EXHIBIT 10.1
AMENDMENT NUMBER 1
TO THE
M/I SCHOTTENSTEIN HOMES, INC. 401(K) PROFIT SHARING PLAN
FOR THE
ECONOMIC GROWTH AND TAX RELIEF
RECONCILIATION ACT OF 2001
WHEREAS, M/I Schottenstein Homes, Inc. (the "Sponsor") has adopted the
M/I Schottenstein Homes, Inc. 401(k) Profit Sharing Plan (the "Plan"); and
WHEREAS, the Plan provides that it may be amended from time to time;
and
WHEREAS, the Economic Growth & Tax Relief Reconciliation Act of 2001
("EGTRRA") became law generally effective on and after January 1, 2002; and
WHEREAS, the following amendments to the Plan are intended to
constitute good faith compliance with the requirements of EGTRRA and shall be
construed in accordance with EGTRRA and guidance issued thereunder;
NOW, THEREFORE, the Plan is amended as follows:
1. The last sentence set forth in subsection (a) of Section 2.01 of the
Plan is deleted in its entirety and the following sentence shall be substituted,
effective for taxable years commencing on or after January 1, 2002:
The amount of such contribution by the Employer shall be such
amount as the Employer may in its discretion determine; provided,
however, that, in any year, the amount contributed shall not exceed
the amount deductible under Section 404(a)(3)(A) of the Code.
2. The following subsection (d) shall be added to Section 2.02 of the
Plan and shall apply after December 31, 2001:
(d) An actively employed Participant who is prevented from
making additional Section 401(k) Contributions to the Plan for a
Plan Year as a result of a Plan limitation regarding the amount of
Section 401(k) Contributions the Participant may make for a Plan
Year; the limitations imposed by Sections 3.01, 3.0[3](a) or
3.0[3](b) of the Plan or any other applicable limitation, and who
has or will attain age 50 by the last day of any calendar year
beginning on or after January 1, 2002, may make an additional
contribution to the Plan, hereinafter referred to as a "catch-up
contribution."
The amount of a catch-up contribution made by a Participant
shall not exceed the dollar limitation set forth in Code Section
414(v)(2)(B) [as adjusted in
accordance with Code Section 414(v)(2)(C)] or the amounts described
in Code Section 414(v)(2)(A).
Catch-up contributions shall not be subject to the otherwise
applicable limitations described in Sections 401(a)(30), 401(k)(3),
404(h), 410(b), 415 or 416 of the Code, or any other applicable
limitation for the relevant Plan Year, Limitation Year or calendar
year for which such contribution is credited, but shall otherwise be
treated as Section 401(k) Contributions. [Notwithstanding the
foregoing, catch-up contributions made by a Participant shall not be
treated as Section 401(k) Contributions for the purpose of
calculating the amount of Matching Contributions that may be
allocated to a Participant's Matching Contribution Account.]
The provision of this subparagraph shall be applicable on an
equivalent basis to all Participants in the Plan who are eligible to
make catch-up contributions and to similarly situated participants
in any other plan sponsored by an Employer or Affiliate that
provides for elective deferrals under a "qualified cash or deferred
arrangement" [within the meaning of Treasury Regulation
1.401(k)-1(a)(4)].
3. Section 2.04 of the Plan, titled "Rollover Contributions," shall be
deleted in its entirety and the following shall be substituted, effective for
amounts contributed to the Plan by a Participant after December 31, 2001:
2.04 ROLLOVER CONTRIBUTIONS
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Subject to the Plan Administrator's reasonable determination
that a Rollover Contribution meets the requirements of Section
402(c) of the Code, a Participant who is also an active Employee may
contribute to the Plan, as a Rollover Contribution, a distribution
from an "eligible retirement plan" within the meaning of Code
Section 402(c)(8)(B), provided such amounts do not consist of
after-tax contributions. Amounts so rolled over will be credited to
and maintained in the Participant's Rollover Account. Amounts
transferred directly from another eligible retirement plan to the
Plan pursuant to Section 401(a)(31) of the Code will be treated as a
Rollover Contribution.
