1
FIRST AMENDMENT TO THE
GIBBONS COMPANY PROFIT SHARING
AND RETIREMENT PLAN
This Amendment to the Gibbons Company Profit Sharing and Retirement Plan (the
"Plan") is made this 29th day of March, 1995, by Gibbons & Reed Company, the
Sponsoring Employer of the Plan, hereinafter referred to as the "Employer."
W I T N E S S E T H:
WHEREAS, the Employer has heretofore adopted the Plan (which plan has
been amended and restated in its entirety effective for Plan Years commencing
on or after January 1, 1989), and
WHEREAS, the Employer has reserved the right to amend the Plan in
whole or in part, and
WHEREAS, the Employer now desires to amend the Plan to conform to
changes in IRS Regulations and update the Plan for submission to the IRS;
NOW THEREFORE, in consideration of the foregoing premises and mutual
covenants herein contained, the Employer amends the Plan as follows:
1. The following designated Sections of the Plan are amended to
read as hereinafter set forth:
2.31 "K-TEST CONTRIBUTION PERCENTAGE" shall mean the ratio
(expressed as a percentage) of a Participant's K-Test Contributions for a Plan
Year to the Participant's Compensation for the Plan Year. THE K-TEST
CONTRIBUTION PERCENTAGE FOR A PARTICIPANT WHO IS A HIGHLY COMPENSATED EMPLOYEE
SHALL BE DETERMINED BY COMBINING ALL CASH OR DEFERRED ARRANGEMENTS UNDER WHICH
THE HIGHLY COMPENSATED EMPLOYEE IS ELIGIBLE TO PARTICIPATE (OTHER THAN THOSE
WHICH MAY NOT BE PERMISSIVELY AGGREGATED) WITH THIS PLAN AS THOUGH THEY WERE A
SINGLE ARRANGEMENT. IF A HIGHLY COMPENSATED EMPLOYEE IS ELIGIBLE TO
PARTICIPATE IN THIS PLAN AND THE FAMILY AGGREGATION RULES IN SECTION 2.27
APPLY, THEN THE K-TEST CONTRIBUTION PERCENTAGE SHALL BE DETERMINED BY COMBINING
THE K-TEST CONTRIBUTIONS AND COMPENSATION OF ALL ELIGIBLE FAMILY MEMBERS. For
this purpose, Compensation is defined as in Section 7.01(b) of the Plan. THE
K-TEST CONTRIBUTION PERCENTAGE FOR A PARTICIPANT WHO HAS MADE NO ELECTIVE
DEFERRAL CONTRIBUTIONS AND WHO IS NOT CREDITED WITH ANY K-TEST CONTRIBUTIONS
FOR THE PLAN YEAR SHALL BE ZERO (0).
2.32 "K-TEST CONTRIBUTIONS" shall mean, for any Plan Year, A
PARTICIPANT'S ELECTIVE DEFERRALS, PLUS, IF SO ELECTED BY THE EMPLOYER, PART OR
ALL OF THE QUALIFIED NON-ELECTIVE CONTRIBUTIONS AND QUALIFIED MATCHING
CONTRIBUTIONS ALLOCATED TO THE PARTICIPANT FOR SUCH YEAR, provided that, any
Qualified Non-Elective Contributions included as K-Test Contributions shall
151
2
not increase the difference between the K-Test Average Contribution Percentage
for Highly Compensated Employees and the K-Test Average Contribution Percentage
for Non-Highly Compensated Employees; and, further provided that, no Qualified
Non-Elective Contributions or Qualified Matching Contributions included as
K-Test Contributions shall be included as M-Test Contributions. IN DETERMINING
THE AMOUNT OF A PARTICIPANT'S ELECTIVE DEFERRALS UNDER THIS SECTION THE PLAN
ADMINISTRATOR SHALL TAKE INTO ACCOUNT ELECTIVE DEFERRALS MADE BY THE
PARTICIPANT UNDER ANY OTHER PLAN WHICH IS AGGREGATED WITH THIS PLAN FOR
PURPOSES OF CODE Section 401(A)(4) OR CODE Section 410(B) (OTHER THAN CODE
Section 410(B)(2)(A)(II)) AND ANY OTHER PLAN SATISFYING CODE Section 401(K)(3)
AND REG. Section 1.401(K)-1(B)(3) WHICH THE EMPLOYER ELECTS TO PERMISSIVELY
AGGREGATE WITH THIS PLAN, BY TREATING ALL SUCH PLANS AND THIS PLAN AS A SINGLE
PLAN.
