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EXHIBIT 10.7.g
SEVENTH AMENDMENT TO
THE GIBBONS COMPANY PROFIT SHARING
AND RETIREMENT PLAN
This Seventh Amendment to the Gibbons Company Profit Sharing
and Retirement Plan (the "Plan") is made and entered into this 27th day of
February, 1998, by G.G.&R., Inc.
("GG&R"), the Sponsoring Employer of the Plan.
WITNESSETH:
WHEREAS, GG&R has heretofore established the Plan (which Plan
has been amended and restated in its entirety effective for all Plan Years
commencing on or after January 1, 1989);
WHEREAS, GG&R has reserved the right to amend the Plan in
whole or in part;
WHEREAS, it is desirable to amend the Plan to transfer
participants' Elective Deferral Accounts to the Granite Construction Profit
Sharing and 401(k) Plan, effective as of April 1, 1998;
WHEREAS, GG&R previously amended the Plan to cease all
Employer Davis-Bacon Contributions (for any period beginning after May 31, 1995)
and all Elective Deferrals, Matching Contributions and rollover contributions
(for plan years beginning after December 31, 1995); and
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WHEREAS, GG&R desires to amend the Plan to terminate all
portions of the Plan (other than the portion attributable to participants'
Elective Deferral Accounts), effective as of March 31, 1998, and amend the Plan
to incorporate the applicable provisions of the Internal Revenue Code of 1986,
in effect as of the date of termination, as amended by the Small Business Job
Protection Act of 1996 and the Taxpayer Relief Act of 1997.
NOW, THEREFORE, in consideration of the foregoing premises,
GG&R amends the following Sections of the Plan (or portions thereof) as follows:
1. Section 2.07 is amended by deleting the last paragraph from
the definition of "Compensation" thereof effective as of January 1, 1997.
2. Section 2 is amended by deleting the definition of "Family
Member" in Section 2.23, effective as of January 1, 1997.
3. Section 2.27 is restated to read as follows, effective as
of January 1, 1997:
2.27 "HIGHLY COMPENSATED EMPLOYEE" shall
mean, for any Plan Year, an Employee, other than a
non-resident alien receiving no earned income from the
Employer from sources within the United States, who, during
such year or the preceding year (a) was at any time a Five
Percent Owner (as defined in Section 19.02(c)); or (b)
received Compensation from the Employer in excess of eighty
thousand dollars ($80,000) in the preceding Plan Year and was
in the group consisting of the top twenty percent (20%) of the
Employees when ranked on the basis of Compensation paid during
such Plan Year.
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A former Employee who was a Highly Compensated Employee upon
separation from service or at any time after attaining age
fifty-five (55) shall be treated as a Highly Compensated
Employee.
For purposes of the above, Compensation is defined as in
Section 7.01(b) of this Plan, but shall include contributions
made by the Employer to a plan of deferred compensation
otherwise excluded in Section 7.01(b). The dollar amount in
(b) above shall be adjusted at the same time and in the same
manner as the benefit limitation for defined benefit plans
under Code Section 415(b)(l)(A).
For purposes of determining the number of Employees in the
top-paid group in (b) above, the following shall be excluded:
Employees who have not completed six (6) months of service;
Employees who normally work less than seventeen and one-half
(17-1/2) hours per week; Employees who normally work not more
than six (6) months per year; Employees who have not attained
age twenty-one (21); and Employees described in Section
2.22(a), except as provided in Regulations issued under Code
Section 414(q).
4. Section 2.33 is amended by restating the first sentence in
the first paragraph thereof effective as of January 1, 1997:
"LEASED EMPLOYEE" shall mean any person, who, pursuant to an
agreement between the Gibbons Employer and any other person or
organization (leasing organization), has performed services
for the Employer (or for the Gibbons Employer and related
persons) determined in accordance with Code Section 414(n)(6))
on a substantially full time basis for a period of at least
one (1) year and such services are performed under the primary
direction or control by the Gibbons Employer.
5. Section 2.41 is restated to read as follows, effective as
of January 1, 1997:
2.41 "NON-HIGHLY COMPENSATED EMPLOYEE" shall
mean an Employee who is not a Highly Compensated Employee.
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6. Section 3.04(e) is restated to read as follows, effective
as of August 5, 1993:
(e) For Plan Years beginning after December 31,
1984, in the case of an Employee who is
absent from work for any period:
(1) By reason of the pregnancy of the Employee;
(2) By reason of the birth of a child of the Employee;
(3) By reason of the placement of a child with the
Employee in connection with the adoption of such
child by such Employee;
(4) For purposes of caring for such child for a period
beginning immediately following such birth or
placement; or
(5) By reason of any unpaid leave covered by the Family
and Medical Leave Act of 1993 ("FMLA").
