FOURTH AMENDMENT TO THE
MORRISON MANAGEMENT SPECIALISTS, INC.
SALARY DEFERRAL PLAN
THIS FOURTH AMENDMENT is made as of this 29th day of June, 2000 by MORRISON
MANAGEMENT SPECIALISTS, INC., a corporation duly organized and existing under
the laws of the state of Georgia (the "Primary Sponsor").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Primary Sponsor maintains the Morrison Health Care, Inc.
Salary Deferral Plan (the "Plan") under an indenture dated March 7, 1996; and
WHEREAS, to reflect the change in the name of the Primary Sponsor to
Morrison Management Specialists, Inc., the Primary Sponsor desires to change the
name of the Plan to the "Morrison Management Specialists, Inc. Salary Deferral
Plan."
WHEREAS, the Primary Sponsor wishes to amend the Plan to reflect
certain changes under the Uniformed Services Employment and Reemployment Rights
Act, the Small Business Job Protection Act of 1996 and the Taxpayer Relief Act
of 1997; and
WHEREAS, the Primary Sponsor wishes to amend the Plan to reflect the
preservation of certain protected benefits within the meaning of Section
411(d)(6) of the Internal Revenue Code resulting from the transfer of assets
from the Charlotte-Mecklenburg Hospital Authority 401(k) Matched Savings Plan.
NOW, THEREFORE, the Plan is hereby amended, effective as of January 1,
1997, except as otherwise provided herein, as follows:
1. Effective January 1, 2000, by deleting Section 1.1(c) in its
entirety and by substituting therefor the following:
"(c) `Employee Deferred Account' which shall reflect a
Member's interest in contributions made by a Plan Sponsor under Plan
Section 3.1 and a Member's interest, if any, in his Deferred Income
Account under the CHS Plan which has been transferred to the Plan in a
trust-to-trust transfer."
2. Effective January 1, 2000, by deleting Section 1.1(f) in its
entirety and by substituting therefor the following:
"(f) `Rollover Account' which shall reflect a Member's
interest in Rollover Amounts and a Member's interest, if any, in his
Rollover Account under the CHS Plan which has been transferred to the
Plan in a trust-to-trust transfer."
3. Effective January 1, 2000, by adding the following new Section
1.1(l)A as follows:
"(l)A `Discretionary Profit Sharing Contribution Account'
which shall reflect a Member's interest in discretionary profit sharing
contributions made by a Plan Sponsor under Plan Section 3.4C and a
Member's interest, if any, in his Employer Discretionary Contributions
Account under the Charlotte-Mecklenburg Hospital Authority 401(k)
Matched Savings Plan (the `CHS Plan') which has been transferred to the
Plan in a trust-to-trust transfer."
4. Effective January 1, 2000, by adding the following new Section
1.1(m) as follows:
"(m) `CHS Matching Employer Contributions Account' which shall
reflect a Member's interest, if any, in his Matching Employer
Contributions Account, if any, under the CHS Plan which has been
transferred to the Plan in a trust-to-trust transfer."
5. Effective January 1, 1998, by deleting existing Plan Section
1.5 in its entirety and by substituting the following:
"1.5 `Annual Compensation' means wages within the meaning of
Code Section 3401(a) (for purposes of income tax withholding at the
source) paid to an Employee by a Plan Sponsor and Affiliates during a
Plan Year (but without regard to any rules that limit the remuneration
included in wages based on the nature or location of the employment or
the services performed, such as the exception for agricultural labor in
Code Section 3401(a)(2)), to the extent not in excess of the Annual
Compensation Limit for all purposes under the Plan except for purposes
of determining who are Highly Compensated Employees. Notwithstanding
the above, Annual Compensation shall be determined as follows:
(a) (1) for purposes of determining, with respect to each
Plan Sponsor, the amount of contributions made by or on
behalf of an Employee under Plan Section 3 and allocations
under Plan Section 4, and
(2) for purposes of applying the provisions of
Appendix A hereto for such Plan Years as the Secretary of
the Treasury may allow, Annual Compensation shall only
include amounts received for the portion of the Plan Year
during which the Employee was a Member; and
(b) for all purposes under the Plan, Annual Compensation
shall include any amount which would have been paid during a Plan
Year, but was contributed by a Plan Sponsor on behalf of an
Employee pursuant to a salary reduction agreement which is not
includable in the gross income of the Employee under Section 125,
402(g)(3), or 457 of the Code."
