EXHIBIT 10.15
NONSTANDARDIZED ADOPTION AGREEMENT
PROTOTYPE CASH OR DEFERRED PROFIT-SHARING PLAN
SPONSORED BY
U.S. BANK, N.A.
The Employer named below hereby establishes a Cash or Deferred Profit-Sharing
Plan for eligible Employees as provided in this Adoption Agreement and the
accompanying Basic Plan Document #01.
I. EMPLOYER INFORMATION
IF MORE THAN ONE EMPLOYER IS ADOPTING THE PLAN, COMPLETE THIS SECTION
BASED ON THE LEAD EMPLOYER. ADDITIONAL EMPLOYERS WHO ARE MEMBERS OF THE
SAME CONTROLLED GROUP OR AFFILIATED SERVICE GROUP MAY ADOPT THIS PLAN
BY COMPLETING AND EXECUTING SECTION XX(A) OF THE ADOPTION AGREEMENT.
A. NAME AND ADDRESS:
JDA Software, Inc.
14400 North 87th Street
Scottsdale, AZ 85260
B. TELEPHONE NUMBER: 480-308-3073
C. EMPLOYER'S TAX ID NUMBER: 86-0673401
D. FORM OF BUSINESS:
[ ] 1. Sole Proprietor [ ] 5. Limited Liability Company
[ ] 2. Partnership [ ] 6. Limited Liability Partnership
[X] 3. Corporation [ ] 7. _____________________________
[ ] 4. S Corporation
E. IS THE EMPLOYER PART OF A CONTROLLED GROUP? [X] YES [ ] NO
PART OF AN AFFILIATED SERVICE GROUP? [ ] YES [X] NO
F. NAME OF PLAN: JDA SOFTWARE, INC. 401(k) PROFIT SHARING PLAN
G. THREE DIGIT PLAN NUMBER: 001
H. EMPLOYER'S TAX YEAR END: 12/31
I. EMPLOYER'S BUSINESS CODE: ____________________________________
II. EFFECTIVE DATE
A. NEW PLAN:
This is a new Plan having an Effective Date of ______________.
B. AMENDED AND RESTATED PLANS:
This is an amendment or restatement of an existing Plan. The
initial Effective Date of the Plan was 01/01/1989. The
Effective Date of this amendment or restatement is 01/01/2004.
Section 401(k) Plan AA #010
1
C. AMENDED OR RESTATED PLANS FOR GUST:
This is an amendment or restatement of an existing Plan to
comply with GUST [The Uruguay Round Agreements, Pub. L.
103-465 (GATT); The Uniformed Services Employment and
Reemployment Rights Act of 1994, Pub. L. 103-353 (USERRA); The
Small Business Job Protection Act of 1996, Pub. L. 104-188
(SBJPA) [including Section 414(u) of the Internal Revenue
Code]; The Taxpayer Relief Act of 1997, Pub. L. 105-34
(TRA'97); The Internal Revenue Service Restructuring and
Reform Act of 1998, Pub. L. 105-206 (IRSRRA), and The
Community Renewal Tax Relief Act of 2000, Pub. L. 106-554
(CRA). The initial Effective Date of the Plan was
________________________________________. Except as provided
for in the Plan, the Effective Date of this amendment or
restatement is __________________________. (The restatement
date should be no earlier than the first day of the current
Plan Year. The Plan contains appropriate retroactive Effective
Dates with respect to provisions of GUST.)
PURSUANT TO CODE SECTION 411(d)(6) AND THE REGULATIONS ISSUED
THEREUNDER, AN EMPLOYER CANNOT REDUCE, ELIMINATE OR MAKE
SUBJECT TO EMPLOYER DISCRETION ANY CODE SECTION 411(d)(6)
PROTECTED BENEFIT. WHERE THIS PLAN DOCUMENT IS BEING ADOPTED
TO AMEND ANOTHER PLAN THAT CONTAINS A PROTECTED BENEFIT NOT
PROVIDED FOR IN THE BASIC PLAN DOCUMENT #01, THE EMPLOYER MAY
COMPLETE SCHEDULE A AS AN ADDENDUM TO THIS ADOPTION AGREEMENT.
SCHEDULE A DESCRIBES SUCH PROTECTED BENEFITS AND SHALL BECOME
PART OF THIS PLAN. IF A PRIOR PLAN DOCUMENT CONTAINS A PLAN
FEATURE NOT PROVIDED FOR IN THE BASIC PLAN DOCUMENT #01, THE
EMPLOYER MAY ATTACH SCHEDULE B DESCRIBING SUCH FEATURE.
PROVISIONS LISTED ON SCHEDULE B ARE NOT COVERED BY THE IRS
OPINION LETTER ISSUED WITH RESPECT TO THE BASIC PLAN DOCUMENT
#01.
D. EFFECTIVE DATE FOR ELECTIVE DEFERRALS:
If different from above, the Elective Deferral provisions
shall be effective __________________________.
III. DEFINITIONS
A. "COMPENSATION"
Select the definition of Compensation, the Compensation
Computation Period, any Compensation Dollar Limitation and
Exclusions from Compensation for each Contribution Type from
the options listed below. Enter the letter of the option
selected on the lines provided below. Leave the line blank if
no election needs to be made.
COMPENSATION EXCLUSIONS
EMPLOYER COMPENSATION COMPUTATION COMPENSATION FROM
CONTRIBUTION TYPE DEFINITION PERIOD DOLLAR LIMITATION COMPENSATION
- ----------------- ------------ ------------ ----------------- ------------
All Contributions b a $ a
Elective Deferrals $
Voluntary After-tax $
Required After-tax $
Safe Harbor $
Non-Safe Harbor
Match Formula 1 $
QNEC/QMAC $
Discretionary $
Non-Safe Harbor
Match Formula 2 $
ANTIDISCRIMINATION COMPENSATION COMPENSATION COMPENSATION
TESTS DEFINITION COMPUTATION PERIOD DOLLAR LIMITATION
ADP/ACP $
Section 401(k) Plan AA #010
2
COMPENSATION COMPUTATION PERIODS MUST BE CONSISTENT FOR ALL
CONTRIBUTION TYPES, EXCEPT DISCRETIONARY. IF DIFFERENT
COMPUTATION PERIODS ARE SELECTED, THE SELECTION FOR ADP/ACP
TESTING WILL BE DEEMED TO BE THE ELECTION FOR ALL PURPOSES
EXCEPT FOR DISCRETIONARY CONTRIBUTIONS.
1. Compensation Definition:
a. Code Section 3401(a) - W-2 Compensation
subject to income tax withholding at the
source.
b. Code Section 3401(a) - W-2 Compensation
subject to income tax withholding at the
source, with all pre-tax contributions
added.
c. Code Section 6041/6051 - Income reportable
on Form W-2.
d. Code Section 6041/6051 - Income reportable
on Form W-2, with all pre-tax contributions
added.
e. Code Section 415 - All income received for
services performed for the Employer.
f. Code Section 415 - All income received for
services performed for the Employer, with
all pre-tax contributions excluded.
THE CODE SECTION 415 DEFINITION WILL ALWAYS APPLY
WITH RESPECT TO SOLE PROPRIETORS AND PARTNERS.
2. Compensation Computation Period:
a. Compensation paid during a Plan Year while a
Participant.
b. Compensation paid during the entire Plan
Year.
c. Compensation paid during the Employer's
fiscal year.
d. Compensation paid during the calendar year.
3. Compensation Dollar Limitation: The dollar limitation
section does not need to be completed unless
Compensation of less than the Code Section 401(a)(17)
limit of $160,000 (as indexed) is to be used.
4. Exclusions from Compensation (non-integrated plans
only):
a. There will be no exclusions from
Compensation under the Plan.
b. Any amount included in a Participant's gross
income due to the application of Code
Sections 125, 132(f)(4), 402(h)(1)(B),
402(e) or 403(b) will be excluded from the
definition of Compensation under the Plan.
c. Overtime
d. Bonuses
e. Commissions
f. Exclusion applies only to Participants who
are Highly Compensated Employees.
g. Severance pay
h. Holiday and vacation pay
i. Other: _____________________________________
Section 401(k) Plan AA #010
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B. "DISABILITY"
[X] 1. As defined in paragraph 1.26 of the Basic Plan Document
#01.
[ ] 2. As defined in the Employer's Disability Insurance
Plan.
[ ] 3. An individual will be considered to be disabled
if he or she is unable to engage in any substantial
gainful activity by reason of any medically
determinable physical or mental impairment which can
be expected to result in death or to be of long
continued and indefinite duration. An individual
shall not be considered to be disabled unless he or
she furnishes proof of the existence thereof in such
form and manner as the Secretary may prescribe.
C. "HIGHLY COMPENSATED EMPLOYEES - TOP-PAID GROUP ELECTION" For
Plans which are being amended and restated for GUST, please
complete Schedule C outlining the preamendment operation of
the Plan, as well as this section of the Adoption Agreement.
The testing elections made below will apply to the future
operation of the Plan.
[X] 1. Top-Paid Group Election:
In determining who is a Highly Compensated Employee,
the Employer makes the Top-Paid Group election. The
effect of this election is that an Employee (who is
not a 5% owner at any time during the determination
year or the look-back year) who earned more than
$80,000, as indexed for the look-back year, is a
Highly Compensated Employee if the Employee was in
the Top-Paid Group for the look-back year. This
election is applicable for the Plan Year in which
this Plan is effective.
[ ] 2. Calendar Year Data Election:
If the Plan Year is not the calendar year, the prior
year computation period for purposes of determining
if an Employee earned more than $80,000, as indexed,
is the calendar year beginning in the prior Plan
Year. This election is applicable for the Plan Year
in which this Plan is effective.
D. "HOUR OF SERVICE"
Hours shall be determined by the method selected below. The
method selected shall be applied to all Employees covered
under the Plan as follows:
[ ] 1. Not applicable. For all purposes under the Plan, a
Year of Service (Period of Service) is defined as
Elapsed Time.
[X] 2. On the basis of actual hours for which an Employee is
paid or entitled to payment.
[ ] 3. On the basis of days worked. An Employee shall
be credited with ten (10) Hours of Service if such
Employee would be credited with at least one (1) Hour
of Service during the day.
[ ] 4. On the basis of weeks worked. An Employee shall
be credited with forty-five (45) Hours of Service if
the Employee would be credited with at least one (1)
Hour of Service during the week.
[ ] 5. On the basis of semi-monthly payroll periods. An
Employee shall be credited with ninety-five (95)
Hours of Service if such Employee would be credited
with at least one (1) Hour of Service during the
semi-monthly payroll period.
[ ] 6. On the basis of months worked. An Employee shall
be credited with one-hundred-ninety (190) Hours of
Service if such Employee would be credited with at
least one (1) Hour of Service during the month.
Section 401(k) Plan AA #010
4
E. "INTEGRATION LEVEL"
[X] 1. Not applicable. The Plan's allocation formula is not
integrated with Social Security.
[ ] 2. The maximum earnings considered wages for such
Plan Year for Social Security withholding purposes
without regard to Medicare.
[ ] 3. ________% (not more than 100%) of the amount
considered wages for such Plan Year for Social
Security withholding purposes without regard to
Medicare.
[ ] 4. $________, provided that such amount is not in excess
of the amount determined under paragraph (E)(2)
above.
[ ] 5. One dollar over 80% of the amount considered wages
for such Plan Year for Social Security withholding
purposes without regard to Medicare.
[ ] 6. 20% of the maximum earnings considered wages for such
Plan Year for Social Security withholding purposes
without regard to Medicare.
F. "LIMITATION YEAR"
Unless elected otherwise below, the Limitation Year shall be
the Plan Year.
The 12-consecutive month period commencing on 01/01 and ending
on 12/31.
If applicable, there will be a short Limitation Year
commencing on ___________________________ and ending on
___________________________. Thereafter, the Limitation Year
shall end on the date specified above.
G. "NET PROFIT"
[X] 1. Not applicable. Employer contributions to the Plan
are not conditioned on profits.
[ ] 2. Net Profits are defined as follows:
[ ] a. As defined in paragraph 1.61 of Basic Plan
Document #01.
[ ] b. Net Profits will be defined in a uniform and
nondiscriminatory manner which will not
result in a deprivation of an eligible
Participant of any Employer Contribution.
c. Net Profits are required for the following
contributions:
[ ] i. Employer Non-Safe Harbor Match
Formula 1.
[ ] ii. Employer Non-Safe Harbor Match
Formula 2.
[ ] iii. Employer QNEC and QMAC.
[ ] iv. Employer discretionary.
ELECTIVE DEFERRALS CAN ALWAYS BE CONTRIBUTED REGARDLESS OF
PROFITS. TOP-HEAVY MINIMUMS ARE REQUIRED REGARDLESS OF
PROFITS.
H. "PLAN YEAR"
The 12-consecutive month period commencing on 01/01 and ending
on 12/31.
Section 401(k) Plan AA #010
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If applicable, there will be a short Plan Year commencing on
___________________________ and ending on
___________________________. Thereafter, the Plan Year shall
end on the date specified above.
I. "QDRO PAYMENT DATE"
[X] 1. The date the QDRO is determined to be qualified.
[ ] 2. The statutory age 50 requirement applies for purposes
of making distribution to an alternate payee under
the provisions of a QDRO.
J. "QUALIFIED JOINT AND SURVIVOR ANNUITY"
[X] 1. Not applicable. The Plan is not subject to
Qualified Joint and Survivor Annuity rules. The safe
harbor provisions of paragraph 8.7 of the Basic Plan
Document #01 apply. The normal form of payment is a
lump sum. No annuities are offered under the Plan.
[ ] 2. The normal form of payment is a lump sum. The
Plan does provide for annuities as an optional form
of payment at Section XVIII(C) of the Adoption
Agreement. Joint and Survivor rules are avoided
unless the Participant elects to receive his or her
distribution in the form of an annuity.
[ ] 3. The Joint and Survivor Annuity rules are
applicable and the survivor annuity will be
______________% (50%, 66-2/3%, 75% or 100%) of the
annuity payable during the lives of the Participant
and his or her Spouse. If no selection is specified,
50% shall be deemed elected.
K. "QUALIFIED PRERETIREMENT SURVIVOR ANNUITY"
DO NOT COMPLETE THIS SECTION IF PARAGRAPH (J)(1) WAS ELECTED.
