Employee will become a Participant, unless excluded
under Section 1.11, on the Plan Entry Date (if employed on that date): (Choose
one of (l), (m) or (n). Choose (o) if applicable): [Note: If the Employer does
not elect (o), the election under (1), (m) or (n) applies to all types of
contributions.]
[X] (1) Immediately following or coincident with
[_] (m) Immediately preceding or coincident with
[_] (n) Nearest
[_] (o) Alternative 401(k)/401(m) election(s): (Choose (1) or (2) or both as
applicable)
(1) [_] Deferral contributions (2) [_] Matching contributions
(Choose one of b. through d.)
a. [ ] Semi-annual Entry Dates b. [ ] Immediately following or
coincident with
c. [ ] Immediately preceding or
coincident with
d. [_] Nearest
the date the Employee completes the eligibility conditions described in this
Section 2.01. [Note: Unless otherwise excluded under Section 1.11, an Employee
must become a Participant by the earlier of (1) the first day of the Plan Year
beginning after the date the Employee completes the age and service requirements
of Code ss.410(a); or (2) 6 months after the date the Employee completes those
requirements.]
10. YEAR OF SERVICE - ELIGIBILITY (2.02). (Choose (a) and (b) as applicable):
[Note: If the Employer does not elect a Year of Service condition or elects the
Elapsed Time Method, the Employer should not complete (a) or (b).]
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[_] (a) Year of Service. An Employee must complete ____ Hour(s) of Service
during an eligibility computation period to receive credit for a Year
of Service under Article II: [Note: The number may not exceed 1,000. If
left blank, the requirement is 1,000.]
[_] (b) Eligibility computation period. After the initial eligibility
computation period described in Plan Section 2.02, the Plan measures
the eligibility computation period as: (Choose one of (1) or (2))
[_] (1) The Plan Year beginning with the Plan Year which includes the
first anniversary of the Employee's Employment Commencement Date.
[_] (2) The 12-consecutive month period beginning with each anniversary of
the Employee's Employment Commencement Date.
11. PARTICIPATION - BREAK IN SERVICE (2.03). The one year hold-out rule
described in Plan Section 2.03(B): (Choose one of (a), (b) or (c))
[X] (a) Not applicable. Does not apply to the Plan.
[_] (b) Applicable. Applies to the Plan and to all Participants.
[_] (c) Limited application. Applies to the Plan, but only to a Participant who
has incurred a Separation from Service.
12. ELECTION NOT TO PARTICIPATE (2.06). The Plan: (Choose one of (a) or (b))
[X] (a) Election not permitted. Does not permit an eligible Employee to elect
not to participate.
[_] (b) Irrevocable election. Permits an Employee to elect not to participate
if the Employee makes a one-time irrevocable election prior to the
Employee's Plan Entry Date.
ARTICLE III
EMPLOYER CONTRIBUTIONS, DEFERRAL CONTRIBUTIONS AND FORFEITURES
13. AMOUNT AND TYPE (3.01). The amount and type(s) of the Employer's
contribution to the Trust for a Plan Year or other specified period will equal:
(Choose one or more of (a) through t) as applicable)
[X] (a) Deferral contributions (401(k) arrangement). The dollar or percentage
amount by which each Participant has elected to reduce his/her
Compensation, as provided in the Participant's salary reduction
agreement and in accordance with Section 3.02.
[X] (b) Matching contributions (other than safe harbor matching contributions
under Section 3.01(d)). The matching contributions made in accordance
with Section 3.03.
[X] (c) Nonelective contributions (profit sharing). The following nonelective
contribution (Choose (1) or (2) or both as applicable): [Note: The
Employer may designate as a qualified nonelective contribution, all or
any portion of its nonelective contribution. See Plan Section 3.04(F).]
[X] (1) Discretionary. An amount the Employer in its sole discretion may
determine.
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[_] (2) Fixed. The following amount:
[_] (d) 401(k) safe harbor contributions. The following 401(k) safe harbor
contributions described in Plan Section 14.02(D): (Choose one of (1),
(2) or (3). Choose (4), if applicable)
[_] (1) Safe harbor nonelective contribution. The safe harbor nonelective
contribution equals ____% of a Participant's Compensation [Note:
the amount in the blank must be at least 3%.].
[_] (2) Basic safe harbor matching contribution. A matching contribution
equal to 100% of each Participant's deferral contributions not
exceeding 3% of the Participant's Compensation, plus 50% of each
Participant's deferral contributions in excess of 3% but not in
excess of 5% of the Participant's Compensation. For this purpose,
"Compensation" means Compensation for: ____. [Note: The Employer
must complete the blank line with the applicable time period for
computing the Employer's basic safe harbor match, such as "each
payroll period," "each month," "each Plan Year quarter" or "the
Plan Year".]
[_] (3) Enhanced safe harbor matching contribution. (Choose one of a. or
b.).
[_] a. Uniform percentage. An amount equal to ____% of each
Participant's deferral contributions not exceeding ____% of
the Participant's Compensation. For this purpose,
"Compensation" means Compensation for: ____ [See the Note in
(d)(2).]
[_] b. Tiered formula. An amount equal to the specified matching
percentage for the corresponding level of each Participant's
deferral contribution percentage. For this purpose,
"Compensation" means Compensation for: ____. [See the Note in
(d)(2).]
Deferral Contribution Percentage Matching Percentage
-------------------------------- -------------------
---- ----
---- ----
---- ----
[Note: The matching percentage may not increase as the deferral contribution
percentage increases and the enhanced matching formula otherwise must satisfy
the requirements of Code ss.401(k) (12)(B)(ii) and (iii). If the Employer wishes
to avoid ACP testing on its enhanced safe harbor matching contribution, the
Employer also must limit deferral contributions taken into account (the
"Deferral Contribution Percentage") for the matching contribution to 6% of Plan
Year Compensation.]
[_] (4) Another plan. The Employer will satisfy the 401(k) safe harbor
contribution in the following plan:
[_] (e) Davis-Bacon contributions. The amount(s) specified for the applicable
Plan Year or other applicable period in the Employer's Davis-Bacon
contract(s). The Employer will make a contribution only to Participants
covered by the contract and only with respect to Compensation paid under
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the contract. If the Participant accrues an allocation of nonelective
contributions (including forfeitures) under the Plan in addition to the
Davis-Bacon contribution, the Plan Administrator will: (Choose one of (1)
or (2))
[_] (1) Not reduce the Participant's nonelective contribution allocation
by the Davis-Bacon contribution.
[_] (2) Reduce the Participant's nonelective contribution allocation by
the Davis-Bacon contribution.
[_] (f) Frozen Plan. This Plan is a frozen Plan effective: ____. For any period
following the specified date, the Employer will not contribute to the
Plan, a Participant may not contribute and an otherwise eligible
Employee will not become a Participant in the Plan.
14. DEFERRAL CONTRIBUTIONS (3.02). The following limitations and terms apply to
an Employee's deferral contributions: (If the Employer elects Section 3.01(a),
the Employer must elect (a). Choose (b) or (c) as applicable)
[X] (a) Limitation on amount. An Employee's deferral contributions are subject
to the following limitation(s) in addition to those imposed by the
Code: (Choose (1), (2) or (3) as applicable)
[X] (1) Maximum deferral amount: ____
[X] (2) Minimum deferral amount: 1% OF COMPENSATION
[_] (3) No limitations.
For the Plan Year in which an Employee first becomes a Participant, the Plan
Administrator will apply any percentage limitation the Employer elects in (1) or
(2) to the Employee's Compensation: (Choose one of (4) or (5) unless the
Employer elects (3))
[X] (4) Only for the portion of the Plan Year in which the Employee
actually is a Participant.
[_] (5) For the entire Plan Year.
[_] (b) Negative deferral election. The Employer will withhold ____% from the
Participant's Compensation unless the Participant elects a lesser
percentage (including zero) under his/her salary reduction agreement.
See Plan Section 14.02(C). The negative election will apply to: (Choose
one of (1) or (2))
[_] (1) All Participants who have not deferred at least the automatic
deferral amount as of:
[_] (2) Each Employee whose Plan Entry Date is on or following the
negative election effective date.
[_] (c) Cash or deferred contributions. For each Plan Year for which the
Employer makes a designated cash or deferred contribution under Plan
Section 14.02(B), a Participant may elect to receive directly in cash
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not more than the following portion (or, if less, the 402(g)
limitation) of his/her proportionate share of that cash or deferred
contribution: (Choose one of (1) or (2))
[_] (1) All or any portion.
[_] (2) ____%.
Modification/revocation of salary reduction agreement. A Participant
prospectively may modify or revoke a salary reduction agreement, or may file a
new salary reduction agreement following a prior revocation, at least once per
Plan Year or during any election period specified by the basic plan document or
required by the Internal Revenue Service. The Plan Administrator also may
provide for more frequent elections in the Plan's salary reduction agreement
form.
15. MATCHING CONTRIBUTIONS (INCLUDING ADDITIONAL SAFE HARBOR MATCH UNDER PLAN
SECTION 14.02(D)(3)) (3.03). The Employer matching contribution is: (If the
Employer elects Section 3.01(b), the Employer must elect one or more of (a), (b)
or (c) as applicable. Choose (d) if applicable)
[_] (a) Fixed formula. An amount equal to ____% of each Participant's deferral
contributions.
[X] (b) Discretionary formula. An amount (or additional amount) equal to a
matching percentage the Employer from time to time may deem advisable
of the Participant's deferral contributions. The Employer, in its sole
discretion, may designate as a qualified matching contribution, all or
any portion of its discretionary matching contribution. The portion of
the Employer's discretionary matching contribution for a Plan Year not
designated as a qualified matching contribution is a regular matching
contribution.
[_] (c) Multiple level formula. An amount equal to the following percentages
for each level of the Participant's deferral contributions. [Note: The
matching percentage only will apply to deferral contributions in excess
of the previous level and not in excess of the stated deferral
contribution percentage.]
Deferral Contribution Percentage Matching Percentage
-------------------------------- -------------------
---- ----
---- ----
---- ----
[_] (d) Related Employers. If two or more Related Employers contribute to this
Plan, the Plan Administrator will allocate matching contributions and
matching contribution forfeitures only to the Participants directly
employed by the contributing Employer. The matching contribution
formula for the other Related Employer(s) is: . [Note: If the Employer
does not elect (d), the Plan Administrator will allocate all matching
contributions and matching forfeitures without regard to which
contributing Related Employer directly employs the Participant.]