2.36 "M-TEST CONTRIBUTION PERCENTAGE" shall mean the ratio
(expressed as a percentage) of a Participant's M-Test Contributions for a Plan
Year to the Participant's Compensation for the Plan Year. THE M-TEST
CONTRIBUTION PERCENTAGE FOR A PARTICIPANT WHO IS A HIGHLY COMPENSATED EMPLOYEE
SHALL BE DETERMINED BY COMBINING ALL PLANS SUBJECT TO CODE Section 401(M) UNDER
WHICH THE HIGHLY COMPENSATED EMPLOYEE IS ELIGIBLE TO PARTICIPATE (OTHER THAN
THOSE WHICH MAY NOT BE PERMISSIVELY AGGREGATED) WITH THIS PLAN AS THOUGH THEY
WERE A SINGLE PLAN. IF A HIGHLY COMPENSATED EMPLOYEE IS ELIGIBLE TO
PARTICIPATE IN THIS PLAN AND THE FAMILY AGGREGATION RULES IN SECTION 2.27
APPLY, THEN THE M-TEST CONTRIBUTION PERCENTAGE SHALL BE DETERMINED BY COMBINING
THE M-TEST CONTRIBUTIONS AND COMPENSATION OF ALL ELIGIBLE FAMILY MEMBERS. For
this purpose, Compensation is defined as in Section 7.01(b) of the Plan. THE
M-TEST CONTRIBUTION PERCENTAGE FOR A PARTICIPANT WHO HAS MADE NO ELECTIVE
DEFERRAL CONTRIBUTIONS AND WHO IS NOT CREDITED WITH ANY M-TEST CONTRIBUTIONS
FOR THE PLAN YEAR SHALL BE ZERO (0).
2.37 "M-TEST CONTRIBUTIONS" shall mean for any Plan Year MATCHING
CONTRIBUTIONS MADE PURSUANT TO SECTION 5.06 less any of the Participant's
Qualified Matching Contributions included as K-Test Contributions, plus, if so
elected by the Employer, PART OR ALL OF THE QUALIFIED NON-ELECTIVE
CONTRIBUTIONS ALLOCATED TO THE PARTICIPANT FOR SUCH YEAR, provided that, any
Qualified Non-Elective Contributions included as M-Test Contributions shall not
increase the difference between the M-Test Average Contribution Percentage for
Highly Compensated Employees and the M-Test Average Contribution Percentage for
Non-Highly Compensated Employees; and, further provided that, NO QUALIFIED
NON-ELECTIVE CONTRIBUTIONS INCLUDED AS M-TEST CONTRIBUTIONS SHALL BE INCLUDED
AS K-TEST CONTRIBUTIONS. IN DETERMINING THE AMOUNT OF M-TEST CONTRIBUTIONS
UNDER THIS SECTION THE PLAN ADMINISTRATOR SHALL TAKE INTO ACCOUNT ALL EMPLOYEE
CONTRIBUTIONS MADE BY THE PARTICIPANT AND ALL MATCHING CONTRIBUTIONS MADE BY
THE EMPLOYER UNDER ANY
152
3
OTHER PLAN WHICH IS AGGREGATED WITH THIS PLAN FOR PURPOSES OF CODE Section
401(A)(4) OR CODE Section 410(B) (OTHER THAN CODE Section 410(B)(2)(A)(II)) AND
ANY OTHER PLAN SATISFYING CODE Section 401(K)(3) AND REG. Section
1.401(K)-1(B)(3) WHICH THE EMPLOYER ELECTS TO PERMISSIVELY AGGREGATE WITH THIS
PLAN, BY TREATING ALL SUCH PLANS AND THIS PLAN AS A SINGLE PLAN.