[ ] 1. The Qualified Preretirement Survivor Annuity shall be
100% of the Participant's Vested Account Balance in
the Plan as of the date of the Participant's death.
[ ] 2. The Qualified Preretirement Survivor Annuity shall be
50% of the Participant's Vested Account Balance in
the Plan as of the date of the Participant's death.
L. "VALUATION OF PLAN ASSETS"
The assets of the Plan shall be valued on the last day of the
Plan Year and on the following Valuation Date(s):
[ ] 1. There are no other mandatory Valuation Dates.
[X] 2. The Valuation Dates are applicable for the
contribution type specified below:
CONTRIBUTION TYPE VALUATION DATE
----------------- --------------
All Contributions a
Elective Deferrals
Voluntary After-tax
Required After-tax
Safe Harbor
Non-Safe Harbor Match Formula 1
QNEC/QMAC
Discretionary
Non-Safe Harbor Match Formula 2
a. Daily valued.
Section 401(k) Plan AA #010
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b. The last day of each month.
c. The last day of each quarter in the Plan
Year.
d. The last day of each semi-annual period in
the Plan Year.
e. At the discretion of the Plan Administrator.
f. Other:______________________________ .
IV. ELIGIBILITY REQUIREMENTS
Complete the following using the eligibility requirements as specified
for each contribution type. To become a Participant in the Plan, the
Employee must satisfy the following eligibility requirements.
ELIGIBILITY
MINIMUM SERVICE CLASS COMPUTATION
CONTRIBUTION TYPE AGE REQUIREMENT EXCLUSIONS PERIOD ENTRY DATE
- --------------------------------------------------------------------------------
All Contributions 21 2 1,2, 1 1
6
Elective Deferrals
Voluntary After-tax
Required After-tax
Safe Harbor
Contribution*
Non-Safe Harbor
Match - Formula 1
QNECs
QMACs
Employer Discretionary
Non-Safe Harbor Match-
Formula 2
*IF ANY AGE OR SERVICE REQUIREMENT SELECTED IS MORE RESTRICTIVE THAN
THAT WHICH IS IMPOSED ON ANY EMPLOYEE CONTRIBUTION, THAT GROUP OF
EMPLOYEES WILL BE SUBJECT TO THE ADP AND/OR ACP TESTING AS PRESCRIBED
UNDER IRS NOTICES 98-52, 2000-3 AND ANY APPLICABLE IRS REGULATIONS.
A. AGE:
1. No age requirement.
2. Insert the applicable age in the chart above. The age
may not be more than 21.
B. SERVICE:
1. No Service requirement.
2. 1 months of Service (insert number of months
applicable to the specified contribution type).
3. _______ months of Service (insert number of months
applicable to the specified contribution type).
Section 401(k) Plan AA #010
7
4. 1 Year of Service or Period of Service.
5. 2 Years of Service or Periods of Service.
6. 1 Expected Year of Service. May enter after six (6)
months of actual Service.
7. 1 Expected Year of Service. May enter after
__________ months of actual Service [must be less
than one (1) Year].
8. 1 Expected Year of Service. May enter after
__________ months of actual Service [must be less
than one (1) Year].
9. Completion of ___________ Hours of Service within the
___________ month(s) time period following an
Employee's commencement of employment.
NO MORE THAN 83 1/3 HOURS OF SERVICE MAY BE REQUIRED DURING
EACH SUCH MONTH; PROVIDED, HOWEVER, THAT THE EMPLOYEE SHALL
BECOME A PARTICIPANT NO LATER THAN UPON THE COMPLETION OF
1,000 HOURS OF SERVICE WITHIN AN ELIGIBILITY COMPUTATION
PERIOD AND THE ATTAINMENT OF THE MINIMUM AGE REQUIREMENT.
THE MAXIMUM SERVICE REQUIREMENT FOR ELECTIVE DEFERRALS IS 1
YEAR. FOR ALL OTHER CONTRIBUTIONS, THE MAXIMUM IS 2 YEARS. IF
A SERVICE REQUIREMENT GREATER THAN 1 YEAR IS SELECTED,
PARTICIPANTS MUST BE 100% VESTED IN THAT CONTRIBUTION.
A Year of Service for eligibility purposes is defined as
follows (choose one):
DO NOT ENTER THIS DEFINITION IN THE TABLE ABOVE.
[X] 10. Not applicable. There is no Service requirement.
[ ] 11. Not applicable. The Plan is using Expected Year of
Service or has a Service requirement of less than one
(1) year.
[ ] 12. Hours of Service method. A Year of Service will
be credited upon completion of ____________ Hours of
Service. A Year of Service for eligibility purposes
may not be less than 1 Hour of Service nor greater
than 1,000 hours by operation of law. If left blank,
the Plan will use 1,000 hours.
[ ] 13. Elapsed Time method.
C. EMPLOYEE CLASS EXCLUSIONS:
1. Employees included in a unit of Employees covered by
a collective bargaining agreement between the
Employer and Employee Representatives, if benefits
were the subject of good faith bargaining and if two
percent or less of the Employees are covered pursuant
to the agreement are professionals as defined in
ss.1.410(b)-9 of the Regulations. For this purpose,
the term "employee representative" does not include
any organization more than half of whose members are
owners, officers, or executives of the Employer.
2. Employees who are non-resident aliens [within the
meaning of Code Section 7701(b)(1)(B)] who receive no
Earned Income [within the meaning of Code Section
911(d)(2)] from the Employer which constitutes income
from sources within the United States [within the
meaning of Code Section 861(a)(3)].
3. Employees compensated on an hourly basis.
4. Employees compensated on a salaried basis.
5. Employees compensated on a commission basis.
6. Leased Employees.
Section 401(k) Plan AA #010
8
7. Highly Compensated Employees.
8. The Plan shall exclude from participation any
nondiscriminatory classification of Employees
determined as follows: ____________________________
D. ELIGIBILITY COMPUTATION PERIOD: The initial Eligibility
Computation Period shall commence on the date on which an
Employee first performs an Hour of Service and the first
anniversary thereof. Each subsequent Computation Period shall
commence on:
1. Not applicable. The Plan has a Service requirement of
less than one (1) year or uses the Elapsed Time
method to determine eligibility.
2. The anniversary of the Employee's employment
commencement date and each subsequent 12-consecutive
month period thereafter.
3. The first day of the Plan Year which commences prior
to the first anniversary date of the Employee's
employment commencement date and each subsequent Plan
Year thereafter.
E. ENTRY DATE OPTIONS:
1. The first day of the month coinciding with or next
following the date on which an Employee meets the
eligibility requirements.
2. The first day of the payroll period coinciding with
or next following the date on which an Employee meets
the eligibility requirements.
3. The earlier of the first day of the Plan Year, or the
first day of the fourth, seventh or tenth month of
the Plan Year coinciding with or next following the
date on which an Employee meets the eligibility
requirements.
4. The earlier of the first day of the Plan Year or the
first day of the seventh month of the Plan Year
coinciding with or next following the date on which
an Employee meets the eligibility requirements.
5. The first day of the Plan Year following the date on
which the Employee meets the eligibility
requirements. If this election is made, the Service
waiting period cannot be greater than one-half year
and the minimum age requirement may not be greater
than age 20-1/2.
6. The first day of the Plan Year nearest the date on
which an Employee meets the eligibility requirements.
THIS OPTION CAN ONLY BE SELECTED FOR EMPLOYER RELATED
CONTRIBUTIONS.
7. The first day of the Plan Year during which the
Employee meets the eligibility requirements. THIS
OPTION CAN ONLY BE SELECTED FOR EMPLOYER RELATED
CONTRIBUTIONS.
8. The Employee's date of hire.
F. EMPLOYEES ON EFFECTIVE DATE:
[X] 1. All Employees will be required to satisfy both the
age and Service requirements specified above.
[ ] 2. Employees employed on the Plan's Effective Date do
not have to satisfy the age requirement specified
above.
[ ] 3. Employees employed on the Plan's Effective Date do
not have to satisfy the Service requirement specified
above.
Section 401(k) Plan AA #010
9
G. SPECIAL WAIVER OF ELIGIBILITY REQUIREMENTS:
The age and/or Service eligibility requirements specified
above shall be waived for those eligible Employees who are
employed on the following date for the contribution type(s)
specified. This waiver applies to either the age or service
requirement or both as elected below:
WAIVER OF AGE WAIVER OF SERVICE
WAIVER DATE REQUIREMENT REQUIREMENT CONTRIBUTION TYPE
- -----------------------------------------------------------------------------------------------
All Contributions
Elective Deferrals
Employer Discretionary
Non-Safe Harbor Match Formula 1
Safe Harbor Contribution
QNEC
QMAC
Non-Safe Harbor Match Formula 2
V. RETIREMENT AGES
A. NORMAL RETIREMENT:
[ ] 1. Normal Retirement Age shall be age ________ (not to
exceed 65).
[X] 2. Normal Retirement Age shall be the later of
attaining age 55 (not to exceed age 65) or the 5TH
(not to exceed the fifth) anniversary of the first
day of the first Plan Year in which the Participant
commenced participation in the Plan.
3. The Normal Retirement Date shall be:
[X] a. as of the date the Participant attains
Normal Retirement Age.
[ ] b. the first day of the month next following
the Participant's attainment of Normal
Retirement Age.
B. EARLY RETIREMENT:
[X] 1. Not applicable.
[ ] 2. The Plan shall have an Early Retirement Age of
________ (not less than age 55) and completion of
________ Years of Service.
3. The Early Retirement Date shall be:
[ ] a. as of the date the Participant attains Early
Retirement Age.
[ ] b. the first day of the month next following
the Participant's attainment of Early
Retirement Age.
VI. EMPLOYEE CONTRIBUTIONS
A. ELECTIVE DEFERRALS:
[X] 1. Up to 50%.
[ ] 2. Participants shall be permitted to make Elective
Deferrals in any amount from a minimum of _______% to
a maximum of _______% of their Compensation not to
exceed $__________.
Section 401(k) Plan AA #010
10
[ ] 3. Participants shall be permitted to make Elective
Deferrals in a flat dollar amount from a minimum of
$______________ to a maximum of $_____________, not
to exceed ______% of their Compensation.
[ ] 4. Up to the maximum percentage of Compensation and
dollar amount permissible under Section 402(g) of the
Internal Revenue Code not to exceed the limits of
Code Sections 401(k), 404 and 415.
B. BONUS OPTION:
[X] 1. Not applicable.
[ ] 2. Bonuses paid by the Employer ARE included in the
definition of Compensation and the Employer permits a
Participant to amend their deferral election to defer
to the Plan, an amount not to exceed __________% or
$_________ of any bonus received by the Participant
for any Plan Year.
C. AUTOMATIC ENROLLMENT: The Employer elects the automatic
enrollment provisions as follows:
[ ] 1. NEW EMPLOYEES. Employees who have not met the
eligibility requirements shall have Elective
Deferrals withheld in the amount of ________% of
Compensation or $________ of Compensation upon
entering the Plan.
[ ] 2. CURRENT PARTICIPANTS. Current Participants who are
deferring at a percentage less than the amount
selected herein shall have Elective Deferrals
withheld in the amount of ________% of Compensation
or $________ of Compensation.
[ ] 3. CURRENT EMPLOYEES. Employees who are eligible to
participate but not deferring shall have Elective
Deferrals withheld in the amount of ______ % of
Compensation or $_________ of Compensation.
Employees and Participants shall have the right to amend the
stated automatic Elective Deferral percentage or receive cash
in lieu of deferral into the Plan.
D. VOLUNTARY AFTER-TAX CONTRIBUTIONS:
[X] 1. The Plan does not permit Voluntary After-tax
Contributions.
[ ] 2. Participants may make Voluntary After-tax
Contributions in any amount from a minimum of
________% to a maximum of ______% of their
Compensation or a flat dollar amount from a minimum
of $____________ to a -- maximum of $______________.
IF RECHARACTERIZATION OF ELECTIVE DEFERRALS HAS BEEN ELECTED
AT SECTION XII(D) IN THIS ADOPTION AGREEMENT, VOLUNTARY
AFTER-TAX CONTRIBUTIONS MUST BE PERMITTED IN THE PLAN BY
COMPLETING THE SECTION ABOVE.
E. REQUIRED AFTER-TAX CONTRIBUTIONS (THRIFT SAVINGS PLANS ONLY):
[X] 1. The Plan does not permit Required After-tax
Contributions.
[ ] 2. Participants shall be required to make Required
After-tax Contributions as follows:
[ ] a. ________% of Compensation.
[ ] b. A percentage determined by the Employee.
F. ROLLOVER CONTRIBUTIONS:
[ ] 1. The Plan does not accept Rollover Contributions.
Section 401(k) Plan AA #010
11
[ ] 2. Participants may make Rollover Contributions after
meeting the eligibility requirements for
participation in the Plan.
[X] 3. Employees may make Rollover Contributions prior to
meeting the eligibility requirements for
participation in the Plan.
G. ELECTIVE PLAN TO PLAN TRANSFER CONTRIBUTIONS:
[ ] 1. The Plan does not accept Transfer Contributions.
[ ] 2. Participants may make Transfer Contributions after
meeting the eligibility requirements for
participation in the Plan.
[X] 3. Employees may make Transfer Contributions prior to
meeting the eligibility requirements for
participation in the Plan.
H. CHANGES TO ELECTIVE DEFERRALS:
Participants shall be permitted to terminate their Elective
Deferrals at any time upon proper and timely notice to the
Employer. Modifications to Participants' Elective Deferrals
will become effective on a prospective basis as provided for
below:
[ ] 1. On a daily basis.
[ ] 2. Upon _____ (not to exceed 90) days notice to the Plan
Administrator.
[X] 3. On the first day of each quarter.
[ ] 4. On the first day of the next month.
[ ] 5. The beginning of the next payroll period.
I. REINSTATEMENT OF ELECTIVE DEFERRALS:
Participants who terminate their Elective Deferrals shall be
permitted to reinstate their Elective Deferrals on a
prospective basis as provided for below:
[ ] 1. On a daily basis.
[ ] 2. Upon _____ (not to exceed 90) days notice to the Plan
Administrator.
[X] 3. On the first day of each quarter.
[ ] 4. On the first day of the next month.
[ ] 5. The beginning of the next payroll period.
VII. SAFE HARBOR PLAN PROVISIONS
[ ] The Employer elects to comply with the Safe Harbor Cash or Deferred
Arrangement provisions of Article XI of Basic Plan Document #01 and
elects one of the following contribution formulas:
A. SAFE HARBOR TESTS:
[ ] 1. Only the ADP and not the ACP Test Safe Harbor
provisions are applicable.