4. The first sentence of Section 3.01 of the Plan shall be deleted in
its entirety and the following substituted in its place, effective for
Limitation Years commencing after December 31, 2001:
Annual Additions to each Participant's Account will not exceed
the lesser of (a) the amount determined by reference to Code Section
415(c)(1)(A); or (b) 100% of the Participant's "Section 415 Limit
Compensation" paid or made available for the applicable Limitation
Year.
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5. The following sentence shall be added to the second paragraph of
Section 3.01 of the Plan at the end thereof, effective for Limitation Years
commencing after December 31, 2001:
Section 415 Limit Compensation shall not include contributions to a
Participant's Account for medical benefits [within the meaning of
Section 401(h) or Section 419A(f)(2) of the Code] after the
Participant's separation from service, notwithstanding the fact that
such contributions may otherwise be treated as Annual Additions.
6. The first sentence of subsection (a) of Section 3.03 of the Plan
shall be deleted in its entirety and shall be restated as follows, effective for
calendar years commencing on or after January 1, 2002:
For each calendar year, the Section 401(k) Contributions made by a
Participant, excluding (i) amounts treated as excess Annual
Additions pursuant to Section 3.0[2] of the Plan; and (ii) catch-up
contributions deferred by a Participant in accordance with Section
414(v) of the Code, shall not exceed the limitation set forth in
Section 402(g)(1) of the Code, as adjusted by Section 402(g)(4) of
the Code.
7. The following sentence shall be added to the definition of "deferral
percentage" after the first sentence of subsection (c) of Section 3.03 of the
Plan, effective for Plan Years commencing on or after January 1, 2002:
Catch-up contributions deferred by a Participant in accordance with
Section 414(v) of the Code will not be included in determining the
Participant's deferral percentage.
8. The first sentence of Section 9.01 shall be deleted in its entirety
and the following shall be substituted, effective on and after January 1, 2002:
A Participant who incurs a severance from employment from the
Employer and all Affiliates for any reason other than retirement
(pursuant to Section 6), death (pursuant to Section 7) or disability
(pursuant to Section 8) will be entitled to receive the entire value
of his Account. The term "severance from employment" shall be
interpreted in accordance with Code Section 401(a)(2)(B)(i)(I) and
applicable authority thereunder. This amendment shall not apply to
Participants who have severed their employment from the Employer and
all Affiliates prior to January 1, 2002.
A Participant who is eligible for a distribution pursuant to
this section may elect among the forms of benefits set forth in
Section 11.01.
9. The reference in subparagraph (iii) of Section 9.02(c) of the Plan
to "12 months" shall be revised to read "6 months," effective for hardship
distributions received by a Participant on or after January 1, 2002.
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10. Subparagraph (iv) of Section 9.02(c) of the Plan shall be deleted,
effective on and after January 1, 2002, for hardship distributions made on or
after January 1, 2001.
11. Section 9.03, titled "Disposition of Assets of the Employer or
Subsidiary" shall be deleted, effective on and after January 1, 2002.
12. The reference to "$5,000" each place it appears in Section 11.04 of
the Plan shall be deleted and "$5,000 (excluding the Participant's Rollover
Account)" shall be substituted, effective for distributions made to Participants
after December 31, 2001.
13. Item (E) of Section 11.05(b)(i) of the Plan shall be deleted in its
entirety and the following shall be substituted, effective for distributions
from the Plan after December 31, 2001:
(E) a distribution made to a Participant in accordance with the
hardship rules set forth in Treasury Regulation
1.401(k)-1(d)(2)(ii), to the extent that such distribution is
otherwise permitted by the Plan.
14. The second sentence of paragraph (ii) of Section 11.05(b) of the
Plan, definition of "eligible retirement plan," shall be deleted in its entirety
and the following paragraph shall be substituted, effective for distributions
from the Plan after December 31, 2001:
An eligible retirement plan shall also mean an annuity contract
described in Code Section 403(b) and an eligible plan under Code
Section 457(b) 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
relations order, as defined in Code Section 414(p).