Time period for matching contributions. The Employer will determine its matching
contribution based on deferral contributions made during each: (Choose one of
(e) through (h))
[_] (e) Plan Year.
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[_] (f) Plan Year quarter.
[_] (g) Payroll period.
[_] (h) Alternative time period: ____. [Note: Any alternative time period the
Employer elects in (h) must be the same for all Participants and may
not exceed the Plan Year.]
Deferral contributions taken into account. In determining a Participant's
deferral contributions taken into account for the above-specified time period
under the matching contribution formula, the following limitations apply:
(Choose one of (i), (j) or (k))
[_] (i) All deferral contributions. The Plan Administrator will take into
account all deferral contributions.
[_] (j) Specific limitation. The Plan Administrator will disregard deferral
contributions exceeding ____% of the Participant's Compensation. [Note:
To avoid the ACP test in a safe harbor 401(k) plan, the Employer must
limit deferrals and Employee contributions which are subject to match
to 6% of Plan Year Compensation.]
[X] (k) Discretionary. The Plan Administrator will take into account the
deferral contributions as a percentage of the Participant's
Compensation as the Employer determines.
Other matching contribution requirements. The matching contribution formula is
subject to the following additional requirements: (Choose (1) or (m) or both if
applicable)
[_] (l) Matching contribution limits. A Participant's matching contributions
may not exceed: (Choose one of (1) or (2))
[_] (1) ____. [Note: The Employer may elect (1) to place an overall dollar
or percentage limit on matching contributions.]
[_] (2) 4% of a Participant's Compensation for the Plan Year under the
discretionary matching contribution formula. [Note: The Employer
must elect (2) if it elects a discretionary matching formula with
the safe harbor 401(k) contribution formula and wishes to avoid
the ACP test.]
[_] (m) Qualified matching contributions. The Plan Administrator will allocate
as qualified matching contributions, the matching contributions
specified in Adoption Agreement Section: ____. The Plan Administrator
will allocate all other matching contributions as regular matching
contributions. [Note: If the Employer elects two matching formulas, the
Employer may use (m) to designate one of the formulas as a qualified
matching contribution.]
16. CONTRIBUTION ALLOCATION (3.04).
Employer nonelective contributions (3.04(A)).The Plan Administrator will
allocate the Employer's nonelective contribution under the following
contribution allocation formula: (Choose one of (a), (b) or (c). Choose (d) if
applicable)
[X] (a) Nonintegrated (pro rata) allocation formula.
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[_] (b) Permitted disparity. The following permitted disparity formula and
definitions apply to the Plan: (Choose one of (1) or (2). Also choose (3))
[_] (1) Two-tiered allocation formula.
[_] (2) Four-tiered allocation formula.
[_] (3) For purposes of Section 3.04(b), "Excess Compensation" means
Compensation in excess of: (Choose one o a. or b.)
[_] a. ____% of the taxable wage base in effect on the first day of
the Plan Year, rounded to the next highest $____ (not
exceeding the taxable wage base).
[_] b. The following integration level: ____ [Note: The integration
level cannot exceed the taxable wage base in effect for the
Plan Year for which this Adoption Agreement first is
effective.]
[_] (c) Uniform points allocation formula. Under the uniform points allocation
formula, a Participant receives: (Choose (1) or both (1) and (2) as
applicable)
[_] (1) ____ point(s) for each Year of Service. Year of Service means:
____
[_] (2) One point for each $____ [not to exceed $200] increment of Plan
Year Compensation.
[_] (d) Incorporation of contribution formula. The Plan Administrator will
allocate the Employer's nonelective contribution under Section(s)
3.01(c)(2), (d)(1) or (e) in accordance with the contribution
formula adopted by the Employer under that Section.
Qualified nonelective contributions. (3.04(F)). The Plan Administrator will
allocate the Employer's qualified nonelective contributions to: (Choose one of
(e) or (f))
[X] (e) Nonhighly compensated Employees only.
[_] (f) All Participants.
Related Employers. (Choose (g) if applicable)
[_] (g) Allocate only to directly employed Participants. If two or more Related
Employers adopt this Plan, the Plan Administrator will allocate all
nonelective contributions and forfeitures attributable to nonelective
contributions only to the Participants directly employed by the
contributing Employer. If a Participant receives Compensation from more
than one contributing Employer, the Plan Administrator will determine
the allocations under this Section 3.04 by prorating the Participant's
Compensation between or among the participating Related Employers.
[Note: If the Employer does not elect 3.04(g), the Plan Administrator
will allocate all nonelective contributions and forfeitures without
regard to which contributing Related Employer directly employs the
Participant. The Employer may not elect 3.04(g) under a safe harbor
401(k) Plan.]
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17. FORFEITURE ALLOCATION (3.05). The Plan Administrator will allocate a
Participant forfeiture: (Choose one or more of (a), (b) or (c) as applicable)
[Note: Even if the Employer elects immediate vesting, the Employer should
complete Section 3.05. See Plan Section 9.11.]
[X] (a) Matching contribution forfeitures. To the extent attributable to
matching contributions: (Choose one of (1) through (4))
[_] (1) As a discretionary matching contribution.
[X] (2) To reduce matching contributions.
[_] (3) As a discretionary nonelective contribution.
[_] (4) To reduce nonelective contributions.
[X] (b) Nonelective contribution forfeitures. To the extent attributable to
Employer nonelective contributions: (Choose one of (1) through (4))
[X] (1) As a discretionary nonelective contribution.
[_] (2) To reduce nonelective contributions.
[_] (3) As a discretionary matching contribution.
[_] (4) To reduce matching contributions.
[_] (c) Reduce administrative expenses. First to reduce the Plan's ordinary and
necessary administrative expenses for the Plan Year and then allocate
any remaining forfeitures in the manner described in Sections 3.05(a)
or (b) as applicable.
Timing of forfeiture allocation. The Plan Administrator will allocate
forfeitures under Section 3.05 in the Plan Year: (Choose one of (d) or (e))
[X] (d) In which the forfeiture occurs.
[_] (e) Immediately following the Plan Year in which the forfeiture occurs.
18. ALLOCATION CONDITIONS (3.06).
Allocation conditions. The Plan does not apply any allocation conditions to
deferral contributions, 401(k) safe harbor contributions (under Section 3.01(d))
or to Davis-Bacon contributions (except as the Davis-Bacon contract provides).
To receive an allocation of matching contributions, nonelective contributions,
qualified nonelective contributions or Participant forfeitures, a Participant
must satisfy the following allocation condition(s):
(Choose one or more of (a) through (i) as applicable)
[X] (a) Hours of Service condition. The Participant must complete at least the
specified number of Hours of Service (not exceeding 1,000) during the
Plan Year: 500.
[X] (b) Employment condition. The Participant must be employed by the Employer
on the last day of the PLAN YEAR (designate time period).
[_] (c) No allocation conditions.
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[_] (d) Elapsed Time Method. The Participant must complete at least the
specified number (not exceeding 182) of consecutive calendar days of
employment with the Employer during the Plan Year: ____
[_] (e) Termination of Service/501 Hours of Service coverage rule. The
Participant either must be employed by the Employer on the last day of
the Plan Year or must complete at least 501 Hours of Service during the
Plan Year. If the Plan uses the Elapsed Time Method of crediting
Service, the Participant must complete at least 91 consecutive calendar
days of employment with the Employer during the Plan Year.
[_] (f) Special allocation conditions for matching contributions. The
Participant must complete at least ____ Hours of Service during the
____ (designate time period) for the matching contributions made for
that time period.
[_] (g) Death, Disability or Normal Retirement Age. Any condition specified in
Section 3.06 applies if the Participant incurs a Separation from
Service during the Plan Year on account of: ____ (e.g., death,
Disability or Normal Retirement Age).
[X] (h) Suspension of allocation conditions for coverage. The suspension of
allocation conditions of Plan Section 3.06(E) applies to the Plan.
[X] (i) Limited allocation conditions. The Plan does not impose an allocation
condition for the following types of contributions: MATCHING
CONTRIBUTIONS EXCEPT PARTICIPANT MUST BE EMPLOYED BY THE EMPLOYER ON
THE LAST DAY OF THE CALENDAR QUARTER. [Note: Any election to limit the
Plan's allocation conditions to certain contributions must be the same
for all Participants, be definitely determinable and not discriminate
in favor of Highly Compensated Employees.]
ARTICLE IV
PARTICIPANT CONTRIBUTIONS
19. EMPLOYEE (AFTER TAX) CONTRIBUTIONS (4.02). The following elections apply to
Employee contributions: (Choose one of (a) or (b). Choose (c) if applicable)
[X] (a) Not permitted. The Plan does not permit Employee contributions.
[_] (b) Permitted. The Plan permits Employee contributions subject to the
following limitations:____ [Note: Any designated limitation(s) must be
the same for all Participants, be definitely determinable and not
discriminate in favor of Highly Compensated Employees.]
[_] (c) Matching contribution. For each Plan Year, the Employer's matching
contribution made with respect to Employee contributions is: ____
ARTICLE V
VESTING REQUIREMENTS
20. NORMAL/EARLY RETIREMENT AGE (5.01). A Participant attains Normal Retirement
Age (or Early Retirement Age, if applicable) under the Plan on the following
date: (Choose one of (a) or (b). Choose (c) if applicable)
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[X] (a) Specific age. The date the Participant attains age 65. [Note: The age
may not exceed age 65.]
[_] (b) Age/participation. The later of the date the Participant attains ____
years of age or the ____ anniversary of the first day of the Plan Year
in which the Participant commenced participation in the Plan. [Note:
The age may not exceed age 65 and the anniversary may not exceed the
5th.]
[_] (c) Early Retirement Age. Early Retirement Age is the later of: (i) the
date a Participant attains age ____ or (ii) the date a Participant
reaches his/her ____ anniversary of the first day of the Plan Year in
which the Participant commenced participation in the Plan.