Section 401(k) Plan AA #010
12
[ ] 2. Both the ADP and ACP Test Safe Harbor provisions are
applicable. If both ADP and ACP provisions are
applicable:
[ ] a. No additional Matching Contributions will be
made in any Plan Year in which the Safe
Harbor provisions are used.
[ ] b. The Employer may make Matching Contributions
in addition to any Safe Harbor Matching
Contributions elected below. (Complete
provisions in Article VIII regarding
Matching Contributions that will be made in
addition to those Safe Harbor Matching
Contributions made below.)
[ ] B. DESIGNATION OF ALTERNATE PLAN TO RECEIVE SAFE HARBOR
CONTRIBUTION:
If the Safe Harbor Contribution as elected below is not being
made to this Plan, the name of the other plan that will
receive the Safe Harbor Contribution is:_____________________
[ ] C. BASIC MATCHING CONTRIBUTION FORMULA:
Matching Contributions will be made on behalf of Participants
in an amount equal to 100% of the amount of the Eligible
Participant's Elective Deferrals that do not exceed 3% of the
Participant's Compensation and 50% of the amount of the
Participant's Elective Deferrals that exceed 3% of the
Participant's Compensation but that do not exceed 5% of the
Participant's Compensation.
[ ] D. ENHANCED MATCHING CONTRIBUTION FORMULA:
Matching Contributions will be made in an amount equal to the
sum of:
[ ] 1. _________% (may not be less than 100%) of the
Participant's Elective Deferrals that do not exceed
_________% (if more than 6% or if left blank, the ACP
Test will apply) of the Participant's Compensation,
plus
[ ] 2. _________% of the Participant's Elective Deferrals
that exceed _________% of the Participant's
Compensation but do not exceed _________% (if more
than 6% or if left blank the ACP Test will apply) of
the Participant's Compensation.
This section must be completed so that at any rate of Elective
Deferrals, the Matching Contribution is at least equal to the
Matching Contribution received if the Employer used the Basic
Matching Contribution Formula. The rate of match cannot
increase as Elective Deferrals increase. If an additional
discretionary match is made, the dollar amount may not exceed
4% of the Participant's Compensation.
[ ] E. GUARANTEED NON-ELECTIVE CONTRIBUTION FORMULA:
The Employer shall make a Non-Elective Contribution equal to
_________% (not less than 3%) of the Compensation of each
Eligible Participant.
[ ] F. FLEXIBLE NON-ELECTIVE CONTRIBUTION FORMULA:
This provision provides the Employer with the ability to amend
the Plan to comply with the Safe Harbor provisions during the
Plan Year. To provide such option, the Employer must amend the
Plan and indicate on Schedule D that the Safe Harbor
Non-Elective Contribution (not less than 3%) will be made for
the specified Plan Year. Such election must comply with all
the applicable notice requirements.
ADDITIONAL NON-SAFE HARBOR CONTRIBUTIONS MAY BE MADE TO THE
PLAN PURSUANT TO ARTICLE XI OF BASIC PLAN DOCUMENT #01.
Section 401(k) Plan AA #010
13
[ ] G. LIMITATIONS ON SAFE HARBOR MATCHING CONTRIBUTIONS:
If a Safe Harbor Matching Contribution is made to the Plan:
[ ] 1. The Employer will annualize the Safe Harbor Matching
Contributions.
[ ] 2. The Employer will not annualize the Safe Harbor
Matching Contributions and elects to match actual
Elective Deferrals made:
[ ] a. on a payroll basis.
[ ] b. on a monthly basis.
[ ] c. on a Plan Year quarterly basis.
If no election is made, the payroll period method
will be used. If one of the Matching Contribution
calculation periods at Section VII(G)(2) above is
selected Matching Contributions must be deposited to
the Plan not later than the last day of the calendar
quarter next following the quarter following to which
they relate.
IF THE SAFE HARBOR PLAN PROVISIONS ARE ELECTED, THE ANTIDISCRIMINATION
TESTS AT ARTICLE XI OF THE BASIC PLAN DOCUMENT #01 ARE NOT APPLICABLE.
SAFE HARBOR CONTRIBUTIONS MADE ARE SUBJECT TO THE WITHDRAWAL
RESTRICTIONS OF CODE SECTION 401(k)(2)(B) AND TREASURY REGULATIONS
SECTION 1.401(k)-1(d); SUCH CONTRIBUTIONS (AND EARNINGS THEREON) MUST
NOT BE DISTRIBUTABLE EARLIER THAN SEPARATION FROM SERVICE, DEATH,
DISABILITY, AN EVENT DESCRIBED IN CODE SECTION 401(k)(10), OR IN THE
CASE OF A PROFIT-SHARING OR STOCK BONUS PLAN, THE ATTAINMENT OF AGE
59 1/2. SAFE HARBOR CONTRIBUTIONS ARE NOT AVAILABLE FOR HARDSHIP
WITHDRAWALS.
THE ACP TEST SAFE HARBOR IS AUTOMATICALLY SATISFIED IF THE ONLY
MATCHING CONTRIBUTION TO THE PLAN IS EITHER A BASIC MATCHING
CONTRIBUTION OR AN ENHANCED MATCHING CONTRIBUTION THAT DOES NOT PROVIDE
A MATCH ON ELECTIVE DEFERRALS IN EXCESS OF 6% OF COMPENSATION. FOR
PLANS THAT ALLOW VOLUNTARY OR REQUIRED AFTER-TAX CONTRIBUTIONS, THE ACP
TEST IS APPLICABLE WITH REGARD TO SUCH CONTRIBUTIONS.
EMPLOYEES ELIGIBLE TO MAKE ELECTIVE DEFERRALS TO THIS PLAN MUST BE
ELIGIBLE TO RECEIVE THE SAFE HARBOR CONTRIBUTION IN THE PLAN LISTED
ABOVE, TO THE EXTENT REQUIRED BY IRS NOTICES 98-2 AND 2000-3.
Section 401(k) Plan AA #010
14
VIII. EMPLOYER CONTRIBUTIONS
The Employer shall make contributions to the Plan in accordance with
the formula or formulas selected below. The Employer's contribution
shall be subject to the limitations contained in Articles III and X.
For this purpose, a contribution for a Plan Year shall be limited by
Compensation earned in the Limitation Year which ends with or within
such Plan Year.
Do not complete this Section of the Adoption Agreement if the Plan only
offers a Safe Harbor Contribution. A Plan that offers both a Safe
Harbor Matching Contribution as well as an additional Matching
Contribution which is specified below, must complete both Sections VII
and VIII of the Adoption Agreement.
A. MATCHING EMPLOYER CONTRIBUTION:
Select the Matching Contribution Formula, Computation Period
and special Limitations for each contribution type from the
options listed below. Enter the letter of the option(s)
selected on the lines provided. Leave the line blank if no
election is required.
NON-SAFE NON-SAFE
HARBOR MATCHING HARBOR MATCHING
TYPE OF MATCHING COMPUTATION MATCHING COMPUTATION
CONTRIBUTION FORMULA 1 PERIOD LIMITATIONS FORMULA 2 PERIOD LIMITATIONS
- ------------------------------------------------------------------------------------------------------------
Elective c g
Deferrals
- ------------------------------------------------------------------------------------------------------------
Voluntary
After-tax
- ------------------------------------------------------------------------------------------------------------
Required
After-tax
- ------------------------------------------------------------------------------------------------------------
403(b)
Deferrals
If any election is made with respect to "403(b) Deferrals"
above, and if this Plan is used to fund any Employer
Contributions, Employer Contributions will be based on the
Elective Deferrals made to an existing 403(b) plan sponsored
by the Employer.
Name of corresponding 403(b) plan:__________________________
1. MATCHING CONTRIBUTION FORMULAS:
ELECTIVE DEFERRAL MATCHING CONTRIBUTION FORMULAS:
a. PERCENTAGE OF DEFERRAL MATCH: The Employer
shall contribute to each eligible
Participant's account an amount equal to
_________% of the Participant's Elective
Deferrals up to a maximum of _________% or
$_________ of Compensation.
b. UNIFORM DOLLAR MATCH: The Employer shall
contribute to each eligible Participant's
account $________ if the Participant who
contributes at least ________% or
$__________ of Compensation. The Employer's
contribution will be made up to a maximum of
_____% of Compensation.
c. DISCRETIONARY MATCH: The Employer's Matching
Contribution shall be determined by the
Employer with respect to each Plan Year. The
Matching Contribution shall be contributed
to each eligible Participant in accordance
with the nondiscriminatory formula
determined by the Employer. If this Plan is
also utilizing a Safe Harbor Contribution,
pursuant to Section VII of this Adoption
Agreement, Discretionary Matching
Contributions may not exceed 4% of
Compensation.
Section 401(k) Plan AA #010
15
d. TIERED MATCH: The Employer shall contribute
to each eligible Participant's account an
amount equal to:
________% of the first ________% of the
Participant's Compensation contributed, and
________% of the next ________% of the
Participant's Compensation contributed, and
________% of the next ________% of the
Participant's Compensation contributed.
The Employer's contribution will be made up
to the [ ] greater of [ ] lesser of
_________% of Compensation, or $__________.
THE PERCENTAGES SPECIFIED ABOVE MAY NOT
INCREASE AS THE PERCENTAGE OF PARTICIPANT'S
CONTRIBUTION INCREASES.
e. PERCENTAGE OF COMPENSATION MATCH: The
Employer shall contribute to each eligible
Participant's account ________% of
Compensation if the eligible Participant
contributes at least ________% of
Compensation.
The Employer's contribution will be made up
to the [ ] greater of [ ] lesser of
_________% of Compensation, or $__________.
f. PROPORTIONATE COMPENSATION MATCH: The
Employer shall contribute to each eligible
Participant who defers at least ________% of
Compensation, an amount determined by
multiplying such Employer Matching
Contribution by a fraction, the numerator of
which is the Participant's Compensation and
the denominator of which is the Compensation
of all Participants eligible to receive such
an allocation.
The Employer's contribution will be made up
to the [ ] greater of [ ] lesser of
_________% of Compensation, or $__________.
g. LENGTH OF SERVICE MATCH: The Employer shall
make Matching Contributions equal to the
formula determined under the following
schedule:
Participant's Total Matching
Years of Service Contribution Formula
- ------------------- --------------------
______________ ___________________________
______________ ___________________________
______________ ___________________________
EACH SEPARATE MATCHING PERCENTAGE
CONTRIBUTION MUST SATISFY CODE SECTION
401(a)(4) NONDISCRIMINATION REQUIREMENTS AND
THE ACP TEST.
VOLUNTARY AFTER-TAX MATCHING CONTRIBUTION FORMULAS:
h. PERCENTAGE OF DEFERRAL MATCH: The Employer
shall contribute to each eligible
Participant's account an amount equal to
______% of the Participant's Voluntary
After-tax Contributions up to a maximum of
______% or $__________ of Compensation.
i. UNIFORM DOLLAR MATCH: The Employer shall
contribute to each eligible Participant's
account $________ if the Participant at
contributes least ________% or $________ of
Compensation. The Employer's contribution
will be made up to a maximum of _____% of
Compensation.
Section 401(k) Plan AA #010
16
j. DISCRETIONARY MATCH: The Employer's Matching
Contribution shall be determined by the
Employer with respect to each Plan Year. The
Matching Contribution shall be contributed
to each eligible Participant in accordance
with the nondiscriminatory formula
determined by the Employer.
REQUIRED AFTER-TAX MATCHING CONTRIBUTION FORMULAS:
k. PERCENTAGE OF DEFERRAL MATCH: The Employer
shall contribute to each eligible
Participant's account an amount equal to
________% of the Participant's Required
After-tax Contributions up to a maximum of
________% or $__________ of Compensation.
l. UNIFORM DOLLAR MATCH: The Employer shall
contribute to each eligible Participant's
account $________ if the Participant
contributes at least _______% or $__________
of Compensation. The Employer's contribution
will be made up to a maximum of ______% of
Compensation.
m. DISCRETIONARY MATCH: The Employer's Matching
Contribution shall be determined by the
Employer with respect to each Plan Year. The
Matching Contribution shall be contributed
to each eligible Participant in accordance
with the nondiscriminatory formula
determined by the Employer.
IF THE MATCHING CONTRIBUTION FORMULA SELECTED BY THE
EMPLOYER IS 100% VESTED AND MAY NOT BE DISTRIBUTED TO
THE PARTICIPANT BEFORE THE EARLIER OF THE DATE THE
PARTICIPANT SEPARATES FROM SERVICE, RETIRES, BECOMES
DISABLED, ATTAINS 59-1/2, OR DIES, IT MAY BE TREATED
AS A QUALIFIED MATCHING CONTRIBUTION.
403(b) MATCHING CONTRIBUTION FORMULAS:
n. PERCENTAGE OF DEFERRAL MATCH: The Employer
shall contribute to each eligible
Participant's account an amount equal to
________% of the Participant's 403(b)
Deferrals up to a maximum of ________% or
$__________ of Compensation.
o. UNIFORM DOLLAR MATCH: The Employer shall
contribute to each eligible Participant's
account $________ if the Participant
contributes at least ______% or $___________
of Compensation. The Employer's contribution
will be made up to a maximum of ______% of
Compensation.
p. DISCRETIONARY MATCH: The Employer's Matching
Contribution shall be determined by the
Employer with respect to each Plan Year. The
Matching Contribution shall be contributed
to each eligible Participant in accordance
with the nondiscriminatory formula
determined by the Employer.
2. MATCHING CONTRIBUTION COMPUTATION PERIOD: The
Compensation or any dollar limitation imposed in
calculating the match will be based on the period
selected below. Matching Contributions will be
calculated on the following basis:
a. Weekly e. Quarterly
b. Bi-weekly f. Semi-annually
c. Semi-monthly g. Annually
d. Monthly h. Payroll Based
The calculation of Matching Contributions based on
the Computation Period selected above has no
applicability as to when the Employer remits Matching
Contributions to the Trust.
Section 401(k) Plan AA #010
17
3. LIMITATIONS ON MATCHING FORMULAS:
a. ANNUALIZATION OF MATCHING CONTRIBUTIONS. The
Employer elects to annualize Matching
Contributions made to the Plan.
