Exhibit 10.20(b)
ALLIED CAPITAL 401(K) PLAN
ALLIED CAPITAL 401(k) PLAN
ADOPTION AGREEMENT #005
NONSTANDARDIZED 401(k) PROFIT SHARING PLAN
The undersigned, Allied Capital Corporation ("Employer"), by executing
this Adoption Agreement, elects to establish a retirement plan and trust
("Plan") under the Wachovia Bank, National Association (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 Allied
Capital 401(k) 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.
[ ] (b) COLLECTIVE BARGAINING EMPLOYEES.
[ ] (c) NONRESIDENT ALIENS.
[X] (d) LEASED EMPLOYEES.
[X] (e) RECLASSIFIED EMPLOYEES.
[X] (f) CLASSIFICATIONS: Any part time employee who works less than 35
hours per work week and any Temporary Employee as defined in Allied
Capital's Resource Guide who works less than 1 year .
[ ] (g) EXCLUSIONS BY TYPES OF CONTRIBUTIONS. The following
classification(s) of Employees are not eligible for the specified
contributions:
EMPLOYEE CLASSIFICATION:______
CONTRIBUTION TYPE:______
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), (b) or (c))
[X] (a) W-2 WAGES INCREASED BY ELECTIVE CONTRIBUTIONS.
[ ] (b) CODE SECTION 3401(a) FEDERAL INCOME TAX WITHHOLDING WAGES
INCREASED BY ELECTIVE CONTRIBUTIONS.
[ ] (c) 415 COMPENSATION.
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ALLIED CAPITAL 401(k) PLAN
[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.
[X] (l) NONELECTIVE CONTRIBUTIONS. The following modifications apply to
the definition of Compensation for nonelective contributions: Excludes
cut-off awards, formula awards, retention awards, referral fees,
relocation bonuses, deferred compensation distributions and non-cash
benefits.
[X] (m) DEFERRAL CONTRIBUTIONS. The following modifications apply to the
definition of Compensation for deferral contributions: Excludes
cut-off awards, formula awards, retention awards, referral fees, all
bonuses, deferred compensation distributions and non-cash benefits.
[ ] (n) MATCHING CONTRIBUTIONS. The following modifications apply to the
definition of Compensation for matching contributions:______.
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)
[X] (a) DECEMBER 31.
[ ] (b) OTHER:______.
[ ] (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: September 1, 1999.
This Plan is an amendment and restatement of an existing retirement
plan(s) originally established effective as of: September 1, 1999.
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).
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[ ] (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): NA.
[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.
[ ] (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).
[X] (3) One Hour of Service (immediate completion of Service
requirement). The Employee satisfies the Service requirement on
his/her Employment Commencement Date.
[ ] (4)_______________ 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.]
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ALLIED CAPITAL 401(k) PLAN
[ ] (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)
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
slated 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 of f. 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 "N/A" 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(f) 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.
[X] (h) EMPLOYMENT COMMENCEMENT DATE (immediate eligibility).
[ ] (i) THE FIRST DAY OF EACH:_____(e.g., "Plan Year Quarter").
[ ] (j) THE FOLLOWING PLAN ENTRY DATES:______.
[X] (k) ALTERNATIVE 401(k)/401(m) PLAN ENTRY DATE(S). For the alternative
40l(k)/40l(m) eligibility conditions under (c), Plan Entry Date means:
(Choose (1) or (2) or both as applicable)
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ALLIED CAPITAL 401(k) PLAN
(1) [X] DEFERRAL/EMPLOYEE CONTRIBUTIONS
(Choose one of a. through d.)
a. [ ] Semi-annual Entry Dates
b. [ ] The first day of the Plan Year
c. [ ] Employment Commencement Date
(immediate eligibility)
d. [X] The first day of each:
Quarter
(2) [ ] MATCHING CONTRIBUTIONS
(Choose one of e. through h.)
e. [ ] Semi-annual Entry Dates
f. [ ] The first day of the Plan Year
g. [ ] Employment Commencement Date
(immediate eligibility)
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 (l), (m) or (n) applies to all types of
contributions.]
