Exhibit 10.34
AMICAS, INC. 401(k) RETIREMENT SAVINGS PLAN
by and between
AMICAS, INC.
and
PRUDENTIAL BANK & TRUST, FSB
PRUDENTIAL RETIREMENT SERVICES
NONSTANDARDIZED 401(K) PLAN
By executing this 401(k) plan Adoption Agreement (the "Agreement") under the
Prudential Retirement Services Prototype Plan, the Employer agrees to establish
or continue a 401(k) plan for its Employees. The 401(k) plan adopted by the
Employer consists of the Basic Plan Document #01 (the "BPD") and the elections
made under this Agreement (collectively referred to as the "Plan"). A Related
Employer may jointly co-sponsor the Plan by signing a Co-Sponsor Adoption Page,
which is attached to this Agreement. (See Section 22.164 of the BPD for the
definition of a Related Employer.) THIS PLAN IS EFFECTIVE AS OF THE EFFECTIVE
DATE IDENTIFIED ON THE SIGNATURE PAGE OF THIS AGREEMENT.
1. EMPLOYER INFORMATION
a. NAME AND ADDRESS OF EMPLOYER EXECUTING THE SIGNATURE PAGE OF THIS
AGREEMENT: AMICAS, Inc. 20 Guest Street, Suite 200 Boston,
Massachusetts 02135-2040
b. EMPLOYER IDENTIFICATION NUMBER (EIN) FOR THE EMPLOYER: 59-2248411
c. BUSINESS ENTITY OF EMPLOYER (optional): _________________________
[X] (1) C-Corporation
[ ] (2) S-Corporation
[ ] (3) Limited Liability Corporation
[ ] (4) Sole Proprietorship
[ ] (5) Partnership
[ ] (6) Limited Liability Partnership
[ ] (7) Government
[ ] (8) Other __________
d. LAST DAY OF EMPLOYER'S TAXABLE YEAR (optional):
e. DOES THE EMPLOYER HAVE ANY RELATED EMPLOYERS (as defined in
Section 22.164 of the BPD)?
[X] (1) Yes
[ ] (2) No
f. IF E. IS YES, LIST THE RELATED EMPLOYERS (optional):
AMICAS PACS, Corp.
[NOTE: This Plan will cover Employees of a Related Employer only
if such Related Employer executes a Co-Sponsor Adoption Page.
Failure to cover the Employees of a Related Employer may result
in a violation of the minimum coverage rules under Code
Section 410(b). See Section 1.3 of the BPD.]
2. PLAN INFORMATION
a. NAME OF PLAN: AMICAS, Inc. 401(k) Retirement Savings Plan
b. PLAN NUMBER (as identified on the Form 5500 series filing for the
Plan): 001
c. TRUST IDENTIFICATION NUMBER (optional): _________________________
d. PLAN YEAR: [Check (1) or (2). Selection (3) may be selected in
addition to (1) or (2) to identify a Short Plan Year.]
[X] (1) The calendar year.
[ ] (2) The 12-consecutive month period ending _____.
[ ] (3) The Plan has a Short Plan Year beginning _____ and
ending _____.
3. TYPES OF CONTRIBUTIONS
The following types of contributions are authorized under this
Plan. The selections made below should correspond with the
selections made under Parts 4A, 4B, 4C, 4D and 4E of this
Agreement.
[X] a. SECTION 401(K) DEFERRALS (see Part 4A).
[X] b. EMPLOYER MATCHING CONTRIBUTIONS (see Part 4B).
[X] c. EMPLOYER NONELECTIVE CONTRIBUTIONS (see Part 4C).
[ ] d. EMPLOYEE AFTER-TAX CONTRIBUTIONS (see Part 4D).
[ ] e. SAFE HARBOR MATCHING CONTRIBUTIONS (see Part 4E, #27).
[ ] f. SAFE HARBOR NONELECTIVE CONTRIBUTIONS (see Part 4E,
#28).
[ ] g. NONE. This Plan is a frozen Plan effective _____ (see
Section 2.1(d) of the BPD).
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
1
PART 1 - ELIGIBILITY CONDITIONS
(See Article 1 of the BPD)
4. EXCLUDED EMPLOYEES. [Check a. or any combination of b. - f. for
those contributions the Employer elects to make under Part 4 of
this Agreement. See Section 1.2 of the BPD for rules regarding
the determination of Excluded Employees for Employee After-Tax
Contributions, QNECs, QMACs and Safe Harbor Contributions.]
(1)
SECTION (2) (3)
401(K) EMPLOYER EMPLOYER
DEFERRALS MATCH NONELECTIVE
--------- -------- -----------
a. [ ] [ ] [ ] No excluded categories of Employees.
b. [X] [X] [X] Union Employees (see Section 22.202 of
the BPD).
c. [X] [X] [X] Nonresident Alien Employees (see
Section 22.124 of the BPD).
d. [X] [X] [X] Leased Employees (see Section 1.2(b)
of the BPD).
e. [ ] [ ] [ ] Highly Compensated Employees (see
Section 22.99 of the BPD).
f. [ ] [ ] [ ] (Describe Excluded Employees):
________________________________
5. MINIMUM AGE AND SERVICE CONDITIONS FOR BECOMING AN ELIGIBLE
PARTICIPANT. [Check a. or check b. and/or any one of c. - e. for
those contributions the Employer elects to make under Part 4 of
this Agreement. Selection f. may be checked instead of or in
addition to any selections under b. - e. See Section 1.4 of the
BPD for the application of the minimum age and service conditions
for purposes of Employee After - Tax Contributions, QNECs, QMACs
and Safe Harbor Contributions. See Part 7 of this Agreement for
special service crediting rules.]
(1)
SECTION (2) (3)
401(K) EMPLOYER EMPLOYER
DEFERRALS MATCH NONELECTIVE
--------- -------- -----------
a. [ ] [ ] [ ] None (conditions are met on Employment
Commencement Date).
b. [X] [X] [X] Age 21 (cannot exceed age 21).
c. [ ] [ ] [ ] One Year of Service.
d. [ ] [ ] [ ] _____ consecutive months (not more
than 12) during which the Employee
completes at least _____ Hours of
Service (cannot exceed 1,000). If an
Employee does not satisfy this
requirement in the first designated
period of months following his/her
Employment Commencement Date, such
Employee will be deemed to satisfy
this condition upon completing a Year
of Service (as defined in Section
1.4(b) of the BPD).
e. N/A [ ] [ ] Two Years of Service. [Full and
immediate vesting must be selected
under Part 6 of this Agreement.]
f. [ ] [ ] [ ] (Describe eligibility conditions):
________________________________
[NOTE: Any conditions provided under
f. must be described in a manner that
precludes Employer discretion and must
satisfy the nondiscrimination
requirements of Section 1.401(a)(4) of
the regulations, and may not cause the
Plan to violate the provisions of Code
Section 410(a).]
[ ] 6. DUAL ELIGIBILITY. Any Employee (other than an Excluded Employee)
who is employed on the date designated under a. or b. below, as
applicable, is deemed to be an Eligible Participant as of the
later of the date identified under this #6 or the Effective Date
of this Plan, without regard to any Entry Date selected under
Part 2. See Section 1.4(d)(2) of the BPD. [NOTE: If this #6 is
checked, also check a. or b. If this #6 is not checked, the
provisions of Section 1.4(d)(1) of the BPD apply.]
[ ] a. The Effective Date of this Plan.
[ ] b. (Identify date)________________________________________
[NOTE: Any date specified under b. may not cause the Plan to
violate the provisions of Code Section 410(a). See Section 1.4 of
the BPD.]
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
2
PART 2 - COMMENCEMENT OF PARTICIPATION
(See Section 1.5 of the BPD)
7. ENTRY DATE UPON WHICH PARTICIPATION BEGINS AFTER COMPLETING
MINIMUM AGE AND SERVICE CONDITIONS UNDER PART 1, #5 ABOVE. [Check
one of a. - e. for those contributions the Employer elects to
make under Part 4 of this Agreement. See Section 1.5 of the BPD
for determining the Entry Date applicable to Employee After-Tax
Contributions, QNECs, QMACs and Safe Harbor Contributions.]
(1)
SECTION (2) (3)
401(K) EMPLOYER EMPLOYER
DEFERRALS MATCH NONELECTIVE
--------- -------- -----------
a. [ ] [ ] [ ] The next following Entry Date (as
defined in #8 below).
b. [X] [X] [X] The Entry Date (as defined in #8
below) coinciding with or next
following the completion of the age
and service conditions.
c. N/A [N/A] [N/A] The nearest Entry Date (as defined in
#8 below).
d. N/A [N/A] [N/A] The preceding Entry Date (as defined
in #8 below).
e. [ ] [ ] [ ] The date the age and service
conditions are satisfied. [Also check
#8.e. below for the same type of
contribution(s) checked here.]
8. DEFINITION OF ENTRY DATE. [Check one of a. - e. for those
contributions the Employer elects to make under Part 4 of this
Agreement. Selection f. may be checked instead of or in addition
to a. - e. See Section 1.5 of the BPD for determining the Entry
Date applicable to Employee After-Tax Contributions, QNECs, QMACs
and Safe Harbor Contributions.]
(1)
SECTION (2) (3)
401(K) EMPLOYER EMPLOYER
DEFERRALS MATCH NONELECTIVE
--------- -------- -----------
a. [ ] [ ] [ ] The first day of the Plan Year and the
first day of 7th month of the Plan
Year.
b. [ ] [ ] [ ] The first day of each quarter of the
Plan Year.
c. [X] [X] [X] The first day of each month of the
Plan Year.
d. [ ] [ ] [ ] The first day of the Plan Year. [If
#7.a. or #7.b. above is checked for
the same type of contribution as
checked here, see the restrictions in
Section 1.5(b) of the BPD.]
e. [ ] [ ] [ ] The date the conditions in Part 1, #5.
above are satisfied. [This e. should
be checked for a particular type of
contribution only if #7.e. above is
also checked for that type of
contribution.]
f. [ ] [ ] [ ] (Describe Entry Date)_________________
[NOTE: Any Entry Date designated in f.
must comply with the requirements of
Code Section 410(a)(4) and must
satisfy the nondiscrimination
requirements under Section 1.401(a)(4)
of the regulations. See Section 1.5(a)
of the BPD.]
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
3
PART 3 - COMPENSATION DEFINITIONS
(See Sections 22.102 and 22.197 of the BPD)
9. DEFINITION OF TOTAL COMPENSATION:
[X] a. W-2 Wages.
[ ] b. Withholding Wages.
[ ] c. Code Section 415 Safe Harbor Compensation.
[NOTE: Each of the above definitions is increased for
Elective Deferrals (as defined in Section 22.61 of the BPD),
for pre-tax contributions to a cafeteria plan or a Code
Section 457 plan, and for qualified transportation fringes
under Code Section 132(f)(4). See Section 22.197 of the
BPD.]
10. DEFINITION OF INCLUDED COMPENSATION for allocation of
contributions or forfeitures: [Check a. or b. for those
contributions the Employer elects under Part 4 of this Agreement.
If b. is selected for a particular contribution, also check any
combination of c. through j. for that type of contribution. See
Section 22.102 of the BPD for determining Included Compensation
for Employee After-Tax Contributions, QNECs, QMACs and Safe
Harbor Contributions.]
(1)
SECTION (2) (3)
401(K) EMPLOYER EMPLOYER
DEFERRALS MATCH NONELECTIVE
--------- -------- -----------
a. [ ] [ ] [ ] Total Compensation, as defined in #9
above.
b. [X] [X] [X] Total Compensation, as defined in #9
above, with the following exclusions:
c. N/A [ ] [ ] Elective Deferrals, pre-tax
contributions to a cafeteria plan or a
Code Section 457 plan, and qualified
transportation fringes under Code
Section 132(f)(4) are excluded. See
Section 22.102 of the BPD.
d. [X] [X] [X] Fringe benefits, expense
reimbursements, deferred compensation,
and welfare benefits are excluded.
e. [ ] [ ] [ ] Compensation above $__________ is
excluded.
f. [ ] [ ] [ ] Bonuses are excluded.
g. [ ] [ ] [ ] Commissions are excluded.
h. [ ] [ ] [ ] Overtime is excluded.
i. [ ] [ ] [ ] Amounts paid for services performed
for a Related Employer that does not
execute the Co-Sponsor Adoption Page
under this Agreement are excluded.
j. [X] [X] [X] (Describe modifications to Included
Compensation): moving expenses,
severance payments, employee referral
payments, amounts not paid in cash,
amounts paid by an Affiliate, the
value of a qualified or a
non-qualified stock option granted to
an Employee by the Employer to the
extent such value is includable in the
Employee's taxable income are all
excluded from Compensation.
[NOTE: Unless otherwise provided under j., any exclusions
selected under f. through j. above do not apply to Nonhighly
Compensated Employees in determining allocations under the
Permitted Disparity Method under Part 4C, #21.b. of this
Agreement or for purposes of applying the Safe Harbor 401(k) Plan
provisions under Part 4E of this Agreement.]
[ ] 11. SPECIAL RULES.
[ ] a. HIGHLY COMPENSATED EMPLOYEES ONLY. For all purposes
under the Plan, the modifications to Included
Compensation elected in #10.f. through #10.j. above
will apply only to Highly Compensated Employees.
[ ] b. MEASUREMENT PERIOD (SEE THE OPERATING RULES UNDER
SECTION 2.2(C)(3) OF THE BPD). Instead of the Plan
Year, Included Compensation is determined on the basis
of the period elected under (1) or (2) below.
[ ] (1) The calendar year ending in the Plan Year.
[ ] (2) The 12-month period ending on _______________
which ends during the Plan Year.
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
4
[NOTE: If this selection b. is checked, Included
Compensation will be determined on the basis of the period
designated in (1) or (2) for all contribution types. If this
selection b. is not checked, Included Compensation is based
on the Plan Year. See Part 4 for the ability to use partial
year Included Compensation.]
[PRACTITIONER TIP: If #11.b is checked, it is recommended
that the Limitation Year for purposes of applying the Annual
Additions Limitation under Code Section 415 correspond to
the period used to determine Included Compensation. This
modification to the Limitation Year may be made in Part 13,
#69.a. of this Agreement.]
PART 4A - SECTION 401(K) DEFERRALS
(See Section 2.3(a) of the BPD)
[X] Check this selection and complete the applicable sections of this Part
4A to allow for Section 401(k) Deferrals under the Plan.
[X] 12. SECTION 401(K) DEFERRAL LIMIT. 80% of Included Compensation. [If this
#12 is NOT checked, the Code Section 402(g) deferral limit described
in Section 17.1 of the BPD and the Annual Additions Limitation under
Article 7 of the BPD still apply.]
[X] a. APPLICABLE PERIOD. The limitation selected under #12 applies
with respect to Included Compensation earned during:
[X] (1) the Plan Year.