Hours of Service shall include the Hours of Service which
otherwise would normally have been credited to such
Employee but for such absence; or in any case in which the
Plan is unable to determine the Hours of Service to be
credited, eight (8) Hours of Service for each regularly
scheduled work day of such absence. The total number of
hours treated as Hours of Service under this Section by
reason of any pregnancy, placement or unpaid leave covered
by FMLA shall not exceed five hundred and one (501) hours
less the number of Hours of Service credited to an
Employee pursuant to Subsections (a) through (d) above,
for an absence described in this Subsection (e). The hours
described in this Subsection (e) shall be treated as Hours
of Service only in the computation period in which the
absence from work begins, if an Employee would be
prevented from incurring a One-Year Break in Service in
such computation period solely because the period of
absence is treated as Hours of Service as provided herein;
or in any other case, in the immediately following
computation period. Notwithstanding the foregoing, no
credit will be given pursuant to this Subsection (e)
unless the Employee furnishes to the Plan Administrator
such timely information as the Plan Administrator may
reasonably require to establish that the absence from work
is for reasons referred to herein, and the number of days
for which there was such an absence.
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7. Section 3.05(c) is amended by adding the following sentence at the
end thereof, effective as of December 12, 1994:
Notwithstanding any provision of the Plan to the contrary,
contributions, benefits and service credit with respect to
qualified military service will be provided in accordance with
Section 414(u) of the Code.
8. Section 4.01 is amended by adding the following subsection (f) after
subsection (e) thereof effective as of December 31, 1997:
(f) Notwithstanding anything to the contrary in this Section
4.01, no Employee shall become a Participant after December 31, 1997,
for purposes of being eligible to receive an allocation of Employer
Profit Sharing Contributions for any Plan Year beginning after December
31, 1997.
9. Section 5.07 is amended by adding the following sentence at the end
of the second paragraph thereof effective as of December 31, 1997:
Notwithstanding anything to the contrary in this Section 5.07,
no Employer Profit Sharing Contributions shall be made to the
Plan for any Plan Year beginning after December 31, 1997.
10. Section 9.03 is amended by restating the second paragraph thereof
effective as of January 1, 1997:
If a Participant fails to elect a form of payment, payment of
the Participant's benefits shall be in a single lump sum in
accordance with (a) above. Except as provided in Section 9.04,
no payment shall be made to a Participant prior to his Normal
Retirement Age unless the Participant consents in writing to
the payment not more than ninety (90)
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days prior to his Annuity Starting Date. If the Plan Administrator so
elects for any Plan Year, payment to a Participant (other than that
portion of benefit which is attributable to his Annuity Eligible Accrued
Benefit, as defined in Section 9.06) may commence less than 30 days
after the notice required under Section 1.411(a)-11(c) of the
regulations of the Code is given; provided, however, that no such
payment to a Participant shall be made unless (1) the Participant is
informed that he has the right for a period of at least 30 days after
receiving the notice to consider whether or not to consent to the
payment (or a particular payment option), and (2) the Participant
affirmatively elects to receive a payment after receiving the notice.
11. Section 9.03 is further amended by restating the first sentence in
the third paragraph thereof effective as of January 1, 1998:
If the lump sum amount that would be payable to a disabled Participant
is not more than five thousand dollars ($5,000) and the amount in the
Participant's Account has never exceeded that amount at the time of any
prior distribution, the benefit shall be paid as a single lump sum
payment as soon as administratively feasible following the end of the
calendar month in which his Termination of Employment occurs without
regard to any Participant consent requirement or the requirements of
Section 9.06.
12. Section 9.05 is amended by restating the first paragraph thereof to
read as follows, effective as of January 1, 1997:
9.05 REQUIRED DISTRIBUTIONS: Notwithstanding any other
provisions of this Article and except as provided in this Section 9.05,
in no event shall payments commence later than April 1st of the calendar
year following the Plan Year in which the Participant attains Age 70 1/2
and is either (1) a 5% owner (as defined in Section 19.02(c)) or (2) has
incurred a Termination of Employment. If payment of the Participant's
Accrued Benefit commences under this Section 9.05, it shall be
distributed to the Participant (consistent with the Participant's
election and the requirements of Section 9.03):
(a) In the form of a cash lump sum payment; or
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(b) In the form of cash installment payments over a period not
extending beyond the life expectancy of the Participant, or the joint
life expectancy of the Participant and his Beneficiary.
13. Section 9.06(b) is amended by restating the second paragraph
thereof, effective as of January 1, 1997:
The notification shall also inform the Participant that a
specific written explanation in non-technical language of the
terms and conditions of the Automatic Qualified Joint and
Survivor Annuity and the financial effect upon the particular
Participant's benefits of making an election against the
Automatic Qualified Joint and Survivor Annuity is available
upon written request by the Participant. The notification
shall be provided within a reasonable period before the
Annuity Starting Date (or after such date, if so elected by
the Plan Administrator, provided, however, that such period
shall not end before the 30th day following the date on which
the notification was provided to a Participant). If the
Participant requests a specific written explanation of all or
any portion of the notification, the explanation shall be
provided within thirty (30) days of the Participant's request.