[X] (l) 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
a. [ ] Immediately following
or coincident with
(2) [ ] MATCHING CONTRIBUTIONS
(Choose one of b., c. or d.)
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 Section 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).]
[ ] (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. Docs 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.
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ALLIED CAPITAL 401(k) PLAN
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 (f) 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.
[ ] (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).]
[ ] (1) DISCRETIONARY. An amount the Employer in its sole discretion
may determine.
[X] (2) FIXED. The following amount: 2% of eligible compensation
under the Plan
[X] (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)
[X] (1) SAFE HARBOR NONELECTIVE CONTRIBUTION. The safe harbor
nonelective contribution equals 3% % 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 Sections 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:______.
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[ ] (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 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: any whole percentage of eligible
compensation under the Plan.
[X] (2) Minimum deferral amount: 1%.
[ ] (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
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.
[ ] (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
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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 Contributions 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.
[ ] (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.]
[ ] (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 (l) 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.]
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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.
[ ] (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 of 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))
[ ] (e) NONHIGHLY COMPENSATED EMPLOYEES ONLY.
[X] (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.]
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.]
[ ] (a) MATCHING CONTRIBUTION FORFEITURES. To the extent attributable to
matching contributions: (Choose one of (1) through (4))
[ ] (1) As a discretionary matching contribution.
[ ] (2) To reduce matching contributions.
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ALLIED CAPITAL 401(k) PLAN
[ ] (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))
[ ] (1) As a discretionary nonelective contribution.
[X] (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))
[ ] (d) In which the forfeiture occurs.
[X] (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: 1000 .
[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.
[ ] (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).
[ ] (h) SUSPENSION OF ALLOCATION CONDITIONS FOR COVERAGE. The suspension
of allocation conditions of Plan Section 3.06(E) applies to the Plan.
[ ] (i) LIMITED ALLOCATION CONDITIONS. The Plan does not impose an
allocation condition for the following types of contributions:______.
[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.]
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ALLIED CAPITAL 401(k) PLAN
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)
[X] (a) SPECIFIC AGE. The date the Participant attains age 59 1/2. [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)
[X] (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.]
[ ] (b) TOP-HEAVY VESTING SCHEDULES. [Note: The Employer must choose one
of (b)(1), (2) or (3) if it does not elect (a).]
[ ] (1) 6-year graded as specified in the Plan.
[ ] (2) 3-year cliff as specified in the Plan.
[ ] (3) Modified top-heavy schedule
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Years of Vested
Service 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) 5-year cliff as specified in the Plan.
[ ] (3) Modified non-top-heavy schedule
Years of Vested
Service Percentage
------- ----------
Less than 1............. ___%
1................... ___%
2................... ___%
3................... ___%
4................... ___%
5................... ___%
6................... ___%
7 or more........... 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 Section 416. If the Employer elects (c)(3), the modified non-top-heavy
schedule must satisfy Code Section 411(a)(2).]
[ ] (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.
[ ] (2) Regular matching vesting schedule:______.
[Note: The vesting schedule completed under (d)(2) must comply
with Code Section 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 Section 411(a). Any special vesting
provision must be definitely determinable, not discriminate in favor
of Highly Compensated Employees and not violate Code Section
401(a)(4).]
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ALLIED CAPITAL 401(k) PLAN
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). ]
[ ] (a) YEAR OF SERVICE. An Employee must complete at least ______ 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.]
[ ] (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))
[ ] (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)
[ ] (a) NONE. None other than as specified in Plan Section 5.08(a).
[ ] (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 Section
411(a)(4). Any exclusion must be definitely determinable, not
discriminate in favor of Highly Compensated Employees and not violate
Code Section 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 Section 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.
[ ] (f) DESIGNATED PLAN YEAR. As soon as administratively practicable in
the ______ Plan Year beginning after the Participant's Separation from
Service.