6. Effective January 1, 2000, by adding the following new Section
1.9A as follows:
"1.9A `CHS Facility' means any facility or location, or
successor thereto, previously operated by the Charlotte-Mecklenburg
Hospital Authority."
7. By deleting Section 1.19 in its entirety and by substituting
therefor the following:
"1.19 `Eligible Employee' means any Employee of a Plan Sponsor
other than an Employee who is (a) an Employee covered by a collective
bargaining agreement between a union and a Plan Sponsor, provided that
retirement benefits were the subject of good faith bargaining, unless
the bargaining agreement provides for participation in the Plan; or (b)
a leased employee within the meaning of Code Section 414(n)(2), or
deemed to be an Employee of a Plan Sponsor pursuant to regulations
under Code Section 414(o). Notwithstanding the foregoing, no person who
is initially classified by a Plan Sponsor as an independent contractor
for federal income tax purposes shall be regarded as an Eligible
Employee for that period, regardless of any subsequent determination
that any such person should have been characterized as a common law
employee of the Plan Sponsor for the period in question."
8. Effective January 1, 2000, by deleting Section 1.21 in its
entirety and by substituting therefore the following:
"1.21 `Eligible Rollover Distribution' means any distribution
of all or any portion of the Distributee's Account, except that an
Eligible Rollover Distribution does not include: any distribution that
is one of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of the
Distributee or the joint lives (or joint life expectancies) of the
Distributee and the Distributee's designated Beneficiary, or for a
specified period of ten years or more; any distribution to the extent
such distribution is required under Code Section 401(a)(9); the portion
of any distribution that is not includable in gross income (determined
without regard to the exclusion for net unrealized appreciation with
respect to employer securities); and any distribution contemplated by
Code Section 401(k)(2)(B)(i)(IV)."
9. By deleting existing Plan Section 1.31 in its entirety and
substituting therefor the following:
"1.31 `Highly Compensated Employee' means, with respect to a
Plan Year, each Employee who:
(a) was at any time during the Plan Year or the
immediately preceding Plan Year an owner of more than five
percent (5%) of the outstanding stock of a Plan Sponsor or
Affiliate or more than five percent (5%) of the total combined
voting power of all stock of a Plan Sponsor or Affiliate; or
(b) received Annual Compensation in excess of $85,000
during the immediately preceding Plan Year ($80,000 for
preceding Plan Years beginning on or before January 1, 1999),
which amount shall be adjusted for changes in the cost of
living as provided in regulations issued by the Secretary of
the Treasury.
(c) is a former Employee who met the requirements of
Subsection (a) or (b) at the time the former Employee
separated from service with the Plan Sponsor or an Affiliate
or at any time after the former Employee attained age 55."
10. By deleting existing Plan Section 1.37(c) in its entirety and
by substituting therefor the following: "[Reserved.]"
11. Effective January 1, 2000, by deleting Section 1.44 in its
entirety and by substituting the following:
"1.44 `Profit Sharing Plan' means the portion of the Plan
pertaining to Discretionary Profit Sharing Contribution Accounts,
Employee Deferred Accounts, Voluntary Contribution Accounts,
Pre-Spinoff Matching Accounts, Diversification Accounts, CHS Matching
Employer Contributions Accounts, and Rollover Accounts."
12. Effective January 1, 2000, by adding the following new Section
3.4C as follows:
"3.4C Discretionary Profit Sharing Contributions. The Plan
Sponsor proposes to make contributions to the Fund with respect to each
Plan Year on behalf of each Member who is an Eligible Employee entitled
to an allocation under Plan Section 4.1A in an amount determined by the
Plan Sponsor."
13. Effective January 1, 2000, by deleting Section 3.6 in its
entirety and by substituting therefor the following:
"3.6 In no event will the sum of contributions under Plan
Sections 3.1, 3.2, 3.4A, 3.4B, and 3.4C exceed the deductible limits
under Code Section 404."