15. Paragraph (i) of Section 16.03(c) of the Plan shall be deleted in
its entirety and the following shall be substituted, effective for Plan Years
commencing on or after January 1, 2002:
(i) Loans will be made available to all Participants or
Beneficiaries on a reasonably equivalent basis.
16. Sections 18.01, 18.02 and 18.03 of the Plan shall be deleted in
their entirety and the following shall be substituted, effective for Plan Years
commencing on or after January 1, 2002:
18.01 DEFINITIONS
-----------
If, for any Plan Year, the Plan is a Top Heavy Plan, the
provisions of Section 18.03 will be applicable. For the purpose of
this section, to the extent necessary, the term "Employer" includes
an Affiliate other than an Employer; and the term
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"Employee" includes an employee of an Affiliate other than an
Employee of the Employer. The following definitions are applicable
to this Section 18.01.
(a) Key Employee: An Employee who at any time during the Plan
Year that includes the Determination Date is (i) an officer of the
Employer with annual compensation exceeding $130,000 [as adjusted
in accordance with Code Section 417(i)(1)(A)]; (ii) a 5% owner of
the Employer; or (iii) a 1% owner of the Employer who has annual
compensation of more than $150,000. For purposes of this section,
"annual compensation" means compensation as defined in Code Section
415(c)(3). The determination period is the Plan Year containing the
Determination Date and the four preceding Plan Years. The
determination of who is a Key Employee will be made in accordance
with Code Section 416(i)(1) and the regulations thereunder.
(b) Non-Key Employee: An Employee or former Employee of the
Employer who is not a Key Employee. The Beneficiary of a Non-Key
Employee will be treated as a Non-Key Employee, and the Beneficiary
of a former Non-Key Employee will be treated as a former Non-Key
Employee.
(c) Determination Date: For all Plan Years subsequent to the
first Plan Year, the last day of the preceding Plan Year. For the
first Plan Year, the last day of such Plan Year.
(d) Permissive Aggregation Group: The Required Aggregation
Group of plans plus any other plan or plans of the Employer that,
when considered as a group with the Required Aggregation Group,
would continue to satisfy the requirements of Code Sections
401(a)(4) and 410.
(e) Required Aggregation Group: (i) Each qualified plan of
the Employer in which at least one Key Employee participates or
participated at any time during the Plan Year containing the
Determination Date and the four preceding Plan Years (regardless of
whether the Plan has terminated); and (ii) any other qualified plan
of the Employer that enables a plan described in (i) of this
paragraph (e) to meet the requirements of Code Sections 401(a)(4)
or 410.
(f) Top Heavy Plan: The Plan, if in any Plan Year it is top
heavy as set forth in Section 18.02.
(g) Top Heavy Compensation: Top Heavy Compensation means
"compensation" as defined in Code Section 415(c)(3) and Treasury
Regulation 1.415(2)(d)(11)(i) for Limitation Years beginning prior
to January 1, 1998, taking into consideration Code Section
414(q)(4)(B).
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18.02 TOP HEAVY STATUS
----------------
The Plan and any other plans aggregated with it will become
top heavy pursuant to this Section 18.02 as of the Determination
Date if the present value of accrued benefits of Key Employees is
more than 60% of the sum of the present value of accrued benefits of
all Employees. In the case of more than one plan which is to be
aggregated with the Plan, the present value of the accrued benefits
of employees in such plan is first determined separately for each
plan as of each plan's determination date. The plans will then be
aggregated by adding the results of each plan as of the
determination dates for such plans that fall within the same
calendar year. The combined results will indicate whether the plans
are top heavy. For the purpose of determining the present value of
the accrued benefits of an Employee (a) the present value of accrued
benefits of the Employee will be increased by the aggregate
distributions made with respect to such Employee during the period
specified in the third paragraph of this Section 18.02 below that
ends on the Determination Date; (b) the accrued benefits of former
Key Employees will not be taken into account; and (c) the accrued
benefits of Employees who have not performed services at any time
during the one-year period ending on the Determination Date for the
Employer maintaining the Plan will not be taken into account.