2.44 "PARTICIPANT" shall mean any ELIGIBLE Employee who HAS
SATISFIED ALL OF THE AGE AND SERVICE REQUIREMENTS OF SECTION 4.01. SUCH AN
EMPLOYEE SHALL BE DEEMED TO BE A PARTICIPANT IN THE PLAN FOR PURPOSES OF ANY
APPLICABLE NONDISCRIMINATION TEST, INCLUDING THE K-TEST AND M-TEST DEFINED IN
THIS PLAN, WITHOUT REGARD TO WHETHER HE HAS EXECUTED A SALARY REDUCTION
AGREEMENT AND AGREED TO HAVE CONTRIBUTIONS MADE TO THIS PLAN THROUGH ELECTIVE
DEFERRALS. A PARTICIPANT MAY NEVERTHELESS BE CONSIDERED "ACTIVE" OR "INACTIVE"
DEPENDING ON WHETHER HE HAS SIGNED A SALARY REDUCTION AGREEMENT OR WHETHER HE
QUALIFIES AS A DAVIS-BACON EMPLOYEE OR SALARIED EMPLOYEE.
2.49 "QUALIFIED MATCHING CONTRIBUTION" shall mean a Matching
Contribution with respect to which the requirements of REG. Section
1.401(K)-1(B)(5) AND Code Section Section 401(k)(2)(B) and (C) are met.
2.50 "QUALIFIED NON-ELECTIVE CONTRIBUTION" shall mean any Employer
contribution to the Plan other than a Matching Contribution with respect to
which the Employee may not elect to have the contribution paid to the Employee
in cash instead of being contributed to the Plan and (IF TREATED AS K-TEST
CONTRIBUTIONS) THE REQUIREMENTS OF REG. Section 1.401(K)-1(B)(5) AND CODE
Section Section 401(K)(2)(B) AND (C) ARE MET OR (IF TREATED AS M-TEST
CONTRIBUTIONS) THE REQUIREMENTS OF REG. Section 1.401(M)-1(B)(5) ARE MET.
4.01 AGE AND SERVICE REQUIREMENTS:
(a) Effective July 1, 1993, an Eligible Employee shall SHALL
BECOME A PARTICIPANT in this Plan on the first Entry Date coincident with or
next following the date on which he satisfies all of the following
requirements:
(i) attains the Age of twenty-one (21) years; and
(ii) completes a Year of Eligibility Service; and
(iii) is employed on the Entry Date.
(b) Effective July 1, 1993, an Eligible Employee who is also a
153
4
Davis-Bacon Employee shall SHALL BECOME A PARTICIPANT in this Plan for the
purpose of receiving allocations of Employer Davis-Bacon Contributions only, on
his Employment Commencement Date or his Re-employment Commencement Date.
(c) Prior to July 1, 1993, but after the Effective Date, only an
Eligible Employee who is a Salaried Employee and who on the first Entry Date
coincident with or next following the date on which he satisfies all of the
following requirements, SHALL BECOME A PARTICIPANT in this Plan:
(i) attains the Age of twenty-one (21) years;
(ii) completes a Year of Eligibility Service; and
(iii) is employed on the Entry Date.
(d) Prior to the Effective Date an Eligible Employee shall
participate as provided in the Prior Plan.
(e) An Eligible Employee WHO BECOMES A PARTICIPANT AND WHO ALSO
EXECUTES A WRITTEN SALARY REDUCTION AGREEMENT IN THE MANNER SET FORTH IN
PROCEDURES ISSUED BY THE PLAN ADMINISTRATOR SHALL BE CONSIDERED TO BE AN ACTIVE
PARTICIPANT. Notwithstanding the foregoing, an Eligible Employee who is also a
Salaried Employee shall commence participation in the Plan as an active
Participant for purposes of allocations of Employer Profit Sharing
Contributions only, on the Plan Entry Date coincident with or immediately
preceding the date the Salaried Employee satisfies the requirements of Section
4.01(a) or (c), as applicable. An Eligible Employee who is also a Davis-Bacon
Employee shall commence participation in the Plan as an active Participant for
purposes of allocations of Employer Davis-Bacon Contributions only, upon
satisfaction of the requirements of Section 4.01(b). An Employee who was a
Participant in the Prior Plan on the day before the Effective Date shall
continue as a Participant in this Plan on that date.