14. Effective January 1, 2000, by adding the following new Section
4.1A as follows:
"4.1A Discretionary Profit Sharing Contributions. As soon as
reasonably practicable following the date of receipt by the Trustee,
Plan Sponsor contributions made pursuant to Section 3.4C shall be
allocated to the Discretionary Profit Sharing Contribution Account of
each Member who is employed by a Plan Sponsor on the last day of the
Plan Year at a CHS Facility in the proportion that the Member's
Compensation bears to the Annual Compensation of all Members entitled
to an allocation under this Plan Section 4.1A."
15. By deleting Sections 4.4(b) and (c) in their entirety and by
substituting the following:
"(b) Any shares of Company Stock which are released from the
Loan Suspense Account that are attributable (1) to Plan Sponsor
contributions under Plan Section 3.3 and forfeitures; (2) to cash
dividends paid on shares of Company Stock allocated to the Loan
Suspense Account that are used to make a payment on an Acquisition
Loan; and (3) to proceeds on the sale of shares of Company Stock held
in the Loan Suspense Account that are used to make a payment on an
Acquisition Loan shall be allocated to Company Matching Accounts in
accordance with Plan Section 4.2(a). Proceeds on the sale of shares of
Company Stock held in the Loan Suspense Account may be used to repay an
Acquisition Loan if the transaction, based on all the surrounding facts
and circumstances, satisfies the requirements of Treasury Regulations
Section 54.4975-7(b)(3).
(c) To the extent the proceeds on the sale of Company Stock
held in the Loan Suspense Account exceed the amount of the Acquisition
Loan, such proceeds shall be treated as earnings and shall be allocated
to each Member's Supplemental Matching Account in the proportion that
the balance of the Member's Accounts under the ESOP as of the
immediately preceding Valuation Date bears to the total value of all
Members' Accounts under the ESOP as of the immediately preceding
Valuation Date."
16. By deleting Section 4.4(e) in its entirety.
17. Effective January 1, 2000, by adding the following new Section
6.3A as follows:
"6.3A Subject to the rules and conditions as the Plan
Administrator may prescribe, by request, a Member who has attained the
age of 59 1/2 may elect to withdrawal all or any portion of his vested
Account."
18. By deleting Section 6.4 in its entirety and by substituting
therefor the following:
"6.4 Any distribution pursuant to this Plan Section, other
than a distribution on account of a hardship, shall be made in a lump
sum to the Member and shall be subject to the Eligible Rollover
Distribution requirements set forth in Plan Section 11.2."
19. Effective January 1, 2000, by deleting Section 8.4 in its
entirety and by substituting therefor the following:
"8.4 Payment of the Member's Accrued Benefit shall be made as
soon as administratively feasible after the Member terminates
employment, but in no event later than, unless the Member otherwise
elects, the 60th day after the latest of the close of the Plan Year in
which the Member terminates his service with the Plan Sponsor;
provided, however, if the Member's Accrued Benefit exceeds $5,000 it
will not be distributed before the Member's `required beginning date,'
within the meaning of Plan Section 11.3(c), without the Member's
consent."
20. Effective January 1, 2000, by deleting Section 9.3 in its
entirety and by substituting therefor the following:
"9.3 Payment of the Member's Accrued Benefit shall be made as
soon as administratively feasible after the Member terminates
employment, but in no event later than, unless the Member otherwise
elects, the 60th day after the latest of the close of the Plan Year in
which the Member terminates his service with the Plan Sponsor;
provided, however, if the Member's Accrued Benefit exceeds $5,000 it
will not be distributed before the Member's `required beginning date,'
within the meaning of Plan Section 11.3(c), without the Member's
consent."