21. PARTICIPANT'S DEATH OR DISABILITY (5.02). The 100% vesting rule under Plan
Section 5.02 does not apply to: (Choose (a) or (b) or both as applicable)
[_] (a) Death.
[_] (b) Disability.
22. VESTING SCHEDULE (5.03). A Participant has a 100% Vested interest at all
times in his/her deferral contributions, qualified nonelective contributions,
qualified matching contributions, 401(k) safe harbor contributions and
Davis-Bacon contributions (unless otherwise indicated in (f)). The following
vesting schedule applies to Employer regular matching contributions and to
Employer nonelective contributions: (Choose (a) or choose one or more of (b)
through (f) as applicable)
[_] (a) Immediate vesting. 100% Vested at all times. [Note: The Employer must
elect (a) if the Service condition under Section 2.01 exceeds One Year
of Service or more than twelve months.]
[X] (b) Top-heavy vesting schedules. [Note: The Employer must choose one of
(b)(1), (2) or (3) if it does not elect (a).]
[X] (1) 6-year graded as specified in the Plan. [ ] (3) Modified top-heavy schedule
[ ] (2) 3-year cliff as specified in the Plan.
Years of Service Vested Percentage
---------------- -----------------
Less than 1 ................... ___%
1 ............................. ___%
2 ............................. ___%
3 ............................. ___%
4 ............................. ___%
5 ............................. ___%
6 or more ..................... 100%
[_] (c) Non-top-heavy vesting schedules. [Note: The Employer may elect one of
(c)(1), (2) or (3) in addition to (b).]
[_] (1) 7-year graded as specified in the Plan. [_] (2) Modified non-top-heavy schedule
[_] (3) 5-year cliff as specified in the Plan.
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Years of Service Vested Percentage
---------------- -----------------
Less than 1 ................... ___%
1 ............................. ___%
2 ............................. ___%
3 ............................. ___%
4 ............................. ___%
5 ............................. ___%
6 ............................. ___%
7 ............................. 100%
If the Employer does not elect (c), the vesting schedule elected in (b) applies
to all Plan Years. [Note: The modified top-heavy schedule of (b)(3) must satisfy
Code ss.416. If the Employer elects (c)(3), the modified non-top-heavy schedule
must satisfy Code ss.411(a)(2).]
[X] (d) Separate vesting election for regular matching contributions. In lieu
of the election under (a), (b) or (c), the following vesting schedule
applies to a Participant's regular matching contributions: (Choose one
of (1) or (2))
[_] (1) 100% Vested at all times.
[X] (2) Regular matching vesting schedule: TOP HEAVY SCHEDULE. [Note: The
vesting schedule completed under (d)(2) must comply with Code
ss.411(a)(4).]
[_] (e) Application of top-heavy schedule. The non-top-heavy schedule elected
under (c) applies in all Plan Years in which the Plan is not a
top-heavy plan. [Note: If the Employer does not elect (e), the
top-heavy vesting schedule will apply for the first Plan Year in which
the Plan is top-heavy and then in all subsequent Plan Years.]
[_] (f) Special vesting provisions: ____. [Note: Any special vesting provision
must satisfy Code ss.411(a). Any special vesting provision must be
definitely determinable, not discriminate in favor of Highly
Compensated Employees and not violate Code ss.401(a)(4).]
23. YEAR OF SERVICE - VESTING (5.06). (Choose (a) and (b)): [Note: If the
Employer elects the Elapsed Time Method or elects immediate vesting, the
Employer should not complete (a) or (b).]
[X] (a) Year of Service. An Employee must complete at least 500 Hours of
Service during a vesting computation period to receive credit for a
Year of Service under Article V. [Note: The number may not exceed
1,000. If left blank, the requirement is 1,000.]
[X] (b) Vesting computation period. The Plan measures a Year of Service on the
basis of the following 12-consecutive month period: (Choose one of (1)
or (2))
[X] (1) Plan Year.
[_] (2) Employment year (anniversary of Employment Commencement Date).
24. EXCLUDED YEARS OF SERVICE - VESTING (5.08). The Plan excludes the following
Years of Service for purposes of vesting: (Choose (a) or choose one or more of
(b) through (f) as applicable)
[X] (a) None. None other than as specified in Plan Section 5.08(a).
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[_] (b) Age 18. Any Year of Service before the Year of Service during which the
Participant attained the age of 18.
[_] (c) Prior to Plan establishment. Any Year of Service during the period the
Employer did not maintain this Plan or a predecessor plan.
[_] (d) Parity Break in Service. Any Year of Service excluded under the rule of
parity. See Plan Section 5.10.
[_] (e) Prior Plan terms. Any Year of Service disregarded under the terms of
the Plan as in effect prior to this restated Plan.
[_] (f) Additional exclusions. Any Year of Service before: ____ [Note: Any
exclusion specified under (f) must comply with Code ss.411(a)(4). Any
exclusion must be definitely determinable, not discriminate in favor of
Highly Compensated Employees and not violate Code ss.401(a)(4). If the
Employer elects immediate vesting, the Employer should not complete
Section 5.08.]
ARTICLE VI
DISTRIBUTION OF ACCOUNT BALANCE
25. TIME OF PAYMENT OF ACCOUNT BALANCE (6.01). The following time of
distribution elections apply to the Plan:
Separation from Service/Vested Account Balance not exceeding $5,000. Subject to
the limitations of Plan Section 6.01(A)(1), the Trustee will distribute in a
lump sum (regardless of the Employer's election under Section 6.04) a separated
Participant's Vested Account Balance not exceeding $5,000: (Choose one of (a)
through (d))
[X] (a) Immediate. As soon as administratively practicable following the
Participant's Separation from Service.
[_] (b) Designated Plan Year. As soon as administratively practicable in the
____ Plan Year beginning after the Participant's Separation from
Service.
[_] (c) Designated Plan Year quarter. As soon as administratively practicable
in the ____ Plan Year quarter beginning after the Participant's
Separation from Service.
[_] (d) Designated distribution. As soon as administratively practicable in
the: ____ following the Participant's Separation from Service. [Note:
The designated distribution time must be the same for all Participants,
be definitely determinable, not discriminate in favor of Highly
Compensated Employees and not violate Code ss.401(a)(4).]
Separation from Service/Vested Account Balance exceeding $5,000. A separated
Participant whose Vested Account Balance exceeds $5,000 may elect to commence
distribution of his/her Vested Account Balance no earlier than:
(Choose one of (e) through (i). Choose (j) if applicable)
[X] (e) Immediate. As soon as administratively practicable following the
Participant's Separation from Service.
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[_] (f) Designated Plan Year. As soon as administratively practicable in the
____ Plan Year beginning after the Participant's Separation from
Service.
[_] (g) Designated Plan Year quarter. As soon as administratively practicable
in the ____ Plan Year quarter following the Plan Year quarter in which
the Participant elects to receive a distribution.
[_] (h) Normal Retirement Age. As soon as administratively practicable after
the close of the Plan Year in which the Participant attains Normal
Retirement Age and within the time required under Plan Section
6.01(A)(2).
[_] (i) Designated distribution. As soon as administratively practicable in
the: following the Participant's Separation from Service. [Note: The
designated distribution time must be the same for all Participants, be
definitely determinable, not discriminate in favor of Highly
Compensated Employees and not violate Code ss.401(a)(4).]
[_] (j) Limitation on Participant's right to delay distribution. A Participant
may not elect to delay commencement of distribution of his/her Vested
Account Balance beyond the later of attainment of age 62 or Normal
Retirement Age. [Note: If the Employer does not elect (j), the Plan
permits a Participant who has Separated from Service to delay
distribution until his/her required beginning date. See Plan Section
6.01(A)(2).]
Participant elections prior to Separation from Service. A Participant, prior to
Separation from Service may elect any of the following distribution options in
accordance with Plan Section 6.01(C). (Choose (k) or choose one or more of (l)
through (o) as applicable). [Note: If the Employer elects any in-service
distributions option, a Participant may elect to receive one in-service
distribution per Plan Year unless the Plan's in-service distribution form
provides for more frequent in-service distributions.]
[_] (k) None. A Participant does not have any distribution option prior to
Separation from Service, except as may be provided under Plan Section
6.01(C).
[X] (1) Deferral contributions. Distribution of all or any portion (as
permitted by the Plan) of a Participant's Account Balance attributable
to deferral contributions if: (Choose one or more of (1), (2) or (3) as
applicable)
[X] (1) Hardship (safe harbor hardship rule). The Participant has incurred
a hardship in accordance with Plan Sections 6.09 and 14.11(A).
[X] (2) Age. The Participant has attained age 65 (Must be at least age 59
1/2).
[_] (3) Disability. The Participant has incurred a Disability.
[X] (m) Qualified nonelective contributions/qualified matching
contributions/safe harbor contributions. Distribution of all or any
portion of a Participant's Account Balance attributable to qualified
nonelective contributions, to qualified matching contributions, or to
401(k) safe harbor contributions if: (Choose (1) or (2) or both as
applicable)
[X] (1) Age. The Participant has attained age 65 (Must be at least age 59
1/2).
[_] (2) Disability. The Participant has incurred a Disability.
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[X] (n) Nonelective contributions/regular matching contributions. Distribution
of all or any portion of a Participant's Vested Account Balance
attributable to nonelective contributions or to regular matching
contributions if: (Choose one or more of (1) through (5) as applicable)
[X] (1) Age/Service conditions. (Choose one or more of a. through d. as
applicable):
[X] a. Age. The Participant has attained age 65.
[_] b. Two-year allocations. The Plan Administrator has allocated the
contributions to be distributed for a period of not less than
____ Plan Years before the distribution date. [Note: The
minimum number of years is 2.]
[_] c. Five years of participation. The Participant has participated
in the Plan for at least ____ Plan Years. [Note: The minimum
number of years is 5.]
[_] d. Vested. The Participant is ____% Vested in his/her Account
Balance. See Plan Section 5.03(A). [Note: If an Employer makes
more than one election under Section 6.01(n)(1), a Participant
must satisfy all conditions before the Participant is eligible
for the distribution.]
[_] (2) Hardship. The Participant has incurred a hardship in accordance
with Plan Section 6.09.