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[ ] (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 Section 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] (l) 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 59 1/2 (Must be at
least age 59 1/2).
[ ] (3) DISABILITY. The Participant has incurred a Disability.
[ ] (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)
[ ] (1) AGE. The Participant has attained age ______ (Must be at
least age 59 1/2).
[ ] (2) DISABILITY. The Participant has incurred a Disability.
[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 59 1/2.
[ ] 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.
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[ ] (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))
[ ] (1) ALL PARTICIPANT CONTRIBUTIONS.
[ ] (2) EMPLOYEE CONTRIBUTIONS ONLY.
[X] (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.
[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))
[X] (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.
[ ] (b) APPLICABLE. Apply to all Participants.
ARTICLE IX
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.
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ALLIED CAPITAL 401(k) PLAN
[ ] (b) MATCHING CONTRIBUTIONS. (Choose one or more of (1) through (5) as
applicable)
[ ] (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] (c) EMPLOYER NONELECTIVE 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.
[ ] (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. Section 1.401(a)(4) and
which is applied uniformly to all Participants.]
[ ] (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: .
ARTICLE X
TRUSTEE AND CUSTODIAN, POWERS AND DUTIES
29. INVESTMENT POWERS (10.03). The following additional investment options
or limitations apply under Plan Section 10.03: NA . [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.
[ ] (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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ALLIED CAPITAL 401 (k) PLAN
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
authored officers, has executed this Adoption Agreement, and the Trustee (and
Custodian, if applicable) has signified its acceptance, on:---------------------
- ----------------------------------------------------------------------------.
Name of Employer: Allied Capital Corporation
Employer's EIN: 52-1081052
Signed: /s/ Kelly A. Anderson
------------------------------------
Kelly A. Anderson
[Name/Title]
Name(s) of Trustee:
Wachovia Bank, National Association
------------------------------------
[ILLEGIBLE]
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Trust EIN (Optional):
------------------------------------
Signed:-------------------------------------
------------------------------------
[Name/Title]
------------------------------------
Signed:-------------------------------------
------------------------------------
[Name/Title]
------------------------------------
Signed:-------------------------------------
------------------------------------
[Name/Title]
------------------------------------
Signed:-------------------------------------
------------------------------------
[Name/Title]
------------------------------------
Signed:-------------------------------------
------------------------------------
[Name/Title]
------------------------------------
Signed:-------------------------------------
------------------------------------
[Name/Title]
------------------------------------
Signed:-------------------------------------
------------------------------------
[Name/Title]
------------------------------------
Signed:-------------------------------------
------------------------------------
[Name/Title]
(C) Copyright 2001 Wachovia Bank, National Association
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ALLIED CAPITAL 401(k) PLAN
Name of Custodian (Optional):
____________________________________
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: 002.
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.
EXECUTION FOR PAGE SUBSTITUTION AMENDMENT ONLY. If this paragraph is completed,
this Execution Page documents an amendment to Adoption Agreement Sections) 9
effective September 1, 1999. by substitute Adoption Agreement page number(s) 4
and 5
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: 1525 West W.T. Harris Blvd., Charlotte.
NC 28288. (800) 669-5812.
RELIANCE ON SPONSOR OPINION LETTER. The Prototype Plan Sponsor his 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 Section
401. An adopting Employer may rely on the Prototype Sponsor's IRS opinion tetter
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 idler and in Announcement 2001-77, In order to have reliance in such
circumstances or with respect to such qualification requirements, the Employer
must apply fora determination letter to Employee Plans Determinations of the
Internal Revenue Service.
(C) Copyright 2001 Wachovia Bank. National Association
18
ALLIED CAPITAL 401(k) PLAN
PARTICIPATION AGREEMENT
[ ] 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: May 1, 2001.
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.
[X] (b) The adoption of an amendment and restatement of a plan currently
maintained by the Participating Employer, identified as: A.C.
Corporation, and having an original effective date of: September 1,
1999.