IF THIS ELECTION IS NOT MADE, MATCHING
CONTRIBUTIONS WILL NOT BE ANNUALIZED.
b. CONTRIBUTIONS TO PARTICIPANTS WHO ARE NOT
HIGHLY COMPENSATED EMPLOYEES: Contribution
of the Employer's Matching Contribution will
be made only to eligible Participants who
are Non-Highly Compensated Employees.
c. DEFERRALS WITHDRAWN PRIOR TO THE END OF THE
MATCHING COMPUTATION PERIOD: Matching
Contributions (whether or not Qualified)
will not be made on Employee contributions
withdrawn prior to the end of the [ ]
Matching Computation Period, or [ ] Plan
Year.
If elected [ ], this requirement shall apply
in the event of a withdrawal occurring as
the result of a termination of employment
for reasons of retirement, Disability or
death.
4. QUALIFIED MATCHING CONTRIBUTIONS (QMAC):
[ ] a. For purposes of the ADP or ACP Test,
all Matching Contributions made to the Plan
will be deemed "Qualified" for purposes of
calculating the Actual Deferral Percentage
and/or Actual Contribution Percentage. All
Matching Contributions must be fully vested
when made and are not available for
in-service withdrawal.
[ ] b. For purposes of the ADP or ACP Test,
only Matching Contributions made to the Plan
that are needed to meet the Actual Deferral
Percentage or Actual Contribution Percentage
Test will be deemed "Qualified" for purposes
of calculating the Actual Deferral
Percentage and/or Actual Contribution
Percentage. All such Matching Contributions
used must be fully vested when made and are
not available for in-service withdrawal.
5. QUALIFIED NON-ELECTIVE CONTRIBUTIONS (QNEC):
[ ] a. For purposes of the ADP or ACP Test, all
Non-Elective Contributions made to the Plan
will be deemed "Qualified" for purposes of
calculating the Actual Deferral Percentage
and/or Actual Contribution Percentage. All
Non-Elective Contributions must be fully
vested when made and are not available for
in-service withdrawal.
[ ] b. For purposes of the ADP or ACP Test, only
the Non-Elective Contributions made to the
Plan that are needed to meet the Actual
Deferral Percentage or Actual Contribution
Percentage Test will be deemed "Qualified"
for purposes of calculating the Actual
Deferral Percentage and/or Actual
Contribution Percentage. All such
Non-Elective Contributions used must be
fully vested when made and are not available
for in-service withdrawal.
B. QUALIFIED MATCHING (QMAC) AND QUALIFIED NON-ELECTIVE (QNEC)
EMPLOYER CONTRIBUTION FORMULAS:
[ ] 1. QMAC CONTRIBUTION FORMULA: The Employer may
contribute to each eligible Participant's Qualified
Matching account an amount equal to (select one or
more of the following):
[ ] a. $________ or _______% of the Participant's
Elective Deferrals.
[ ] b. $________ or _______% of the Participant's
Voluntary After-tax Contributions.
[ ] c. $________ or _______% of the Participant's
Required After-tax Contributions.
Section 401(k) Plan AA #010
18
[X] 2. DISCRETIONARY QMAC CONTRIBUTION FORMULA: The Employer
shall have the right to make a discretionary QMAC
contribution. The Employer's Matching Contribution
shall be determined by the Employer with respect to
each Plan Year's eligible Participants. This part of
the Employer's contribution shall be fully vested
when made.
[X] 3. DISCRETIONARY PERCENTAGE QNEC CONTRIBUTION FORMULA:
The Employer shall have the right to make a
discretionary QNEC contribution which shall be
allocated to each eligible Participant's account in
proportion to his or her Compensation as a percentage
of the Compensation of all eligible Participants.
This part of the Employer's contribution shall be
fully vested when made. This contribution will be
made to:
[ ] a. All eligible Participants.
[X] b. Only eligible Participants who are
Non-Highly Compensated Employees.
[X] 4. DISCRETIONARY UNIFORM DOLLAR QNEC CONTRIBUTION
FORMULA: The Employer shall have the right to make a
discretionary QNEC contribution which shall be
allocated to each eligible Participant's account in a
uniform dollar amount to be determined by the
Employer and allocated in a nondiscriminatory manner.
This part of the Employer's contribution shall be
fully vested when made and not available for
in-service withdrawal. This contribution will be made
to:
[ ] a. All eligible Participants.
[X] b. Only eligible Participants who are
Non-Highly Compensated Employees.
[X] 5. CORRECTIVE QNEC CONTRIBUTION FORMULA: The Employer
shall have the right to make a QNEC contribution in
the amount necessary to pass the ADP/ACP Test or the
maximum permitted under Code Section 415. This
contribution will be allocated to some or all
Non-Highly Compensated Participants designated by the
Plan Administrator. The allocation will be the lesser
of the amount required to pass the ADP/ACP Test, or
the maximum permitted under Code Section 415 and is
not available for in-service withdrawal. This part of
the Employer's contribution shall be fully vested
when made.
[ ] C. DISCRETIONARY EMPLOYER CONTRIBUTION - NON-INTEGRATED FORMULA:
The Employer shall have the right to make a discretionary
contribution. The Employer's contribution for the Plan Year
shall be made to the accounts of eligible Participants as
follows:
[ ] 1. Such contribution shall be allocated as a percentage
of the Employer's Net Profits.
[ ] 2. Such contribution shall be allocated as a percentage
of Compensation of eligible Participants for the Plan
Year.
[ ] 3. Such contribution shall be allocated in an amount
fixed by an appropriate action of the Employer as of
the time prescribed by law.
[ ] 4. Such contribution shall be allocated equally in a
uniform dollar amount to each eligible Participant.
[ ] 5. Such contribution shall be allocated in the same
dollar amount to each eligible Participant per Hour
of Service the Participant is entitled to
Compensation.
[ ] D. DISCRETIONARY EMPLOYER CONTRIBUTION - EXCESS INTEGRATED
ALLOCATION FORMULA: The Employer shall have the right to make
a discretionary contribution. The Employer's contribution for
the Plan Year shall be allocated to the accounts of eligible
Participants as follows:
ONLY ONE PLAN MAINTAINED BY THE EMPLOYER MAY BE INTEGRATED
WITH SOCIAL SECURITY. ANY PLAN UTILIZING A SAFE HARBOR FORMULA
PROVIDED IN SECTION VII OF THIS ADOPTION AGREEMENT MAY NOT
APPLY THE SAFE HARBOR CONTRIBUTION TO THE INTEGRATED
ALLOCATION FORMULA. IF THE PLAN IS NOT TOP-HEAVY OR IF THE
TOP-HEAVY MINIMUM CONTRIBUTION OR BENEFIT IS PROVIDED UNDER
ANOTHER PLAN COVERING THE SAME EMPLOYEES, PARAGRAPHS (1) AND
(2) BELOW MAY BE
Section 401(k) Plan AA #010
19
DISREGARDED AND 5.7%, 5.4% OR 4.3% MAY BE SUBSTITUTED FOR
2.7%, 2.4% OR 1.3% WHERE IT APPEARS IN PARAGRAPH (3) BELOW.
1. Step One: To the extent contributions are sufficient,
all Participants will receive an allocation equal to
3% of their Compensation.
2. Step Two: Any remaining Employer contributions will
be allocated up to a maximum of 3% of excess
Compensation of all Participants to Participants who
have Compensation in excess of the Integration Level
(excess Compensation). Each such Participant will
receive an allocation in the ratio that his or her
excess Compensation bears to the excess Compensation
of all Participants. If Employer contributions are
insufficient to fund to this level, the Employer must
determine the uniform allocation percentage to
allocate to those Participants who have Compensation
in excess of the Integration Level. To determine this
uniform allocation percentage, the Employer must take
the remaining contribution and divide that amount by
the total excess Compensation of Participants.
3. Step Three: Any remaining Employer contributions will
be allocated to all Participants in the ratio that
their Compensation plus excess Compensation bears to
the total Compensation plus excess Compensation of
all Participants. Participants may only receive an
allocation of up to 2.7% of their Compensation plus
excess Compensation, under this allocation step. If
the Integration Level defined at Section III(E) is
less than or equal to the greater of $10,000 or 20%
of the maximum, the 2.7% need not be reduced. If the
amount specified is greater than the greater of
$10,000 or 20% of the maximum Taxable Wage Base, but
not more than 80%, 2.7% must be reduced to 1.3%. If
the amount specified is greater than 80% but less
than 100% of the maximum Taxable Wage Base, the 2.7%
must be reduced to 2.4%. If Employer contributions
are insufficient to fund to this level, the Employer
must determine the uniform allocation percentage to
allocate to those Participants who have Compensation
up to the Integration Level and excess Compensation.
To determine this uniform allocation percentage, the
Employer must take the remaining contribution and
divide that amount by the total Compensation
including excess Compensation of Participants.
4. Step Four: Any remaining Employer contributions will
be allocated to all Participants in the ratio that
each Participant's Compensation bears to all
Participants' Compensation.
[ ] E. DISCRETIONARY EMPLOYER CONTRIBUTION - BASE INTEGRATED
ALLOCATION FORMULA: The Employer shall have the right to make
a discretionary contribution. To the extent that such
contributions are sufficient, they shall be allocated as
follows:
________% of each eligible Participant's Compensation, plus
________% of Compensation in excess of the Integration Level
defined at Section III(E) hereof.
The percentage of excess Compensation may not exceed the
lesser of (i) the amount first specified in this paragraph or
(ii) the greater of 5.7% or the percentage rate of tax under
Code Section 3111(a) as in effect on the first day of the Plan
Year attributable to the Old Age (OA) portion of the OASDI
provisions of the Social Security Act. If the Employer
specifies an Integration Level in Section III(E) which is
lower than the Taxable Wage Base for Social Security purposes
(SSTWB) in effect as of the first day of the Plan Year, the
percentage contributed with respect to excess Compensation
must be adjusted. If the Plan's Integration Level is greater
than the larger of $10,000 or 20% of the SSTWB but not more
than 80% of the SSTWB, the excess percentage is 4.3%. If the
Plan's Integration Level is greater than 80% of the SSTWB but
less than 100% of the SSTWB, the excess percentage is 5.4%.
ONLY ONE PLAN MAINTAINED BY THE EMPLOYER MAY BE INTEGRATED
WITH SOCIAL SECURITY. ANY PLAN UTILIZING A SAFE HARBOR FORMULA
AS PROVIDED IN SECTION VII OF THIS ADOPTION AGREEMENT MAY NOT
APPLY THE SAFE HARBOR CONTRIBUTIONS TO THE INTEGRATED
ALLOCATION FORMULA.
[ ] F. UNIFORM POINTS ALLOCATION FORMULA: The allocation for each
eligible Participant will be determined by a uniform points
method. Each eligible Participant's allocation shall bear the
same
Section 401(k) Plan AA #010
20
relationship to the Employer contribution as the Participant's
total points bears to all points awarded. Each eligible
Participant will receive _____ points for each of the
following:
[ ] 1. _____ year(s) of age.
[ ] 2. _____ Year(s) of Service determined:
[ ] a. In the same manner as determined for
eligibility.
[ ] b. In the same manner as determined for
vesting.
[ ] c. Points will not be awarded with respect to
Year(s) of Service in excess of _____.
[ ] 3. $_________ (not to exceed $200) of Compensation.
[X] G. ADDITIONAL ADOPTING EMPLOYERS:
[X] 1. All participating Employers' contributions under
Section VIII entitled "Employer Contributions" above
and forfeitures, if applicable, attributable to each
specific contribution source shall be pooled together
and allocated uniformly among all eligible
Participants.
[ ] 2. Each participating Employer's contribution under
Section VIII above and forfeitures attributable to
each specific contribution source made by such
Employer shall be allocated only to eligible
Participants of the participating Employer.
WHERE CONTRIBUTIONS AND FORFEITURES ARE TO BE ALLOCATED TO
ELIGIBLE PARTICIPANTS BY PARTICIPATING EMPLOYERS, EACH SUCH
EMPLOYER MUST MAINTAIN DATA DEMONSTRATING THAT THE ALLOCATIONS
BY GROUP SATISFY THE NONDISCRIMINATION RULES UNDER CODE
SECTION 401(a)(4).
[X] H. MINIMUM EMPLOYER CONTRIBUTION FORMULA UNDER TOP-HEAVY PLANS:
For any Plan Year during which the Plan is Top-Heavy, the sum
of the contributions (excluding Elective Deferrals and/or
Matching Contributions) allocated to non-Key Employees shall
not be less than the amount required under the Basic Plan
Document #01. The eligibility of a Participant to receive
Top-Heavy Contributions mirrors the eligibility for any
contribution with the earliest Entry Date. Top-Heavy minimums
will be allocated to:
[ ] 1. all eligible Participants.
[X] 2. only eligible non-Key Employees who are Participants.
IX. ALLOCATIONS TO PARTICIPANTS
A. THIS IS A SAFE HARBOR PLAN:
[ ] Employer Non-Elective and/or Matching Contributions will be
made to all Employees who have satisfied the Safe Harbor
eligibility requirements.
B. ALLOCATION ACCRUAL REQUIREMENTS:
A Year of Service for eligibility to receive an allocation of
Employer contributions will be determined on the basis of the:
[ ] 1. Elapsed Time method.
Section 401(k) Plan AA #010
21
[ ] 2. Hours of Service method. A Year of Service will
be credited upon completion of the requirements
below. A Year of Service for allocation accrual
purposes cannot be less than 1 Hour of Service nor
greater than 1,000 hours by operation of law. If left
blank, the Plan will use 1,000 hours. ENTER WHOLE
DIGIT NUMBERS ONLY.
a. Active Participants:
CONTRIBUTION TYPE HOURS OF SERVICE REQUIREMENT
- --------------------------------------------------------------------
All contributions
Non-Safe Harbor Match Formula 1
Employer Discretionary
QNECs
QMACs
Non-Safe Harbor Match Formula 2
b. Terminated Participants:
CONTRIBUTION TYPE HOURS OF SERVICE REQUIREMENT
- --------------------------------------------------------------------
All contributions
Non-Safe Harbor Match Formula 1
Employer Discretionary
QNECs
QMACs
Non-Safe Harbor Match Formula 2
C. ALLOCATION OF CONTRIBUTIONS TO PARTICIPANTS:
Employer contributions for a Plan Year will be allocated to
all Participants who have met the allocation accrual
requirements at Section IX(B) above and who have met the
following allocation accrual requirements (check all
applicable boxes):
Match Match
Formula 1 Formula 2 QNEC QMAC Discretionary
--------- --------- ---- ---- -------------
1. For Plans using the Elapsed Time
method, contributions will be
allocated to terminated
Participants who have
completed __________
(not more than 12) months
of Service [ ] [ ] [ ] [ ] [ ]
2. Employed on the last day
of the Plan Year [ ] [ ] [ ] [ ] [ ]
3. The Hours of Service or Period
of Service requirement in the
Plan Year of termination is
waived due to:
a. Retirement [ ] [ ] [ ] [ ] [ ]
b. Disability [ ] [ ] [ ] [ ] [ ]
c. Death [ ] [ ] [ ] [ ] [ ]
d. Other [ ] [ ] [ ] [ ] [ ]
_________________________*
e. No last day of the Plan
Year requirement in Plan
Year of any of the above
events [ ] [ ] [ ] [ ] [ ]
Section 401(k) Plan AA #010
22
* The event designated by the Employer may be applied
to all Participants in a nondiscriminatory manner.