4.05 RE-EMPLOYMENT AND COMMENCEMENT OF PARTICIPATION: An Employee
who had met the requirements of Section 4.01(a), (b) or (c) but terminated
employment prior to his Entry Date SHALL BECOME A PARTICIPANT ON THE DATE HE IS
RE-EMPLOYED BY THE EMPLOYER, BUT IN NO EVENT EARLIER THAN THE ENTRY DATE HE
WOULD HAVE JOINED HAD HE NOT CEASED EMPLOYMENT. AN EMPLOYEE WHO WAS A
PARTICIPANT SHALL AGAIN BECOME A PARTICIPANT ON THE DATE HE IS RE-EMPLOYED BY
THE EMPLOYER. THE EMPLOYEE WHO BECOMES A PARTICIPANT MAY IMMEDIATELY ELECT TO
EXECUTE A SALARY DEFERRAL AGREEMENT AND COMMENCE ELECTIVE DEFERRALS, IF IT IS
EXECUTED WITHIN THE TIME PERIOD SPECIFIED BY THE PLAN ADMINISTRATOR PURSUANT TO
A UNIFORM AND NON-DISCRIMINATORY POLICY. IF NOT SO EXECUTED, THE PARTICIPANT
MAY ELECT TO
154
5
EXECUTE A SALARY DEFERRAL AGREEMENT AND COMMENCE ELECTIVE DEFERRALS AS OF THE
FIRST DAY OF ANY SUBSEQUENT CALENDAR QUARTER THEREAFTER.
5.12 LIMITATIONS ON CONTRIBUTIONS: Notwithstanding any other
provisions of this Plan, ALL contributions FOR PLAN YEARS COMMENCING AFTER
DECEMBER 31, 1986, shall be subject to the following limitations:
(a) THE TOTAL AMOUNT OF A PARTICIPANT'S ELECTIVE DEFERRALS DURING
ANY CALENDAR YEAR SHALL NOT EXCEED SEVEN THOUSAND DOLLARS
($7,000), WHICH AMOUNT SHALL BE INDEXED AT THE SAME TIME AND
IN THE SAME MANNER AS THE DOLLAR LIMITATION FOR DEFINED
BENEFIT PLANS IN CODE Section 415(B)(1)(A). FOR THIS PURPOSE
A PARTICIPANT'S ELECTIVE DEFERRALS TO THIS PLAN PLUS THE
PARTICIPANT'S ELECTIVE DEFERRALS PURSUANT TO ANY OTHER CODE
Section 401(K) ARRANGEMENT, ELECTIVE DEFERRALS UNDER A
SIMPLIFIED EMPLOYEE PENSION PLAN AND SALARY REDUCTION
CONTRIBUTIONS TO A TAX-SHELTERED ANNUITY, IRRESPECTIVE OF
WHETHER THE EMPLOYER OR ANY MEMBER OF A CONTROLLED GROUP OR
AFFILIATED SERVICE GROUP TO WHICH THE EMPLOYER BELONGS
MAINTAINS THE ARRANGEMENT, PLAN OR ANNUITY, SHALL BE
AGGREGATED.
5.14 CORRECTION OF EXCESS CONTRIBUTIONS: FOR PLAN YEARS COMMENCING
AFTER DECEMBER 31, 1986, the Plan provides the following methods for correcting
excess contributions as described in Section 5.13:
. . .
(b) EXCESS K-TEST CONTRIBUTIONS: The Plan Administrator shall
direct the Trustee to distribute to a Participant his Excess
K-Test Contribution plus income, if any, allocable thereto.
Such distribution shall be designated by the Plan
Administrator as a distribution of an excess contribution and
shall be made after the end of the Plan Year in which the
excess contribution arose and within twelve (12) months after
the end of such Plan Year.