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: If the Plan does not credit
any additional predecessor service under Section 1.30 for this Participating
Employer, do not complete this election.]
[X] (a) ELIGIBILITY. For eligibility under Article II. See Plan Section
1.30 for time of Plan entry.
[X] (b) VESTING. For vesting under Article V.
[X] (c) CONTRIBUTION ALLOCATION. For contribution allocations under
Article III.
[ ] (d) EXCEPTIONS. Except for the following Service: _______.
Name of Plan: Name of Participating Employer:
Allied Capital 401(k) Plan A.C. Corporation
Signed:_________________________________
[Name/Title]
________________________________________
[Date]
Participating Employer's EIN: 52-2316212
ACCEPTANCE BY THE SIGNATORY EMPLOYER TO THE EXECUTION PAGE OF THE ADOPTION
AGREEMENT AND BY THE TRUSTEE.
Name of Signatory Employer: Name(s) of Trustee:
Allied Capital Corporation Wachovia Bank, National Association
____________________________________ ________________________________________
[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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ALLIED CAPITAL 401(k) PLAN
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).
[ ] (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:__________. [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.]
[ ] (c) COMPENSATION. The Compensation definition under Section 1.07 will
apply for Plan Years beginning after: __________.
[ ] (d) ELECTION NOT TO PARTICIPATE. The election not to participate
under Section 2.06 is effective:________.
[X] (e) 401(k) SAFE HARBOR. The 401(k) safe harbor provisions under
Section 3.01(d) are effective: January 1, 2000.
[ ] (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: January 1, 2001.
[ ] (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:__________.
[ ] (l) ALLOCATION OF EARNINGS. The earnings allocation provisions under
Section 9.08 are effective:___________.
[ ] (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)
[ ] (1) QJSA and QPSA benefits as described in Plan Sections 6.04,
6.05 and 6.06 effective:___________.
[ ] (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. Section 1.411(d)-4):
_______.
[X] (n) SPECIAL EFFECTIVE DATE(S): Employee Deferral Contributions
modified to increase the deferral percentage (Section 14 (a) (1)) and
Employee Classifications modified to include participation exclusions
(Section 3 (f)) effective July 1, 2002.
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.
(C) Copyright 2001 Wachovia Bank, National Association
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ALLIED CAPITAL 401(k) PLAN
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) 1997: [ ] Top paid group election. [ ] Calendar year election.
[ ] Calendar year data election.
(2) 1998: [ ] 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: [X] 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 [ ] current year 1997: [ ] prior year [ ] current year
(2) 1998: [ ] prior year [ ] current year 1998: [ ] prior year [ ] current year
(3) 1999: [ ] prior year [ ] current year 1999: [ ] prior year [ ] current year
(4) 2000: [ ] prior year [ ] current year 2000: [ ] prior year [ ] current year
(5) 2001: [ ] prior year [ ] current year 2001: [ ] prior year [ ] current year
(6) 2002: [X] prior year [ ] current year 2002: [X] 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:
____________.
[ ] (d) MODEL AMENDMENT FOR REQUIRED MINIMUM DISTRIBUTIONS. The Employer
adopts the IRS Model Amendment in Plan Section 6.02(E) effective_____.
[Note: The date must not be earlier than January 1, 2001.]
DEFINED BENEFIT LIMITATION
[ ] (e) CODE SECTION 415(e) REPEAL. The repeal of the Code Section 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 SECTION 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 Section 415(e), the Employer will reduce: (Choose one of (f) or
(g))
[ ] (f) The Participant's projected annual benefit under the defined
benefit plan.
[ ] (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 (j) 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.]
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ALLIED CAPITAL 401(k) PLAN
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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ALLIED CAPITAL 401(k) PLAN
CHECKLIST OF EMPLOYER INFORMATION
AND EMPLOYER ADMINISTRATIVE ELECTIONS
COMMENCING WITH THE 2002 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.