[_] (3) Hardship (safe harbor hardship rule). The Participant has incurred
a hardship in accordance with Plan Sections 6.09 and 14.11(A).
[_] (4) Disability. The Participant has incurred a Disability.
[_] (5) Designated condition. The Participant has satisfied the following
condition(s): ____ [Note: Any designated condition(s) must be the
same for all Participants, be definitely determinable and not
discriminate in favor of Highly Compensated Employees.]
[X] (o) Participant contributions. Distribution of all or any portion of a
Participant's Account Balance attributable to the following Participant
contributions described in Plan Section 4.01: (Choose one of (1), (2)
or (3))
[X] (1) All Participant contributions.
[_] (2) Employee contributions only.
[_] (3) Rollover contributions only.
Participant loan default/offset. See Section 6.08 of the Plan.
26. DISTRIBUTION METHOD (6.03). A separated Participant whose Vested Account
Balance exceeds $5,000 may elect distribution under one of the following
method(s) of distribution described in Plan Section 6.03: (Choose
one or more of (a) through (d) as applicable)
[X] (a) Lump sum.
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[X] (b) Installments.
[_] (c) Installments for required minimum distributions only.
[_] (d) Annuity distribution option(s): ____ [Note: Any optional method of
distribution may not be subject to Employer, Plan Administrator or
Trustee discretion.]
27. JOINT AND SURVIVOR ANNUITY REQUIREMENTS (6.04). The joint and survivor
annuity distribution requirements of Plan Section 6.04: (Choose one of (a) or
(b))
[_] (a) Profit sharing plan exception. Do not apply to a Participant, unless
the Participant is a Participant described in Section 6.04(H) of the
Plan.
[X] (b) Applicable. Apply to all Participants.
ARTICLE VII
PLAN ADMINISTRATOR - DUTIES WITH RESPECT TO
PARTICIPANTS' ACCOUNTS
28. ALLOCATION OF NET INCOME, GAIN OR LOSS (9.08). For each type of contribution
provided under the Plan, the Plan allocates net income, gain or loss using the
following method: (Choose one or more of (a) through (e) as applicable)
[X] (a) Deferral contributions/Employee contributions. (Choose one or more of
(1) through (5) as applicable)
[X] (1) Daily valuation method. Allocate on each business day of the Plan
Year during which Plan assets for which there is an established
market are valued and the Trustee is conducting business.
[_] (2) Balance forward method. Allocate using the balance forward method.
[_] (3) Weighted average method. Allocate using the weighted average
method, based on the following weighting period: ____. See Plan
Section 14.12.
[_] (4) Balance forward method with adjustment. Allocate pursuant to the
balance forward method, except treat as part of the relevant
Account at the beginning of the valuation period ____% of the
contributions made during the following valuation period: ____
[_] (5) Individual account method. Allocate using the individual account
method. See Plan Section 9.08.
[X] (b) Matching contributions. (Choose one or more of (1) through (5) as
applicable)
[X] (1) Daily valuation method. Allocate on each business day of the Plan
Year during which Plan assets for which there is an established
market are valued and the Trustee is conducting business.
[_] (2) Balance forward method. Allocate using the balance forward method.
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[_] (3) Weighted average method. Allocate using the weighted average
method, based on the following weighting period: ___. See Plan
Section 14.12.
[_] (4) Balance forward method with adjustment. Allocate pursuant to the
balance forward method, except treat as part of the relevant
Account at the beginning of the valuation period ____% of the
contributions made during the following valuation period: ____
[_] (5) Individual account method. Allocate using the individual account
method. See Plan Section 9.08.
[X] (c) Employer nonelective co\ntributions. (Choose one or more of (1) through
(5) as applicable)
[X] (1) Daily valuation method. Allocate on each business day of the Plan
Year during which Plan assets for which there is an established
market are valued and the Trustee is conducting business.
[_] (2) Balance forward method. Allocate using the balance forward method.
[_] (3) Weighted average method. Allocate using the weighted average
method, based on the following weighting period: ____. See Plan
Section 14.12.
[_] (4) Balance forward method with adjustment. Allocate pursuant to the
balance forward method, except treat as part of the relevant
Account at the beginning of the valuation period ___% of the
contributions made during the following valuation period: ____
[_] (5) Individual account method. Allocate using the individual account
method. See Plan Section 9.08.
[_] (d) Specified method. Allocate pursuant to the following method: ____
[Note: The specified method must be a definite predetermined formula
which is not based on Compensation, which satisfies the
nondiscrimination requirements of Treas. Reg. ss.1.401(a)(4) and which
is applied uniformly to all Participants.]
[X] (e) Interest rate factor. In accordance with Plan Section 9.08(E), the Plan
includes interest at the following rate on distributions made more than
90 days after the most recent valuation date: 0.
ARTICLE VIII
TRUSTEE AND CUSTODIAN, POWERS AND DUTIES
29. INVESTMENT POWERS (10.03). The following additional investment options or
limitations apply under Plan Section 10.03: N/A. [Note: Enter "N/A" if not
applicable.]
30. VALUATION OF TRUST (10.15). In addition to the last day of the Plan Year,
the Trustee must value the Trust Fund on the following valuation date(s):
(Choose one of (a) through (d))
[X] (a) Daily valuation dates. Each business day of the Plan Year on which Plan
assets for which there is an established market are valued and the
Trustee is conducting business.
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[_] (b) Last day of a specified period. The last day of each ____ of the Plan
Year.
[_] (c) Specified dates: _____
[_] (d) No additional valuation dates.
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Execution Page
The Trustee (and Custodian, if applicable), by executing this Adoption
Agreement, accepts its position and agrees to all of the obligations,
responsibilities and duties imposed upon the Trustee (or Custodian) under the
Prototype Plan and Trust. The Employer hereby agrees to the provisions of this
Plan and Trust, and in witness of its agreement, the Employer by its duly
authorized officers, has executed this Adoption Agreement, and the Trustee (and
Custodian, if applicable) has signified its acceptance, on:
December 16, 2004
- ------------------------------------------------------------------
Name of Employer: North Bay Bancorp
-----------------------------------
Employer's EIN: 68-0038701
-------------------------------------
Signed: /s/ Rhonda K. Blower
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AVP/Human Resources
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[Name/Title]
Name(s) of Trustee:
WELLS FARGO BANK, N.A.
/s/ Don Dunbar Dec. 20, 2004
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Trust EIN (Optional):
Signed:
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[Name/Title]
Signed:
---------------------------------------------
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[Name/Title]
Signed:
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[Name/Title]
Signed:
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[Name/Title]
Signed:
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[Name/Title]
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Signed:
---------------------------------------------
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[Name/Title]
Signed:
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---------------------------------------------
[Name/Title]
Signed:
---------------------------------------------
---------------------------------------------
[Name/Title]
Name of Custodian (Optional):
Signed:
---------------------------------------------
---------------------------------------------
[Name/Title]
Signed:
---------------------------------------------
---------------------------------------------
[Name/Title]
31. Plan Number. The 3-digit plan number the Employer assigns to this Plan for
ERISA reporting purposes (Form 5500 Series) is: 001.
Use of Adoption Agreement. Failure to complete properly the elections in this
Adoption Agreement may result in disqualification of the Employer's Plan. The
Employer only may use this Adoption Agreement in conjunction with the basic plan
document referenced by its document number on Adoption Agreement page one.
Executionfor Page Substitution Amendment Only. If this paragraph is completed,
this Execution Page documents an amendment to Adoption Agreement Section(s) ____
effective _________________, by substitute Adoption Agreement page number(s)
________.
Prototype Plan Sponsor. The Prototype Plan Sponsor identified on the first page
of the basic plan document will notify all adopting employers of any amendment
of this Prototype Plan or of any abandonment or discontinuance by the Prototype
Plan Sponsor of its maintenance of this Prototype Plan. For inquiries regarding
the adoption of the Prototype Plan, the Prototype Plan Sponsor's intended
meaning of any Plan provisions or the effect of the opinion letter issued to the
Prototype Plan Sponsor, please contact the Prototype Plan Sponsor at the
following address and telephone number: 420 MONTGOMERY STREET, 2ND FLOOR, SAN
FRANCISCO, CA 94104, (415) 222-1120.
Reliance on Sponsor Opinion Letter. The Prototype Plan Sponsor has obtained from
the IRS an opinion letter specifying the form of this Adoption Agreement and the
basic plan document satisfy, as of the date of the opinion letter, Code ss.401.
An adopting Employer may rely on the Prototype Sponsor's IRS opinion letter only
to the extent provided in Announcement 2001-77, 2001-30 I.R.B. The Employer may
not rely on the opinion letter in certain other circumstances or with respect to
certain qualification requirements, which are specified in the opinion letter
and in Announcement 2001-77. In order to have reliance in such circumstances or
with respect to such qualification requirements, the Employer must apply for a
determination letter to Employee Plans Determinations of the Internal Revenue
Service.
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North Bay Bancorp 401(k) & Profit Sharing Plan
PARTICIPATION AGREEMENT
[X] Check here if not applicable and do not complete this page.
The undersigned Employer, by executing this Participation Agreement,
elects to become a Participating Employer in the Plan identified in Section 1.21
of the accompanying Adoption Agreement, as if the Participating Employer were a
signatory to that Adoption Agreement. The Participating Employer accepts, and
agrees to be bound by, all of the elections granted under the provisions of the
Prototype Plan as made by the Signatory Employer to the Execution Page of the
Adoption Agreement, except as otherwise provided in this Participation
Agreement.
32. EFFECTIVE DATE (1.10). The Effective Date of the Plan for the Participating
Employer is:
- ------------------.
33. NEW PLAN/RESTATEMENT. The Participating Employer's adoption of this Plan
constitutes: (Choose one of (a) or (b))
[_] (a) The adoption of a new plan by the Participating Employer.
[_] (b) The adoption of an amendment and restatement of a plan currently
maintained by the Participating Employer, identified as:
___________________________________, and having an original effective
date of: _________________________.
34. PREDECESSOR EMPLOYER SERVICE (1.30). In addition to the predecessor service
credited by reason of Section 1.30 of the Plan, the Plan credits as Service
under this Plan, service with this Participating Employer. (Choose one or more
of (a) through (d) as applicable): [Note: lithe Plan does not credit any
additional predecessor service under Section 1.30 for this Participating
Employer, do not complete this election.]