[ ] (2) the portion of the Plan Year in which the Employee
is an Eligible Participant.
[ ] (3) each separate payroll period during which the
Employee is an Eligible Participant.
[NOTE: If Part 3, #11.b. is checked, any period selected
under this a. will be determined as if the Plan Year were
the period designated under Part 3, #11.b. See Section
2.2(c)(3) of the BPD.]
[ ] b. LIMIT APPLICABLE ONLY TO HIGHLY COMPENSATED EMPLOYEES. [If
this b. is not checked, any limitation selected under #12
applies to all Eligible Participants.]
[ ] (1) The limitation selected under #12 applies only to
Highly Compensated Employees.
[ ] (2) The limitation selected under #12 applies only to
Nonhighly Compensated Employees. Highly
Compensated Employees may defer up to ____% of
Included Compensation (as determined under a.
above). [The percentage inserted in this (2) for
Highly Compensated Employees must be lower than
the percentage inserted in #12 for Nonhighly
Compensated Employees.]
[ ] 13. MINIMUM DEFERRAL RATE: [If this #13 is not checked, no minimum
deferral rate applies to Section 401(k) Deferrals under the Plan.]
[ ] a. _____% of Included Compensation for a payroll period.
[ ] b. $____ for a payroll period.
[ ] 14. AUTOMATIC DEFERRAL ELECTION. (See Section 2.3(a)(2) of the BPD.) An
Eligible Participant will automatically defer ____% of Included
Compensation for each payroll period, unless the Eligible Participant
makes a contrary Salary Reduction Agreement election on or after ____.
This automatic deferral election will apply to:
[ ] a. all Eligible Participants.
[ ] b. only those Employees who become Eligible Participants on or
after the following date:
[ ] 15. EFFECTIVE DATE. If this Plan is being adopted as a new 401(k) plan or
to add a 401(k) feature to an existing plan, Eligible Participants may
begin making Section 401(k) Deferrals as of:____
(c) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
5
PART 4B - EMPLOYER MATCHING CONTRIBUTIONS
(See Sections 2.3(b) and (c) of the BPD)
[X] CHECK THIS SELECTION AND COMPLETE THIS PART 4B TO ALLOW FOR EMPLOYER
MATCHING CONTRIBUTIONS. Each formula allows for Employer Matching
Contributions to be allocated to Section 401(k) Deferrals and/or
Employee After-Tax Contributions (referred to as "applicable
contributions"). If a matching formula applies to both types of
contributions, such contributions are aggregated to determine the
Employer Matching Contribution allocated under the formula. If any
formula applies to Employee After-Tax Contributions, Part 4D must be
completed. [NOTE: Do not check this selection if the only Employer
Matching Contributions authorized under the Plan are Safe Harbor
Matching Contributions. Instead, complete the applicable elections
under Part 4E of this Agreement. If a "regular" Employer Matching
Contribution will be made in addition to a Safe Harbor Matching
Contribution, complete this Part 4B for the "regular" Employer
Matching Contribution and Part 4E for the Safe Harbor Matching
Contribution. To avoid ACP Testing with respect to any "regular"
Employer Matching Contributions, such contributions may not be based
on applicable contributions in excess of 6% of Included Compensation
and any discretionary "regular" Employer Matching Contributions may
not exceed 4% of Included Compensation.]
16. EMPLOYER MATCHING CONTRIBUTION FORMULA(S): [See the operating rules
under #17 below.]
(1) (2)
SECTION 401(K) EMPLOYEE
DEFERRALS AFTER-TAX
-------------- ---------
a. [ ] [ ] FIXED MATCHING CONTRIBUTION. ____%
of each Eligible Participant's
applicable contributions. The
Employer Matching Contribution does
not apply to applicable
contributions that exceed:
[ ] (a) ____% of Included
Compensation.
[ ] (b) $____.
[NOTE: If neither (a) nor (b) is
checked, all applicable
contributions are eligible for the
Employer Matching Contribution under
this formula.]
b. [X] [ ] DISCRETIONARY MATCHING CONTRIBUTION.
A uniform percentage, as determined
by the Employer, of each Eligible
Participant's applicable
contributions.
[ ] (a) The Employer Matching
Contribution allocated to any
Eligible Participant may not
exceed ____% of Included
Compensation.
[X] (b) The Employer Matching
Contribution will apply only to
a Participant's applicable
contributions that do not
exceed:
[ ] 1. ____% of Included
Compensation.
[ ] 2. $____.
[X] 3. a dollar amount or
percentage of Included
Compensation that is
uniformly determined by
the Employer for all
Eligible Participants.
[NOTE: If none of the
selections 1. - 3. is checked,
all applicable contributions
are eligible for the Employer
Matching Contribution under
this formula.]
(c) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
6
c. [ ] [ ] TIERED MATCHING CONTRIBUTION. A
uniform percentage of each tier of
each Eligible Participant's
applicable contributions, determined
as follows:
Tiers of contributions
(indicate $ or %) Matching percentage
---------------------- -------------------
(a) First ____________ (b) ____________
(c) Next ____________ (d) ____________
(e) Next ____________ (f) ____________
(g) Next ____________ (h) ____________
[NOTE: Fill in only percentages or
dollar amounts, but not both. If
percentages are used, each tier
represents the amount of the
Participant's applicable
contributions that equals the
specified percentage of the
Participant's Included
Compensation.]
d. [ ] [ ] DISCRETIONARY TIERED MATCHING
CONTRIBUTION. The Employer will
determine a matching percentage for
each tier of each Eligible
Participant's applicable
contributions. Tiers are determined
in increments of:
Tiers of contributions
(indicate $ or %)
----------------------
(a) First __________
(b) Next __________
(c) Next __________
(d) Next __________
[NOTE: Fill in only percentages or
dollar amounts, but not both. If
percentages are used, each tier
represents the amount of the
Participant's applicable
contributions that equals the
specified percentage of the
Participant's Included
Compensation.]
e. [ ] [ ] YEAR OF SERVICE MATCHING
CONTRIBUTION. A uniform percentage
of each Eligible Participant's
applicable contributions based on
Years of Service with the Employer,
determined as follows:
Years of Service Matching Percentage
---------------- -------------------
(a) ___________ (b) ____________%
(c) ____________ (d) ____________%
(e) ____________ (f) ____________ %
[ ] 1. In applying the Year of
Service matching contribution
formula, a Year of Service is:
[If not checked, a Year of
Service is 1,000 Hours of
Service during the Plan Year.]
[ ] a. as defined for purposes
of eligibility under Part 7.
[ ] b. as defined for purposes
of vesting under Part 7.
[ ] 2. Special limits on Employer
Matching Contributions under
the Year of Service formula:
[ ] a. The Employer Matching
Contribution allocated to any
Eligible Participant may not
exceed ____% of Included
Compensation.
[ ] b. The Employer Matching
Contribution will apply only
to a Participant's applicable
contributions that do not
exceed:
[ ] (1) _____% of Included
Compensation.
[ ] (2) $_____.
(c) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
7
f. [ ] [ ] NET PROFITS. Any Employer Matching
Contributions made in accordance
with the elections under this #16
are limited to Net Profits. [If this
f. is checked, also select (a) or
(b) below.]
[ ] (a) DEFAULT DEFINITION OF NET
PROFITS. For purposes of this
selection e., Net Profits is
defined in accordance with
Section 2.2(a)(2) of the BPD.
[ ] (b) MODIFIED DEFINITION OF
NET PROFITS. For purposes of
this selection f., Net Profits
is defined as follows:____
[NOTE: Any definition of Net
Profits under this (b) must be
described in a manner that
precludes Employer discretion
and must satisfy the
nondiscrimination requirements
of Section 1.401(a)(4) of the
regulations and must apply
uniformly to all Participants.]
17. OPERATING RULES FOR APPLYING THE MATCHING CONTRIBUTION FORMULAS:
a. APPLICABLE CONTRIBUTIONS TAKEN INTO ACCOUNT: (See Section
2.3(b)(3) of the BPD.) The matching contribution formula(s)
elected in #16. above (and any limitations on the amount of a
Participant's applicable contributions considered under such
formula(s)) are applied separately for each:
[ ] (1) Plan Year. [X] (2) Plan Year quarter.
[ ] (3) calendar month. [ ] (4) payroll period.
[NOTE: If Part 3, #11.b. is checked, the period selected under
this a. (to the extent such period refers to the Plan Year) will
be determined as if the Plan Year were the period designated
under Part 3, #11.b. See Section 2.2(c)(3) of the BPD.]
b. SPECIAL RULE FOR PARTIAL PERIOD OF PARTICIPATION. If an Employee
is an Eligible Participant for only part of the period designated
in a. above, Included Compensation is taken into account for:
[ ] (1) the entire period, including the portion of the period
during which the Employee is not an Eligible
Participant.
[X] (2) the portion of the period in which the Employee is an
Eligible Participant.
[ ] (3) the portion of the period during which the Employee's
election to make the applicable contributions is in
effect.
[ ] 18. QUALIFIED MATCHING CONTRIBUTIONS (QMACS): [NOTE: Regardless of any
elections under this #18, the Employer may make a QMAC to the Plan to
correct a failed ADP or ACP Test, as authorized under Sections
17.2(d)(2) and 17.3(d)(2) of the BPD. Any QMAC allocated to correct
the ADP or ACP Test which is not specifically authorized under this
#18 will be allocated to all Eligible Participants who are Nonhighly
Compensated Employees as a uniform percentage of Section 401(k)
Deferrals made during the Plan Year. See Section 2.3(c) of the BPD.]
[ ] a. All Employer Matching Contributions are designated as QMACs.
[ ] b. Only Employer Matching Contributions described in
selection(s) _______ under #16 above are designated as
QMACs.
[ ] c. In addition to any Employer Matching Contribution provided
under #16 above, the Employer may make a discretionary QMAC
that is allocated equally as a percentage of Section 401(k)
Deferrals made during the Plan Year. The Employer may
allocate QMACs only on Section 401(k) Deferrals that do not
exceed a specific dollar amount or a percentage of Included
Compensation that is uniformly determined by the Employer.
QMACs will be allocated to:
[ ] (1) Eligible Participants who are Nonhighly
Compensated Employees.
[ ] (2) all Eligible Participants.
19. ALLOCATION CONDITIONS. An Eligible Participant must satisfy the
following allocation conditions for an Employer Matching Contribution:
[Check a. or b. or any combination of c. - f. Selection e. may not be
checked if b. or d. is checked. Selection g. and/or h. may be checked
in addition to b. - f.]
[ ] a. NONE.
[ ] b. SAFE HARBOR ALLOCATION CONDITION. An Employee must be
employed by the Employer on the last day of the Plan Year OR
must have more than _________ (not more than 500) Hours of
Service for the Plan Year.
[X] c. LAST DAY OF EMPLOYMENT CONDITION. An Employee must be
employed with the Employer on the last day of the Plan Year.
(c) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
8
[ ] d. HOURS OF SERVICE CONDITION. An Employee must be credited
with at least ____ Hours of Service (may not exceed 1,000)
during the Plan Year.
[ ] e. ELAPSED TIME METHOD. (See Section 2.6(d) of the BPD.)
[ ] (1) SAFE HARBOR ALLOCATION CONDITION. An Employee must be
employed by the Employer on the last day of the Plan
Year OR must have more than ____ (not more than 91)
consecutive days of employment with the Employer during
the Plan Year.
[ ] (2) SERVICE CONDITION. An Employee must have more than ____
(not more than 182) consecutive days of employment with
the Employer during the Plan Year.
[ ] f. DISTRIBUTION RESTRICTION. An Employee must not have taken a
distribution of the applicable contributions eligible for an
Employer Matching Contribution prior to the end of the
period for which the Employer Matching Contribution is being
made (as defined in #17.a. above). See Section 2.6(c) of the
BPD.
[X] g. APPLICATION TO A SPECIFIED PERIOD. In applying the
allocation condition(s) designated under b. through e.
above, the allocation condition(s) will be based on the
period designated under #17.a. above. In applying an Hours
of Service condition under d. above, the following method
will be used: [This g. should be checked only if a period
other than the Plan Year is selected under #17.a. above.
Selection (1) or (2) must be selected only if d. above is
also checked.]
[ ] (1) FRACTIONAL METHOD (see Section 2.6(e)(2)(i) of the
BPD).
[X] (2) PERIOD-BY-PERIOD METHOD (see Section 2.6(e)(2)(ii) of
the BPD).
[PRACTITIONER NOTE: If this g. is not checked, any allocation
condition(s) selected under b. through e. above will apply with
respect to the Plan Year, regardless of the period selected under
#17.a. above. See Section 2.6(e) of the BPD for procedural rules
for applying allocation conditions for a period other than the
Plan Year.]
[ ] h. The above allocation condition(s) will NOT apply if:
[ ] (1) the Participant dies during the Plan Year.
[ ] (2) the Participant is Disabled.
[ ] (3) the Participant, by the end of the Plan Year, has
reached:
[ ] (a) Normal Retirement Age.
[ ] (b) Early Retirement Age.
PART 4C - EMPLOYER NONELECTIVE CONTRIBUTIONS
(See Sections 2.3(d) and (e) of the BPD)
[X] CHECK THIS SELECTION AND COMPLETE THIS PART 4C TO ALLOW FOR EMPLOYER
NONELECTIVE CONTRIBUTIONS. [NOTE: Do not check this selection if the
only Employer Nonelective Contributions authorized under the Plan are
Safe Harbor Nonelective Contributions. Instead, complete the
applicable elections under Part 4E of this Agreement.]
[X] 20. EMPLOYER NONELECTIVE CONTRIBUTION (OTHER THAN QNECS):
[X] a. DISCRETIONARY. Discretionary with the Employer.
[ ] b. FIXED UNIFORM PERCENTAGE. _____% of each Eligible
Participant's Included Compensation.
[ ] c. UNIFORM DOLLAR AMOUNT.
[ ] (1) A uniform discretionary dollar amount for each Eligible
Participant.
[ ] (2) $____ for each Eligible Participant.
[ ] d. DAVIS-BACON CONTRIBUTION FORMULA. (See Section 2.2(a)(1) of
the BPD for rules regarding the application of the Davis-
Bacon Contribution Formula.) The Employer will make a
contribution for each Eligible Participant's Davis-Bacon Act
Service based on the hourly contribution rate for the
Participant's employment classification, as designated under
Schedule A of this Agreement. The contributions under this
formula will be allocated under the Pro Rata Allocation
Formula under #21.a. below, but based on the amounts
designated in Schedule A as attached to this Agreement. [If
this d. is selected, #21.a. below also must be selected.]
(c) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
9
[ ] (1) The contributions under the Davis-Bacon
Contribution Formula will offset the following
contributions under the Plan: [Check (a) and/or
(b). If this (1) is not checked, contributions
under the Davis Bacon Contribution Formula will
NOT offset any other Employer Contributions under
the Plan.]