Allied Capital Corporation
---------------------------------------------------------------------------
[Employer Name]
1919 Pennsylvania Ave, NW
---------------------------------------------------------------------------
[Address]
Washington, District of Columbia 20006-3434 (202) 331-1112
---------------------------------------------------------------------------
[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 Section 404(c).
(a) [X] The Plan permits Participant direction of investment and is a
404(c) plan.
(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. [ ] Not permitted.
b. [X] Permitted for non-military leave of absence.
c. [X] Permitted for military service leave of absence.
(5) [ ] 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: Gulf Insurance Group. Surety bond amount:
$25,000,000.00
(C) Copyright 2001 Wachovia Bank, National Association
23
EGTRRA
AMENDMENT TO THE
ALLIED CAPITAL 401(k) PLAN
EGTRRA - EMPLOYER ALLIED CAPITAL 401(k) PLAN
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:
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. [ ] 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):
(C) Copyright 2001 Wachovia Bank, National Association
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EGTRRA - EMPLOYER ALLIED CAPITAL 401(k) PLAN
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.
b. [ ] Rollover contributions will be excluded only with respect to
distributions made after_______. (Enter a date no earlier
than December 31, 2001.)
c. [X] Rollover contributions will only be excluded with respect to
participants who separated from service after December 31,
2001. (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
benefits of $5,000 or less, the value
(C) Copyright 2001 Wachovia Bank, National Association
2
EGTRRA - EMPLOYER ALLIED CAPITAL 401(k) PLAN
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)-1(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.
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.
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3
EGTRRA - EMPLOYER ALLIED CAPITAL 401(k) PLAN
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 X
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.
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
(C) Copyright 2001 Wachovia Bank, National Association
4
EGTRRA - EMPLOYER ALLIED CAPITAL 401(k) PLAN
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 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.
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.
(C) Copyright 2001 Wachovia Bank, National Association
5
EGTRRA - EMPLOYER ALLIED CAPITAL 401(k) PLAN
This amendment has been executed this ___________ day of _____________, _______.
Name of Employer: Allied Capital Corporation
By:____________________________
EMPLOYER
Name of Plan: Allied Capital 401(k) Plan
(C) Copyright 2001 Wachovia Bank, National Association
6
PPD DC - Employer
POST-EGTRRA AMENDMENT
DC - Employer
Allied Capital 401(k) Plan
(PLAN NAME)
POST-EGTRRA AMENDMENT
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"), the Job Creation and
Worker Assistance Act of 2002, and other IRS guidance. 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. IF CATCH-UP CONTRIBUTIONS ARE PERMITTED, THEN THE CATCH-UP
CONTRIBUTIONS ARE TREATED LIKE ANY OTHER ELECTIVE DEFERRALS
FOR PURPOSES OF DETERMINING MATCHING CONTRIBUTIONS UNDER THE
PLAN.
2. FOR PLANS SUBJECT TO THE QUALIFIED JOINT AND SURVIVOR ANNUITY
RULES, ROLLOVERS ARE AUTOMATICALLY EXCLUDED IN DETERMINING
WHETHER THE $5,000 THRESHOLD HAS BEEN EXCEEDED FOR AUTOMATIC
CASH-OUTS (IF THE PLAN PROVIDES FOR AUTOMATIC CASH-OUTS). THIS
IS APPLIED TO ALL PARTICIPANTS REGARDLESS OF WHEN THE
DISTRIBUTABLE EVENT OCCURRED.
3. AMOUNTS THAT ARE "DEEMED 125 COMPENSATION" ARE NOT INCLUDED IN
THE DEFINITION OF COMPENSATION.
2.1 EXCLUSION OF ROLLOVERS IN APPLICATION OF INVOLUNTARY CASH-OUT
PROVISIONS. If the plan is subject to the 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 a participant's nonforfeitable account balance
for purposes of the plan's involuntary cash-out rules.
a. [ ] Rollover contributions will not be excluded.
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.)