[ ] D. CONTRIBUTIONS TO DISABLED PARTICIPANTS:
The Employer will make contributions on behalf of a
Participant who is permanently and totally disabled. These
contributions will be based on the Compensation each such
Participant would have received for the Limitation Year if the
Participant had been paid at the rate of Compensation paid
immediately before becoming permanently and totally disabled.
Such imputed Compensation for the disabled Participant may be
taken into account only if the Participant is not a Highly
Compensated Employee. These contributions will be 100% vested
when made.
X. DISPOSITION OF FORFEITURES
[ ] A. NOT APPLICABLE. All contributions are fully vested.
If (A) is selected, do not complete (B) or (C) below.
B. FORFEITURE ALLOCATION ALTERNATIVES:
Select the method in which forfeitures associated with the
contribution type will be allocated (number each item in order
of use).
Employer Contribution Type
--------------------------
All Non-Safe Harbor All Other
Disposition Method Matching Contributions Contributions
- ------------------ ---------------------- -------------
1. Restoration of Participant's forfeitures. 1_____________ ___________
2. Used to reduce the Employer's
contribution under the Plan. _____________ ___________
3. Used to reduce the Employer's
Matching Contribution. 3_____________ ___________
4. Used to offset Plan expenses. 2_____________ ___________
5. Added to the Employer's contribution
(other than Matching) under the Plan. ______________ ___________
6. Added to the Employer's Matching
Contribution under the Plan. ______________ ___________
7. Allocate to all Participants
eligible to share in the
allocations in the same proportion
that each Participant's Compensation
for the year bears to the
Compensation of all other
Participant's for such year. ______________ ___________
8. Allocate to all NHCEs eligible to
share in the allocations in
proportion to each such
Participant's Compensation for the
year. ______________ ___________
9. Allocate to all NHCEs eligible to
share in the allocations in
proportion to each such
Participant's Elective Deferrals for
the year. ______________ ___________
10. Allocate to all Participants
eligible to share in the allocations
in the same proportion that
Section 401(k) Plan AA #010
23
each Participant's Elective
Deferrals for the year bears to the
Elective Deferrals of all
Participants for such year. ______________ ___________
Participants eligible to share in the allocation of other
Employer Contributions under Section VIII shall be eligible to
share in the allocation of forfeitures except where
allocations are only to Non-Highly Compensated Employees.
C. TIMING OF ALLOCATION OF FORFEITURES:
If no distribution or deemed distribution has been made to a
former Participant, nonvested portions shall be forfeited at
the end of the Plan Year during which the former Participant
incurs his or her fifth consecutive one-year Break in Service.
If a former Participant has received the full amount of his or
her vested interest, the nonvested portion of his or her
account shall be forfeited and shall be disposed of:
[ ] 1. during the Plan Year following the Plan Year in which
the forfeiture arose.
[X] 2. as of any Valuation or Allocation Date during the
Plan Year (or as soon as administratively feasible
following the close of the Plan Year) in which the
former Participant receives payment of his or her
vested benefit.
[ ] 3. at the end of the Plan Year during which the former
Participant incurs his or her ___________ (1st, 2nd,
3rd, 4th or 5th) consecutive one-year Break in
Service.
[ ] 4. as of the end of the Plan Year during which the
former Participant received full payment of his or
her vested benefit.
[ ] 5. as of the earlier of the first day of the Plan Year,
or the first day of the seventh month of the Plan
Year following the date on which the former
Participant has received full payment of his or her
vested benefit.
[ ] 6. as of the next Valuation or Allocation Date following
the date on which the former Participant receives
full payment of his or her vested benefit.
XI. MULTIPLE PLANS MAINTAINED BY THE EMPLOYER, LIMITATIONS ON ALLOCATIONS,
AND TOP-HEAVY CONTRIBUTIONS
A. PLANS MAINTAINED BY THE EMPLOYER:
[X] 1. This is the only Plan the Employer maintains. In
the event that the allocation formula results in an
Excess Amount, such excess, after distribution of
Employee contributions pursuant to paragraph 10.2 of
the Basic Plan Document #01, shall be:
[ ] a. Placed in a suspense account for the benefit
of the Participant without the crediting of
gains or losses for the benefit of the
Participant.
[X] b. Reallocated as additional Employer
contributions to all other Participants to
the extent that they do not have any Excess
Amount.
IF NO METHOD IS SPECIFIED, THE SUSPENSE ACCOUNT METHOD WILL BE
USED.
Section 401(k) Plan AA #010
24
[ ] 2. The Employer does maintain another Plan
[including a Welfare Benefit Fund or an individual
medical account as defined in Code Section
415(l)(2)], under which amounts are treated as Annual
Additions and has completed the proper sections
below.
a. If the Participant is covered under another
qualified Defined Contribution Plan
maintained by the Employer, other than a
Master or Prototype Plan:
[ ] i. The provisions of Article X of
the Basic Plan Document #01 will
apply as if the other plan were a
Master or Prototype Plan.
[ ] ii. The Employer has specified
below the method under which the
plans will limit total Annual
Additions to the Maximum Permissible
Amount, and will properly reduce any
Excess Amounts in a manner that
precludes Employer discretion.
____________________________________
____________________________________
____________________________________
EMPLOYERS WHO MAINTAINED A QUALIFIED DEFINED
BENEFIT PLAN, PRIOR TO JANUARY 1, 2000,
SHOULD COMPLETE SCHEDULE C TO DOCUMENT THE
PREAMENDMENT OPERATION OF THE PLAN.
b. Allocation of Excess Annual Additions: In
the event that the allocation formula
results in an Excess Amount, such excess,
after distribution of Employee
contributions, shall be:
[ ] i. Placed in a suspense account for the
benefit of the Participant without
the crediting of gains or losses for
the benefit of the Participant.
[ ] ii. Reallocated as additional Employer
contributions to all other
Participants to the extent that they
do not have any Excess Amount.
IF NO METHOD IS SPECIFIED, THE SUSPENSE ACCOUNT
METHOD WILL BE USED.
B. TOP-HEAVY PROVISIONS:
In the event the Plan is or becomes Top-Heavy, the minimum
contribution or benefit required under Code Section 416
relating to Top-Heavy Plans shall be satisfied in the elected
manner:
[X] 1. This is the only Plan the Employer maintains or
ever maintained. The minimum contribution will be
satisfied by this Plan.
[ ] 2. The Employer does maintain another Defined
Contribution Plan. The minimum contribution will be
satisfied by:
[ ] a. this Plan.
[ ] b. ___________________________________________
(Name of other Qualified Plan)
[ ] 3. The Employer maintains a Defined Benefit Plan. A
method is stated below under which the minimum
contribution and benefit provisions of Code Section
416 will be satisfied.
____________________________________________________
____________________________________________________
Section 401(k) Plan AA #010
25
XII. ANTIDISCRIMINATION TESTING
FOR PLANS WHICH ARE BEING AMENDED AND RESTATED FOR GUST, PLEASE
COMPLETE SCHEDULE C OUTLINING THE PREAMENDMENT OPERATION OF THE PLAN,
AS WELL AS THIS SECTION OF THE ADOPTION AGREEMENT. THE TESTING
ELECTIONS MADE BELOW WILL APPLY TO THE FUTURE OPERATION OF THE PLAN.
[ ] A. The Plan is not subject to ADP or ACP testing. The Plan
does not offer Voluntary After-tax or Required After-tax
Contributions and it either meets the Safe Harbor provisions
of Section VII of this Adoption Agreement, or it does not
benefit any Highly Compensated Employees.
[X] B. TESTING ELECTIONS:
[X] 1. This Plan is using the Prior Year testing method for
purposes of the ADP and ACP Tests.
[ ] 2. This Plan is using the Current Year testing method
for purposes of the ADP and ACP Tests.
IF NO ELECTION IS MADE, THE PLAN WILL USE THE CURRENT YEAR
TESTING METHOD.
This election cannot be rescinded for a Plan Year unless (1)
the Plan has been using the Current Year testing method for
the preceding 5 Plan Years or, if lesser, the number of Plan
Years the Plan has been in existence; or (2) the Plan
otherwise meets one of the conditions specified in IRS Notice
98-1 (or other superseding guidance) for changing from the
Current Year testing method.
A PROTOTYPE PLAN MUST USE THE SAME TESTING METHOD FOR BOTH THE
ADP AND ACP TESTS FOR PLAN YEARS BEGINNING ON OR AFTER THE
DATE THE EMPLOYER ADOPTS ITS GUST-RESTATED PLAN DOCUMENT.
[ ] C. TESTING ELECTIONS FOR THE FIRST PLAN YEAR:
COMPLETE ONLY WHEN PRIOR YEAR TESTING METHOD ELECTION IS MADE.
[ ] 1. If this is not a successor Plan, then for the first
Plan Year this Plan permits (a) any Participant to
make Employee contributions, (b) provides for
Matching Contributions or (c) both, the ACP used in
the ACP Test for Participants who are Non-Highly
Compensated Employees shall be such first Plan Year's
ACP. DO NOT SELECT THIS OPTION IF THE EMPLOYER IS
USING THE "DEEMED 3%" RULE.
[ ] 2. If this is not a successor Plan, then for the first
Plan Year this Plan permits any Participant to make
Elective Deferrals, the ADP used in the ADP Test for
Participants who are Non-Highly Compensated Employees
shall be such first Plan Year's ADP. DO NOT SELECT
THIS OPTION IF THE EMPLOYER IS USING THE "DEEMED 3%"
RULE.
[ ] D. RECHARACTERIZATION:
Elective Deferrals may be recharacterized as Voluntary
After-tax Contributions to satisfy the ADP Test. The Employer
must have elected to permit Voluntary After-tax Contributions
in the Plan for this election to be operable.
XIII. VESTING
Participants shall always have a fully vested and nonforfeitable
interest in their Employee contributions (including Elective Deferrals,
Required After-tax and Voluntary After-tax Contributions), Qualified
Matching Contributions ("QMACs"), Qualified Non-Elective Contributions
("QNECs") or Safe Harbor Matching or Non-Elective Contributions and
their investment earnings.
Each Participant shall acquire a vested and nonforfeitable percentage
in his or her account balance attributable to Employer contributions
and their earnings under the schedule(s) selected below except in any
Plan Year during which the Plan is determined to be Top-Heavy. In any
Plan Year in which the Plan is Top-Heavy, the Two-twenty vesting
schedule [option (B)(4)] or the three-year cliff schedule [option
(B)(3)] shall automatically apply unless the Employer has already
elected a faster vesting schedule. If the Plan is
Section 401(k) Plan AA #010
26
switched to option (B)(4) or (B)(3), because of its Top-Heavy status,
that vesting schedule will remain in effect even if the Plan later
becomes non-Top-Heavy until the Employer executes an amendment of this
Adoption Agreement.
A. VESTING COMPUTATION PERIOD:
A Year of Service for vesting will be determined on the basis
of the (choose one):
[ ] 1. Not applicable. All contributions are fully vested.
[ ] 2. Elapsed Time method.
[X] 3. Hours of Service method. A Year of Service will be
credited upon completion of 1000 Hours of Service. A
Year of Service for vesting purposes will not be less
than 1 Hour of Service nor greater than 1,000 hours
by operation of law. If left blank, the Plan will use
1,000 hours.
The computation period for purposes of determining Years of
Service and Breaks in Service for purposes of computing a
Participant's nonforfeitable right to his or her account
balance derived from Employer contributions:
[ ] 4. shall not be applicable since Participants are always
fully vested.
[ ] 5. shall not be applicable, as the Plan is using Elapsed
Time.
[ ] 6. shall commence on the date on which an Employee first
performs an Hour of Service for the Employer and each
subsequent 12-consecutive month period shall commence
on the anniversary thereof.
[X] 7. shall commence on the first day of the Plan Year
during which an Employee first performs an Hour of
Service for the Employer and each subsequent
12-consecutive month period shall commence on the
anniversary thereof.
For Plans not using Elapsed Time, a Participant shall receive
credit for a Year of Service if he or she completes the number
of hours specified above at any time during the 12-consecutive
month computation period. A Year of Service may be earned
prior to the end of the 12-consecutive month computation
period and the Participant need not be employed at the end of
the 12-consecutive month computation period to receive credit
for a Year of Service.
B. VESTING SCHEDULES:
Select the appropriate schedule for each contribution type and
complete any blank vesting percentages from the list below and
insert the option number in the vesting schedule chart below.
Years of Service
-----------------------------------------------------
1 2 3 4 5 6 7
-- -- -- -- -- -- --
1. Full and immediate Vesting
2. 0 % 100%
3. ___% ___% 100%
4. 0% 20% 40% 60% 80% 100%
5. ___% ___% 20% 40% 60% 80% 100%
6. 10% 20% 30% 40% 60% 80% 100%
7. ___% ___%___%___% 100%
8. ___% ___%___%___% ___% ___% 100%
Section 401(k) Plan AA #010
27
THE PERCENTAGES SELECTED FOR SCHEDULE (8) MAY NOT BE LESS FOR
ANY YEAR THAN THE PERCENTAGES SHOWN AT SCHEDULE (5).