21. Effective January 1, 2001, by deleting Section 11.3(c) in its
entirety and by substituting therefor the following:
"(c) For purposes of this Section, the term `required
beginning date' means April 1 of the calendar year following the later
of the calendar year in which the Member attains age 70 1/2 or the
calendar year in which the Member retires, except that in the case of a
person described in Section l(b)(3) of Appendix C, the `required
beginning date' shall be April 1 of the calendar year following the
calendar year in which the Member attains age 70 1/2. Notwithstanding
the foregoing, with respect to a Member who attains age 70 1/2 prior to
January 1, 2001, such Member may elect to receive minimum required
distributions in accordance with Section 401(a)(9) as in effect prior
to January 1, 1997, or, in the alternative, such Member may elect to
defer distribution, in which event benefits will be paid in accordance
with the remaining provisions of the Plan."
22. By deleting the first sentence of Section 22.1 in its entirety
and by substituting therefor the following:
"Subject to the provisions of the Plan and the Trust, on and after the
date the provisions of this Section are activated by express written
action of the Plan Administrator, each Member who is an Employee shall
have the right, subject to prior approval by the Plan Administrator, to
borrow from the Fund."
23. By adding a new final sentence to Section 22.1 as follows:
"In addition, any loan made to a Member under the CHS Plan and
transferred to the Plan shall be governed and administered by the Plan
Administrator in accordance with the terms of the notes evidencing such
loans and shall be subject to the terms of the Plan and the Trust."
24. By deleting Section 22.7 in its entirety and by substituting
therefor the following:
"22.7 Each loan, by its terms, shall be repaid within five (5)
years; except that the Plan Administrator by uniform rule, may allow
any loan which is used to acquire any dwelling unit which within a
reasonable time is to be used (determined at the time the loan is made)
as the principal residence of the borrower, by its terms, to be repaid
within a longer period of time."
25. By deleting Appendix A in its entirety and by substituting the
following:
"APPENDIX A
SPECIAL NONDISCRIMINATION RULES
SECTION 1
As used in this Appendix, the following words shall have the
following meanings:
(a) `Eligible Member' means a Member who is an
Employee during any particular Plan Year.
(b) `Highly Compensated Eligible Member' means
any Eligible Member who is a Highly Compensated Employee.
(c) `Matching Contribution' means any contribution
made by a Plan Sponsor to a Matching Account and any other
contribution made to a plan by a Plan Sponsor or an Affiliate
on behalf of an Employee on account of a contribution made by
an Employee or on account of an Elective Deferral.
(d) `Qualified Matching Contributions' means Matching
Contributions which are immediately nonforfeitable when made,
and which would be nonforfeitable, regardless of the age or
service of the Employee or whether the Employee is employed on
a certain date, and which may not be distributed, except upon
one of the events described under Section 401(k)(2)(B) of the
Code and the regulations thereunder.
(e) `Qualified Nonelective Contributions' means
contributions of the Plan Sponsor or an Affiliate, other than
Matching Contributions or Elective Deferrals, which are
nonforfeitable when made, and which would be nonforfeitable
regardless of the age or service of the Employee or whether
the Employee is employed on a certain date, and which may not
be distributed, except upon one of the events described under
Code Section 401(k)(2)(B) and the regulations thereunder.
SECTION 2
In addition to any other limitations set forth in the Plan,
for each Plan Year one of the following tests must be satisfied:
(a) the actual deferral percentage for the Highly
Compensated Eligible Members for the Plan Year must not be
more than the actual deferral percentage of all other Eligible
Members for the preceding Plan Year multiplied by 1.25; or
(b) the excess of the actual deferral percentage for
the Highly Compensated Eligible Members for the Plan Year over
that of all other Eligible Members for the preceding Plan Year
must not be more than two (2) percentage points, and the
actual deferral percentage for the Highly Compensated Eligible
Members for the Plan Year must not be more than the actual
deferral percentage of all other Eligible Members for the
preceding Plan Year multiplied by two (2).
The `actual deferral percentage' for the Highly Compensated
Eligible Members and all other Eligible Members for a Plan Year is the
average in each group of the ratios, calculated separately for each
Employee, of the Deferral Amounts contributed by the Plan Sponsor on
behalf of an Employee for the Plan Year to the Annual Compensation of
the Employee in the Plan Year. In addition, for purposes of calculating
the `actual deferral percentage' as described above, Deferral Amounts
of Employees who are not Highly Compensated Employees which are
prohibited by Code Section 401(a)(30) shall not be taken into
consideration. Except to the extent limited by Treasury Regulation
section 1.401(k)-l(b)(5) and any other applicable regulations
promulgated by the Secretary of the Treasury, all or part of the
Qualified Matching Contributions and Qualified Nonelective
Contributions made pursuant to the Plan may be treated as Deferral
Amounts for purposes of determining the `actual deferral percentage.'