2.2 CATCH-UP CONTRIBUTIONS (FOR 401(k) PROFIT SHARING PLANS ONLY): The plan
permits catch-up contributions effective for calendar years beginning
after December 31, 2001, (Article V) unless otherwise elected below.
a. [ ] The plan does not permit catch-up contributions to be made.
b. [ ] Catch-up contributions are permitted effective as of:
______________ (enter a date no earlier than January 1, 2002).
AND, catch-up contributions will be taken into account in applying any
matching contribution under the Plan unless otherwise elected below.
c. [ ] Catch-up contributions will not be taken into account in
applying any matching contribution under the Plan.
DC - Employer
2.3 DEEMED 125 COMPENSATION. Article VI of this amendment shall not apply
unless otherwise elected below.
[ ] Article VI of this amendment (Deemed 125 Compensation) shall apply
effective as of Plan Years and Limitation Years beginning on or after
______________________(insert the later of January 1, 1998, or the
first day of the first plan year the Plan used this definition).
ARTICLE III
INVOLUNTARY CASH-OUTS
3.1 Applicability and effective date. If the plan is subject to the
qualified joint and survivor annuity rules and provides for involuntary
cash-outs of amounts less than $5,000, then unless otherwise elected in
Section 2.1 of this amendment, this Article shall apply for
distributions made after December 31, 2001, and shall apply to all
participants.
3.2 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
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 IV
HARDSHIP DISTRIBUTIONS
Reduction of Section 402(g) of the Code following hardship distribution. 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 effective as of the date the elective deferral suspension period is reduced
from 12 months to 6 months pursuant to EGTRRA, there shall be no reduction in
the maximum amount of elective deferrals that a Participant may make pursuant to
Section 402(g) of the Code solely because of a hardship distribution made by
this plan or any other plan of the Employer.
ARTICLE V
CATCH-UP CONTRIBUTIONS
Catch-up Contributions. Unless otherwise elected in Section 2.2 of this
amendment, effective for calendar years beginning after December 31, 2001, all
employees who are eligible to make elective deferrals under this plan and who
have attained age 50 before the close of the calendar 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 Sections 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.
If elected in Section 2.2, catch-up contributions shall not be treated as
elective deferrals for purposes of applying any Employer matching contributions
under the plan.
ARTICLE VI
DEEMED 125 COMPENSATION
If elected, this Article shall apply as of the effective date specified in
Section 2.3 of this amendment. For purposes of any definition of compensation
under this Plan that includes a reference to amounts under Section 125 of the
Code, amounts under Section 125 of the Code include any amounts not available to
a Participant in cash in lieu of group health coverage because the Participant
is unable to certify that he or she has other health coverage. An amount will be
treated as an amount under Section 125 of the Code only if the Employer does not
request or collect information regarding the Participant's other health coverage
as part of the enrollment process for the health plan.
DC - Employer
This amendment has been executed this 15th day of December, 2003.
Name of Plan: Allied Capital 401 (k) Plan
Name of Employer: Allied Capital Corporation
By: /s/ Kelly A. Anderson
------------------------
EMPLOYER
PPD 401(a)(9) - Sponsor
401(a)(9) MODEL AMENDMENT
PPD 401(a)(9) - Sponsor
Allied Capital 401(k) Plan
(PLAN NAME)
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 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.
PPD 401(a)(9) - Sponsor
(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.
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
PPD 401(a)(9) - Sponsor
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.
(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 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 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.
PPD 401(a)(9) - Sponsor
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.
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.
(XX) 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:________________________________.
PPD 401(a)(9) - Sponsor
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.
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 Name:________________________
By:__________________________________
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 15th day of December, 2003.
Name of Plan: Allied Capital 401 (k) Plan
Name of Employer: Allied Capital Corporation
By: /s/ Kelly A. Anderson
----------------------------------
EMPLOYER
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.
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 January 1, 2003.
Sponsor Name: WACHOVIA BANK, N.A.
By: [ILLEGIBLE]
------------------------------
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:___________________________
Name of Employer:_______________________
By:_____________________________________
EMPLOYER