[ ] (a) Employer Nonelective Contributions
[ ] (b) Employer Matching Contributions
[ ] (2) The default provisions under Section 2.2(a)(1) are
modified as follows: _____________________________
[NOTE: Any modification to the default provisions
under (2) must satisfy the nondiscrimination
requirements under Section 1.401(a)(4) of the
regulations. Any modification under (2) will not
allow the offset of any contributions to any other
Plan.]
[ ] e. NET PROFITS. Check this e. if the contribution selected
above is limited to Net Profits. [If this e. is checked,
also select (1) or (2) below.]
[ ] (1) DEFAULT DEFINITION OF NET PROFITS. For purposes of
this subsection e., Net Profits is defined in
accordance with Section 2.2(a)(2) of the BPD.
[ ] (2) MODIFIED DEFINITION OF NET PROFITS. For purposes
of this subsection e., Net Profits is defined as
follows: _________________________________________
[NOTE: Any definition of Net Profits under this
(2) must be described in a manner that precludes
Employer discretion, must satisfy the
nondiscrimination requirements of Section
1.401(a)(4) of the regulations, and must apply
uniformly to all Participants.]
[X] 21. ALLOCATION FORMULA FOR EMPLOYER NONELECTIVE CONTRIBUTIONS (OTHER THAN
QNECS): (See Section 2.3(d) of the BPD.)
[X] a. PRO RATA ALLOCATION METHOD. The allocation for each Eligible
Participant is a uniform percentage of Included Compensation
(or a uniform dollar amount if #20.c. is selected above).
[ ] b. PERMITTED DISPARITY METHOD. The allocation for each Eligible
Participant is determined under the following formula:
[Selection #20.a. above must also be checked.]
[ ] (1) Two-Step Formula.
[ ] (2) Four-Step Formula.
[N/A]c. UNIFORM POINTS ALLOCATION. The allocation for each Eligible
Participant is determined based on the Eligible
Participant's points. Each Eligible Participant's allocation
shall bear the same relationship to the Employer
Contribution as his/her total points bears to all points
awarded. An Eligible Participant will receive: [Check (1)
and/or (2). Selection (3) may be checked in addition to (1)
and (2). Selection #20.a. above also must be checked.]
[ ] (1) _____ points for each _____year(s) of age
(attained as of the end of the Plan Year).
[ ] (2) _____ points for each _____ Year(s) of Service,
determined as follows: [Check (a) or (b).
Selection (c) may be checked in addition to (a) or
(b).]
[ ] (a) In the same manner as determined for
eligibility.
[ ] (b) In the same manner as determined for
vesting.
[ ] (c) Points will not be provided with respect
to Years of Service in excess of
____________.
[ ] (3) _____ points for each $_____ (not to exceed $200)
of Included Compensation.
[ ] d. ALLOCATION BASED ON SERVICE. The Employer Nonelective
Contribution will be allocated to each Eligible Participant
as: [Check (1) or (2). Also check (a), (b), and/or (c).
Selection (3) may be checked in addition to (1) or (2).]
[ ] (1) a uniform dollar amount
[ ] (2) a uniform percentage of Included Compensation
for the following periods of service:
[ ] (a) Each Hour of Service.
[ ] (b) Each week of employment.
[ ] (c) (Describe period) ______________________
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401 (k) Adoption Agreement
10
[ ] (3) The contribution is subject to the following
minimum and/or maximum benefit limitations:
__________
[PRACTITIONER NOTE: If #20.b. or #20.c. is checked, the
selection in (1) or (2) must conform to the selection
made in #20.b. or #20.c. Thus, if #20.b. is checked
along with this subsection d., the allocation must be a
uniform percentage of Included Compensation under (2).
If #20.c. is checked along with this subsection d. the
allocation must be a uniform dollar amount under (1).]
[ ] e. TOP-HEAVY MINIMUM CONTRIBUTION. In applying the Top-Heavy
Plan requirements under Article 16 of the BPD, the top-heavy
minimum contribution will be allocated to all Eligible
Participants, in accordance with Section 16.2(a) of the BPD.
[NOTE: If this e. is not checked, any top-heavy minimum
contribution will be allocated only to Non-Key Employees, in
accordance with Section 16.2(a) of the BPD.]
[ ] 22. QUALIFIED NONELECTIVE CONTRIBUTION (QNEC). The Employer may make a
discretionary QNEC that is allocated under the following method.
[NOTE: Regardless of any elections under this #22, the Employer may
make a QNEC to the Plan to correct a failed ADP or ACP Test, as
authorized under Sections 17.2(d)(2) and 17.3(d)(2) of the BPD. Any
QNEC allocated to correct the ADP or ACP Test which is not
specifically authorized under this #22 will be allocated as a uniform
percentage of Included Compensation to all Eligible Participants who
are Nonhighly Compensated Employees. See Section 2.3(e) of the BPD.]
[ ] a. PRO RATA ALLOCATION METHOD. (See Section 2.3(e)(1) of the
BPD.) The QNEC will be allocated as a uniform percentage of
Included Compensation to:
[ ] (1) all Eligible Participants who are Nonhighly
Compensated Employees.
[ ] (2) all Eligible Participants.
[ ] b. BOTTOM-UP QNEC METHOD. The QNEC will be allocated to
Eligible Participants who are Nonhighly Compensated
Employees in reverse order of Included Compensation. (See
Section 2.3(e)(2) of the BPD.)
[ ] c. APPLICATION OF ALLOCATION CONDITIONS. If this c. is checked,
QNECs will be allocated only to Eligible Participants who
have satisfied the allocation conditions under #24 below.
[If this c. is not checked, QNECs will be allocated without
regard to the allocation conditions under #24 below.]
23. OPERATING RULES FOR DETERMINING AMOUNT OF EMPLOYER NONELECTIVE
CONTRIBUTIONS.
a. SPECIAL RULES REGARDING INCLUDED COMPENSATION.
(1) APPLICABLE PERIOD FOR DETERMINING INCLUDED COMPENSATION. In
determining the amount of Employer Nonelective Contributions
to be allocated to an Eligible Participant under this Part
4C, Included Compensation is determined separately for each:
[If #21.b. above is checked, the Plan Year must be selected
under (a) below.]
[X] (a) Plan Year.
[ ] (b) Plan Year quarter.
[ ] (c) calendar month.
[ ] (d) payroll period.
[NOTE: If Part 3, #11.b. is checked, the period selected
under this (1) (to the extent such period refers to the Plan
Year) will be determined as if the Plan Year were the period
designated under Part 3, #11.b. See Section 2.2(c)(3) of the
BPD.]
[ ] (2) SPECIAL RULE FOR PARTIAL PERIOD OF PARTICIPATION. If an
Employee is an Eligible Participant for only part of the
period designated under (1) above, Included Compensation is
taken into account for the entire period, including the
portion of the period during which the Employee is not an
Eligible Participant. [If this selection (2) is not checked,
Included Compensation is taken into account only for the
portion of the period during which the Employee is an
Eligible Participant.]
[ ] b. SPECIAL RULES FOR APPLYING THE PERMITTED DISPARITY METHOD.
[Complete this b. only if #21.b. above is also checked.]
[ ] (1) APPLICATION OF FOUR-STEP FORMULA FOR TOP-HEAVY
PLANS. If this (1) is checked, the Four-Step
Formula applies instead of the Two-Step Formula
for any Plan Year in which the Plan is a Top-Heavy
Plan. [This (1) may only be checked if #21.b.(1)
above is also checked.]
[ ] (2) EXCESS COMPENSATION UNDER THE PERMITTED DISPARITY
METHOD is the amount of Included Compensation that
exceeds: [If this selection (2) is not checked,
Excess Compensation under the Permitted Disparity
Method is the amount of Included Compensation that
exceeds the Taxable Wage Base.]
[ ] (a) ________% (may not exceed 100%) of the
Taxable Wage Base.
[ ] 1. The amount determined under
(a) is not rounded.
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401 (k) Adoption Agreement
11
[ ] 2. The amount determined under (a) is
rounded (but not above the Taxable
Wage Base) to the next higher:
[ ] a. $1.
[ ] b. $100.
[ ] c. $1,000.
[ ] (b) _____________________________________________
(may not exceed the Taxable Wage Base).
[NOTE: The maximum integration percentage of 5.7% must
be reduced to (i) 5.4% if Excess Compensation is based
on an amount that is GREATER than 80% but less than
100% of the Taxable Wage Base or (ii) 4.3% if Excess
Compensation is based on an amount that is greater than
20% but less than or equal to 80% of the Taxable Wage
Base. See Section 2.2(b)(2) of the BPD.]
24. ALLOCATION CONDITIONS. An Eligible Participant must satisfy the
following allocation conditions for an Employer Nonelective
Contribution: [Check a. or b. or any combination of c. - e. Selection
e. may not be checked if b. or d. is checked. Selection f. and/or g.
may be checked in addition to b. - e.]
[ ] a. NONE.
[ ] b. SAFE HARBOR ALLOCATION CONDITION. An Employee must be
employed by the Employer on the last day of the Plan Year OR
must have more than ______ (not more than 500) Hours of
Service for the Plan Year.
[X] c. LAST DAY OF EMPLOYMENT CONDITION. An Employee must be
employed with the Employer on the last day of the Plan Year.
[X] d. HOURS OF SERVICE CONDITION. An Employee must be credited
with at least 1,000 Hours of Service (may not exceed 1,000)
during the Plan Year.
[ ] e. ELAPSED TIME METHOD. (See Section 2.6(d) of the BPD.)
[ ] (1) SAFE HARBOR ALLOCATION CONDITION. An Employee must
be employed by the Employer on the last day of the
Plan Year OR must have more than ______ (not more
than 91) consecutive days of employment with the
Employer during the Plan Year.
[ ] (2) SERVICE CONDITION. An Employee must have more than
______ (not more than 182) consecutive days of
employment with the Employer during the Plan Year.
[ ] f. APPLICATION TO A SPECIFIED PERIOD. In applying the
allocation condition(s) designated under b. through e.
above, the allocation condition(s) will be based on the
period designated under #23.a.(1) above. In applying an
Hours of Service condition under d. above, the following
method will be used: [This f. should be checked only if a
period other than the Plan Year is selected under #23.a.(1)
above. Selection (1) or (2) must be selected only if d.
above is also checked.]
[ ] (1) FRACTIONAL METHOD (see Section 2.6(e)(2)(i) of the
BPD).
[ ] (2) PERIOD-BY-PERIOD METHOD (see Section 2.6(e)(2)(ii)
of the BPD).
[PRACTITIONER NOTE: If this f. is not checked, any
allocation condition(s) selected under b. through e. above
will apply with respect to the Plan Year, regardless of the
period selected under #23.a.(1) above. See Section 2.6(e) of
the BPD for procedural rules for applying allocation
conditions for a period other than the Plan Year.]
[ ] g. The above allocation condition(s) will NOT apply if:
[ ] (1) the Participant dies during the Plan Year.
[ ] (2) the Participant is Disabled.
[ ] (3) the Participant, by the end of the Plan Year, has
reached:
[ ] (a) Normal Retirement Age.
[ ] (b) Early Retirement Age.
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401 (k) Adoption Agreement
12
PART 4D - EMPLOYEE AFTER-TAX CONTRIBUTIONS
(See Section 3.1 of the BPD)
[ ] CHECK THIS SELECTION TO ALLOW FOR EMPLOYEE AFTER-TAX CONTRIBUTIONS. If
Employee After-Tax Contributions will not be permitted under the Plan,
do not check this selection and skip the remainder of this Part 4D.
[NOTE: The eligibility conditions for making Employee After-Tax
Contributions are listed in Part 1 of this Agreement under "Section
401(k) Deferrals."]
[ ] 25. MAXIMUM. ______% of Included Compensation for:
[ ] a. the entire Plan Year.
[ ] b. the portion of the Plan Year during which the Employee is an
Eligible Participant.
[ ] c. each separate payroll period during which the Employee is an
Eligible Participant.
[NOTE: If this #25 is not checked, the only limit on Employee
After-Tax Contributions is the Annual Additions Limitation under
Article 7 of the BPD. If Part 3, #11.b. is checked, any period
selected under this #25 will be determined as if the Plan Year were
the period designated under Part 3, #11.b. See Section 2.2(c)(3) of
the BPD.]
[ ] 26. MINIMUM. For any payroll period, no less than:
[ ] a. _____% of Included Compensation.
[ ] b. $_________.
PART 4E - SAFE HARBOR 401(K) PLAN ELECTION
(See Section 17.6 of the BPD)
[ ] CHECK THIS SELECTION AND COMPLETE THIS PART 4E IF THE PLAN IS DESIGNED
TO BE A SAFE HARBOR 401(K) PLAN.
[ ] 27. SAFE HARBOR MATCHING CONTRIBUTION: The Employer will make an Employer
Matching Contribution with respect to an Eligible Participant's
Section 401(k) Deferrals and/or Employee After-Tax Contributions
("applicable contributions") under the following formula: [Complete
selection a. or b. In addition, complete selection c. Selection d. may
be checked in addition to a. or b. and c.]
[ ] a. BASIC FORMULA: 100% of applicable contributions up to the
first 3% of Included Compensation, plus 50% of applicable
contributions up to the next 2% of Included Compensation.
[ ] b. ENHANCED FORMULA:
[ ] (1) ____% (not less than 100%) of applicable
contributions up to ____% of Included Compensation
(not less than 4% and not more than 6%).
[ ] (2) The sum of: [THE CONTRIBUTIONS UNDER THIS (2) MUST
NOT BE LESS THAN THE CONTRIBUTIONS THAT WOULD BE
CALCULATED UNDER A. AT EACH LEVEL OF APPLICABLE
CONTRIBUTIONS.]
[ ] (a) _____ % of applicable contributions up
to the first
(b) ______% of Included Compensation, plus
[ ] (c) _____% of applicable contributions up
to the next
(d) _____ % of Included Compensation.
[NOTE: The percentage in (c) may not be greater
than the percentage in (a). In addition, the sum
of the percentages in (b) and (d) may not exceed
6%.]
c. APPLICABLE CONTRIBUTIONS TAKEN INTO ACCOUNT: (See Section
17.6(a)(1)(i) of the BPD.) The Safe Harbor Matching
Contribution formula elected in a. or b. above (and any
limitations on the amount of a Participant's applicable
contributions considered under such formula(s)) are applied
separately for each:
[ ] (1) Plan Year.
[ ] (2) Plan Year quarter.
[ ] (3) calendar month.
[ ] (4) payroll period.
[NOTE: If Part 3, #11.b. is checked, any period selected
under this #25 will be determined as if the Plan Year were
the period designated under Part 3, #11.b. See Section
2.2(c)(3) of the BPD.]