Vesting Schedule Chart Employer Contribution Type
- ---------------------- --------------------------
_________2___________ All Employer Contributions
_____________________ Safe Harbor Contributions (Matching or Non-Elective)
_________1___________ QMACs and QNECs
_____________________ Non-Safe Harbor Match - Formula 1
_____________________ Non-Safe Harbor Match - Formula 2
_____________________ Match on Voluntary After-tax Contributions
_____________________ Match on Required After-tax Contributions
_____________________ Discretionary Contributions
_________2___________ Top-Heavy Minimum Contribution
_____________________ Other Employer Contribution
C. SERVICE DISREGARDED FOR VESTING:
[X] 1. Not applicable. All Service is recognized.
[ ] 2. Service prior to the Effective Date of this Plan
or a predecessor plan is disregarded when computing a
Participant's vested and nonforfeitable interest.
[ ] 3. Service prior to a Participant having attained age 18
is disregarded when computing a Participant's vested
and nonforfeitable interest.
[ ] D. FULL VESTING OF EMPLOYER CONTRIBUTIONS FOR CURRENT
PARTICIPANTS:
Notwithstanding the elections above, all Employer
contributions made to a Participant's account shall be 100%
fully vested if the Participant is employed on the Effective
Date of the Plan (or such other date as entered herein):_____.
XIV. SERVICE WITH PREDECESSOR ORGANIZATION
[ ] A. Not applicable. The Plan does not recognize
Service with any predecessor organization.
[X] B. The Plan recognizes Service with all
predecessor organizations.
[ ] C. Service with the following organization(s)
will be recognized for the Plan purpose
indicated:
Allocation
Eligibility Accrual Vesting
----------- ------- -------
___________________________ [ ] [ ] [ ]
___________________________ [ ] [ ] [ ]
Attach additional pages as necessary.
XV. IN-SERVICE WITHDRAWALS
A. IN-SERVICE WITHDRAWALS:
[ ] 1. In-service withdrawals are not permitted in the Plan.
Section 401(k) Plan AA #010
28
[X] 2. In-service withdrawals are permitted in the Plan.
Participants may withdraw the following contribution
types after meeting the following requirements
(select one or more of the following options):
WITHDRAWAL RESTRICTIONS
CONTRIBUTION TYPES A B C D E F G
- ------------------ -------------------------------------------------------
a. All Contributions [ ] n/a n/a [ ] [X] n/a n/a
b. Voluntary After-tax [ ] [ ] [ ] [ ] [ ] [ ] n/a
c. Required After-tax [ ] [ ] [ ] [ ] [ ] [ ] n/a
d. Rollover [ ] [ ] [ ] [ ] [ ] [ ] n/a
e. Transfer [ ] [ ] [ ] [ ] [ ] [ ] [ ]
f. Elective Deferrals [ ] n/a n/a [ ] [ ] n/a n/a
g. Qualified Non-Elective [ ] n/a n/a [ ] [ ] n/a n/a
h. Qualified Matching [ ] n/a n/a [ ] [ ] n/a n/a
i. Safe Harbor Matching [ ] n/a n/a [ ] [ ] n/a n/a
j. Safe Harbor Non-
Elective [ ] n/a n/a [ ] [ ] n/a n/a
k. Vested Non-Safe Harbor
Matching Formula 1 [ ] [ ] [ ] [ ] [ ] [ ] [ ]
l. Vested Non-Safe Harbor
Matching Formula 2 [ ] [ ] [ ] [ ] [ ] [ ] [ ]
m. Vested Discretionary [ ] [ ] [ ] [ ] [ ] [ ] [ ]
WITHDRAWAL RESTRICTION KEY
A. Not available for in-service withdrawals.
B. Available for in-service withdrawals.
C. Participants having completed five years of
Plan participation may elect to withdraw all
or any part of their Vested Account Balance.
D. Participants may withdraw all or any part of
their Account Balance after having attained
the Plan's Normal Retirement Age.
E. Participants may withdraw all or any part of
their Vested Account Balance after having
attained age 59.5 (not less than age
59 1/2).
F. Participants may elect to withdraw all or
any part of their Vested Account Balance
which has been credited to their account for
a period in excess of two years.
G. Available for withdrawal only if the
Participant is 100% vested.
B. HARDSHIP WITHDRAWALS:
[ ] 1. Hardship withdrawals are not permitted in the Plan.
[X] 2. Hardship withdrawals are permitted in the Plan and
will be taken from the Participant's account as
follows (select one or more of these options):
Section 401(k) Plan AA #010
29
[X] a. Participants may withdraw Elective
Deferrals.
[ ] b. Participants may withdraw Elective Deferrals
and any earnings credited as of December 31,
1988 (or if later, the end of the last Plan
Year ending before July 1, 1989).
[X] c. Participants may withdraw Rollover
Contributions plus their earnings.
[X] d. Participants may withdraw Transfer
Contributions plus their earnings.
[ ] e. Participants may withdraw fully vested
Employer contributions plus their earnings.
[X] f. Participants may withdraw vested Non-Safe
Harbor Matching Formula 1 Contributions plus
their earnings.
[ ] g. Participants may withdraw vested Non-Safe
Harbor Matching Formula 2 Contributions plus
their earnings.
[X] h. Participants may withdraw Qualified
Matching Contributions and Qualified
Non-Elective Contributions plus their
earnings, and the earnings on Elective
Deferrals which have been credited to the
Participant's account as of December 31,
1988 (or if later, the end of the last Plan
Year ending before July 1, 1989).
XVI. LOAN PROVISIONS
[X] A. Participant loans are permitted in accordance with the
Employer's established loan procedures.
[X] B. Loan payments will be suspended under the Plan as permitted
under Code Section 414(u) in compliance with the Uniformed
Services Employment and Reemployment Rights Act of 1994.
XVII. INVESTMENT MANAGEMENT
A. INVESTMENT MANAGEMENT RESPONSIBILITY:
[ ] 1. The Employer shall appoint a discretionary Trustee to
manage the assets of the Plan.
[ ] 2. The Employer shall retain investment management
responsibility and/or authority.
[X] 3. The party designated below shall be responsible for
the investment of the Participant's account.
By selecting a box, the Employer is making a
designation as to whom will have authority to issue
investment directives with respect to the specified
contribution type (check all applicable boxes):
Trustee Employer Participant
------- -------- -----------
a. All Contributions n/a n/a [X]
b. Employer Contributions [ ] [ ] [ ]
c. Elective Deferrals [ ] [ ] [ ]
d. Voluntary After-tax [ ] [ ] [ ]
e. Required After-tax [ ] [ ] [ ]
Section 401(k) Plan AA #010
30
f. Safe Harbor Contributions [ ] [ ] [ ]
g. Non-Safe Harbor Match Formula 1 [ ] [ ] [ ]
h. QMACs [ ] [ ] [ ]
i. QNECs [ ] [ ] [ ]
j. Non-Safe Harbor Match Formula 2 [ ] [ ] [ ]
k. Rollover Contributions [ ] [ ] [ ]
l. Transfer Contributions [ ] [ ] [ ]
TO THE EXTENT THAT PARTICIPANT SELF-DIRECTION WAS PREVIOUSLY
PERMITTED, THE EMPLOYER SHALL HAVE THE RIGHT TO EITHER MAKE
THE ASSETS PART OF THE GENERAL FUND, OR LEAVE THEM AS
SELF-DIRECTED SUBJECT TO THE PROVISIONS OF THE BASIC PLAN
DOCUMENT #01.
B. LIMITATIONS ON PARTICIPANT DIRECTED INVESTMENTS:
[X] 1. Participants are permitted to invest among only
those investment alternatives made available by the
Employer under the Plan.
[ ] 2. Participants are permitted to invest in any
investment alternative permitted under the Basic Plan
Document #01.
[ ] C. INSURANCE:
The Plan permits insurance as an investment alternative.
[X] D. ERISA SECTION 404(c):
The Employer intends to be covered by the fiduciary liability
provisions with respect to Participant directed investments
under ERISA Section 404(c).
XVIII. DISTRIBUTION OPTIONS
A. TIMING OF DISTRIBUTIONS [BOTH (1) AND (2) MUST BE COMPLETED]:
1. Distributions payable as a result of termination for
reasons other than death, Disability or retirement
shall be paid A [select from the list at (A)(3)
below].
2. Distributions payable as a result of termination for
death, Disability or retirement shall be paid A
[select from the list at (A)(3) below].
3. Distribution Options:
a. As soon as administratively feasible on or
after the Valuation Date following the date
on which a distribution is requested or is
otherwise payable.
b. As soon as administratively feasible
following the close of the Plan Year during
which a distribution is requested or is
otherwise payable.
c. As soon as administratively feasible
following the date on which a distribution
is requested or is otherwise payable. (This
option is recommended for daily valuation
plans.)
d. As soon as administratively feasible after
the close of the Plan Year during which the
Participant incurs ___________ (cannot be
more than 5) consecutive one-year Breaks in
Service. [This formula can only be used in
(A)(1).]
Section 401(k) Plan AA #010
31
e. As soon as administratively feasible after
the close of the Plan Year during which the
Participant incurs ___________ (cannot be
more than 5) consecutive one-year Breaks in
Service. [This formula can only be used in
(A)(2).]
f. Only after the Participant has attained the
Plan's Normal Retirement Age or Early
Retirement Age, if applicable.
B. REQUIRED BEGINNING DATE:
The Required Beginning Date of a Participant with respect to a
Plan is (select one from below):
[ ] 1. The April 1 of the calendar year following the
calendar year in which the Participant attains age
70 1/2.
[ ] 2. The April 1 of the calendar year following the
calendar year in which the Participant attains age
70 1/2 except that distributions to a Participant
(other than a 5% owner) with respect to benefits
accrued after the later of the adoption of this Plan
or Effective Date of the amendment of this Plan must
commence no later than the April 1 of the calendar
year following the later of the calendar year in
which the Participant attains age 70 1/2 or the
calendar year in which the Participant retires.
[X] 3. The later of the April 1 of the calendar year
following the calendar year in which the Participant
attains age 70 1/2 or retires except that
distributions to a 5% owner must commence by the
April 1 of the calendar year following the calendar
year in which the Participant attains age 70 1/2.
Except that such Participant [X] may [ ] may not
elect to begin receiving distributions as of April 1
of the calendar year following the calendar year in
which the Participant attains age 70 1/2. Any
distributions made pursuant to such an election will
not be considered required minimum distributions.
Such distributions will be considered in-service
distributions and as such, will be subject to
applicable withholding.
PLANS WHICH ARE AN AMENDMENT OR RESTATEMENT OF AN EXISTING
PLAN WHICH PROVIDED FOR THE PROVISIONS OF CODE SECTION
401(a)(9) CURRENTLY IN EFFECT PRIOR TO THE AMENDMENT OF THE
SMALL BUSINESS JOB PROTECTION ACT OF 1996 MUST COMPLETE
SCHEDULE C.
C. FORMS OF PAYMENT (SELECT ALL THAT APPLY):
[X] 1. Lump sum.
[X] 2. Installment payments.
[ ] 3. Partial payments; the minimum amount will be
$___________.
[ ] 4. Life annuity.
[ ] 5. Term certain annuity with payments guaranteed for
___________ years (not to exceed 20).
[ ] 6 Joint and [ ] 50%, [ ] 6-2/3%, [ ] 75% or [ ] 100%
survivor annuity.
[ ] 7. The default form of payment will be a direct rollover
into an individual retirement account or annuity for
any "cash out" distribution made pursuant to Code
Sections 411(a)(7), 411(a)(11) and 417(e)(1).
[X] 8. Cash.
[ ] 9. Employer securities.
[ ] 10. Other marketable securities.
THE NORMAL FORM OF PAYMENT IS DETERMINED AT SECTION III(J) OF
THIS ADOPTION AGREEMENT.
Section 401(k) Plan AA #010
32
D. RECALCULATION OF LIFE EXPECTANCY:
[ ] 1. Recalculation is not permitted.
[X] 2. Recalculation is permitted. When determining
installment payments in satisfying the minimum
distribution requirements under the Plan, and life
expectancy is being recalculated:
[ ] a. only the Participant's life expectancy shall
be recalculated.
[X] b. both the Participant's and Spouse's life
expectancy shall be recalculated.
[ ] c. the Participant will determine whose life
expectancy is recalculated.
XIX. SPONSOR INFORMATION AND ACCEPTANCE
This Plan may not be used and shall not be deemed to be a Prototype
Plan unless an authorized representative of the Sponsor has
acknowledged the use of the Plan. Such acknowledgment that the Employer
is using the Plan does not represent that the Adoption Agreement (as
completed) and Basic Plan Document have been reviewed by a
representative of the Sponsor or constitute a qualified retirement
plan.
Acknowledged and accepted by the Sponsor this 4th day of December,
2002.
Name: U.S. Bank, N.A.
Title: Account Manager
Signature: /s/ Sherry Glanville
Questions concerning the language contained in and qualification of the
Prototype should be addressed to: U.S. Bank, N.A.
(Position): ACCOUNT MANAGER (Phone Number): 503-275-4637
In the event that the Sponsor amends, discontinues or abandons this
Prototype Plan, notification will be provided to the Employer's address
provided on the first page of this Adoption Agreement.
Section 401(k) Plan AA #010
33
XX. SIGNATURES
THE SPONSOR RECOMMENDS THAT THE EMPLOYER CONSULT WITH ITS LEGAL COUNSEL
AND/OR TAX ADVISOR BEFORE EXECUTING THIS ADOPTION AGREEMENT. THE
EMPLOYER UNDERSTANDS THAT ITS FAILURE TO PROPERLY COMPLETE OR AMEND
THIS ADOPTION AGREEMENT MAY RESULT IN FAILURE OF THE PLAN TO QUALIFY OR
DISQUALIFICATION OF THE PLAN. THE EMPLOYER BY EXECUTING THIS ADOPTION
AGREEMENT ACKNOWLEDGES THAT THIS IS A LEGAL DOCUMENT WITH SIGNIFICANT
TAX AND LEGAL RAMIFICATIONS.
A. EMPLOYER:
This Adoption Agreement and the corresponding provisions of
Basic Plan Document #01 are adopted by the Employer this 6th
day of December, 2002.
Name of Employer: JDA Software, Inc.
Executed on behalf of the Employer by: Margie Jones
Title: Benefits Manager
Signature: /s/ Margie Jones
PARTICIPATING EMPLOYER:
Name and address of any Participating Employer.