[_] (a) Eligibility. For eligibility under Article II. See Plan Section 1.30
for time of Plan entry.
[_] (b) Vesting. For vesting under Article V.
[_] (c) Contribution allocation. For contribution allocations under Article
III.
[_] (d) Exceptions. Except for the following Service: _____
Name of Plan: Name of Participating Employer:
Signed:
-------------------------------------
-------------------------------------
[Name/Title]
-------------------------------------
[Date]
Participating Employer's EIN:
---------------
Acceptance by the Signatory Employer to the Execution Page of the Adoption
Agreement and by the Trustee.
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Name of Signatory Employer: Name(s) of Trustee:
- ------------------------------------------------ -----------------------------------------------------------
- ------------------------------------------------ -----------------------------------------------------------
[Name/Title] [Name/Title]
Signed: Signed:
----------------------------------------- ----------------------------------------------------
----------------------------------------- ----------------------------------------------------
[Date] [Date]
[Note: Each Participating Employer must execute a separate Participation
Agreement. If the Plan does not have a Participating Employer, the Signatory
Employer may delete this page from the Adoption Agreement.]
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APPENDIX A
TESTING ELECTIONS/EFFECTIVE DATE ADDENDUM
35. The following testing elections and special effective dates apply: (Choose
one or more of (a) through (n) as applicable)
[_] (a) Highly Compensated Employee (1.14). For Plan Years beginning after
______________, the Employer makes the following election(s) regarding
the definition of Highly Compensated Employee:
(1) [ ] Top paid group election.
(2) [ ] Calendar year data election (fiscal year plan).
[X] (b) 401(k) current year testing. The Employer will apply the current year
testing method in applying the ADP and ACP tests effective for Plan
Years beginning after: 1996. [Note: For Plan Years beginning on or
after the Employer's execution of its "GUST" restatement, the Employer
must use the same testing method within the same Plan Year for both the
ADP and ACP tests.]
[X] (c) Compensation. The Compensation definition under Section 1.07 will apply
for Plan Years beginning after: EFFECTIVE JANUARY 1, 2005.
[_] (d) Election not to participate. The election not to participate under
Section 2.06 is effective: ____.
[_] (e) 401(k) safe harbor. The 401(k) safe harbor provisions under Section
3.01(d) are effective: ____
[_] (f) Negative election. The negative election provision under Section
3.02(b) is effective: ____
[_] (g) Contribution/allocation formula. The specified contribution(s) and
allocation method(s) under Sections 3.01 and 3.04 are effective: ____
[X] (h) Allocation conditions. The allocation conditions of Section 3.06 are
effective: DEATH, DISABILITY AND RETIREMENT IN PLAN YEAR NOW RECEIVE
ALLOCATION OF MATCH OR PROFIT SHARING CONTRIBUTION EFFECTIVE JANUARY 1,
2005.
[_] (i) Benefit payment elections. The distribution elections of Section(s)
_____ are effective: ____
[_] (j) Election to continue pre-SBJPA required beginning date. A Participant
may not elect to defer commencement of the distribution of his/her
Vested Account Balance beyond the April 1 following the calendar year
in which the Participant attains age 70 1/2. See Plan Section 6.02(A).
[_] (k) Elimination of age 70 1/2 in-service distributions. The Plan eliminates
a Participant's (other than a more than 5% owner) right to receive
in-service distributions on April 1 of the calendar year following the
year in which the Participant attains age 70 1/2 for Plan Years
beginning after: ____
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[_] (1) Allocation of earnings. The earnings allocation provisions under
Section 9.08 are effective: ----
[X] (m) Elimination of optional forms of benefit. The Employer elects
prospectively to eliminate the following optional forms of benefit:
(Choose one or more of (1), (2) and (3) as applicable)
[X] (1) QJSA and QPSA benefits as described in Plan Sections 6.04, 6.05
and 6.06 effective: EFFECTIVE JANUARY 1, 2005
[_] (2) Installment distributions as described in Section 6.03 effective:
____
[_] (3) Other optional forms of benefit (Any election to eliminate must be
consistent with Treas. Reg. ss.1.411(d)-4):
[X] (n) Special effective date(s): ____________ THE 7 YEAR VESTING SCHEDULE IN
THE PRIOR DOCUMENT CONTINUES TO APPLY FOR MATCHING CONTRIBUTIONS FOR
THOSE WHO TERMINATED EMPLOYMENT BEFORE 2002. CHANGE IN ELIGIBILITY
SERVICE TO PARTICIPATE IN PLAN (#9 SECTION 2.01) EFFECTIVE JANUARY 1,
2005.
For periods prior to the above-specified special effective date(s), the Plan
terms in effect prior to its restatement under this Adoption Agreement will
control for purposes of the designated provisions. A special effective date may
not result in the delay of a Plan provision beyond the permissible effective
date under any applicable law.
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APPENDIX B
GUST Remedial Amendment Period Elections
36. The following GUST restatement elections apply: (Choose one or more of (a)
through (j) as applicable)
[X] (a) Highly Compensated Employee elections. The Employer makes the following
remedial amendment period elections with respect to the Highly
Compensated Employee definition:
(1) 1998: [X] Top paid group election. [_] Calendar year election.
(2) 1998: [X] Top paid group election. [_] Calendar year data election.
(3) 1999: [_] Top paid group election. [_] Calendar year data election.
(4) 2000: [_] Top paid group election. [_] Calendar year data election.
(5) 2001: [_] Top paid group election. [_] Calendar year data election.
(6) 2002: [_] Top paid group election. [_] Calendar year data election.
[X] (b) 401(k) testing methods. The Employer makes the following remedial
amendment period elections with respect to the ADP test and the ACP
test: [Note: The Employer may use a different testing method for the
ADP and ACP tests through the end of the Plan Year in which the
Employer executes its GUST restated Plan.]
ADP test ACP test
-------- --------
(1) 1997: [ ] prior year [X] current year 1997: [ ] prior year [X] current year
(2) 1998: [ ] prior year [X] current year 1998: [ ] prior year [X] current year
(3) 1999: [ ] prior year [X] current year 1999: [ ] prior year [X] current year
(4) 2000: [ ] prior year [X] current year 2000: [ ] prior year [X] current year
(5) 2001: [ ] prior year [ ] current year 2001: [ ] prior year [ ] current year
(6) 2002: [ ] prior year [ ] current year 2002: [ ] prior year [ ] current year
[_] (c) Delayed application of SBJPA required beginning date. The Employer
elects to delay the effective date for the required beginning date
provision of Plan Section 6.02 until Plan Years beginning after: ____
[X] (d) Model Amendment for required minimum distributions. The Employer adopts
the IRS Model Amendment in Plan Section 6.02(E) effective JANUARY 1,
2001. [Note: The date must not be earlier than January 1, 2001.]
Defined Benefit Limitation
[_] (e) Code ss.415(e) repeal. The repeal of the Code ss.415(e) limitation is
effective for Limitation Years beginning after ______. [Note: If the
Employer does not make an election under (e), the repeal is effective
for Limitation Years beginning after December 31, 1999.]
Code ss.415(e) limitation. To the extent necessary to satisfy the limitation
under Plan Section 3.17 for Limitation Years beginning prior to the repeal of
Code ss.415(e), the Employer will reduce: (Choose one of (f) or (g))
[_] (f) The Participant's projected annual benefit under the defined benefit
plan.
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[_] (g) The Employer's contribution or allocation on behalf of the Participant
to the defined contribution plan and then, if necessary, the
Participant's projected annual benefit under the defined benefit plan.
Coordination with top-heavy minimum allocation. The Plan Administrator will
apply the top-heavy minimum allocation provisions of Article XII with the
following modifications: (Choose (h) or choose (i) or 0) or both as applicable)
[_] (h) No modifications.
[_] (i) For Non-Key Employees participating only in this Plan, the top-heavy
minimum allocation is the minimum allocation determined by substituting
____% (not less than 4%) for "3%," except: (Choose one of (1) or (2))
[_] (1) No exceptions.
[_] (2) Plan Years in which the top-heavy ratio exceeds 90%.
[_] (j) For Non-Key Employees also participating in the defined benefit plan,
the top-heavy minimum is: (Choose one of (1) or (2))
[_] (1) 5% of Compensation irrespective of the contribution rate of any
Key Employee: (Choose one of a. or b.)
[_] a. No exceptions.
[_] b. Substituting "7 1/2%" for "5%" if the top-heavy ratio does not
exceed 90%.
[_] (2) 0%. [Note: The defined benefit plan must satisfy the top-heavy
minimum benefit requirement for these Non-Key Employees.]
Actuarial assumptions for top-heavy calculation. To determine the top-heavy
ratio, the Plan Administrator will use the following interest rate and mortality
assumptions to value accrued benefits under a defined benefit plan: ____.
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CHECKLIST OF EMPLOYER INFORMATION
AND EMPLOYER ADMINISTRATIVE ELECTIONS
Commencing with the ____ Plan Year
The Prototype Plan permits the Employer to make certain administrative
elections not reflected in the Adoption Agreement. This form lists those
administrative elections and provides a means of recording the Employer's
elections. This checklist is not part of the Plan document.
37. Employer Information.
NORTH BAY BANCORP
[Employer Name]
1500 SOSCAL AVE
[Address]
NAPA, California 94558 (707) 252-2340
[City, State and Zip Code] [Telephone Number]
38. Form of Business.
(a) [X] Corporation (b) [_] S Corporation
(c) [_] Limited Liability Company (d) [_] Sole Proprietorship
(e) [_] Partnership (f) [_] _______
39. Section 1.07(F) - Nondiscriminatory definition of Compensation. When
testing nondiscrimination under the Plan, the Plan permits the Employer
to make elections regarding the definition of Compensation. [Note: This
election solely is for purposes of nondiscrimination testing. The
election does not affect the Employer's elections under Section 1.07
which apply for purposes of allocating Employer contributions and
Participant forfeitures.]
(a) [X] The Plan will "gross up" Compensation for Elective
Contributions.
(b) [ ] The Plan will exclude Elective Contributions.
40. Section 4.04 - Rollover contributions.
(a) [X] The Plan accepts rollover contributions.