If the Employer has made a Matching Contribution attributable
to any portion of the Participant's Excess K-Test Contribution
distributed to the Participant pursuant to the above, the Plan
Administrator shall treat such Matching Contribution in the
same manner as an Excess M-Test Contribution in accordance
with (c) below. FOR PLAN YEARS COMMENCING ON OR AFTER JANUARY
1, 1994, IF THE EMPLOYER HAS MADE A MATCHING CONTRIBUTION
ATTRIBUTABLE TO ANY PORTION OF THE PARTICIPANT'S EXCESS K-TEST
CONTRIBUTION DISTRIBUTED TO THE PARTICIPANT
155
6
PURSUANT TO THE ABOVE, THE PLAN ADMINISTRATOR SHALL TREAT SUCH
MATCHING CONTRIBUTION AS A FORFEITURE. THE FORFEITED AMOUNT
SHALL BE USED TO REDUCE THE EMPLOYER'S MATCHING CONTRIBUTION
OTHERWISE REQUIRED FOR THE PLAN YEAR OR FOR ANY SUBSEQUENT
PLAN YEAR.
6.02 ALLOCATION OF CONTRIBUTIONS: Contributions for any period
shall be credited to the Accounts of Participants in the following manner:
. . .
(b) Matching Contributions made pursuant to Section 5.06 shall be
allocated on each Annual Valuation Date (and if the Employer
makes Matching Contributions on a calendar quarter or other
periodic basis, on the last day of each calendar quarter or
other period) to each Participant's Account who satisfies the
requirements of Section 6.04, in an amount equal to the
percentage shown on the table in Section 5.06, but not to
exceed two and one-half percent (2.50%) of the Participant's
Annual Compensation for the Plan Year. If the Employer makes
a Matching Contribution to the Plan at any time during the
Plan Year, the two and one-half percent (2.50%) limit of this
Section 6.02(b) shall not be determined by reference to Annual
Compensation for the Plan Year, but by reference to
Compensation (SUBJECT TO THE LIMITATIONS ON ANNUAL
COMPENSATION IMPOSED UNDER SECTION 2.07) paid only during the
period to which the Matching Contribution relates.
7.01 SPECIAL DEFINITIONS: EFFECTIVE FOR PLAN YEARS COMMENCING
AFTER DECEMBER 31, 1986, (UNLESS A DIFFERENT DATE IS PROVIDED HEREIN) THE
FOLLOWING TERMS SHALL BE DEFINED FOR PURPOSES OF THIS ARTICLE, AS FOLLOWS:
19.03 TOP-HEAVY MINIMUM REQUIRED ALLOCATION: For any Plan Year in
which the Plan is Top-Heavy but not Super Top-Heavy:
(a) . . .
(2) In the case where the Employer has no defined benefit
plan which designates this Plan to satisfy Code
Section Section 401 and 416(c), the largest
percentage of Employer contributions and forfeitures,
as a percentage of the first two hundred thousand
dollars ($200,000), (or such larger amount as may be
prescribed by the Secretary of the Treasury or his
delegate) of the Key Employee's Top-Heavy
Compensation, allocated on behalf of any
156
7
Key Employee for that year. IN CALCULATING THIS
PERCENTAGE ALL AMOUNTS CONTRIBUTED BY THE EMPLOYER TO
THE KEY EMPLOYEE'S ELECTIVE DEFERRAL ACCOUNT PURSUANT
TO A SALARY REDUCTION AGREEMENT SHALL BE TREATED AS
EMPLOYER CONTRIBUTIONS. FOR PLAN YEARS BEGINNING
AFTER DECEMBER 31, 1993, THE PLAN SHALL SUBSTITUTE
THE AMOUNT "ONE HUNDRED FIFTY THOUSAND DOLLARS
($150,000) FOR THE AMOUNT "TWO HUNDRED THOUSAND
DOLLARS ($200,000) WHEREVER IT APPEARS IN THIS
SECTION. THE ONE HUNDRED FIFTY THOUSAND DOLLAR
AMOUNT SHALL BE ADJUSTED EACH PLAN YEAR AS PROVIDED
IN CODE Section 401(A)(17)(B).