The Plan Administrator need not comply with more than one such
request made by a particular Participant.
14. Section 9.06(b) is further amended by restating the third paragraph
thereof, effective as of January 1, 1997:
During the Joint and Survivor Election Period, as hereinafter
defined, a Participant eligible to make the election to waive
the Automatic Qualified Joint and Survivor Annuity of
Subsection (a) shall be eligible to elect to receive his
benefits as provided in Section 9.03. The election shall be in
writing and may be revoked at any time during the Joint and
Survivor Election Period. New elections and revocations may be
made any number of times during the Joint and Survivor
Election Period after a previous election or revocation. For
purposes of this paragraph, the term "Joint and Survivor
Election Period" shall mean the ninety (90) day period ending
on the Annuity Starting Date (or ending after such date, if so
elected by the Plan Administrator, provided such period shall
not end before the 30th day following the date on which the
notification described in this Section 9.06(b) was provided to
a Participant). If the Plan Administrator so elects for any
Plan Year, payment to a Participant of that the portion of his
benefit which is
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attributable to his Annuity Eligible Accrued Benefit may
commence less than 30 days after notification described in this
Section 9.06(b) is given, provided that the following conditions
are satisfied:
(i) The Plan Administrator clearly informs the Participant that he
has the right to a period of at least 30 days after receiving
the notification described in this Section 9.06(b) to consider
the election to waive the Qualified Joint and Survivor Annuity
form of payment;
(ii) After receiving the notification, the Participant affirmatively
elects a form of payment (with any applicable spousal consent);
(iii) A Participant is permitted to revoke his payment elections until
the later of (a) his Annuity Starting Date, or (2) seven days
after receiving the notification described in this Section
9.06(b); and
(iv) Payments are made after the end of the revocation period
described in Subsection (iii) above.
15. Section 9.06(c)(3) is restated to read as follows, effective
as of January 1, 1998:
(3) The lump sum benefit otherwise payable to the Participant is
less than five thousand dollars ($5,000) and a lump sum payment
will be made pursuant to Section 9.03.
16. Section 10.03 is amended by restating the first sentence of
the second paragraph thereof to read as follows, effective as of
January 1, 1998:
If the lump sum benefit otherwise payable to the Beneficiary
is not more than five thousand dollars ($5,000) and payment of
benefits to the deceased Participant has not previously
commenced, the benefit shall be paid as a single lump sum
payment.
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17. Section 10.05(i) is restated to read as follows, effective
as of January 1, 1998:
(i) If the lump sum amount of the Qualified Pre-retirement
Survivor Annuity otherwise payable to the surviving
spouse is less than five thousand dollars ($5,000), such
benefit shall be paid as a single lump sum payment.
18. Section 11.02 is amended by restating the last sentence in
the second paragraph thereof to read as follows, effective as of
January 1, 1998.
However, if the lump sum amount that would be payable to a
Participant is not more than five thousand dollars ($5,000)
and the amount in the Participant's Account has never exceeded
that amount at the time of any prior distribution, then the
benefit shall be paid as a single lump sum payment, subject to
the limitations of this Section 11.02, as though the
Participant had elected immediate distribution.
19. Section 16.05 is amended by adding the following sentence at
the end of the first paragraph thereof effective as of April 1, 1998:
The Trustee will transfer the balance in a Participant's (or
Former Participant's) Elective Deferral Account as of March
31, 1998, to the Granite Construction Profit Sharing and
401(k) Plan (the "401(k) Plan"), a qualified defined
contribution plan under Code Section 401(a), effective as of
April 1, 1998. Any optional forms of distribution or other
rights with respect to such assets which are required to be
preserved under Section 17.03 of the Plan and Code Section
411(d)(6) shall be provided under the 401(k) Plan.
20. Section 17.01 is amended by adding the following sentence at
the end thereof effective as of March 31, 1998:
The Plan is terminated effective as of March 31, 1998, with
respect to that portion of the Plan which does not include
Participants' (or Former Participants') Elective Deferral
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Accounts. Participants' (or Former Participants') Elective
Deferral Accounts will be transferred to the 401(k) Plan on
April 1, 1998, in the manner described in Section 16.05.
Distribution of each Participant's and Former Participant's
remaining Accrued Benefit in the Plan shall be offered to each
Participant and Former Participant, in accordance with the
provisions of Articles IX, X and XI, as soon as practicable
after March 31, 1998. If a Participant (or Former Participant)
fails to select a form of distribution within the 30-day
period after being informed that distributions are available,
his remaining Accrued Benefit in the Plan shall be transferred
to the 401(k) Plan as soon as practicable thereafter in the
manner described in Section 16.05.
IN WITNESS WHEREOF, GG&R, has caused this Amendment No. 7 to the Plan to
be duly executed as of the date and year first above written.
"EMPLOYER"
G. G. & R., Inc.
By /s/ DAVID H. WATTS
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David H. Watts
Its President
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