(b) [ ] The Plan does not accept rollover contributions.
41. Section 8.06 - Participant direction of investment/404(c). The Plan
authorizes Participant direction of investment with Trustee consent. If
the Trustee permits Participant direction of investment, the Employer
and the Trustee should adopt a policy which establishes the applicable
conditions and limitations, including whether they intend the Plan to
comply with ERISA ss.404(c).
(a) [X] The Plan permits Participant direction of investment and is a
404(c) plan.
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(b) [ ] The Plan does not permit Participant direction of investment or
is a non-404(c) plan.
42. Section 9.04[A] - Participant loans. The Plan authorizes the Plan
Administrator to adopt a written loan policy to permit Participant
loans.
(a) [X] The Plan permits Participant loans subject to the following
conditions:
(1) [X] Minimum loan amount: $1000.
(2) [X] Maximum number of outstanding loans: 2.
(3) [X] Reasons for which a Participant may request a loan:
a. [X] Any purpose.
b. [ ] Hardship events.
c. [_] Other: _____.
(4) [X] Suspension of loan repayments:
a. [X] Not permitted.
b. [ ] Permitted for non-military leave of absence.
c. [ ] Permitted for military service leave of
absence.
(5) [X] The Participant must be a party in interest.
(b) [ ] The Plan does not permit Participant loans.
43. Section 11.01 - Life insurance. The Plan with Employer approval
authorizes the Trustee to acquire life insurance.
(a) [ ] The Plan will invest in life insurance contracts.
(b) [X] The Plan will not invest in life insurance contracts.
44. Surety bond company: ____. Surety bond amount: $500,000
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EGTRRA
AMENDMENT TO THE
NORTH BAY BANCORP 401(K) & PROFIT SHARING PLAN
S478421.1 Copyright 2001 WELLS FARGO BANK, N.A. 12/04
EGTRRA - Employer
ARTICLE I
PREAMBLE
1.1 Adoption and effective date of amendment. This amendment of the plan is
adopted to reflect certain provisions of the Economic Growth and Tax
Relief Reconciliation Act of 2001 ("EGTRRA"). This 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, this amendment shall be
effective as of the first day of the first plan year beginning after
December 31, 2001.
1.2 Supersession of inconsistent provisions. This amendment shall supersede
the provisions of the plan to the extent those provisions are
inconsistent with the provisions of this amendment.
ARTICLE II
ADOPTION AGREEMENT ELECTIONS
- --------------------------------------------------------------------------------
The questions in this Article II only need to be completed in order to
override the default provisions set forth below. If all of the default
provisions will apply, then these questions should be skipped.
Unless the employer elects otherwise in this Article II, the following
defaults apply:
1) The vesting schedule for matching contributions will be a 6
year graded schedule (if the plan currently has a graded
schedule that does not satisfy EGTRRA) or a 3 year cliff
schedule (if the plan currently has a cliff schedule that does
not satisfy EGTRRA), and such schedule will apply to all
matching contributions (even those made prior to 2002).
2) Rollovers are automatically excluded in determining whether
the $5,000 threshold has been exceeded for automatic cash-outs
(if the plan is not subject to the qualified joint and
survivor annuity rules and provides for automatic cash-outs).
This is applied to all participants regardless of when the
distributable event occurred.
3) The suspension period after a hardship distribution is made
will be 6 months and this will only apply to hardship
distributions made after 2001.
4) Catch-up contributions will be allowed.
5) For target benefit plans, the increased compensation limit of
$200,000 will be applied retroactively (i.e., to years prior
to 2002).
2.1 Vesting Schedule for Matching Contributions
If there are matching contributions subject to a vesting schedule that
does not satisfy EGTRRA, then unless otherwise elected below, for
participants who complete an hour of service in a plan year beginning
after December 31, 2001, the following vesting schedule will apply to
all matching contributions subject to a vesting schedule:
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EGTRRA - Employer
If the plan has a graded vesting schedule (i.e., the vesting schedule
includes a vested percentage that is more than 0% and less than 100%)
the following will apply:
Years of vesting service Nonforfeitable percentage
------------------------ -------------------------
2 20%
3 40%
4 60%
5 80%
6 100%
If the plan does not have a graded vesting schedule, then matching
contributions will be nonforfeitable upon the completion of 3 years of
vesting service.
In lieu of the above vesting schedule, the employer elects the
following schedule:
a. [ ] 3 year cliff (a participant's accrued benefit derived from
employer matching contributions shall be nonforfeitable upon the
participant's completion of three years of vesting service).
b. [X] 6 year graded schedule (20% after 2 years of vesting service
and an additional 20% for each year thereafter).
c. [ ] Other (must be at least as liberal as a. or the b. above):
Years of vesting service Nonforfeitable percentage
------------------------ -------------------------
----- -----%
----- -----%
----- -----%
----- -----%
----- -----%
The vesting schedule set forth herein shall only apply to participants
who complete an hour of service in a plan year beginning after December
31, 2001, and, unless the option below is elected, shall apply to all
matching contributions subject to a vesting schedule.
d. [_] The vesting schedule will only apply to matching contributions
made in plan years beginning after December 31, 2001 (the prior
schedule will apply to matching contributions made in prior plan
years).
2.2 Exclusion of Rollovers in Application of Involuntary Cash-out
Provisions (for profit sharing and 401(k) plans only). If the plan is
not subject to the qualified joint and survivor annuity rules and
includes involuntary cash-out provisions, then unless one of the
options below is elected, effective for distributions made after
December 31, 2001, rollover contributions will be excluded in
determining the value of the participant's nonforfeitable account
balance for purposes of the plan's involuntary cash-out rules.
a. [ ] Rollover contributions will not be excluded.
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EGTRRA - Employer
b. [ ] Rollover contributions will be excluded only with respect to
distributions made after _____. (Enter a date no earlier than
December 31, 2001.)
c. [ ] Rollover contributions will only be excluded with respect to
participants who separated from service after _______. (Enter a
date. The date may be earlier than December 31, 2001.)
2.3 Suspension period of hardship distributions. If the plan provides for
hardship distributions upon satisfaction of the safe harbor (deemed)
standards as set forth in Treas. Reg. Section 1.401(k)-1(d)(2)(iv),
then, unless the option below is elected, the suspension period
following a hardship distribution shall only apply to hardship
distributions made after December 31, 2001.
[_] With regard to hardship distributions made during 2001, a
participant shall be prohibited from making elective deferrals
and employee contributions under this and all other plans
until the later of January 1, 2002, or 6 months after receipt
of the distribution.
2.4 Catch-up contributions (for 401(k) profit sharing plans only): The plan
permits catch-up contributions (Article VI) unless the option below is
elected.
[_] The plan does not permit catch-up contributions to be made.
2.5 For target benefit plans only: The increased compensation limit
($200,000 limit) shall apply to years prior to 2002 unless the option
below is elected.
[_] The increased compensation limit will not apply to years
prior to 2002.
ARTICLE III
VESTING OF MATCHING CONTRIBUTIONS
3.1 Applicability. This Article shall apply to participants who complete an
Hour of Service after December 31, 2001, with respect to accrued
benefits derived from employer matching contributions made in plan
years beginning after December 31, 2001. Unless otherwise elected by
the employer in Section 2.1 above, this Article shall also apply to all
such participants with respect to accrued benefits derived from
employer matching contributions made in plan years beginning prior to
January 1, 2002.
3.2 Vesting schedule. A participant's accrued benefit derived from employer
matching contributions shall vest as provided in Section 2.1 of this
amendment.
ARTICLE IV
INVOLUNTARY CASH-OUTS
4.1 Applicability and effective date. If the plan provides for involuntary
cash-outs of amounts less than $5,000, then unless otherwise elected in
Section 2.2 of this amendment, this Article shall apply for
distributions made after December 31, 2001, and shall apply to all
participants. However, regardless of the preceding, this Article shall
not apply if the plan is subject to the qualified joint and survivor
annuity requirements of Sections 401(a)(11) and 417 of the Code.
4.2 Rollovers disregarded in determining value of account balance for
involuntary distributions. For purposes of the Sections of the plan
that provide for the involuntary distribution of vested accrued
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benefits of $5,000 or less, the value of a participant's nonforfeitable
account balance shall be determined without regard to that portion of
the account balance that is attributable to rollover contributions (and
earnings allocable thereto) within the meaning of Sections 402(c),
403(a)(4), 403(b)(8), 408(d)(3)(A)(ii), and 457(e)(16) of the Code. If
the value of the participant's nonforfeitable account balance as so
determined is $5,000 or less, then the plan shall immediately
distribute the participant's entire nonforfeitable account balance.
ARTICLE V
HARDSHIP DISTRIBUTIONS
5.1 Applicability and effective date. If the plan provides for hardship
distributions upon satisfaction of the safe harbor (deemed) standards
as set forth in Treas. Reg. Section 1.401(k)-l(d)(2)(iv), then this
Article shall apply for calendar years beginning after 2001.
5.2 Suspension period following hardship distribution. A participant who
receives a distribution of elective deferrals after December 31, 2001,
on account of hardship shall be prohibited from making elective
deferrals and employee contributions under this and all other plans of
the employer for 6 months after receipt of the distribution.
Furthermore, if elected by the employer in Section 2.3 of this
amendment, a participant who receives a distribution of elective
deferrals in calendar year 2001 on account of hardship shall be
prohibited from making elective deferrals and employee contributions
under this and all other plans until the later of January 1, 2002, or 6
months after receipt of the distribution.
ARTICLE VI
CATCH-UP CONTRIBUTIONS
Catch-up Contributions. Unless otherwise elected in Section 2.4 of this
amendment, all employees who are eligible to make elective deferrals under this
plan and who have attained age 50 before the close of the plan year shall be
eligible to make catch-up contributions 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 the making of such
catch-up contributions.
ARTICLE VII
INCREASE IN COMPENSATION LIMIT
Increase in Compensation Limit. The annual compensation of each participant
taken into account in determining allocations for any plan year beginning after
December 31, 2001, shall not exceed $200,000, as adjusted for cost-of-living
increases in accordance with Section 401(a)(17)(B) of the Code. Annual
compensation means compensation during the plan year or such other consecutive
12-month period over which compensation is otherwise determined under the plan
(the determination period). If this is a target benefit plan, then except as
otherwise elected in Section 2.5 of this amendment, for purposes of determining
benefit accruals in a plan year beginning after December 31, 2001, compensation
for any prior determination period shall be limited to $200,000. The
cost-of-living adjustment in effect for a calendar year applies to annual
compensation for the determination period that begins with or within such
calendar year.