[ ] d. DEFINITION OF APPLICABLE CONTRIBUTIONS. Check this d. if the
Plan permits Employee After-Tax Contributions but the Safe
Harbor Matching Contribution formula selected under a. or b.
above does not apply to such Employee After-Tax
Contributions.
[ ] 28. SAFE HARBOR NONELECTIVE CONTRIBUTION: _____% (no less than 3%) of
Included Compensation.
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401 (k) Adoption Agreement
13
[ ] a. Check this selection if the Employer will make this Safe
Harbor Nonelective Contribution pursuant to a supplemental
notice as described in Section 17.6(a)(1)(ii) of the BPD. If
this a. is checked, the Safe Harbor Nonelective Contribution
will be required only for a Plan Year for which the
appropriate supplemental notice is provided. For any Plan
Year in which the supplemental notice is not provided, the
Plan is not a Safe Harbor 401(k) Plan.
[ ] b. Check this selection to provide the Employer with the
discretion to increase the above percentage to a higher
percentage.
[ ] c. Check this selection if the Safe Harbor Nonelective
Contribution will be made under another plan maintained by
the Employer and identify the plan:
____________________________________________________________
[ ] d. Check this d. if the Safe Harbor Nonelective Contribution
offsets the allocation that would otherwise be made to the
Participant under Part 4C, #21 above. If the Permitted
Disparity Method is elected under Part 4C, #21.b., this
offset applies only to the second step of the Two-Step
Formula or the fourth step of the Four-Step Formula, as
applicable.
[ ] 29. SPECIAL RULE FOR PARTIAL PERIOD OF PARTICIPATION. If an Employee is an
Eligible Participant for only part of a Plan Year, Included
Compensation is taken into account for the entire Plan Year, including
the portion of the Plan Year during which the Employee is not an
Eligible Participant. [If this #29 is not checked, Included
Compensation is taken into account only for the portion of the Plan
Year in which the Employee is an Eligible Participant.]
30. ELIGIBLE PARTICIPANT. For purposes of the Safe Harbor Contributions
elected above, "Eligible Participant" means: [Check a., b. or c.
Selection d. may be checked in addition to a., b. or c.]
[ ] a. All Eligible Participants (as determined for Section 401(k)
Deferrals).
[ ] b. All Nonhighly Compensated Employees who are Eligible
Participants (as determined for Section 401(k) Deferrals).
[ ] c. All Nonhighly Compensated Employees who are Eligible
Participants (as determined for Section 401(k) Deferrals)
and all Highly Compensated Employees who are Eligible
Participants (as determined for Section 401(k) Deferrals)
but who are not Key Employees.
[ ] d. Check this d. if the selection under a., b. or c., as
applicable, applies only to Employees who would be Eligible
Participants for any portion of the Plan Year if the
eligibility conditions selected for Section 401(k) Deferrals
in Part 1, #5 of this Agreement were one Year of Service and
age 21. (See Section 17.6(a)(1) of the BPD.)
PART 4F - SPECIAL 401(K) PLAN ELECTIONS
(See Article 17 of the BPD)
31. ADP/ACP TESTING METHOD. In performing the ADP and ACP tests, the
Employer will use the following method: (See Sections 17.2 and 17.3 of
the BPD for an explanation of the ADP/ACP testing methods.)
[X] a. Prior Year Testing Method.
[ ] b. Current Year Testing Method.
[PRACTITIONER NOTE: If this Plan is intended to be a Safe-Harbor
401(k) Plan under Part 4E above, the Current Year Testing Method MUST
be elected under b. See Section 17.6 of the BPD.]
[ ] 32. FIRST PLAN YEAR FOR SECTION 401(K) DEFERRALS. (See Section 17.2(b) of
the BPD.) Check this selection if this Agreement covers the first Plan
Year that the Plan permits Section 401(k) Deferrals. The ADP for the
Nonhighly Compensated Employee Group for such first Plan Year is
determined under the following method:
[ ] a. the Prior Year Testing Method, assuming a 3% deferral
percentage for the Nonhighly Compensated Employee Group.
[ ] b. the Current Year Testing Method using the actual deferral
percentages of the Nonhighly Compensated Employee Group.
[ ] 33. FIRST PLAN YEAR FOR EMPLOYER MATCHING CONTRIBUTIONS OR EMPLOYEE
AFTER-TAX CONTRIBUTIONS. (See Section 17.3(b) of the BPD.) Check this
selection if this Agreement covers the first Plan Year that the Plan
includes either an Employer Matching Contribution formula or permits
Employee After-Tax Contributions. The ACP for the Nonhighly
Compensated Employee Group for such first Plan Year is determined
under the following method:
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401 (k) Adoption Agreement
14
[ ] a. the Prior Year Testing Method, assuming a 3% contribution
percentage for the Nonhighly Compensated Employee Group.
[ ] b. the Current Year Testing Method using the actual
contribution percentages of the Nonhighly Compensated
Employee Group.
PART 5 - RETIREMENT AGES
(See Sections 22.57 and 22.126 of the BPD)
34. NORMAL RETIREMENT AGE:
[X] a. Age 65 (not to exceed 65).
[ ] b. The later of (1) age ______ (not to exceed 65) or (2) the
______ (not to exceed 5th) anniversary of the date the
Employee commenced participation in the Plan.
[ ] c. _________ (may not be later than the maximum age permitted
under b.)
35. EARLY RETIREMENT AGE: [Check a. or check b. and/or c.]
[X] a. Not applicable.
[ ] b. Age _________.
[ ] c. Completion of _________ Years of Service, determined as
follows:
[ ] (1) Same as for eligibility.
[ ] (2) Same as for vesting.
PART 6 - VESTING RULES
(See Article 4 of the BPD)
- COMPLETE THIS PART 6 ONLY IF THE EMPLOYER HAS ELECTED TO MAKE EMPLOYER
MATCHING CONTRIBUTIONS UNDER PART 4B OR EMPLOYER NONELECTIVE
CONTRIBUTIONS UNDER PART 4C. SECTION 401(K) DEFERRALS, EMPLOYEE
AFTER-TAX CONTRIBUTIONS, QMACS, QNECS, SAFE HARBOR CONTRIBUTIONS, AND
ROLLOVER CONTRIBUTIONS ARE ALWAYS 100% VESTED. (SEE SECTION 4.2 OF THE
BPD FOR THE DEFINITIONS OF THE VARIOUS VESTING SCHEDULES.)
36. NORMAL VESTING SCHEDULE: [Check one of a. - f. for those contributions
the Employer elects to make under Part 4 of this Agreement.]
(1) (2)
EMPLOYER EMPLOYER
MATCH NONELECTIVE
-------- -----------
a. [ ] [ ] Full and immediate vesting.
b. [ ] [ ] 7-year graded vesting schedule.
c. [ ] [ ] 6-year graded vesting schedule.
d. [ ] [ ] 5-year cliff vesting schedule.
e. [ ] [ ] 3-year cliff vesting schedule.
f. [X] [X] Modified vesting schedule:
(1) 33.33% after 1 Year of Service
(2) 66.67% after 2 Years of Service
(3) 100% after 3 Years of Service
(4) __________% after 4 Years of Service
(5) __________% after 5 Years of Service
(6) __________% after 6 Years of Service, and
(7) 100% after 7 Years of Service.
[NOTE: The percentages selected under the modified
vesting schedule must not be less than the percentages
that would be required under the 7-year graded vesting
schedule, unless 100% vesting occurs after no more than
5 Years of Service.]
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
15
37. VESTING SCHEDULE WHEN PLAN IS TOP-HEAVY: [Check one of a. - d. for
those contributions the Employer elects to make under Part 4 of this
Agreement.]
(1) (2)
EMPLOYER EMPLOYER
MATCH NONELECTIVE
-------- -----------
a. [ ] [ ] Full and immediate vesting.
b. [ ] [ ] 6-year graded vesting schedule.
c. [ ] [ ] 3-year cliff vesting schedule.
d. [X] [X] Modified vesting schedule:
(1) 33.33% after 1 Year of Service
(2) 66.67% after 2 Years of Service
(3) 100% after 3 Years of Service
(4) __________% after 4 Years of Service
(5) __________% after 5 Years of Service, and
(6) 100% after 6 Years of Service.
[NOTE: The percentages selected under the modified
vesting schedule must not be less than the percentages
that would be required under the 6-year graded vesting
schedule, unless 100% vesting occurs after no more than
3 Years of Service.]
[ ] 38. SERVICE EXCLUDED UNDER THE ABOVE VESTING SCHEDULE(S):
[ ] a. Service before the original Effective Date of this Plan.
(See Section 4.5(b)(1) of the BPD for rules that require
service under a Predecessor Plan to be counted.)
[ ] b. Years of Service completed before the Employee's ______
birthday (cannot exceed the 18th birthday).
[X] 39. SPECIAL 100% VESTING. An Employee's vesting percentage increases to
100% if, while employed with the Employer, the Employee:
[X] a. dies.
[X] b. becomes Disabled (as defined in Section 22.53 of the BPD).
[ ] c. reaches Early Retirement Age (as defined in Part 5, #35
above).
[X] 40. SPECIAL VESTING PROVISIONS: Participants who terminated under the
Vitalworks Inc. 401(k) Profit Sharing Plan prior to January 1, 2003,
will follow the 5-year graded vesting schedule that was in effect at
that time.
[NOTE: Any special vesting provision designated in #40 must satisfy
the requirements of Code Section 411(a) and must satisfy the
nondiscrimination requirements under Section 1.401(a)(4) of the
regulations.]
PART 7 - SPECIAL SERVICE CREDITING RULES
(See Article 6 of the BPD)
IF NO MINIMUM SERVICE REQUIREMENT APPLIES UNDER PART 1, #5 OF THIS AGREEMENT AND
ALL CONTRIBUTIONS ARE 100% VESTED UNDER PART 6, SKIP THIS PART 7.
- YEAR OF SERVICE - ELIGIBILITY. 1,000 Hours of Service during an
Eligibility Computation Period. Hours of Service are calculated using
the Actual Hours Crediting Method. [To modify, complete #41 below.]
- ELIGIBILITY COMPUTATION PERIOD. If one Year of Service is required for
eligibility, the Shift-to-Plan-Year Method is used. If two Years of
Service are required for eligibility, the Anniversary Year Method is
used. [To modify, complete #42 below.]
- YEAR OF SERVICE - VESTING. 1,000 Hours of Service during a Vesting
Computation Period. Hours of Service are calculated using the Actual
Hours Crediting Method. [To modify, complete #43 below.]
- VESTING COMPUTATION PERIOD. The Plan Year. [To modify, complete #44
below.]
- BREAK IN SERVICE RULES. The Rule of Parity Break in Service rule
applies for both eligibility and vesting but the one-year holdout
Break in Service rule is NOT used for eligibility or vesting. [To
modify, complete #45 below.]
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
16
[ ] 41. ALTERNATIVE DEFINITION OF YEAR OF SERVICE FOR ELIGIBILITY.
[ ] a. A Year of Service is _________ Hours of Service (may not
exceed 1,000) during an Eligibility Computation Period.
[ ] b. Use the Equivalency Method (as defined in Section 6.5(a) of
the BPD) to count Hours of Service. If this b. is checked,
each Employee will be credited with 190 Hours of Service for
each calendar month for which the Employee completes at
least one Hour of Service, unless a different Equivalency
Method is selected under #46 below. The Equivalency Method
applies to:
[ ] (1) All Employees.
[ ] (2) Employees who are not paid on an hourly basis. For
hourly Employees, the Actual Hours Method will be
used.
[ ] c. Use the Elapsed Time Method instead of counting Hours of
Service. (See Section 6.5(b) of the BPD.)
[ ] 42. ALTERNATIVE METHOD FOR DETERMINING ELIGIBILITY COMPUTATION
PERIODS. (See Section 1.4(c) of the BPD.)
[ ] a. ONE YEAR OF SERVICE ELIGIBILITY. Eligibility Computation
Periods are determined using the Anniversary Year Method
instead of the Shift-to-Plan-Year Method.
[ ] b. TWO YEARS OF SERVICE ELIGIBILITY. Eligibility Computation
Periods are determined using the Shift-to-Plan-Year Method
instead of the Anniversary Year Method.
[X] 43. ALTERNATIVE DEFINITION OF YEAR OF SERVICE FOR VESTING.
[ ] a. A Year of Service is _____ Hours of Service (may not exceed
1,000) during a Vesting Computation Period.
[ ] b. Use the Equivalency Method (as defined in Section 6.5(a) of
the BPD) to count Hours of Service. If this b. is checked,
each Employee will be credited with 190 Hours of Service for
each calendar month for which the Employee completes at
least one Hour of Service, unless a different Equivalency
Method is selected under #46 below. The Equivalency Method
applies to:
[ ] (1) All Employees.
[ ] (2) Employees who are not paid on an hourly basis. For
hourly Employees, the Actual Hours Method will be
used.
[X] c. Use the Elapsed Time Method instead of counting Hours of
Service. (See Section 6.5(b) of the BPD.)
[X] 44. ALTERNATIVE METHOD FOR DETERMINING VESTING COMPUTATION PERIODS.
Instead of Plan Years, use:
[X] a. Anniversary Years. (See Section 4.4 of the BPD.)
[ ] b. (Describe Vesting Computation Period):
___________________________________________________
[PRACTITIONER NOTE: Any Vesting Computation Period described
in b. must be a 12-consecutive month period and must apply
uniformly to all Participants.]
[X] 45. BREAK IN SERVICE RULES.
[X] a. The RULE OF PARITY BREAK IN SERVICE RULE does not apply for
purposes of determining eligibility or vesting under the
Plan. [If this selection a. is not checked, the Rule of
Parity Break in Service Rule applies for purposes of
eligibility and vesting. (See Sections 1.6 and 4.6 of the
BPD.)]
[ ] b. ONE-YEAR HOLDOUT BREAK IN SERVICE RULE.
[ ] (1) Applies to determine eligibility for: [Check one
or both.]
[ ] (a) Employer Contributions (other than
Section 401(k) Deferrals).
[ ] (b) Section 401(k) Deferrals. (See Section
1.6(c) of the BPD.)
[ ] (2) Applies to determine vesting. (See Section 4.6(a)
of the BPD.)
[ ] 46. SPECIAL RULES FOR APPLYING EQUIVALENCY METHOD. [This #46 may only be
checked if #41.b. and/or #43.b. is checked above.]
[ ] a. ALTERNATIVE METHOD. Instead of applying the Equivalency
Method on the basis of months worked, the following
method will apply. (See Section 6.5(a) of the BPD.)
[ ] (1) DAILY METHOD. Each Employee will be credited with
10 Hours of Service for each day worked.
[ ] (2) WEEKLY METHOD. Each Employee will be credited with
45 Hours of Service for each week worked.
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
17
[ ] (3) SEMI-MONTHLY METHOD. Each Employee will be
credited with 95 Hours of Service for each
semi-monthly payroll period worked.