19.04 SUPER TOP-HEAVY MINIMUM REQUIRED ALLOCATION: For any Plan
Year in which the Plan is Super Top-Heavy:
(a) . . .
(2) In the case where the Employer has no defined benefit
plan which designates this Plan to satisfy Code
Section Section 401 and 416(c), the largest
percentage of Employer contributions and forfeitures,
as a percentage of the first two hundred thousand
dollars ($200,000), (or such larger amount as may be
prescribed by the Secretary of the Treasury or his
delegate) of the Key Employee's Top-Heavy
Compensation, allocated on behalf of any Key Employee
for that year. IN CALCULATING THIS PERCENTAGE ALL
AMOUNTS CONTRIBUTED BY THE EMPLOYER TO THE KEY
EMPLOYEE'S ELECTIVE DEFERRAL ACCOUNT PURSUANT TO A
SALARY REDUCTION AGREEMENT SHALL BE TREATED AS
EMPLOYER CONTRIBUTIONS. FOR PLAN YEARS BEGINNING
AFTER DECEMBER 31, 1993, THE PLAN SHALL SUBSTITUTE
THE AMOUNT "ONE HUNDRED FIFTY THOUSAND DOLLARS
($150,000)" FOR THE AMOUNT "TWO HUNDRED THOUSAND
DOLLARS ($200,000)" WHEREVER IT APPEARS IN THIS
SECTION. THE ONE HUNDRED FIFTY THOUSAND DOLLAR
AMOUNT SHALL BE ADJUSTED EACH PLAN YEAR AS PROVIDED
IN CODE Section 401(A) (17)(B).
19.06 COMPENSATION LIMITATION: For any Plan Year in which the Plan
is Top-Heavy, only the first two hundred thousand dollars ($200,000), (or such
larger amount as may be prescribed by the Secretary of the Treasury or his
delegate), of a Participant's Annual Compensation or Top-Heavy Compensation
shall be taken into account for purposes of this Plan. FOR PLAN YEARS
BEGINNING AFTER DECEMBER 31, 1993, THE PLAN SHALL SUBSTITUTE THE AMOUNT "ONE
HUNDRED FIFTY THOUSAND DOLLARS ($150,000)" FOR THE AMOUNT
157
8
"TWO HUNDRED THOUSAND DOLLARS ($200,000)" WHEREVER IT APPEARS IN THIS SECTION.
THE ONE HUNDRED FIFTY THOUSAND DOLLAR AMOUNT SHALL BE ADJUSTED EACH PLAN YEAR
AS PROVIDED IN CODE Section 401(A)(17)(B).
19.09 PARTICIPANT ELECTIVE DEFERRALS: For Plan Years beginning and
before January 1, 1989, Elective Deferrals MAY BE TAKEN INTO ACCOUNT IN
DETERMINING UNDER SECTIONS 19.03(B) AND 19.04(B) THE AMOUNT OF EMPLOYER
CONTRIBUTIONS TO BE ALLOCATED TO A PARTICIPANT WHO IS A NON-KEY EMPLOYEE. FOR
PLAN YEARS BEGINNING AFTER DECEMBER 31, 1988, ELECTIVE DEFERRALS SHALL NOT BE
TAKEN INTO ACCOUNT IN DETERMINING UNDER SECTIONS 19.03(B) AND 19.04(B) THE
AMOUNT OF EMPLOYER CONTRIBUTIONS TO BE ALLOCATED TO A PARTICIPANT WHO IS A
NON-KEY EMPLOYEE.
2. Except as otherwise specified in the amendments above, this
Amendment shall be effective for Plan Years commencing on or after January 1,
1989, and shall apply to all employees who terminate employment on or after
that date.
3. In all other respects the Plan is ratified and approved.
IN WITNESS WHEREOF, the Employer has caused this Amendment to the Plan
to be duly executed as of the date and year first above written.
"EMPLOYER"
GIBBONS & REED COMPANY
By:
----------------------------------
Its: President
---------------------------------
158