SECTION 3
If the Deferral Amounts contributed on behalf of any Highly
Compensated Eligible Member exceeds the amount permitted under the
`actual deferral percentage' test described in Section 2 of this
Appendix A for any given Plan Year, then before the end of the Plan
Year following the Plan Year for which the Excess Deferral Amount was
contributed, (a) the portion of the Excess Deferral Amount for the Plan
Year attributable to a Highly Compensated Member, as adjusted to
reflect income, gain, or loss attributable to it through the date the
end of the Plan Year for which the test is being performed and reduced
by any excess Elective Deferrals as determined pursuant to Plan Section
3.1 previously distributed to a Member for the Member's taxable year
ending with or within the Plan Year, may be distributed to the Highly
Compensated Eligible Member or (b) to the extent provided in
regulations issued by the Secretary of the Treasury, the Plan
Administrator may permit the Member to elect, within two and one-half
months after the end of the Plan Year for which the Excess Deferral
Amount was contributed, to treat the Excess Deferral Amount, unadjusted
for earnings, gains, and losses, but as so reduced, as an amount
distributed to the Member and then contributed as an after-tax
contribution by the Member to the Plan (`recharacterized amounts'). The
income allocable to such Excess Deferral Amount shall be determined in
a similar manner as described in Section 4.3 of the Plan. The Excess
Deferral Amount to be distributed or recharacterized shall be reduced
by Deferral Amounts previously distributed or recharacterized for the
taxable year ending in the same Plan Year, and shall also be reduced by
Deferral Amounts previously distributed or recharacterized for the Plan
Year beginning in such taxable year. For all other purposes under the
Plan other than this Appendix A, recharacterized amounts shall continue
to be treated as Deferral Amounts. In the event the multiple use of
limitations contained in Sections 2(b) and 5(b) of this Appendix A,
pursuant to Treasury Regulations section 1.401(m)-2 as promulgated by
the Secretary of the Treasury, requires a corrective distribution, such
distribution shall be made pursuant to this Section 3, and not Section
6 of Appendix A. The portion of the Matching Contribution on which such
Excess Deferral Amount was based shall be forfeited upon the
distribution or recharacterization, as the case may be, of such Excess
Deferral Amount.
(a) For purposes of this Section 3, `Excess Deferral
Amount' means, with respect to a Plan Year, the excess of:
(1) the aggregate amount of Deferral
Amounts contributed by a Plan Sponsor on behalf of
Highly Compensated Eligible Members for the Plan
Year, over
(2) the maximum amount of Deferral Amounts
permitted under Section 2 of this Appendix A for the
Plan Year, which shall be determined by reducing the
Deferral Amounts contributed on behalf of Highly
Compensated Eligible Members in order of the actual
deferral percentages beginning with the highest of
such percentages.
(b) Distribution of the Excess Deferral Amount for
any Plan Year shall be made to Highly Compensated Eligible
Members on the basis of the dollar amount of Deferral Amounts
attributable to each Highly Compensated Eligible Member. The
Plan Sponsor shall determine the amount of Excess Deferral
Amounts which shall be distributed to each Highly Compensated
Eligible Member as follows.
(1) The Deferral Amounts allocated to the
Highly Compensated Eligible Member with the highest
dollar amount of Deferral Amounts for the Plan Year
shall be reduced by the amount required to cause that
Highly Compensated Eligible Member's remaining
Deferral Amounts for the Plan Year to be equal to the
dollar amount of the Deferral Amounts allocated to
the Highly Compensated Eligible Member with the next
highest dollar amount of Deferral Amounts for the
Plan Year. This amount is then distributed to the
Highly Compensated Eligible Member with the highest
dollar amount of Deferral Amounts, unless a smaller
reduction, when added to the total dollar amount
already distributed pursuant to this Paragraph (1),
equals the total Excess Deferral Amounts.