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EGTRRA - Employer
ARTICLE VIII
PLAN LOANS
Plan loans for owner-employees or shareholder-employees. If the plan permits
loans to be made to participants, then effective for plan loans made after
December 31, 2001, plan provisions prohibiting loans to any owner-employee or
shareholder-employee shall cease to apply.
ARTICLE IX
LIMITATIONS ON CONTRIBUTIONS (IRC SECTION 415 LIMITS)
9.1 Effective date. This Section shall be effective for limitation years
beginning after December 31, 2001.
9.2 Maximum annual addition. Except to the extent permitted under Article
VI of this amendment and Section 414(v) of the Code, if applicable, the
annual addition that may be contributed or allocated to a participant's
account under the plan for any limitation year shall not exceed the
lesser of:
a. $40,000, as adjusted for increases in the cost-of-living under
Section 415(d) of the Code, or
b. 100 percent of the participant's compensation, within the
meaning of Section 415(c)(3) of the Code, for the limitation
year.
The compensation limit referred to in b. shall not apply to any
contribution for medical benefits after separation from service (within
the meaning of Section 401(h) or Section 419A(f)(2) of the Code) which
is otherwise treated as an annual addition.
ARTICLE IX
MODIFICATION OF TOP-HEAVY RULES
10.1 Effective date. This Article shall apply for purposes of determining
whether the plan is a top-heavy plan under Section 416(g) of the Code
for plan years beginning after December 31, 2001, and whether the plan
satisfies the minimum benefits requirements of Section 416(c) of the
Code for such years. This Article amends the top-heavy provisions of
the plan.
10.2 Determination of top-heavy status.
10.2.1 Key employee. 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 5-percent owner of the employer, or a 1-percent 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 and other guidance of general
applicability issued thereunder.
10.2.2 Determination of present values and amounts. This Section 10.2.2 shall
apply for purposes of determining the present values of accrued
benefits and the amounts of account balances of employees as of the
determination date.
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a. Distributions during year ending on the determination date.
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 1-year
period ending on the determination date. The preceding
sentence shall also apply to distributions under a terminated
plan which, had it not been terminated, would have been
aggregated with the plan under Section 416(g)(2)(A)(i) of the
Code. In the case of a distribution made for a reason other
than separation from service, death, or disability, this
provision shall be applied by substituting "5-year period" for
"1-year period."
b. Employees not performing services during year ending on the
determination date. The accrued benefits and accounts of any
individual who has not performed services for the employer
during the 1-year period ending on the determination date
shall not be taken into account.
10.3 Minimum benefits.
10.3.1 Matching contributions. Employer matching contributions shall be taken
into account for purposes of satisfying the minimum contribution
requirements of Section 416(c)(2) of the Code and the plan. The
preceding sentence shall apply with respect to matching contributions
under the plan or, if the plan provides that the minimum contribution
requirement shall be met in another plan, such other plan. Employer
matching contributions that are used to satisfy the minimum
contribution requirements shall be treated as matching contributions
for purposes of the actual contribution percentage test and other
requirements of Section 401(m) of the Code.
10.3.2 Contributions under other plans. The employer may provide, in an
addendum to this amendment, that the minimum benefit requirement shall
be met in another plan (including another plan that consists solely of
a cash or deferred arrangement which meets the requirements of Section
401(k)(12) of the Code and matching contributions with respect to which
the requirements of Section 401(m)(11) of the Code are met). The
addendum should include the name of the other plan, the minimum benefit
that will be provided under such other plan, and the employees who will
receive the minimum benefit under such other plan.
ARTICLE XI
DIRECT ROLLOVERS
11.1 Effective date. This Article shall apply to distributions made after
December 31, 2001.
11.2 Modification of definition of eligible retirement plan. For purposes of
the direct rollover provisions of the plan, an eligible retirement plan
shall also mean an annuity contract described in Section 403(b) of the
Code and an eligible plan under Section 457(b) of the Code which is
maintained by a state, political subdivision of a state, or any agency
or instrumentality of a state or political subdivision of a state and
which agrees to separately account for amounts transferred into such
plan from this plan. The definition of eligible retirement plan shall
also apply in the case of a distribution to a surviving spouse, or to a
spouse or former spouse who is the alternate payee under a qualified
domestic relation order, as defined in Section 414(p) of the Code.
11.3 Modification of definition of eligible rollover distribution to exclude
hardship distributions. For purposes of the direct rollover provisions
of the plan, any amount that is distributed on account of hardship
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shall not be an eligible rollover distribution and the distributee may
not elect to have any portion of such a distribution paid directly to
an eligible retirement plan.
11.4 Modification of definition of eligible rollover distribution to include
after-tax employee contributions. For purposes of the direct rollover
provisions in the plan, 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 408(a) or
(b) of the Code, or to a qualified 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 so includible.
ARTICLE XII
ROLLOVERS FROM OTHER PLANS
Rollovers from other plans. The employer, operationally and on a
nondiscriminatory basis, may limit the source of rollover contributions that may
be accepted by this plan.
ARTICLE XIII
REPEAL OF MULTIPLE USE TEST
Repeal of Multiple Use Test. The multiple use test described in Treasury
Regulation Section 1.401(m)-2 and the plan shall not apply for plan years
beginning after December 31, 2001.
ARTICLE XIV
ELECTIVE DEFERRALS
14.1 Elective Deferrals - Contribution Limitation. No participant shall be
permitted to have elective deferrals made under this plan, or any other
qualified plan maintained by the employer during any taxable year, in
excess of the dollar limitation contained in Section 402(g) of the Code
in effect for such taxable year, except to the extent permitted under
Article VI of this amendment and Section 414(v) of the Code, if
applicable.
14.2 Maximum Salary Reduction Contributions for SIMPLE plans. If this is a
SIMPLE 401(k) plan, then except to the extent permitted under Article
VI of this amendment and Section 414(v) of the Code, if applicable, the
maximum salary reduction contribution that can be made to this plan is
the amount determined under Section 408(p)(2)(A)(ii) of the Code for
the calendar year.
ARTICLE XV
SAFE HARBOR PLAN PROVISIONS
Modification of Top-Heavy Rules. The top-heavy requirements of Section 416 of
the Code and the plan shall not apply in any year beginning after December 31,
2001, in which the plan consists solely of a cash or deferred arrangement which
meets the requirements of Section 401(k)(12) of the Code and matching
contributions with respect to which the requirements of Section 401(m)(11) of
the Code are met.
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ARTICLE XVI
DISTRIBUTION UPON SEVERANCE OF EMPLOYMENT
16.1 Effective date. This Article shall apply for distributions and
transactions made after December 31, 2001, regardless of when the
severance of employment occurred.
16.2 New distributable event. A participant's elective deferrals, qualified
nonelective contributions, qualified matching contributions, and
earnings attributable to these contributions shall be distributed on
account of the participant's severance from employment. However, such a
distribution shall be subject to the other provisions of the plan
regarding distributions, other than provisions that require a
separation from service before such amounts may be distributed.
EGTRRA - Employer
This amendment has been executed this ____ day of ______________________, ____.
Name of Employer: NORTH BAY BANCORP
By:
-----------------------------------------
EMPLOYER
Name of Plan: NORTH BAY BANCORP 401(K) & PROFIT SHARING PLAN
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AMENDMENT TO THE
NORTH BAY BANCORP 401(K) & PROFIT SHARING PLAN
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MINIMUM DISTRIBUTION REQUIREMENTS AMENDMENT
ARTICLE I
GENERAL RULES
1.1 Effective Date. Unless a later effective date is specified in Section
6.1 of this Amendment, the provisions of this Amendment will apply for
purposes of determining required minimum distributions for calendar
years beginning with the 2002 calendar year.
1.2 Coordination with Minimum Distribution Requirements Previously in
Effect. If the effective date of this Amendment is earlier than
calendar years beginning with the 2003 calendar year, required minimum
distributions for 2002 under this Amendment will be determined as
follows. If the total amount of 2002 required minimum distributions
under the Plan made to the distributee prior to the effective date of
this Amendment equals or exceeds the required minimum distributions
determined under this Amendment, then no additional distributions will
be required to be made for 2002 on or after such date to the
distributee. If the total amount of 2002 required minimum distributions
under the Plan made to the distributee prior to the effective date of
this Amendment is less than the amount determined under this Amendment,
then required minimum distributions for 2002 on and after such date
will be determined so that the total amount of required minimum
distributions for 2002 made to the distributee will be the amount
determined under this Amendment.
1.3 Precedence. The requirements of this Amendment will take precedence
over any inconsistent provisions of the Plan.
1.4 Requirements of Treasury Regulations Incorporated. All distributions
required under this Amendment will be determined and made in accordance
with the Treasury regulations under Section 401(a)(9) of the Internal
Revenue Code.
1.5 TEFRA Section 242(b)(2) Elections. Notwithstanding the other provisions
of this Amendment, distributions may be made under a designation made
before January 1, 1984, in accordance with Section 242(b)(2) of the Tax
Equity and Fiscal Responsibility Act (TEFRA) and the provisions of the
Plan that relate to Section 242(b)(2) of TEFRA.
1.6 Adoption by prototype sponsor. Except as otherwise provided herein,
pursuant to Section 5.01 of Revenue Procedure 2000-20, the sponsoring
organization hereby adopts this amendment on behalf of all adopting
employers.
ARTICLE II
TIME AND MANNER OF DISTRIBUTION
2.1 Required Beginning Date. 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.
2.2 Death of Participant Before Distributions Begin. If the Participant
dies before distributions begin, the Participant's entire interest will
be distributed, or begin to be distributed, no later than as follows:
(a) If the Participant's surviving spouse is the Participant's
sole designated beneficiary, then, except as provided in
Article VI, distributions to the surviving spouse will begin
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by December 31 of the calendar year immediately following the
calendar year in which the Participant died, or by December 31
of the calendar year in which the Participant would have
attained age 70 1/2, if later.