LIOCS CORPORATION
801 WARRENVILLE RD, STE 500
LISLE, IL 60532
This Adoption Agreement and the corresponding provisions of
Basic Plan Document #01 are adopted by the Participating
Employer this__________ day of _____________________,
___________.
Executed on behalf of the
Participating Employer by: ___________________________
Title: ___________________________
Signature: ___________________________
Attach additional signature pages as necessary.
EMPLOYER'S RELIANCE: The adopting Employer may rely on an
Opinion Letter issued by the Internal Revenue Service as
evidence that the Plan is qualified under Section 401 of the
Internal Revenue Code only to the extent provided in
Announcement 2001-77, 2001-30 I.R.B. The Employer may not rely
on the Opinion Letter in certain other circumstances or with
respect to certain qualification requirements, which are
specified in the Opinion 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, application for a determination letter must be
made to Employee Plans Determinations of the Internal Revenue
Service.
This Adoption Agreement may only be used in conjunction with
Basic Plan Document #01.
Section 401(k) Plan AA #010
34
B. TRUSTEE:
Trust Agreement:
[ ] Not applicable. Plan assets will be invested in
Group Annuity Contracts. There is no Trustee and the
terms of the contract(s) will apply.
[X] The Trust provisions used will be as contained in the
Basic Plan Document #01.
[ ] The Trust provisions used will be as contained in
the accompanying executed Trust Agreement between the
Employer and the Trustee attached hereto.
Complete the remainder of this section only if the Trust
provisions used are as contained in the Basic Plan Document
#01.
Name and address of Trustee:
U. S. BANK, N. A.
425 WALNUT ST
CINCINNATI, OH 45201
The assets of the Plan shall be invested in accordance with
Article XIII of the Basic Plan Document #01. The Employer's
Plan and Trust as contained herein is accepted by the Trustee
this 4th day of December, 2002.
Accepted on behalf of the Trustee by: Sherry Glanville
Title: Vice President
Signature: /s/ Sherry Glanville
Accepted on behalf of the Trustee by: _______________________
Title: _______________________
Signature: _______________________
Accepted on behalf of the Trustee by: _______________________
Title: _______________________
Signature: _______________________
Section 401(k) Plan AA #010
35
C. CUSTODIAN:
Custodial Agreement:
[X] Not applicable. There is no Custodian.
[ ] Not applicable. Plan assets will be invested in
Group Annuity Contracts. There is no Custodian and
the terms of the contract(s) will apply.
[ ] The Custodial provisions used will be as contained in
Basic Plan Document #01.
[ ] The Custodial provisions used will be as contained in
the accompanying executed Custodial Agreement between
the Employer and the Custodian attached hereto.
Complete the remainder of this section only if the Custodial
provisions used are as contained in the Basic Plan Document
#01.
Name and address of Custodian:
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
The assets of the Plan shall be invested in accordance with
Article XIII of the Basic Plan Document #01. The Employer's
Plan and Custodial Account as contained herein are accepted by
the Custodian this __________ day of ____________________,
_____________.
Accepted on behalf of the Custodian by: ______________________
Title: ______________________
Signature: ______________________
Section 401(k) Plan AA #010
36
SCHEDULE A
PROTECTED BENEFITS
This Schedule includes any prior Plan protected benefits which are not available
in Basic Plan Document #01. Complete as applicable.
1. PLAN PROVISION:
PARTICIPANTS IN THE LIOCS CORPORATION PROFIT SHARING PLAN PRIOR TO
DECEMBER 31, 1997 HAVE A NORMAL RETIREMENT AGE OF THE EARLIER OF AGE 55
AND 5 YEARS OF PLAN PARTICIPATION OR AGE 59.5
EFFECTIVE DATE:______________________________________
2. PLAN PROVISION:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
EFFECTIVE DATE:______________________________________
3. PLAN PROVISION:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
EFFECTIVE DATE:______________________________________
4. PLAN PROVISION:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
EFFECTIVE DATE:______________________________________
5. PLAN PROVISION:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
EFFECTIVE DATE:______________________________________
Section 401(k) Plan AA #010
37
SCHEDULE B
PRIOR PLAN PROVISIONS
This Schedule should be used if a prior plan contains provisions not found in
Basic Plan Document #01, or where the Employer wishes to document transactions
or historical provisions of the Employer's Plan.
1. PLAN PROVISION:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
EFFECTIVE DATE:______________________________________
2. PLAN PROVISION:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
EFFECTIVE DATE:______________________________________
3. PLAN PROVISION:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
EFFECTIVE DATE:______________________________________
4. PLAN PROVISION:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
EFFECTIVE DATE:______________________________________
5. PLAN PROVISION:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
EFFECTIVE DATE:______________________________________
Section 401(k) Plan AA #010
38
SCHEDULE C
PREAMENDMENT OPERATION OF THE PLAN
The following are the adopting Employer's elective Plan provisions which conform
the terms of this Prototype Plan to the preamendment operation of the Plan
during the transition period between the earliest effective date under GUST (as
defined below) and the effective date of adoption of this Prototype Plan and
Trust which takes into account all of the changes in the qualification
requirements made by the following: The Uruguay Round Agreements, Pub. L.
103-465 (GATT); The Uniformed Services Employment and Reemployment Rights Act of
1994, Pub. L. 103-353 (USERRA); The Small Business Job Protection Act of 1996,
Pub. L. 104-188 (SBJPA) [including Section 414(u) of the Internal Revenue Code];
The Taxpayer Relief Act of 1997, Pub. L. 105-34 (TRA'97); and The Internal
Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206 (IRSRRA);
and The Community Renewal Tax Relief Act of 2000, Pub. L. 106-554 (CRA),
hereinafter referred to collectively as GUST.
Complete as applicable and appropriate.
I. PLAN PROVISION: HIGHLY COMPENSATED EMPLOYEES
For Plan Years beginning after 1996, the Employer may elect a "Top-Paid
Group" election and the Calendar Year Data election to determine the
definition of Highly Compensated Employee:
[X] A. Top-Paid Group Election: A Participant (who is not
a 5% owner at any time during the determination year
or the look-back year) who earned more than $80,000
as indexed for the look-back year is a Highly
Compensated Employee if the Employee was in the
Top-Paid Group for the look-back year. The election
was applicable for:
[X] 1. 1997 Plan Year.
[X] 2. 1998 Plan Year.
[X] 3. 1999 Plan Year.
[X] 4. 2000 Plan Year.
[X] 5. 2001 Plan Year.
[ ] 6. 2002 Plan Year.
[ ] B. Calendar Year Data Election: In determining who is a
Highly Compensated Employee (other than a 5% owner)
the Employer makes a calendar year data election. The
look-back year is the calendar year beginning with or
within the look-back year. The election was
applicable for:
[ ] 1. 1998 Plan Year.
[ ] 2. 1999 Plan Year.
[ ] 3. 2000 Plan Year.
[ ] 4. 2001 Plan Year.
[ ] 5. 2002 Plan Year.
If the elections above are made, such election shall apply to
all Plans maintained by the Employer.
[ ] C. Calendar Year Calculation Election (for 1997 Plan
Year only): Indicate below whether the Calendar Year
calculation election was made for Plan Years
beginning in 1997:
[ ] Yes [ ] No
II. PLAN PROVISION: FAMILY AGGREGATION
Did the Pre-SBJPA Family Aggregation rules of Code Sections
401(a)(17)(a) and 414(q)(6), both in effect for Plan Years beginning
before January 1, 1997, continue to apply for any purpose for Plan
Years beginning after 1996?
[X] No
Section 401(k) Plan AA #010
39
[ ] Yes; explain the application:_________________________________
______________________________________________________________
______________________________________________________________
If this rule was subsequently discontinued, indicate when rule
no longer applied:
______________________________________________________________
______________________________________________________________
EMPLOYERS WHO ADOPT THIS PROTOTYPE PLAN MAY NOT ELECT TO CONTINUE TO
APPLY THE PRE-SBJA FAMILY AGGREGATION RULES.
III. PLAN PROVISION: COMBINED PLAN LIMIT OF CODE SECTION 415(e)
Did the Employer maintain a Defined Benefit Plan prior to January 1,
2000?
[ ] Yes [X] No
Did the Plan continue to apply the combined Plan limit of Code Section
415(e) (as in effect for Limitation Years beginning before January 1,
2000) in limitation years beginning after December 31, 1999, to the
extent that such election conforms to the Plan's operation?
[ ] Yes [ ] No
If yes, specify provisions below that will satisfy the 1.0 limitation
of Code Section 415(e). Such language must preclude Employer
discretion. The Employer must also specify the interest and mortality
assumptions used in determining Present Value in the Defined Benefit
Plan.
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
EMPLOYERS WHO ADOPT THIS PROTOTYPE PLAN MAY NOT ELECT TO CONTINUE TO
APPLY THE COMBINED PLAN LIMIT OF CODE SECTION 415(e) IN YEARS BEGINNING
AFTER THE DATE THE EMPLOYER ADOPTS ITS GUST-RELATED PLAN.
IV. PLAN PROVISION: NONDISCRIMINATION TESTING
The Small Business Job Protection Act permits the Employer to use the
ADP and/or ACP of Non-Highly Compensated Employees for the prior year
or current year in determining whether the plan satisfied the
nondiscrimination tests.
Employers who adopt this Prototype Plan must use the same testing
method for both the ADP and ACP tests for Plan Years beginning on or
after the date the Employer adopts this GUST-restated Plan. This
restriction does not apply with respect to Plan Years beginning before
the date the Employer adopts this GUST-restated plan.
1. ADP TESTING ELECTION:
[ ] a. Current year data for all Participants was used.
[ ] 1. 1997 Plan Year.
[ ] 2. 1998 Plan Year.
[ ] 3. 1999 Plan Year.
[ ] 4. 2000 Plan Year.
[ ] 5. 2001 Plan Year.
[ ] 6. 2002 Plan Year.
[X] b. Prior year data for Participants who are Non-Highly
Compensated Employees was used.
[ ] 1. 1997 Plan Year.
[ ] 2. 1998 Plan Year.
Section 401(k) Plan AA #010
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[X] 3. 1999 Plan Year.
[X] 4. 2000 Plan Year.
[X] 5. 2001 Plan Year.
[ ] 6. 2002 Plan Year.
2. ACP TESTING ELECTION:
[ ] a. Current year data for all Participants was used.
[ ] 1. 1997 Plan Year.
[ ] 2. 1998 Plan Year.
[ ] 3. 1999 Plan Year.
[ ] 4. 2000 Plan Year.
[ ] 5. 2001 Plan Year.
[ ] 6. 2002 Plan Year.
[X] b. Prior year data for Participants who are Non-Highly
Compensated Employees was used.
[ ] 1. 1997 Plan Year.
[ ] 2. 1998 Plan Year.
[X] 3. 1999 Plan Year.
[X] 4. 2000 Plan Year.
[X] 5. 2001 Plan Year.
[ ] 6. 2002 Plan Year.
V. PLAN PROVISION: FIRST PLAN YEAR TESTING ELECTIONS
For a new 401(k) Plan, the Employer could use either the current or
prior year testing methods as well as a rule that deems the prior year
ADP/ACP to be 3%.
1. ADP TESTING ELECTION:
[ ] a. Current year data for all Participants was used.
[ ] 1. 1997 Plan Year.
[ ] 2. 1998 Plan Year.
[ ] 3. 1999 Plan Year.
[ ] 4. 2000 Plan Year.
[ ] 5. 2001 Plan Year.
[ ] 6. 2002 Plan Year.
[ ] b. Current year data for Participants who are Highly
Compensated Employees will be used. The ADP for
Participants who are Non-Highly Compensated Employees
was assumed to be 3% or the actual ADP if greater.
[ ] 1. 1997 Plan Year.
[ ] 2. 1998 Plan Year.
[ ] 3. 1999 Plan Year.
[ ] 4. 2000 Plan Year.
[ ] 5. 2001 Plan Year.
[ ] 6. 2002 Plan Year.
2. ACP TESTING ELECTION:
[ ] a. Current year data for all Participants was used.
[ ] 1. 1997 Plan Year.
[ ] 2. 1998 Plan Year.
[ ] 3. 1999 Plan Year.
[ ] 4. 2000 Plan Year.
[ ] 5. 2001 Plan Year.
Section 401(k) Plan AA #010
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[ ] 6. 2002 Plan Year.
[ ] b. Current year data for Participants who are Highly
Compensated Employees will be used. The ACP for
Participants who are Non-Highly Compensated Employees
was assumed to be 3% or the actual ACP if greater.
[ ] 1. 1997 Plan Year.
[ ] 2. 1998 Plan Year.
[ ] 3. 1999 Plan Year.
[ ] 4. 2000 Plan Year.
[ ] 5. 2001 Plan Year.
[ ] 6. 2002 Plan Year.
VI. PLAN PROVISION: DISTRIBUTION ALTERNATIVES FOR PARTICIPANTS WHO ARE NOT
A MORE THAN 5% OWNER
Select (A), (B), (C) and/or (D), whichever is applicable. Subsection
(D) must be selected to the extent that there would otherwise be an
elimination of a pre-retirement age 70 1/2 distribution option for
Employees other than those listed above.
[ ] A. Any Participant who has not had a separation
from Service who had attained age 70 1/2 in years
after 1995 may elect by April 1 of the calendar year
following the calendar year in which the Participant
attained age 70 1/2 (or by December 31, 1997, in the
case of a Participant attaining age 70 1/2 in 1996)
to defer distributions until the calendar year in
which the Participant retires. If no such election is
made, the Participant will begin receiving
distributions by the April 1 of the calendar year
following the calendar year in which the Participant
attained age 70 1/2 (or by December 31, 1997, in the
case of a Participant attaining age 70 1/2 in 1996).
[ ] B. Any Participant who has not had a separation
from Service and is currently in benefit payment
status because of attainment of age 70 1/2 in years
prior to 1997 may elect to stop distributions and
recommence by the April 1 of the calendar year
following the calendar year in which the Participant
retires. There is either (select one):
[ ] 1. a new Annuity Starting Date upon
recommencement, or
[ ] 2. no new Annuity Starting Date upon
recommencement.
[ ] C. Any Participant who has not had a separation
from Service, and is currently in benefit payment
status because of attainment of age 70 1/2 in 1997 or
in a later year (or attained age 70 1/2 in 1996, but
had not commenced required minimum distributions in
1996) may elect to stop distributions and recommence
by the April 1 of the calendar year following the
calendar year in which the Participant retires. There
is either (select one):
[ ] 1. a new Annuity Starting Date upon
recommencement, or
[ ] 2. no new Annuity Starting Date upon
recommencement.