[ ] b. APPLICATION OF SPECIAL RULES. The alternative method elected
in a. applies for purposes of: [Check (1) and/or (2).]
[ ] (1) Eligibility. [Check this (1) only if #41.b. is
checked above.]
[ ] (2) Vesting. [Check this (2) only if #43.b. is checked
above.]
PART 8 - ALLOCATION OF FORFEITURES
(See Article 5 of the BPD)
[ ] CHECK THIS SELECTION IF ALL CONTRIBUTIONS UNDER THE PLAN ARE 100%
VESTED AND SKIP THIS PART 8. (SEE SECTION 5.5 OF THE BPD FOR THE
DEFAULT FORFEITURE RULES IF NO FORFEITURE ALLOCATION METHOD IS
SELECTED UNDER THIS PART 8.)
47. TIMING OF FORFEITURE ALLOCATIONS:
(1) (2)
EMPLOYER EMPLOYER
MATCH NONELECTIVE
-------- -----------
a. [X] [X] In the same Plan Year in which the forfeitures occur.
b. [ ] [ ] In the Plan Year following the Plan Year in which the
forfeitures occur.
48. METHOD OF ALLOCATING FORFEITURES: (See the operating rules in Section
5.5 of the BPD.)
(1) (2)
EMPLOYER EMPLOYER
MATCH NONELECTIVE
-------- -----------
a. [ ] [ ] Reallocate as additional Employer Nonelective
Contributions using the allocation method specified in
Part 4C, #21 of this Agreement. If no allocation method
is specified, use the Pro Rata Allocation Method under
Part 4C, #21.a. of this Agreement.
b. [ ] [ ] Reallocate as additional Employer Matching
Contributions using the discretionary allocation method
in Part 4B, #16.b. of this Agreement.
c. [X] [X] Reduce the: [Check one or both.]
[X] (a) Employer Matching Contributions
[X] (b) Employer Nonelective Contributions
the Employer would otherwise make for the Plan Year in
which the forfeitures are allocated. [NOTE: If both (a)
and (b) are checked, the Employer may adjust its
contribution deposits in any manner, provided the total
Employer Matching Contributions and Employer
Nonelective Contributions (as applicable) properly take
into account the forfeitures used to reduce such
contributions for that Plan Year.]
[X] 49. PAYMENT OF PLAN EXPENSES. Forfeitures are first used to pay Plan
expenses for the Plan Year in which the forfeitures are to be
allocated. (See Section 5.5(c) of the BPD.) Any remaining forfeitures
are allocated as provided in #48 above.
[X] 50. MODIFICATION OF CASH-OUT RULES. The Cash-Out Distribution rules are
modified in accordance with Sections 5.3(a)(1)(i)(C) and
5.3(a)(1)(ii)(C) of the BPD to allow for an immediate forfeiture,
regardless of any additional allocations during the Plan Year.
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
18
PART 9 - DISTRIBUTIONS AFTER TERMINATION OF EMPLOYMENT
(See Section 8.3 of the BPD)
- THE ELECTIONS IN THIS PART 9 ARE SUBJECT TO THE OPERATING RULES IN
ARTICLES 8 AND 9 OF THE BPD.
51. VESTED ACCOUNT BALANCES IN EXCESS OF $5,000. Distribution is first
available as soon as administratively feasible following:
[X] a. the Participant's employment termination date.
[ ] b. the end of the Plan Year that contains the Participant's
employment termination date.
[ ] c. the first Valuation Date following the Participant's
termination of employment.
[ ] d. the Participant's Normal Retirement Age (or Early Retirement
Age, if applicable) or, if later, the Participant's
employment termination date.
[ ] e. (Describe distribution event)
_______________________________________________________
[PRACTITIONER NOTE: Any distribution event described in e.
will apply uniformly to all Participants under the Plan.]
52. VESTED ACCOUNT BALANCES OF $5,000 OR LESS. Distribution will be made
in a LUMP SUM as soon as administratively feasible following:
[X] a. the Participant's employment termination date.
[ ] b. the end of the Plan Year that contains the Participant's
employment termination date.
[ ] c. the first Valuation Date following the Participant's
termination of employment.
[ ] d. (Describe distribution event):
_______________________________________________________
[PRACTITIONER NOTE: Any distribution event described in d.
will apply uniformly to all Participants under the Plan.]
[X] 53. DISABLED PARTICIPANT. A Disabled Participant (as defined in Section
22.53 of the BPD) may request a distribution (if earlier than
otherwise permitted under #51 or #52 (as applicable)) as soon as
administratively feasible following:
[X] a. the date the Participant becomes Disabled.
[ ] b. the end of the Plan Year in which the Participant
becomes Disabled.
[ ] c. (Describe distribution event):
_______________________________________________________
[PRACTITIONER NOTE: Any distribution event described in c.
will apply uniformly to all Participants under the Plan.]
[ ] 54. HARDSHIP WITHDRAWALS FOLLOWING TERMINATION OF EMPLOYMENT. A terminated
Participant may request a Hardship withdrawal (as defined in Section
8.6 of the BPD) before the date selected in #51 or #52 above, as
applicable.
[ ] 55. SPECIAL OPERATING RULES.
[ ] a. MODIFICATION OF PARTICIPANT CONSENT REQUIREMENT. A
Participant must consent to a distribution from the Plan,
even if the Participant's vested Account Balance does not
exceed $5,000. See Section 8.3(b) of the BPD. [NOTE: If this
a. is not checked, the involuntary distribution rules under
Section 8.3(b) of the BPD apply.]
[ ] b. DISTRIBUTION UPON ATTAINMENT OF NORMAL RETIREMENT AGE (OR
AGE 62, IF LATER). A distribution from the Plan will be made
without a Participant's consent if such Participant has
terminated employment and has attained Normal Retirement Age
(or age 62, if later). See Section 8.7 of the BPD.
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
19
PART 10 - IN-SERVICE DISTRIBUTIONS
(See Section 8.5 of the BPD)
- THE ELECTIONS IN THIS PART 10 ARE SUBJECT TO THE OPERATING RULES
IN ARTICLES 8 AND 9 OF THE BPD.
56. PERMITTED IN-SERVICE DISTRIBUTION EVENTS: [Elections under the
Section 401(k) Deferrals column also apply to any QNECs, QMACs,
and Safe Harbor Contributions unless otherwise specified in d.
below.]
(1)
Section (2) (3)
401(K) EMPLOYER EMPLOYER
DEFERRALS MATCH NONELECTIVE
--------- -------- -----------
a. [ ] [ ] [ ] In-service distributions are not available.
b. [X] [X] [X] After age 59-1/2. [If earlier than age 59 1/2 age
is deemed to be age 59 1/2 for Section 401(k)
Deferrals if the selection is checked under that
column.]
c. [X] [X] [X] A safe harbor Hardship described in Section 8.6(a)
of the BPD. [Note: Not applicable to QNECs, QMACs
and Safe Harbor Contributions.]
d. N/A [ ] [ ] A Hardship described in Section 8.6 (b) of the BPD.
e. N/A [ ] [ ] After the Participant has participated in the Plan
for at least _____ years (cannot be less than 5
years).
f. N/A [N/A] [N/A] At any time with respect to the portion of the
vested Account Balance derived from contributions
accumulated in the Plan for at least 2 years.
g. [ ] [ ] [ ] Upon a Participant becoming Disabled (as defined in
Section 22.53).
h. [ ] [ ] [ ] Attainment of Normal Retirement Age. [If earlier
than age 59 1/2, age is deemed to be 59 1/2 for
Section 401(k) Deferrals if the selection is
checked under that column.]
i. N/A [ ] [ ] Attainment of Early Retirement Age.
57. LIMITATIONS THAT APPLY TO IN-SERVICE DISTRIBUTIONS:
[ ] a. Available only if the Account which is subject to
withdrawal is 100% vested. (See Section 4.8 of the BPD
for special vesting rules if NOT checked.)
[ ] b. No more than ____ in-service distribution(s) in a Plan
Year.
[ ] c. The minimum amount of any in-service distribution will
be $____ (may not exceed $1,000).
[ ] d. (Describe limitations on in-service distributions) ____
[PRACTITIONER NOTE: Any limitations described in d. will apply
uniformly to all Participants under the Plan.]
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
20
PART 11 - DISTRIBUTION OPTIONS
(See Section 8.1 of the BPD)
58. OPTIONAL FORMS OF PAYMENT AVAILABLE UPON TERMINATION OF
EMPLOYMENT:
[X] a. Lump sum distribution of entire vested Account Balance.
[ ] b. Single sum distribution of a portion of vested Account
Balance.
[ ] c. Installments for a specified term or specified dollar
amount.
[X] d. Installments for required minimum distributions only.
[ ] e. Annuity payments (see Section 8.1 of the BPD).
[ ] f. (Describe optional forms or limitations on available
forms) __________________________
[PRACTITIONER NOTE: Unless specified otherwise in f., a
Participant may receive a distribution in any combination of the
forms of payment selected in a. - f. Any optional forms or
limitations described in f. will apply uniformly to all
Participants under the Plan.]
59. APPLICATION OF THE QUALIFIED JOINT AND SURVIVOR ANNUITY (QJSA)
AND QUALIFIED PRERETIREMENT SURVIVOR ANNUITY (QPSA) PROVISIONS:
(See Article 9 of the BPD.)
[X] a. DO NOT APPLY. [NOTE: The QJSA and QPSA provisions
automatically apply to any assets of the Plan that were
received as a transfer from another plan that was
subject to the QJSA and QPSA rules. If this a. is
checked, the QJSA and QPSA rules generally will apply
only with respect to transferred assets or if
distribution is made in the form of life annuity. See
Section 9.1(b) of the BPD.]
[ ] b. APPLY, with the following modifications: [Check this b.
to have all assets under the Plan be subject to the
QJSA and QPSA requirements. See Section 9.1(a) of the
BPD.]
[ ] (1) NO MODIFICATIONS.
[ ] (2) MODIFIED QJSA BENEFIT. Instead of a 50%
survivor benefit, the normal form of the QJSA
provides the following survivor benefit to
the spouse:
[ ] (a) 100%.
[ ] (b) 75%.
[ ] (c) 66 2/3%.
[ ] (3) MODIFIED QPSA BENEFIT. Instead of a 50% QPSA
benefit, the QPSA benefit is 100% of the
Participant's vested Account Balance.
[ ] c. ONE-YEAR MARRIAGE RULE. The one-year marriage rule
under Sections 8.4(c)(4) and 9.3 of the BPD applies.
Under this rule, a Participant's spouse will not be
treated as a surviving spouse unless the Participant
and spouse were married for at least one year at the
time of the Participant's death.
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
21
PART 12 - ADMINISTRATIVE ELECTIONS
- USE THIS PART 12 TO IDENTIFY ADMINISTRATIVE ELECTIONS AUTHORIZED
BY THE BPD. THESE ELECTIONS MAY BE CHANGED WITHOUT REEXECUTING
THIS AGREEMENT BY SUBSTITUTING A REPLACEMENT OF THIS PAGE WITH
NEW ELECTIONS. TO THE EXTENT THIS PART 12 IS NOT COMPLETED, THE
DEFAULT PROVISIONS IN THE BPD APPLY.
60. Are PARTICIPANT LOANS permitted? (See Article 14 of the BPD.)
[ ] a. No
[X] b. Yes
[X] (1) Use the default loan procedures under Article
14 of the BPD.
[ ] (2) Use a separate written loan policy to modify
the default loan procedures under Article 14
of the BPD.
61. Are Participants permitted to DIRECT INVESTMENTS? (See Section
13.5(c) of the BPD.)
[ ] a. No
[X] b. Yes
[X] (1) Specify Accounts: all accounts
[X] (2) Check this selection if the Plan is intended
to comply with ERISA Section 404(C). (See
Section 13.5(c)(2) of the BPD.)
62. Is any portion of the Plan DAILY VALUED? (See Section 13.2(b) of
the BPD.)
[ ] a. No
[X] b. Yes. Specify Accounts and/or investment options: all
accounts
63. Is any portion of the Plan VALUED PERIODICALLY (other than
daily)? (See Section 13.2(a) of the BPD.)
[X] a. No
[ ] b. Yes
[ ] (1) Specify Accounts and/or investment
options: _____
[ ] (2) Specify valuation date(s): _____
[ ] (3) The following special allocation rules apply:
[If this (3) is not checked, the Balance
Forward Method under Section 13.4(a) of the
BPD applies.]
[ ] (a) Weighted average method. (See
Section 13.4(a)(2)(i) of the BPD.)
[ ] (b) Adjusted percentage method, taking
into account % of contributions
made during the valuation period.
(See Section 13.4(a)(2)(ii) of the
BPD.)
[ ] (c) (Describe allocation rules) _____
[PRACTITIONER NOTE: Any allocation rules
described in (c) must be in accordance with a
definite predetermined formula that is not
based on compensation, that satisfies the
nondiscrimination requirements of Section
1.401(a)(4) of the regulations, and that is
applied uniformly to all Participants.]
64. Does the Plan accept ROLLOVER CONTRIBUTIONS? (See Section 3.2 of
the BPD.)
[ ] a. No
[X] b. Yes
65. Are LIFE INSURANCE investments permitted? (See Article 15 of the
BPD.)
[X] a. No
[ ] b. Yes
66. Do the DEFAULT QDRO PROCEDURES under Section 11.5 of the BPD
apply?
[ ] a. No
[X] b. Yes
67. Do the DEFAULT CLAIMS PROCEDURES under Section 11.6 of the BPD
apply?
[ ] a. No
[X] b. Yes
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
22
PART 13 - MISCELLANEOUS ELECTIONS
- THE FOLLOWING ELECTIONS OVERRIDE CERTAIN DEFAULT PROVISIONS UNDER
THE BPD AND PROVIDE SPECIAL RULES FOR ADMINISTERING THE PLAN.
COMPLETE THE FOLLOWING ELECTIONS TO THE EXTENT THEY APPLY TO THE
PLAN.
[X] 68. DETERMINATION OF HIGHLY COMPENSATED EMPLOYEES.
[X] a. The TOP-PAID GROUP TEST applies. [If this selection a.
is not checked, the Top-Paid Group Test will NOT apply.
See Section 22.99(b)(4) of the BPD.]
[ ] b. The CALENDAR YEAR ELECTION applies. [This selection b.
may only be chosen if the Plan Year is NOT the calendar
year. See Section 22.99(b)(5) of the BPD.]
[ ] 69. SPECIAL ELECTIONS FOR APPLYING THE ANNUAL ADDITIONS LIMITATION
UNDER CODE Section 415.
[ ] a. The LIMITATION YEAR is the 12-month period ending ____.