(2) If the total amount distributed under
Paragraph (1) of this Section 3(b) is less than the
total Excess Deferral Amounts, the procedure in
Paragraph (1) shall be successively repeated until
the total dollar amount distributed is equal to the
total Excess Deferral Amounts attributable to Highly
Compensated Eligible Members.
If a distribution of the Excess Deferral Amounts attributable
to the Highly Compensated Eligible Members is made in accordance with
Paragraphs (1) and (2) of this Section, the limitations in Section 2 of
this Appendix A shall be treated as being met regardless of whether the
actual deferral percentage, if recalculated after such distributions,
would have satisfied the requirements of Section 2.
SECTION 4
The Plan Administrator shall have the responsibility of
monitoring the Plan's compliance with the limitations of this Appendix
A and shall have the power to take all steps it deems necessary or
appropriate to ensure compliance, including, without limitation,
restricting the amount which Highly Compensated Eligible Members can
elect to have contributed pursuant to Plan Section 3.1. Any actions
taken by the Plan Administrator pursuant to this Section 4 shall be
pursuant to non-discriminatory procedures consistently applied.
SECTION 5
In addition to any other limitations set forth in the Plan,
Matching Contributions under the Plan and the amount of nondeductible
employee contributions under the Plan, for each Plan Year must satisfy
one of the following tests:
(a) The contribution percentage for Highly
Compensated Eligible Members for the Plan Year must not exceed
125% of the contribution percentage for all other Eligible
Members for the preceding Plan Year; or
(b) The contribution percentage for Highly
Compensated Eligible Members for the Plan Year must not exceed
the lesser of (1) 200% of the contribution percentage for all
other Eligible Members for the preceding Plan Year, and (2)
the contribution percentage for all other Eligible Members for
the preceding Plan Year plus two (2) percentage points.
Notwithstanding the foregoing, for purposes of this Section 5,
the terms Highly Compensated Eligible Member and Eligible Member shall
not include any Member who is not eligible to receive a Matching
Contribution under the provisions of the Plan, other than as a result
of the Member failing to contribute to the Plan or failing to have an
Elective Deferral contributed to the Plan on the Member's behalf.
Notwithstanding the foregoing, if Qualified Matching Contributions are
taken into account for purposes of applying the test contained in
Section 2 of this Appendix A, they shall not be taken into account
under this Section 5. In applying the above tests, the Plan
Administrator shall comply with any regulations promulgated by the
Secretary of the Treasury which prevent or restrict the use of the test
contained in Section 2(b) of this Appendix A and the test contained in
Section 5(b) of this Appendix A. The `contribution percentage' for
Highly Compensated Eligible Members and for all other Eligible Members
for a Plan Year shall be the average of the ratios, calculated
separately for each Member, of (A) to (B), where (A) is the amount of
Matching Contributions under the Plan (excluding Qualified Matching
Contributions which are used to apply the test set forth in Section 2
of this Appendix A or Matching Contributions which are used to satisfy
the minimum required contributions to the Accounts of Eligible Members
who are not Key Employees pursuant to Section 1 of Appendix C to the
Plan) and nondeductible employee contributions made under the Plan for
the Eligible Member for the Plan Year, and where (B) is the Annual
Compensation of the Eligible Member for the Plan Year. Except to the
extent limited by Treasury Regulation Section 1.401(m)-l(b)(5) and any
other applicable regulations promulgated by the Secretary of the
Treasury, a Plan Sponsor may elect to treat Deferral Amounts and
Qualified Nonelective Contributions as Matching Contributions for
purpose of determining the `contribution percentage,' provided the
Deferral Amounts, excluding those treated as Matching Contributions,
satisfy the test set forth in Section 2 of Appendix A.