(b) If the Participant's surviving spouse is not the Participant's
sole designated beneficiary, then, except as provided in
Article VI, distributions to the designated beneficiary will
begin by December 31 of the calendar year immediately
following the calendar year in which the Participant died.
(c) If there is no designated beneficiary as of September 30 of
the year following the year of the Participant's death, the
Participant's entire interest will be distributed by December
31 of the calendar year containing the fifth anniversary of
the Participant's death.
(d) If the Participant's surviving spouse is the Participant's
sole designated beneficiary and the surviving spouse dies
after the Participant but before distributions to the
surviving spouse begin, this Section 2.2, other than Section
2.2(a), will apply as if the surviving spouse were the
Participant.
For purposes of this Section 2.2 and Article IV, unless Section 2.2(d)
applies, distributions are considered to begin on the Participant's
required beginning date. If Section 2.2(d) applies, distributions are
considered to begin on the date distributions are required to begin to
the surviving spouse under Section 2.2(a). If distributions under an
annuity purchased from an insurance company irrevocably commence to the
Participant before the Participant's required beginning date (or to the
Participant's surviving spouse before the date distributions are
required to begin to the surviving spouse under Section 2.2(a)), the
date distributions are considered to begin is the date distributions
actually commence.
2.3 Forms of Distribution. Unless the Participant's interest is distributed
in the form of an annuity purchased from an insurance company or in a
single sum on or before the required beginning date, as of the first
distribution calendar year distributions will be made in accordance
with Articles III and IV of this Amendment. If the Participant's
interest is distributed in the form of an annuity purchased from an
insurance company, distributions thereunder will be made in accordance
with the requirements of Section 401(a)(9) of the Code and the Treasury
regulations.
ARTICLE III
REQUIRED MINIMUM DISTRIBUTIONS DURING PARTICIPANT'S LIFETIME
3.1 Amount of Required Minimum Distribution For Each Distribution Calendar
Year. During the Participant's lifetime, the minimum amount that will
be distributed for each distribution calendar year is the lesser of:
(a) the quotient obtained by dividing the Participant's account
balance by the distribution period in the Uniform Lifetime
Table set forth in Section 1.401(a)(9)-9 of the Treasury
regulations, using the Participant's age as of the
Participant's birthday in the distribution calendar year; or
(b) 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 Treasury regulations,
using the Participant's and spouse's attained ages as of the
Participant's and spouse's birthdays in the distribution
calendar year.
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3.2 Lifetime Required Minimum Distributions Continue Through Year of
Participant's Death. Required minimum distributions will be determined
under this Article 3 beginning with the first distribution calendar
year and up to and including the distribution calendar year that
includes the Participant's date of death.
ARTICLE IV
REQUIRED MINIMUM DISTRIBUTIONS AFTER PARTICIPANT'S DEATH
4.1 Death On or After Date Distributions Begin.
(a) Participant Survived by Designated Beneficiary. If the
Participant dies on or after the date distributions begin and
there is a designated beneficiary, the minimum amount that
will be distributed for each distribution calendar year after
the year of the Participant's death is the quotient obtained
by dividing the Participant's account balance by the longer of
the remaining life expectancy of the Participant or the
remaining life expectancy of the Participant's designated
beneficiary, determined as follows:
(1) The Participant's remaining life expectancy is
calculated using the age of the Participant in the
year of death, reduced by one for each subsequent
year.
(2) If the Participant's surviving spouse is the
Participant's sole designated beneficiary, the
remaining life expectancy of the surviving spouse is
calculated for each distribution calendar year after
the year of the Participant's death using the
surviving spouse's age as of the spouse's birthday in
that year. For distribution calendar years after the
year of the surviving spouse's death, the remaining
life expectancy of the surviving spouse is calculated
using the age of the surviving spouse as of the
spouse's birthday in the calendar year of the
spouse's death, reduced by one for each subsequent
calendar year.
(3) If the Participant's surviving spouse is not the
Participant's sole designated beneficiary, the
designated beneficiary's remaining life expectancy is
calculated using the age of the beneficiary in the
year following the year of the Participant's death,
reduced by one for each subsequent year.
(b) No Designated Beneficiary. If the Participant dies on or after
the date distributions begin and there is no designated
beneficiary as of September 30 of the year after the year of
the Participant's death, the minimum amount that will be
distributed for each distribution calendar year after the year
of the Participant's death is the quotient obtained by
dividing the Participant's account balance by the
Participant's remaining life expectancy calculated using the
age of the Participant in the year of death, reduced by one
for each subsequent year.
4.2 Death Before Date Distributions Begin.
(a) Participant Survived by Designated Beneficiary. Except as
provided in Article VI, if the Participant dies before the
date distributions begin and there is a designated
beneficiary, the minimum amount that will be distributed for
each distribution calendar year after the year of the
Participant's death is the quotient obtained by dividing the
Participant's account balance by the remaining life expectancy
of the Participant's designated beneficiary, determined as
provided in Section 4.1.
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(b) No Designated Beneficiary. If the Participant dies before the
date distributions begin and there is no designated
beneficiary as of September 30 of the year following the year
of the Participant's death, distribution of the Participant's
entire interest will be completed by December 31 of the
calendar year containing the fifth anniversary of the
Participant's death.
(c) Death of Surviving Spouse Before Distributions to Surviving
Spouse Are Required to Begin. If the Participant dies before
the date distributions begin, the Participant's surviving
spouse is the Participant's sole designated beneficiary, and
if the surviving spouse dies before distributions are required
to begin to the surviving spouse under Section 2.2(a), this
Section 4.2 will apply as if the surviving spouse were the
Participant.
ARTICLE V
DEFINITIONS
5.1 Designated beneficiary. The individual who is designated as the
Beneficiary under the Plan and is the designated beneficiary under
Section 401(a)(9) of the Internal Revenue Code and Section
1.401(a)(9)-1, Q&A-4, of the Treasury regulations.
5.2 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 2.2. The required minimum distribution for the Participant's
first distribution calendar year will be made on or before 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 31 of that distribution calendar year.
5.3 Life expectancy. Life expectancy as computed by use of the Single Life
Table in Section 1.401(a)(9)-9 of the Treasury regulations.
5.4 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 the 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.
5.5 Required beginning date. The date specified in the Plan when
distributions under Section 401(a)(9) of the Internal Revenue Code are
required to begin.
ARTICLE VI
ADOPTION AGREEMENT ELECTIONS
The questions in this Article VI only need to be completed in order to override
the default provisions set forth below. If all of the default provisions will
apply, then these questions should be skipped.
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Unless the employer elects otherwise in this Article VI, the following defaults
apply:
1) The minimum distribution requirements are effective for distribution
calendar years beginning with the 2002 calendar year unless a later
date is specified in Section 6.1 of this Amendment.
2) Participants or beneficiaries may elect on an individual basis whether
the 5-year rule or the life expectancy rule in the Plan applies to
distributions after the death of a Participant who has a designated
beneficiary.
6.1 Effective Date of Plan Amendment for Section 401(a)(9) Final and
Temporary Treasury Regulations.
[_] This Amendment applies for purposes of determining required
minimum distributions for distribution calendar years
beginning with the 2003 calendar year, as well as required
minimum distributions for the 2002 distribution calendar year
that are made on or after __________________ (leave blank if
this Amendment does not apply to any minimum distributions for
the 2002 distribution calendar year).
6.2 Election to not permit Participants or Beneficiaries to Elect 5-Year
Rule.
Unless elected below, Participants or beneficiaries may elect on an
individual basis whether the 5-year rule or the life expectancy rule in
Sections 2.2 and 4.2 of this Amendment applies to distributions after
the death of a Participant who has a designated beneficiary. The
election must be made no later than the earlier of September 30 of the
calendar year in which distribution would be required to begin under
Section 2.2 of this Amendment, or by September 30 of the calendar year
which contains the fifth anniversary of the Participant's (or, if
applicable, surviving spouse's) death. If neither the Participant nor
beneficiary makes an election under this paragraph, distributions will
be made in accordance with Sections 2.2 and 4.2 of this Amendment and,
if applicable, the elections in Section 6.3 of this Amendment below.
[_] The provision set forth above in this Section 6.2 shall not
apply. Rather, Sections 2.2 and 4.2 of this Amendment shall
apply except as elected in Section 6.3 of this Amendment
below.
6.3 Election to Apply 5-Year Rule to Distributions to Designated
Beneficiaries.
[_] If the Participant dies before distributions begin and there
is a designated beneficiary, distribution to the designated
beneficiary is not required to begin by the date specified in
the Plan, but the Participant's entire interest will be
distributed to the designated beneficiary by December 31 of
the calendar year containing the fifth anniversary of the
Participant's death. If the Participant's surviving spouse is
the Participant's sole designated beneficiary and the
surviving spouse dies after the Participant but before
distributions to either the Participant or the surviving
spouse begin, this election will apply as if the surviving
spouse were the Participant.
If the above is elected, then this election will apply to:
[_] All distributions.
[_] The following distributions: _____
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6.4 Election to Allow Designated Beneficiary Receiving Distributions Under
5-Year Rule to Elect Life Expectancy Distributions.
[_] A designated beneficiary who is receiving payments under the 5-year
rule may make a new election to receive payments under the life
expectancy rule until December 31, 2003, provided that all amounts that
would have been required to be distributed under the life expectancy
rule for all distribution calendar years before 2004 are distributed by
the earlier of December 31, 2003 or the end of the 5-year period.
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Except with respect to any election made by the employer in Article VI, this
amendment is hereby adopted by the prototype sponsoring organization on behalf
of all adopting employers on:
[Sponsor's signature and Adoption Date are on file with Sponsor]
NOTE: The employer only needs to execute this amendment if an election has been
made in Article VI of this amendment.
This amendment has been executed this ____ day of ____________________, ____.
Name of Plan: NORTH BAY BANCORP 401(K) & PROFIT SHARING PLAN
Name of Employer: NORTH BAY BANCORP
By:
-----------------------------------------
EMPLOYER
Name of Participating Employer:
----------------------------------------
By:
-----------------------------------------
PARTICIPATING EMPLOYER
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