[If this selection a. is not checked, the Limitation
Year is the same as the Plan Year.]
[ ] b. Total Compensation includes IMPUTED COMPENSATION for a
terminated Participant who is permanently and totally
Disabled. (See Section 7.4(g)(3) of the BPD.)
[ ] c. OPERATING RULES. Instead of the default provisions
under Article 7 of the BPD, the following rules
apply: _________
[ ] 70. ELECTION TO USE OLD-LAW REQUIRED BEGINNING DATE. The Old-Law
Required Beginning Date (as defined in Section 10.3(a)(2) of the
BPD) applies instead of the Required Beginning Date rules under
Section 10.3(a)(1) of the BPD.
[X] 71. SERVICE CREDITED WITH PREDECESSOR EMPLOYERS: (See Section 6.7 of
the BPD.)
[X] a. (Identify Predecessor Employers) VitalWorks, Inc.
[X] b. Service is credited with these Predecessor Employers
for the following purposes:
[X] (1) The eligibility service requirements elected
in Part 1 of this Agreement.
[X] (2) The vesting schedule(s) elected in Part 6 of
this Agreement.
[X] (3) The allocation requirements elected in Part 4
of this Agreement.
[ ] c. The following service will not be recognized:
________________________________
[NOTE: If the Employer is maintaining the Plan of a
Predecessor Employer, service with such Predecessor
Employer must be counted for all purposes under the
Plan. This #71 may be completed with respect to such
Predecessor Employer indicating all service under
selections (1), (2) and (3) will be credited. The
failure to complete this #71 where the Employer is
maintaining the Plan of a Predecessor Employer will not
override the requirement that such predecessor service
be credited for all purposes under the Plan. (See
Section 6.7 of the BPD.) If the Employer is not
maintaining the Plan of a Predecessor Employer, service
with such Predecessor Employer will be credited under
this Plan ONLY if specifically elected under this #71.
If the above crediting rules are to apply differently
to service with different Predecessor Employers, attach
separately completed elections for this item, using the
same format as above but listing only those Predecessor
Employers to which the separate attachment relates.]
[ ] 72. SPECIAL RULES WHERE EMPLOYER MAINTAINS MORE THAN ONE PLAN.
[ ] a. TOP-HEAVY MINIMUM CONTRIBUTION - EMPLOYER MAINTAINS
THIS PLAN AND ONE OR MORE DEFINED CONTRIBUTION PLANS.
If this Plan is a Top-Heavy Plan, the Employer will
provide any required top-heavy minimum contribution
under: (See Section 16.2(a)(5)(i) of the BPD.)
[ ] (1) This Plan.
[ ] (2) The following Defined Contribution Plan
maintained by the Employer: ________________
[ ] (3) Describe method for providing the top-heavy
minimum contribution: _________________
[ ] b. TOP-HEAVY MINIMUM BENEFIT - EMPLOYER MAINTAINS THIS
PLAN AND ONE OR MORE DEFINED BENEFIT PLANS. If this
Plan is a Top-Heavy Plan, the Employer will provide any
required top-heavy minimum contribution or benefit
under: (See Section 16.2(a)(5)(ii) of the BPD.)
[ ] (1) This Plan, but the minimum required
contribution is increased from 3% to 5% of
Total Compensation for the Plan Year.
[ ] (2) The following Defined Benefit Plan maintained
by the Employer: _________________
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
23
[ ] (3) Describe method for providing the top-heavy
minimum contribution: _______________________
_____________________________________________
[ ] c. LIMITATION ON ANNUAL ADDITIONS. This c. should be
checked only if the Employer maintains another Defined
Contribution Plan in which any Participant is a
participant, and the Employer will not apply the rules
set forth under Section 7.2 of the BPD. Instead, the
Employer will limit Annual Additions in the following
manner: ____________
[X] 73. SPECIAL DEFINITION OF DISABLED. In applying the allocation
conditions under Parts 4B and 4C, the special vesting provisions
under Part 6, and the distribution provisions under Parts 9 and
10 of this Agreement, the following definition of Disabled
applies instead of the definition under Section 22.53 of the BPD:
a person shall be treated as disabled if termination of
employment results from the person being disabled within the
meaning of the Company's long-term disability program, as
determined by the long-term disability carrier or its agents.
[NOTE: Any definition included under this #73 must satisfy the
requirements of Section 1.401(a)(4) of the regulations and must
be applied uniformly to all Participants.]
[ ] 74. FAIL-SAFE COVERAGE PROVISION. [This selection #74 must be checked
to apply the Fail-Safe Coverage Provision under Section 2.7 of
the BPD.]
[ ] a. The Fail-Safe Coverage Provision described in Section
2.7 of the BPD applies without modification.
[ ] b. The Fail-Safe Coverage Provisions described in Section
2.7 of the BPD applies with the following
modifications:
[ ] (1) The special rule for Top-Heavy Plans under
Section 2.7(a) of the BPD does not apply.
[ ] (2) The Fail-Safe Coverage Provision is based on
Included Compensation as described under
Section 2.7(d) of the BPD.
[ ] 75. ELECTION NOT TO PARTICIPATE (SEE SECTION 1.10 OF THE BPD). An
Employee may make a one-time irrevocable election not to
participate under the Plan upon inception of the Plan or at any
time prior to the time the Employee first becomes eligible to
participate under any plan maintained by the Employer. [NOTE: Use
of this provision could result in a violation of the minimum
coverage rules under Code Section 410(b).]
[X] 76. PROTECTED BENEFITS. If there are any Protected Benefits provided
under this Plan that are not specifically provided for under this
Agreement, check this #76 and attach an addendum to this
Agreement describing the Protected Benefits.
(C) Copyright 2002 NonStandardized
Prudential Retirement Services 401(k) Adoption Agreement
24
ADDENDUM TO
AMICAS, INC. 401(K) RETIREMENT SAVINGS PLAN
This will certify that this is a benefit, right or feature which has accrued
under the predecessor Plan which cannot be cut back under Section 411(d)(6) of
the Internal Revenue Code of 1986, as amended.
Effective December 1, 2005 the VitalWorks Inc. 401(k) Profit Sharing Plan merged
into this Plan. All benefits, rights, and features in the VitalWorks Inc. 401(k)
Profit Sharing Plan are as lenient as the benefits, rights and features in the
AMICAS, Inc. 401(k) Retirement Savings Plan and are hereby protected as required
under Section 411(d)(6) of the Internal Revenue Code.
The following vesting schedule shall apply to the prior Matching and Profit
Sharing accounts for those Participants who terminated employment with
VitalWorks, Inc. prior to January 1, 2003. All other participants who accrued an
hour of service on or after January 1, 2003 will follow the 3-year graded
vesting schedule provided in the Adoption Agreement.
Years of Service Vesting Percentage
- ---------------- ------------------
1 20%
2 40%
3 60%
4 80%
5 100%
Distributions under the VitalWorks Inc. 401(k) Profit Sharing Plan are allowed
in the form of lump sum cash payments.
A participant shall be allowed to take in-service withdrawals under the Plan at
any time upon attaining age 59-1/2 from vested amounts that were transferred to
the Plan from the VitalWorks Inc. 401(k) Profit Sharing Plan.
A Participant's Normal Retirement Date, with respect to benefits accrued by a
Participant under the VitalWorks Inc. 401(k) Profit Sharing Plan before the
effective date of the merger, shall follow the Normal Retirement Age provisions
as outlined in this Plan, which is attainment of age 65.
(C) Copyright 2002 Prudential Retirement NonStandardized 401(k) Adoption
Services Agreement
25
SIGNATURE PAGE
By signing this page, the Employer agrees to adopt (or amend) the Plan which
consists of BPD #01 and the provisions elected in this Agreement. The Employer
agrees that the Prototype Sponsor has no responsibility or liability regarding
the suitability of the Plan for the Employer's needs or the options elected
under this Agreement. It is recommended that the Employer consult with legal
counsel before executing this Agreement.
77. NAME AND TITLE OF AUTHORIZED SIGNATURE(S): DATE:
REPRESENTATIVE(S):
Joseph D. Hill, CFO /s/ Joseph D. Hill 12-01-05
--------------------------- ---------------------------- --------
---------------------------- ---------------------------- --------
---------------------------- ---------------------------- --------
78. EFFECTIVE DATE OF THIS AGREEMENT:
[ ] a. NEW PLAN. Check this selection if this is a new Plan. Effective
Date of the Plan is: ___________
[X] b. RESTATED PLAN. Check this selection if this is a restatement of an
existing plan. Effective Date of the restatement is: December 1, 2005
(1) Designate the plan(s) being amended by this restatement: AMICAS,
Inc. 401(k) Retirement Savings Plan
(2) Designate the original Effective Date of this Plan (optional):
January 1, 2001
[ ] c. AMENDMENT BY PAGE SUBSTITUTION. Check this selection if this is an
amendment by substitution of certain pages of this Adoption Agreement.
[If this c. is checked, complete the remainder of this Signature Page
in the same manner as the Signature Page being replaced.]
(1) Identify the page(s) being replaced: _______________________
(2) Effective Date(s) of such changes: _________________________
[ ] d. SUBSTITUTION OF SPONSOR. Check this selection if a successor to the
original plan sponsor is continuing this Plan as a successor sponsor,
and substitute page 1 to identify the successor as the Employer.
(1) Effective Date of the amendment is: ________________________
[ ] 79. Check this #79 if any SPECIAL EFFECTIVE DATES apply under Appendix A
of this Agreement and complete the relevant sections of Appendix A.
80. PROTOTYPE SPONSOR INFORMATION. The Prototype Sponsor will inform the
Employer of any amendments made to the Plan and will notify the Employer if
it discontinues or abandons the Plan. The Employer may direct inquiries
regarding the Plan or the effect of the Favorable IRS Letter to the
Prototype Sponsor or its authorized representative at the following
location:
a. NAME OF PROTOTYPE SPONSOR (OR AUTHORIZED REPRESENTATIVE):
Prudential Retirement Services
Signed for by: /s/ Kathryn A. Maloney
----------------------------------
Title: Assistant Secretary
Date: December 2, 2005
b. ADDRESS OF PROTOTYPE SPONSOR (OR AUTHORIZED REPRESENTATIVE):
751 Broad Street, Newark, NJ 07102-3777
c. TELEPHONE NUMBER OF PROTOTYPE SPONSOR (OR AUTHORIZED REPRESENTATIVE):
1-800-848-4015
IMPORTANT INFORMATION ABOUT THIS PROTOTYPE PLAN. A failure to properly complete
the elections in this Agreement or to operate the Plan in accordance with
applicable law may result in disqualification of the Plan. The Employer may rely
on the Favorable IRS Letter issued by the National Office of the Internal
Revenue Service to the Prototype Sponsor as evidence that the Plan is qualified
under Section 401 of the Code, to the extent provided in Announcement 2001-77.
The Employer may not rely on the Favorable IRS Letter in certain circumstances
or with respect to certain qualification requirements, which are specified in
the Favorable IRS Letter issued with respect to the Plan and in Announcement
2001-77. In order to obtain reliance in such circumstances or with respect to
such qualification requirements, the Employer must apply to the office of
Employee Plans Determinations of the Internal Revenue Service for a
determination letter. See Section 22.87 of the BPD.
(C) Copyright 2002 Prudential Retirement NonStandardized 401(k) Adoption
Services Agreement
26
TRUSTEE DECLARATION
By signing this Trustee Declaration, the Trustee agrees to the duties,
responsibilities and liabilities imposed on the Trustee by the BPD #01 and this
Agreement.
81. NAME(S) OF TRUSTEE(S): SIGNATURE(S) OF TRUSTEE(S): DATE:
Prudential Bank & Trust, FSB
---------------------------- --------------------------- ---------
---------------------------- --------------------------- ---------
---------------------------- --------------------------- ---------
---------------------------- --------------------------- ---------
---------------------------- --------------------------- ---------
82. EFFECTIVE DATE OF THIS TRUSTEE DECLARATION: December 1, 2005
83. THE TRUSTEE'S INVESTMENT POWERS ARE:
[ ] a. DISCRETIONARY TRUSTEE. The Trustee has discretion to invest Plan
assets. This discretion is limited to the extent Participants are
permitted to give investment direction, or to the extent the Trustee
is subject to direction from the Plan Administrator, the Employer, an
Investment Manager or other Named Fiduciary.
[ ] b. DIRECTED TRUSTEE ONLY. The Trustee may only invest Plan assets as
directed by Participants or by the Plan Administrator, the Employer,
an Investment Manager or other Named Fiduciary.
[ ] c. SEPARATE TRUST AGREEMENT. The Trustee's investment powers are
determined under the Limited Scope Audit Directed Trustee Trust
Agreement. [NOTE: The separate trust document is incorporated as part
of this Plan and must be attached hereto. The responsibilities, rights
and powers of the Trustee are those specified in the separate trust
agreement. If this c. is checked, the Trustee need not sign or date
this Trustee Declaration under #81 above.]
[X] d. SEPARATE TRUST AGREEMENT. The Trustee's investment powers are
determined under the Prudential Bank & Trust, FSB Trust Agreement.
[Note: The separate trust document is incorporated as part of this
Plan and must be attached hereto. The responsibilities, rights and
powers of the Trustee are those specified in the separate trust
agreements and will be effective as of the date the separate trust
agreement is countersigned by an officer of Prudential Bank & Trust,
FSB. If this d. is checked, the Trustee need not sign or date this
Trustee Declaration under #81 above.]
(C) Copyright 2002 Prudential Retirement NonStandardized 401(k) Adoption
Services Agreement
27
EGTRRA
AMENDMENT TO THE
PRUDENTIAL RETIREMENT SERVICES
DEFINED CONTRIBUTION PLAN AND TRUST
EGTRRA - Sponsor
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 Adoption by prototype sponsor. Except as otherwise provided herein,
pursuant to Section 5.01 of Revenue Procedure 2000-20 (or pursuant to the
corresponding provision in Revenue Procedure 89-9 or Revenue Procedure
89-13), the sponsor hereby adopts this amendment on behalf of all adopting
employers.
1.3 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 AND THE
EMPLOYER DOES NOT NEED TO EXECUTE THIS AMENDMENT.
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.
1
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):
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. [ ] Rollover contributions will only be excluded with respect to
participants who separated from service after __________. (Enter
a date. The date may be earlier than December 31, 2001.)
2.3 SUSPENSION PERIOD OF HARDSHIP DISTRIBUTIONS. If the plan provides for
hardship distributions upon satisfaction of the safe harbor (deemed)
standards as set forth in Treas. Reg. Section 1.401(k)-1(d)(2)(iv), then,
unless the option below is elected, the suspension period following a
hardship distribution shall only apply to hardship distributions made after
December 31, 2001.