[ ] D. The pre-retirement distribution option is only
eliminated with respect to Employees who reach age
70 1/2 in or after a calendar year that begins after
the later of December 31, 1998, or the adoption of
the amendment to the Plan. The pre-retirement age
70 1/2 distribution option is an optional form of
benefit under which benefits are payable in a
particular distribution form (including any
modifications that may be elected after benefit
commencement) and commencing at a time during the
period that begins on or after January 1 of the
calendar year following the calendar year in which an
Employee attains age 70 1/2 and ends April 1 of the
immediately following calendar year.
VII. PLAN PROVISION: MANDATORY CASH-OUT RULE
[X] For Plan Years beginning after August 5, 1997, the $3,500
cash-out limit is increased to $5,000.
Section 401(k) Plan AA #010
42
VIII. PLAN PROVISION: 30-DAY WAIVER PERIOD
For Plan Years beginning after December 31, 1996, if the Plan is
subject to the Joint and Survivor rules did the Plan provide
distributions prior to the expiration of the 30-day waiting period?
[ ] Yes [ ] No
IX. PLAN PROVISION: SUSPENSION OF LOAN REPAYMENTS
On or after December 12, 1994, did the Employer permit the suspension
of loan repayments due to qualified military leave?
[X] Yes [ ] No
Effective Date: 12/12/1994
X. PLAN PROVISION: HARDSHIP DISTRIBUTIONS TREATED AS ELIGIBLE ROLLOVER
DISTRIBUTIONS
The Employer had the option with respect to Hardship distributions made
after December 31, 1998 to treat as eligible rollover distributions, or
to delay the Effective Date until January 1, 2000. Hardship
distributions were not treated as eligible rollover distributions
effective as of:
[ ] January 1, 1999
[X] January 1, 2000
[ ] Other (specify date): ______________________________________
XI. PLAN PROVISION: 401(k) SAFE HARBOR PROVISIONS
For Plan Years beginning after 1998, the Employer may implement safe
harbor provisions under Code Sections 401(m)(11) and 401(k)(12). Did
the Plan elect safe harbor status?
[ ] Yes
[X] No
If yes, enter the formulas below:
DATE PLAN YEAR BEGINS SECTION 401(k) SECTION 401(m)
- ----------------------------------------------------------------------
______/_______/99
______/_______/00
______/_______/01
______/_______/02
XII. OTHER PLAN PROVISIONS:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
EFFECTIVE DATE: _______________________________________________________
Section 401(k) Plan AA #010
43
SCHEDULE D
SAFE HARBOR ELECTIONS FOR FLEXIBLE NON-ELECTIVE CONTRIBUTION
The following elections are made with regard to the Plan's Safe Harbor status
pursuant to Section VII herein. For Plan Years indicated below, the Plan hereby
invokes a Safe Harbor status in accordance with IRS Notices 98-52 and 2000-3.
For all Plan Years in which this Safe Harbor election is being made, the
limitations and restrictions found in Section VII herein apply.
1. For the Plan Year beginning _____ and ending _____, the Employer hereby
invokes a Safe Harbor status as provided in IRS Notice 2000-3. The Safe
Harbor Contribution will be an amount equal to _____% (not less than 3%) of
Compensation. This election is made on this _____ day of _____, _____ (date
may not be later than 30 days prior to the end of the Plan Year in which
such election is being made).
2. For the Plan Year beginning _____ and ending _____, the Employer hereby
invokes a Safe Harbor status as provided in IRS Notice 2000-3. The Safe
Harbor Contribution will be an amount equal to _____% (not less than 3%) of
Compensation. This election is made on this _____ day of _____, _____ (date
may not be later than 30 days prior to the end of the Plan Year in which
such election is being made).
3. For the Plan Year beginning _____ and ending _____, the Employer hereby
invokes a Safe Harbor status as provided in IRS Notice 2000-3. The Safe
Harbor Contribution will be an amount equal to _____% (not less than 3%) of
Compensation. This election is made on this _____ day of _____, _____ (date
may not be later than 30 days prior to the end of the Plan Year in which
such election is being made).
4. For the Plan Year beginning _____ and ending _____, the Employer hereby
invokes a Safe Harbor status as provided in IRS Notice 2000-3. The Safe
Harbor Contribution will be an amount equal to _____% (not less than 3%) of
Compensation. This election is made on this _____ day of _____, _____ (date
may not be later than 30 days prior to the end of the Plan Year in which
such election is being made).
5. For the Plan Year beginning _____ and ending _____, the Employer hereby
invokes a Safe Harbor status as provided in IRS Notice 2000-3. The Safe
Harbor Contribution will be an amount equal to _____% (not less than 3%) of
Compensation. This election is made on this _____ day of _____, _____ (date
may not be later than 30 days prior to the end of the Plan Year in which
such election is being made).
Section 401(k) Plan AA #010
44
SCHEDULE E
COLLECTIVE AND COMMINGLED FUNDS
The Trustee is authorized to invest all or any part of the Fund in the following
Collective and Commingled Funds as provided for in the Basic Plan Document #01:
1. All funds under the following declarations of trust, as amended:
2. U.S. Bank, N.A. Collective Investment Funds for EB Retirement Trusts
3. Firstar Investment Trust for EB Plans
4. Collective Investment Funds of Firstar Bank Wisconsin
Section 401(k) Plan AA #010
45
AMENDMENT
TO THE
NONSTANDARDIZED
CASH OR DEFERRED PROFIT-SHARING PLAN
ADOPTION AGREEMENT #010
1. Except as otherwise noted, effective as of the first day of the first
Plan Year beginning after December 31, 2001, Section VI of the
Nonstandardized Cash or Deferred Profit-Sharing Plan Adoption Agreement
#010 entitled "EMPLOYEE CONTRIBUTIONS" is amended by adding the
following new sections:
"J". CATCH-UP CONTRIBUTIONS (SELECT ONE):
[X] 1. Shall apply to contributions after 12/31/2001.
(enter December 31, 2001 or a later date).
[ ] 2. Shall not apply.
K. DIRECT ROLLOVERS:
The Plan will accept a Direct Rollover of an Eligible Rollover
Distribution from (check each that apply):
[ ] 1. A Qualified Plan described in Code Section 401(a) or
403(a), excluding Voluntary After-tax Contributions.
[X] 2. A Qualified Plan described in Code Section 401(a) or
403(a), including Voluntary After-tax Contributions.
[ ] 3. An annuity contract described in Code Section 403(b),
excluding Voluntary After-tax Contributions.
[ ] 4. An eligible plan under Code Section 457(b) which is
maintained by a state, political subdivision of a
state, or an agency or instrumentality of a state or
political subdivision of a state.
L. PARTICIPANT ROLLOVER CONTRIBUTIONS FROM OTHER PLANS:
The Plan will accept a Participant Rollover Contribution of an
Eligible Rollover Distribution from (check only those that
apply):
[X] 1. A Qualified Plan described in Code Section 401(a) or
403(a).
[ ] 2. An annuity contract described in Code Section 403(b).
[ ] 3. 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.
M. PARTICIPANT ROLLOVER CONTRIBUTIONS FROM IRAS:
The Plan (select one):
[ ] 1. will
Section 401(k) Plan AA #010
1
[X] 2. will not
accept a Participant Rollover Contribution of the portion of a
distribution from an Individual Retirement Account [which was
not used as a conduit] or Annuity described in Code Section
408(a) or 408(b) that is eligible to be rolled over and would
otherwise be includable in gross income.
N. EFFECTIVE DATE OF DIRECT ROLLOVER AND PARTICIPANT ROLLOVER
CONTRIBUTION PROVISIONS:
The provisions of (K), (L) and (M) above as they apply to Paragraph 4.4
of the Basic Plan Document #01 entitled "Rollover Contributions" shall
be effective _____________________________ (enter a date no earlier
than January 1, 2002)."
2. Section VIII(A) of the Nonstandardized Cash or Deferred Profit-Sharing
Plan Adoption Agreement #010 entitled, "Matching Employer
Contributions" will be amended effective ___________________________ by
the addition of a new paragraph 6, which shall read as follows:
"6. CATCH-UP CONTRIBUTIONS:
[ ] a. Catch-Up contributions made by the
Participants will not be matched by the
Employer.
[X] b. Catch-Up Contributions made by the
Participants will be matched on the same
formula, terms and conditions as provided in
Section VIII of the Adoption Agreement. A
Matching Contribution will be made on the
basis of the contribution type(s) selected
below:
[X] i. Elective Deferrals
[ ] ii. 403(b) Deferrals"
3. Section XI of the Nonstandardized Cash or Deferred Profit-Sharing Plan
Adoption Agreement #010 entitled, "MULTIPLE PLANS MAINTAINED BY THE
SAME EMPLOYER, LIMITATIONS ON ALLOCATIONS, AND TOP-HEAVY CONTRIBUTIONS"
will be amended effective _____________ by the addition of a new
paragraph (C) which shall read as follows:
"C. MINIMUM BENEFITS FOR EMPLOYEES ALSO COVERED UNDER ANOTHER
PLAN:
The Employer should describe below the extent, if any, to
which the Top-Heavy Minimum Benefit requirements of Code
Section 416(c) and paragraph 14.2 of the Basic Plan Document
#01 shall be met in another plan. Please list 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. Section XIII of the Nonstandardized Cash or Deferred Profit-Sharing
Plan Adoption Agreement #010 entitled, "VESTING" will be amended
effective __________________ by the addition of a new paragraph (E)
which shall read as follows:
NOTE: First select to whom the vesting schedule will apply. Number 1
should be elected if only active Participants' Matching
Contributions accounts will be affected. Letter (a) should be
selected if the Employer wishes only to change the vesting
schedule for contributions made to the Plan after December 31,
2001. Letter (b) should be selected if the Employer
Section 401(k) Plan AA #010
2
wants to change the vesting schedule for all Matching
Contributions to the Plan (regardless of when made). Number 2
should be selected if the Employer wants to change the vesting
schedule on Matching Contributions for all Participants -
regardless of whether they are active or inactive. The
applicable vesting schedule shall be selected from number 3
through 7 below.
"E. VESTING OF EMPLOYER MATCHING CONTRIBUTIONS:
[ ] 1. Participants who have completed one Hour of
Service after 2001
[ ] a. The vesting schedule of
Employer Matching Contributions as
described in paragraph 9.2 of the
Basic Plan Document #01 shall be
selected below and shall apply only
to account balances derived from
Employer Matching Contributions
attributable to a Plan Year
beginning after December 31, 2001.
[ ] b. The vesting schedule of Employer
Matching Contributions as described
in paragraph 9.2 of the Basic Plan
Document #01 shall be selected below
and shall apply to all Participants
with an account balance derived from
Employer Matching Contributions.
[ ] 2. All Plan Participants:
The vesting schedule of Employer Matching
Contributions as described in paragraph 9.2 of the
Basic Plan Document #01 shall be selected below and
shall apply to all Participants with an account
balance derived from Employer Matching Contributions.
The vesting schedule for Employer Matching Contributions shall
be as follows:
[ ] 3. Not applicable. There are no Matching
Contributions made to the Plan.
[X] 4. Not applicable. The current formula(s) are
equal to or greater than the three year
cliff or six year graded vesting schedules.
[ ] 5. A Participant's account balance derived from
Employer Matching Contributions shall be
fully and immediately vested.
[ ] 6. A Participant's account balance derived from
Employer Matching Contributions shall be
nonforfeitable upon the Participant's
completion of three (3) years of vesting
Service.
[ ] 7. A Participant's account balance derived from
Employer Matching Contributions shall vest
according to the following schedule:
Years of Vesting Service Vested Percentage
- ------------------------ -----------------
2 20%
3 40%
4 60%
5 80%
6 100%
Section 401(k) Plan AA #010
3
5. Section XV of the Nonstandardized Cash or Deferred Profit-Sharing Plan
Adoption Agreement #010 entitled, "IN-SERVICE WITHDRAWALS" will be
amended by the addition of a new paragraph (C) which shall read as
follows:
"C. SUSPENSION PERIOD FOR HARDSHIP DISTRIBUTION (SELECT ONE):
[X] 1. A Participant who receives a distribution in
calendar year 2001 on account of Hardship shall be
prohibited from making Elective Deferrals and
Voluntary After-tax Contributions under this and all
other plans of the Employer for six (6) months after
receipt of the distribution or until January 1, 2002,
if later.
[ ] 2. A Participant who receives a distribution in
calendar year 2001 on account of Hardship shall be
prohibited from making Elective Deferrals and
Voluntary After-tax Contributions under this and all
other plans of the Employer for the period specified
in the provisions of the Plan relating to suspension
of Elective Deferrals that were in effect prior to
this Amendment."
6. Section XVIII of the Nonstandardized Cash or Deferred Profit-Sharing
Plan Adoption Agreement #010 entitled, "DISTRIBUTION OPTIONS" will be
amended effective __________________ by the addition of the following:
"E. TREATMENT OF ROLLOVERS IN APPLICATION OF INVOLUNTARY CASH-OUT
PROVISIONS:
The Plan (select one):
[X] Elects to exclude Rollover Contributions in
determining the value of the Participant's
nonforfeitable account balance for purposes of the
Plan's involuntary cash-out rules.
[ ] Does not elect to exclude Rollover Contributions in
determining the value of the Participant's
nonforfeitable account balance for purposes of the
Plan's involuntary cash-out rules.
If the Employer has elected to exclude Rollover Contributions,
the election shall apply with respect to distributions made
after _________________________ (enter a date no earlier than
December 31, 2001) with respect to Participants who separated
from Service after __________________________ (enter the date;
this date may be earlier than December 31, 2001)."
F. DISTRIBUTION UPON SEVERANCE FROM EMPLOYMENT:
Distribution upon severance from employment as described in
paragraph 6.6(d) of the Basic Plan Document #01 shall apply
for distributions after ___________________ (enter a date no
earlier than December 31, 2001):
[X] regardless of when the severance from employment
occurred.
[ ] for severance from employment occurring after
_______________ (enter the Effective Date if
different than the Effective Date above)."
Section 401(k) Plan AA #010
4
Executed this 4th day of December, 2002.
JDA Software, Inc.
-------------------------
Name of Employer
Margie Jones
-------------------------
Signed by
/s/ Margie Jones
-------------------------
Signature
Section 401(k) Plan AA #010
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