Notwithstanding the foregoing, if the Plan is aggregated for
top heavy purposes with a defined benefit plan, the present value of
accrued benefits will be determined, for the Plan and for such other
plan, by using the interest rate and mortality assumptions contained
in such other plan. If a Required or Permissive Aggregation Group
includes two or more defined benefit plans (a) the same actuarial
assumptions will be used with respect to all such plans and must be
specified in such plans; and (b) the accrued benefits of Non-Key
Employees will be determined under a uniform accrual method or,
where there is no such method, as if such benefit accrued not more
rapidly than the slowest rate of accrual permitted under the
fractional rule of Code Section 411(b)(1)(C).
The present value of accrued benefits as of the Determination
Date for any applicable Employee or former Employee is the sum of
(a) the applicable Employee's Account as of the most recent
valuation date occurring within a 12-month period ending on the
Determination Date; (b) an adjustment for contributions due as of
the Determination Date; and (c) the aggregate distributions made
with respect to such individual under the Plan (or a terminated plan
that would be required to be aggregated for the purpose of this
Section 18.02) during the one-year period ending on the
Determination Date for distributions other than in-service
distributions, and during the five-year period ending on the
Determination Date for in-service distributions. [For a profit
sharing plan, the adjustment in (b) is generally the amount of
contributions actually made after the Valuation Date but on or
before the Determination Date.]
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In determining whether the Plan is top heavy, it must be
aggregated with each plan included in the Required Aggregation
Group. In addition, the Employer may aggregate plans included in the
Permissive Aggregation Group.
Notwithstanding the foregoing, the Plan shall not be treated
as a Top Heavy Plan in any Plan Year beginning on or after January
1, 2002, in which the Plan consists solely of (a) a cash or deferred
arrangement that meets the requirements of Section 401(k)(12) of the
Code; and (b) [matching contributions that comply with Section
401(m)(11) of the Code][[Matching Contributions that comply with
Section 401(m)(11) of the Code]].
18.03 MINIMUM CONTRIBUTIONS
---------------------
For each Plan Year in which the Plan is top heavy, each
Participant who is a Non-Key Employee and who is employed on the
last day of the Plan Year (including a Participant who was not
credited with at least 1,000 Hours of Service in the Plan Year) is
required to receive an annual allocation of Employer Contributions
(disregarding Social Security benefits) equal to at least 3% of his
Top Heavy Compensation; provided that, if the largest percentage of
Top Heavy Compensation allocated to a Key Employee (including all
Section 401(k) Contributions allocated for the benefit of a Key
Employee) for a Plan Year is less than 3%, such percentage will be
substituted for 3%. Such amount will be referred to in this Section
18.03 as the "top heavy minimum contribution." For each year in
which the Employer maintains a defined benefit plan in addition to
the Plan, the requirements of this paragraph will be satisfied for
all Non-Key Employees who participate in both plans by providing
each Non-Key Employee with the 2% minimum annual benefit provided
under the top heavy provisions of the defined benefit plan. For each
year in which the Employer maintains another defined contribution
plan in addition to the Plan, the minimum benefit described in this
paragraph may be provided for Non-Key Employees who participate in
both plans by such other defined contribution plan, or the Plan, as
elected by the Plan Administrator.
For each Plan Year in which the Plan is required to provide
the top heavy minimum contribution, the Employer will contribute to
the Account of each Non-Key Employee required to receive an
allocation pursuant to the previous paragraph an amount equal to the
difference between the amount necessary to provide such Non-Key
Employee with the top heavy minimum contribution for such year and
the amount previously allocated to such Non-Key Employee's Account
consisting of Employer Contributions (other than elective
contributions under a qualified cash or deferred arrangement) for
such year.
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17. The following sentence shall be added to the last paragraph of the
definition of "Annual Additions" contained in Section 21 of the Plan, at the end
thereof, effective on and after January 1, 2002:
Annual Additions shall not include catch-up contributions deferred
by the Participant in accordance with Section 414(v) of the Code.
IN WITNESS WHEREOF, this amendment shall be effective as of the dates
set forth above.
M/I SCHOTTENSTEIN HOMES, INC.
By:
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Name (Print):
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Title:
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Date: November 12, 2002
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