[ ] With regard to hardship distributions made during 2001, a
participant shall be prohibited from making elective deferrals
and employee contributions under this and all other plans until
the later of January 1, 2002, or 6 months after receipt of the
distribution.
2.4 CATCH-UP CONTRIBUTIONS (FOR 401(K) PROFIT SHARING PLANS ONLY): The plan
permits catch-up contributions (Article VI) unless the option below is
elected.
[ ] The plan does not permit catch-up contributions to be made.
2.5 FOR TARGET BENEFIT PLANS ONLY: The increased compensation limit ($200,000
limit) shall apply to years prior to 2002 unless the option below is
elected.
[ ] The increased compensation limit will not apply to years prior
to 2002.
ARTICLE III
VESTING OF MATCHING CONTRIBUTIONS
3.1 Applicability. This Article shall apply to participants who complete an
Hour of Service after December 31, 2001, with respect to accrued benefits
derived from employer matching contributions made in plan years beginning
after December 31, 2001. Unless otherwise elected by the employer in
Section 2.1 above, this Article shall also apply to all such participants
with respect to accrued benefits derived from employer matching
contributions made in plan years beginning prior to January 1, 2002.
3.2 Vesting schedule. A participant's accrued benefit derived from employer
matching contributions shall vest as provided in Section 2.1 of this
amendment.
ARTICLE IV
INVOLUNTARY CASH-OUTS
4.1 Applicability and effective date. If the plan provides for involuntary
cash-outs of amounts less than $5,000, then unless otherwise elected in
Section 2.2 of this amendment, this Article shall apply for distributions
made after December 31,
2
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 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.
3
9.2 Maximum annual addition. Except to the extent permitted under Article VI of
this amendment and Section 414(v) of the Code, if applicable, the annual
addition that may be contributed or allocated to a participant's account
under the plan for any limitation year shall not exceed the lesser of:
a. $40,000, as adjusted for increases in the cost-of-living under Section
415(d) of the Code, or
b. 100 percent of the participant's compensation, within the meaning of
Section 415(c)(3) of the Code, for the limitation year.
The compensation limit referred to in b. shall not apply to any
contribution for medical benefits after separation from service (within the
meaning of Section 401(h) or Section 419A(f)(2) of the Code) which is
otherwise treated as an annual addition.
ARTICLE 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.
4
ARTICLE XI
DIRECT ROLLOVERS
11.1 Effective date. This Article shall apply to distributions made after
December 31, 2001.
11.2 Modification of definition of eligible retirement plan. For purposes of the
direct rollover provisions of the plan, an eligible retirement plan shall
also mean an annuity contract described in Section 403(b) of the Code and
an eligible plan under Section 457(b) of the Code which is maintained by a
state, political subdivision of a state, or any agency or instrumentality
of a state or political subdivision of a state and which agrees to
separately account for amounts transferred into such plan from this plan.
The definition of eligible retirement plan shall also apply in the case of
a distribution to a surviving spouse, or to a spouse or former spouse who
is the alternate payee under a qualified domestic relation order, as
defined in Section 414(p) of the Code.
11.3 Modification of definition of eligible rollover distribution to exclude
hardship distributions. For purposes of the direct rollover provisions of
the plan, any amount that is distributed on account of hardship 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.
5
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.
Addendum to EGTRRA Amendment to the Prudential Retirement Services Defined
Contribution Plan and Trust
The following should be added to item 2.4 of the EGTRRA Amendment to the
Prudential Retirement Services Defined Contribution Plan and Trust:
Employer Matching Contributions. The plan permits Employer Matching
Contributions for catch-up contributions (Article VI of EGTRRA Amendment) unless
the option below is elected.
[ ] The plan does not permit Employer Matching Contributions for
catch-up contributions to be made.
Except with respect to any election made to the above, this amendment is hereby
adopted by the prototype sponsor on behalf of all adopting employers on January
1, 2002.
Sponsor Name: Prudential Retirement Services
By: /s/ Kathryn A. Maloney,
---------------------------------
Assistant Secretary
NOTE: THE EMPLOYER ONLY NEEDS TO EXECUTE THIS AMENDMENT IF AN ELECTION HAS BEEN
MADE IN ARTICLE II OF THIS AMENDMENT, OR IF THE EMPLOYER ADOPTS THE ABOVE
ADDENDUM TO NOT PERMIT EMPLOYER MATCHING CONTRIBUTIONS FOR CATCH-UP
CONTRIBUTIONS.
This amendment has been executed this ______1st________ day of
_________December_____________, __2005__.
Name of Employer: AMICAS, Inc.
By: /s/ Joseph D. Hill
---------------------------------
EMPLOYER
Name of Plan: AMICAS, Inc. 401(k) Retirement Savings Plan
6
401(A)(9) MODEL
AMENDMENT TO THE
AMICAS, INC. 401(K) RETIREMENT SAVINGS PLAN
401(A)(9) - SPONSOR
MODEL AMENDMENT 2 - DEFINED CONTRIBUTION PLANS
MINIMUM DISTRIBUTION REQUIREMENTS
ARTICLE 10.7
SECTION 1. GENERAL RULES
1.1 Effective Date. Unless an earlier effective date is specified in the
adoption agreement, the provisions of this article will apply for purposes
of determining required minimum distributions for calendar years beginning
with the 2003 calendar year.
1.2 Coordination with Minimum Distribution Requirements Previously in Effect.
If the adoption agreement specifies an effective date of this article that
is earlier than calendar years beginning with the 2003 calendar year,
required minimum distributions for 2002 under this article 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 article equals or exceeds the required minimum distributions
determined under this article, 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 article is less than
the amount determined under this article, 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 article.
1.3 Precedence. The requirements of this article will take precedence over any
inconsistent provisions of the Plan.
1.4 Requirements of Treasury Regulations Incorporated. All distributions
required under this article 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 article, 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.
SECTION 2
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 the adoption agreement,
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 the adoption agreement,
distributions to the designated beneficiary will begin by December 31 of
the calendar year immediately following the calendar year in which the
Participant died.
(c) If there is no designated beneficiary as of September 30 of the year
following the year of the Participant's death, the Participant's entire
interest will be distributed by December 31 of the calendar year containing
the fifth anniversary of the Participant's death.
(d) If the Participant's surviving spouse is the Participant's sole
designated beneficiary and the surviving spouse dies after the Participant
but before distributions to the surviving spouse begin, this Section 2.2,
other than Section 2.2(a), will apply as if the surviving spouse were the
Participant.
For purposes of this Section 2.2 and Section 4, 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
1
distributions will be made in accordance with Section 3 and 4 of this
article. 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.
SECTION 3
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 Section 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.
SECTION 4
REQUIRED MINIMUM DISTRIBUTIONS AFTER PARTICIPANT'S DEATH
4.1 Death On or After Date Distributions Begin.
(a) Participant Survived by Designated Beneficiary. If the Participant dies
on or after the date distributions begin and there is a designated
beneficiary, the minimum amount that will be distributed for each
distribution calendar year after the year of the Participant's death is the
quotient obtained by dividing the Participant's account balance by the
longer of the remaining life expectancy of the Participant or the remaining
life expectancy of the Participant's designated beneficiary, determined as
follows:
(1) The Participant's remaining life expectancy is calculated using
the age of the Participant in the year of death, reduced by one for
each subsequent year.
(2) If the Participant's surviving spouse is the Participant's sole
designated beneficiary, the remaining life expectancy of the surviving
spouse is calculated for each distribution calendar year after the
year of the Participant's death using the surviving spouse's age as of
the spouse's birthday in that year. For distribution calendar years
after the year of the surviving spouse's death, the remaining life
expectancy of the surviving spouse is calculated using the age of the
surviving spouse as of the spouse's birthday in the calendar year of
the spouse's death, reduced by one for each subsequent calendar year.
(3) If the Participant's surviving spouse is not the Participant's
sole designated beneficiary, the designated beneficiary's remaining
life expectancy is calculated using the age of the beneficiary in the
year following the year of the Participant's death, reduced by one for
each subsequent year.
(b) No Designated Beneficiary. If the Participant dies on or after the date
distributions begin and there is no designated beneficiary as of September
30 of the year after the year of the Participant's death, the minimum
amount that will be distributed for each distribution calendar year after
the year of the Participant's death is the quotient obtained by dividing
the Participant's account balance by the Participant's remaining life
expectancy calculated using the age of the Participant in the year of
death, reduced by one for each subsequent year.
4.2 Death Before Date Distributions Begin.
(a) Participant Survived by Designated Beneficiary. Except as provided in
the adoption agreement, 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.
2
(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.
SECTION 5
DEFINITIONS
5.1 Designated beneficiary. The individual who is designated as the Beneficiary
under Section 22.46 of 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.
5.5 Required beginning date. The date specified in Section 22.166 of the Plan.
ADOPTION AGREEMENT
(Check and complete section 1 below if any required minimum distributions for
the 2002 distribution calendar year were made in accordance with the Section
401(a)(9) Final and Temporary Regulations.)
Section 1. Effective Date of Plan Amendment for Section 401(a)(9) Final and
Temporary Treasury Regulations.
N/A. ARTICLE N/A, Minimum Distribution Requirements, 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 N/A.
(Check and complete any of the remaining sections if you wish to modify the
rules in sections 2.2 and 4.2 of Article 10.7 of the plan.)
Section 2. Election to Apply 5-Year Rule to Distributions to Designated
Beneficiaries.
N/A. 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 section 2.2 of Article N/A of
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.
This election will apply to:
[N/A] All distributions.
[N/A] The following distributions: N/A.
3
Section 3. Election to Allow Participants or Beneficiaries to Elect 5-Year Rule.
X 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
Article 10.7 of the plan 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 Article 10.7
of the plan, 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 Article 10.7 of the plan and, if applicable,
the elections in section 2 above.
Section 4. Election to Allow Designated Beneficiary Receiving Distributions
Under 5-Year Rule to Elect Life Expectancy Distributions.
X 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 amendments made by the Employer to this adoption
agreement, this amendment is hereby adopted by the prototype sponsoring
organization on behalf of all adopting employers on
[SPONSOR'S SIGNATURE AND ADOPTION DATE ARE ON FILE WITH SPONSOR]
4
MODEL PLAN AMENDMENT 3--DEFINED CONTRIBUTION PLANS
CAFETERIA PLAN (SECTION 125) MODEL AMENDMENT
Article 22.197(d). TOTAL COMPENSATION
The following is a model amendment that a sponsor of a qualified plan may choose
to adopt if the sponsor maintains a health program in conjunction with a Section
125 arrangement but permits an employee to elect cash in lieu of group health
coverage only if the employee is able to certify that he or she has other health
coverage. The use of this amendment will generally also apply to the definition
of compensation for purposes of Code Section 414(s) unless the plan otherwise
specifically excludes-all amounts described in Section 414(s)(2).
A pre-approved plan (that is, a master or prototype or volume submitter plan)
may be amended by the document's sponsor to use the alternative definition of
compensation to the extent authorized. Alternatively, adopting employers may
adopt a plan amendment as an addendum to the plan or adoption agreement. The
inclusion of the model plan amendment below in an addendum to a plan adopted to
comply with EGTRRA will not cause a pre-approved plan to be treated as an
individually designed plan. A plan sponsor that adopts the model amendment
verbatim (or with only minor changes) will have reliance that the form of its
plan satisfies the requirements of this revenue ruling, and the adoption of such
an amendment will not adversely affect the plan sponsor's or the adopting
employer's reliance on a favorable determination, opinion or advisory letter.
1. Effective date. This section 22.197(d) shall apply to plan years and
limitation years beginning on and after January 1, 2002.
2. For purposes of the definition of compensation under sections 22.102 and
22.197 amounts under Section 125 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 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.
Except with respect to any amendments made by the Employer to this adoption
agreement, this amendment is hereby adopted by the prototype sponsoring
organization on behalf of all adopting employers on
[SPONSOR'S SIGNATURE AND ADOPTION DATE ARE ON FILE WITH SPONSOR]
1
TRUST AGREEMENT
Establishing
the
AMICAS, INC. 401 (k) RETIREMENT SAVINGS PLAN TRUST
by and between
AMICAS, INC.
and
PRUDENTIAL BANK & TRUST, FSB
PRUDENTIAL BANK & TRUST, FSB
TABLE OF CONTENTS
PAGE
----
Section 1 Establishment of Trust 1
Section 2 General Duties of the Employer; Indemnification 1
Section 3 General Duties of Trustee 2
Section 4 Power and Duties of Trustee with Respect to Trust Fund 2
Section 5 Payment of Taxes 3
Section 6 Disbursement of Trust Funds 3
Section 7 Expenses and Compensation of Trustee 3
Section 8 Expenses of the Plan and Trust Fund 4
Section 9 Accounts of Trustee 4
Section 10 Resignation, Removal and Substitution of Trustee 4
Section 11 Amendment and Termination of Trust 4
Section 12 Miscellaneous Provisions 5
Exhibit A Schedule of Trust Assets 7
PRUDENTIAL BANK & TRUST, FSB
THIS TRUST AGREEMENT is made by and between AMICAS, Inc.,
(hereinafter called the "Employer"), and Prudential Bank & Trust, FSB, a federal
savings bank with its principal office and place of business in the City of
Hartford, Connecticut (hereinafter called the "Trustee").
WITNESSETH:
WHEREAS, the Employer has established or adopted for its eligible
employees the AMICAS, Inc. 401 (k) Retirement Savings Plan, (hereinafter called
the "Plan") and serves as the Plan administrator and named fiduciary; and
WHEREAS, the Employer desires the Trustee to hold Plan funds and the
Trustee is willing to hold such funds pursuant to the terms of this Trust
Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto do hereby mutually declare and agree as
follows:
Section 1: Establishment of Trust.
(a) In order to carry out the purposes of the Plan, the Employer
hereby creates and establishes a trust to be known as the AMICAS, Inc. 401(k)
Retirement Savings Plan Trust (hereinafter called the "Trust" or "Trust Fund").
The Trustee accepts this Trust and agrees to act as Trustee hereunder, but only
on the terms and conditions set forth in this Trust Agreement. Subject to the
terms and conditions of this Trust Agreement, all right, title and interest in
and to the estate of the Trust Fund shall be vested exclusively in the Trustee.
This Trust shall be effective on December 1, 2005 or, if later, the date
executed on behalf of the Trustee.
(b) The Trust Fund shall include only those assets which the Trustee
accepts and which are identified on Exhibit A. Only assets actually received by
the Trustee will become part of the Trust Fund. The Employer acknowledges and
agrees that it is responsible for effectuating the transfer of any assets held
by a prior trustee or custodian to the Trustee. All assets so received, together
with the income therefrom and any other increment thereon, shall be held by the
Trustee pursuant to the terms of this Trust Agreement without distinction
between principal and income and without liability for the payment of interest
thereon.
Section 2: General Duties of the Employer: Indemnification.
(a) The Employer shall control and manage the operation of the Plan.
The Employer shall be responsible for determining benefit rights under the Plan,
instructing the Trustee in the disbursement of benefits, investment management,
soliciting stock voting instructions from participants, directing the Trustee in
voting proxies and performing those plan administration functions specified in
the Plan.
(b) The Employer shall act as custodian with respect to promissory
notes, mortgages and related documents given in connection with Plan loans, if
any, and the Employer or its delegate shall hold in safekeeping all such
promissory notes, mortgages and related documents.
(c) The Trustee shall be fully protected and shall incur no liability
in acting in reliance upon the instructions or directions of the Employer, or
any delegate of the Employer. In addition, the Trustee shall be entitled to rely
on directions given by a Plan participant, where the Plan provisions permit such
direction. Any reference herein to directions or instructions from the Employer
shall include directions or instructions from any delegate of the Employer or
from a Plan participant, where the Plan provisions permit such direction.
-1-
PRUDENTIAL BANK & TRUST, FSB
(d) The Employer shall indemnify and hold harmless the Trustee from
and against any and all claims, losses, damages, expenses (including reasonable
counsel fees) and liabiiity to which the Trustee may be subject by reason of any
act done or omitted to be done, except where the same is finally adjudicated to
be due to the negligence or willful misconduct of the Trustee.
(e) In addition to and in no way in limitation of the indemnification
of paragraph (d), the Employer hereby agrees to indemnify and hold harmless the
Trustee from and against any claims, losses, damages, expenses (including
reasonable counsel fees) and liability to which the Trustee may be subject by
reason of any act or omission of any prior, subsequent or existing trustee of
the Plan.
Section 3: General Duties of Trustee.
(a) The Trustee shall receive, hold, manage, invest and reinvest the
Trust Fund pursuant to the provisions of this Section and Section 4 in
accordance with the directions of the Employer. The Trustee shall take no action
except pursuant to directions received by it from the Employer, and shall have
no duty to determine any facts or the propriety of any action taken or omitted
by it in good faith pursuant to instructions from such persons.
(b) The Trustee shall be responsible only for such assets as are
actually received by it as Trustee hereunder. The Trustee shall have no duty or
authority to ascertain whether any contributions should be made to it pursuant
to the Plan or to bring any action to enforce any obligation to make any such
contribution, nor shall it have any responsibility concerning the amount of any
contribution or the application of the Plan's contribution formula.
(c) The duties and obligations of the Trustee hereunder shall be
limited to those expressly imposed upon it by this Trust Agreement
notwithstanding any reference herein to the Plan, and no further duties or
obligations of the Trustee, such as a duty to value Plan investments, determine
the prudence of any Plan investment, or diversify Plan investments, shall be
implied. The Trustee shall not be liable in discharging its duties hereunder if
it acts in good faith and in accordance with the terms of this Trust Agreement
and in accordance with applicable Federal or state laws, rules and regulations.
To the extent provided by ERISA, the Trustee shall have no
responsibilities, duties and obligations with respect to any assets not held
under this Trust and not identified in Exhibit A, even if those assets are held
as assets of the Plan under a separate trust agreement. Any duties and
obligations arising from such assets shall be solely those of the trustees named
in such separate trust agreement, or, in the event no such separate trust
exists, the plan sponsor.
Section 4: Power and Duties of Trustee with Respect to Trust Fund. The
Trustee shall have the following powers and duties regarding the Trust Fund:
(a) To hold title to the assets of the Trust Fund, which may include
entering into depository arrangements for the safekeeping of records relevant to
the ownership of such assets with any bank or banks as the Trustee may choose.
Without limiting the generality of the foregoing, the Employer specifically
directs the Trustee to appoint, and the Trustee hereby appoints the Employer or
its delegate to act as custodian with respect to promissory notes, mortgages and
related documents given in connection with Plan loans, if any.
(b) To invest the assets of the Trust Fund in such investment vehicles
as directed by the Employer, including Plan loans made to participants, and
annuity or insurance contracts issued by affiliates of the Trustee, in
accordance with directions received from the Employer, and to agree to
amendments to such annuity or insurance contracts, as directed by the Employer.
The Trustee shall have no duty or responsibility to determine the
appropriateness of any plan
-2-
PRUDENTIAL BANK & TRUST, FSB
investment, or to cause such investments to be changed. Notwithstanding any
other provision of this Agreement, all notices, proposed contract amendments,
rate or fee changes or other communications regarding all group annuity
contracts that are assets of the Plan, including any group annuity contract
issued by an affiliate of the Trustee, will be sent directly by the issuer of
the contract to the Employer or forwarded by the Trustee to the Employer, and
the Trustee shall act on behalf of the Plan with respect to any such notice,
proposed amendment, change or other communication only in accordance with the
written direction of the Employer. Any rights of a contractholder under any such
group annuity contract to discontinue, amend or otherwise modify the contract
shall be exercised only upon the specific written direction of the Employer to
the issuer of the contract or by the Trustee at the Employer's specific written
direction.
(c) To make transfers among investment vehicles or disbursements from
the Trust Fund as directed by the Employer. The Trustee shall be entitled to
rely on such direction, and shall have no responsibility to ascertain whether
the Plan permits such a transfer or disbursement.
(d) To delegate to third parties, including affiliates of the Trustee,
any or all of its duties hereunder, including recordkeeping, reporting, and
proxy voting. Also, the Trustee may utilize the services of outside custodians
to hold on the Trustee's behalf any Plan assets invested in securities.
(e) To vote securities proxies as directed by the Employer, or by
another named fiduciary or investment manager designated by the Employer. The
Trustee shall not be responsible, however, for providing securities proxy
tabulation services. With respect to Employer Stock, the Trustee acknowledges
that proxies will be voted in accordance with the direction of Plan
participants, as communicated to the Trustee by the proxy tabulation service.
The trustee shall vote any unvoted shares in the same proportion as the shares
voted by Plan participants, but will confirm this methodology with the Employer
before recording the final vote. If the terms of the Plan change, and
"pass-through" voting of proxies for Employer Stock is no longer operative, the
Employer shall direct the Trustee regarding the voting of such proxies.
Section 5: Payment of Taxes. The Trustee shall pay out of the Trust
Fund income taxes and other taxes of any and all kinds levied or assessed under
existing or future laws against the Trust Fund, or against any person with an
interest in the Trust Fund.
Section 6: Disbursement of Trust Funds.
(a) Upon receipt of written direction of the Employer, the Trustee
shall make payments from the Trust Fund to such persons or direct its affiliate
that is providing recordkeeping services to make such payments from an annuity
contract listed on Exhibit A, in such manner and in such amounts as the Employer
shall direct in writing, and amounts paid pursuant to such direction shall no
longer constitute a part of the Trust Fund. Notwithstanding the foregoing, the
Employer expressly reserves the right to provide direction directly to the
affiliate of the Trustee providing recordkeeping services regarding payments of
Plan benefits or other disbursements.
(b) At no time prior to the satisfaction of all liabilities with
respect to participants and beneficiaries under this Trust shall any part of the
corpus or income of the Trust Fund be used for, or diverted to, purposes other
than for the exclusive benefit of plan participants or beneficiaries. Except as
provided in the Plan, the assets of the Trust Fund shall never inure to the
benefit of the Employer and shall be held for the exclusive purpose of providing
benefits to
-3-
PRUDENTIAL BANK & TRUST, FSB
participants in the Plan and their beneficiaries, and defraying reasonable
expenses of administering the Plan.
Section 7: Expenses and Compensation of Trustee. The Trustee shall be
compensated in accordance with the fee schedule provided to the Employer. In
addition the Trustee shall be paid its reasonable expenses, including reasonable
expenses of counsel and other agents employed by the Trustee, incurred in
conjunction with the administration of the Trust Fund. If the Trustee proposes
an amended fee schedule and the Employer fails to object thereto within ninety
(90) days of its receipt, the amended fee schedule shall be deemed accepted by
the Employer.
Section 8: Expenses of the Plan and Trust Fund. If permitted by the
Plan, the reasonable expenses relating to the Plan and Trust Fund shall be paid
by the Trust, except to the extent paid by the Employer. Such expenses shall
include, without limitation, actuarial, investment management, accounting, legal
and Trust expenses.
Section 9: Accounts of the Trustee. The Trustee has accepted this
Trust on the condition that the Employer has entered or is entering into a
service agreement with an affiliate of the Trustee whereby an affiliate of the
Trustee will provide recordkeeping services for all Plan assets held pursuant to
this Trust Agreement. The Trustee shall be required to forward to the Employer,
or require an affiliate of the Trustee to forward to the Employer, the
recordkeeping reports and related financial information provided by an affiliate
of the Trustee, but the Trustee shall not otherwise be required to provide Trust
accounts.
Section 10: Resignation. Removal and Substitution of Trustee.
(a) The Trustee may resign at any time by giving at least 30 days'
written notice to the Employer (unless the Employer deems notice of a shorter
duration to be adequate). The Employer may remove the Trustee at any time by
giving at least 30 days' written notice to the Trustee (unless the Trustee deems
notice of a shorter duration to be adequate).
(b) The Trustee's service pursuant to this Agreement is conditioned
upon the existence of one or more contracts between the Employer or the Plan (or
the Trustee on behalf of the Employer or the Plan) and a subsidiary or affiliate
of Prudential Financial, Inc. providing a funding medium for the Plan or
providing for full Plan recordkeeping services. In the event the contract
providing a funding medium or providing for recordkeeping services is
discontinued or terminated, this Agreement shall be terminated as well with no
further notice from either party to the other as of the date of discontinuance
or termination of the contract providing a funding medium or providing for
recordkeeping services.
(c) Any successor trustee hereunder may be either a corporation
authorized and empowered to exercise trust powers or may be one or more
individuals.
(d) Upon the appointment of a successor trustee, the resigning or
removed Trustee shall execute, acknowledge and deliver all documents and written
instruments necessary to transfer and deliver the Trust Fund and all rights and
privileges therein to the successor trustee. Upon the appointment of a successor
trustee, the resigning and removed Trustee shall be discharged from further
accountability for the Trust Fund, and shall be under no further duty,
obligation or responsibility for the disposition by such successor trustee of
the Trust Fund or any part thereof.
-4-
PRUDENTIAL BANK & TRUST, FSB
Section 11: Amendment and Termination of Trust.
(a) The Employer and the Trustee may mutually agree at any time to
amend this Trust Agreement and the Trust created hereby to any extent deemed
advisable. No amendment to this Trust Agreement shall be effective unless
mutually agreed to in writing by the Employer and the Trustee; provided,
however, that Trustee's fee schedule may be amended as provided in Section 7.
(b) The Employer may at any time revoke this Trust Agreement and
terminate the Trust hereby created. Such revocation and termination shall become
effective upon receipt by the Trustee or its delegate of a written instrument of
such revocation and termination executed by the Employer. Upon such termination,
disposition of the assets of the Trust Fund shall be governed by the terms of
the Plan; provided, however, that the Trustee shall not distribute any portion
of the Trust Fund after such termination unless the Employer first obtains a
determination from the Internal Revenue Service that such termination will not
affect adversely the qualified status of the Plan. In lieu of an Internal
Revenue Service determination, assets of the Trust Fund may be distributed if
the Employer agrees in writing with the Trustee to indemnify the Trust Fund for
any taxes or other penalties which may be assessed against it as a result of
such termination or agrees to provide a bond to secure payment of any such taxes
or penalties.
Section 12: Miscellaneous Provisions.
(a) This Trust Agreement and the Trust hereby created shall be
governed, construed, administered and regulated in all respects under the law of
the United States and the State of Connecticut.
(b) The titles of the Sections in this Trust Agreement are for
convenience of reference only and in case of any conflict, the text of this
instrument, rather than such titles, shall control.
(c) In case any provisions of this Trust Agreement shall be held
illegal or invalid for any reason, their illegality or invalidity shall not
affect the remaining parts of this Trust Agreement, and this Trust Agreement
shall be construed and enforced as if the illegal and invalid provisions had
never been a part of the Trust Agreement.
(d) This Trust Agreement may be executed in any number of
counterparts, each of which shall be deemed an original. The counterparts shall
constitute one and the same instrument and may be sufficiently evidenced by any
one counterpart.
(e) This Trust Agreement shall be binding upon the respective
successors and assigns of the Employer and the Trustee.
(f) Neither the gender nor the number (singular or plural) of any word
shall be construed to exclude another gender or number when a different gender
or number would be appropriate.
(g) In the event of any conflict between provisions of the Plan and
those of this Trust Agreement, this Trust Agreement shall prevail. Provisions in
other documents, including but not limited to plan documents, group annuity
contracts, and/or service agreements, that might otherwise reflect the powers,
duties, and responsibilities of the Trustee, shall in no way supersede or
replace any of the provisions contained in this Trust Agreement. This Trust
Agreement shall constitute the entire agreement between the Employer/Plan
Administrator and the Trustee.
(h) Communications to the Trustee shall be sent to the Trustee's
principal offices or such address as the Trustee may specify in writing. No
communication shall be binding upon the Trustee until it is received by the
Trustee or its delegate. Communications to the Employer shall
-5-
PRUDENTIAL BANK & TRUST, FSB
be sent to the Employer's principal offices or such address as the Employer may
specify in writing.
-6-
PRUDENTIAL BANK & TRUST, FSB
IN WITNESS WHEREOF, this Trust Agreement has been executed on the dates
indicated below. The persons executing this Trust Agreement represent that they
are duly authorized to do so.
Witness: AMICAS, INC.
/s/ Adam Schauer By /s/ Joseph D. Hill
- ------------------------------------- -------------------------------------
Title Chief Financial Officer
Date December 1, 2005
Witness: PRUDENTIAL BANK & TRUST, FSB
By /s/ Michael G. Williamson
-------------------------------------
Title Chief Trust Officer
Date December 5, 2005
-7-
PRUDENTIAL BANK & TRUST, FSB
EXHIBIT A
SCHEDULE OF TRUST ASSETS
1. Group Annuity contract GA-39533, issued by an affiliate of the Trustee.
2. Plan assets invested in investment options offered through an affiliate of
the Trustee as designated in the Investment Selection Questionnaire, and
any subsequent amendment thereto, executed by an authorized representative
of the Employer.
3. Promissory notes given in connection with loans to Plan participants and
beneficiaries.
4. The Trustee agrees to accept Employer Stock as a Trust asset with the
Employer's understanding and approval that the Employer Stock will be held
by Prudential Investment Management Services LLC (PIMS) (the "Custodian"),
pursuant to and subject to the terms and conditions of a Master Custody
Agreement between the Trustee and the Custodian. The Employer also
understands and approves that it shall be charged the custodial fee then in
effect under this Trust Agreement for each custodial account that is
required to be opened on its behalf with PIMS.
-8-
PRUDENTIAL BANK & TRUST, FSB