SECTION 6
If either (a) the Matching Contributions and, if taken into
account under Section 5 of this Appendix A, the Deferral Amounts,
Qualified Nonelective Contributions and/or Qualified Matching
Contributions made on behalf of Highly Compensated Eligible Members, or
(b) the nondeductible employee contributions made by Highly Compensated
Eligible Members exceed the amount permitted under the `contribution
percentage test' for any given Plan Year, then, before the close of the
Plan Year following the Plan Year for which the Excess Aggregate
Contributions were made, the amount of the Excess Aggregate
Contributions attributable to the Plan for the Plan Year under either
Section (6)(a)(1) or (2), or both, as adjusted to reflect any income,
gain or loss attributable to such contributions through the date the
Excess Aggregate Contributions are distributed shall be distributed or,
if the Excess Aggregate Contributions are forfeitable, forfeited. The
income allocable to such contributions shall be determined in a similar
manner as described in Section 4.3 of the Plan. As to any Highly
Compensated Employee, any distribution or forfeiture of his allocable
portion of the Excess Aggregate Contributions for a Plan Year shall
first be attributed to any nondeductible employee contributions made by
the Member during the Plan Year for which no corresponding Plan Sponsor
contribution is made and then to any remaining nondeductible employee
contributions made by the Member during the Plan Year and any Matching
Contributions thereon. As between the Plan and any other plan or plans
maintained by the Plan Sponsor in which Excess Aggregate Contributions
for a Plan Year are held, each such plan shall distribute or forfeit a
pro-rata share of each class of contribution based on the respective
amounts of a class of contribution made to each plan during the Plan
Year. The payment of the Excess Aggregate Contributions shall be made
without regard to any other provision in the Plan. In the event the
multiple use of limitations contained in Sections 2(b) and 5(b) of this
Appendix A, pursuant to Treasury Regulation section 1.401(m)-2 as
promulgated by the Secretary of the Treasury, requires a corrective
distribution, such distribution shall be made pursuant to Section 3 of
Appendix A, and not this Section 6.
For purposes of this Section 6, with respect to any Plan Year,
`Excess Aggregate Contributions' means the excess of:
(a) the aggregate amount of the Matching
Contributions and nondeductible employee contributions (and
any Qualified Nonelective Contributions or Qualified Matching
Contributions) and, it taken into account under Section 5 of
this Appendix A, the Deferral Amounts actually made on behalf
of Highly Compensated Eligible Members for the Plan Year, over
(b) the maximum amount of contributions permitted
under the limitations of Section 5 of this Appendix A,
determined by reducing contributions made on behalf of Highly
Compensated Eligible Members in order of their contribution
percentages beginning with the highest of such percentages.
The determination of the amount of Excess Aggregate
Contributions under this Section 6 shall be made after (1)
first determining the excess Elective Deferrals under Section
3.1(b) of the Plan and (2) then determining the Excess
Deferral Amounts under Section 3 of this Appendix A.
(c) Distribution or forfeiture of nondeductible
employee contributions or Matching Contributions in the amount
of the Excess Aggregate Contributions for any Plan Year shall
be made with respect to Highly Compensated Eligible Members on
the basis of the dollar amount of the Excess Aggregate
Contributions attributable to each Highly Compensated Eligible
Member. Forfeitures of Excess Aggregate Contributions may not
be allocated to Members whose contributions are reduced under
this Section 6. The Plan Sponsor shall determine the amount of
Excess Aggregate Contributions which shall be distributed to
each Highly Compensated Eligible Member as follows.
(1) The Matching Contributions and
nondeductible contributions allocated to the Highly
Compensated Eligible Member with the highest dollar
amount of such contributions for the Plan Year shall
be reduced by the amount required to cause that
Highly Compensated Eligible Member's remaining
Matching Contributions and nondeductible
contributions for the Plan Year to be equal to the
dollar amount of such contributions allocated to the
Highly Compensated Eligible Member with the next
highest dollar amount of Matching contributions and
nondeductible contributions for the Plan Year. This
amount is then distributed to the Highly Compensated
Eligible Member with the highest dollar amount of
Matching Contributions and nondeductible
contributions, unless a smaller reduction, when added
to the total dollar amount already distributed
pursuant to this Subsection (1), equals the total
Excess Aggregate Contributions.
(2) If the total amount distributed under
Paragraph (1) is less than the total Excess Aggregate
Contributions, the procedure in Paragraph (1) shall
be repeated until the total dollar amount of Matching
Contributions and nondeductible contributions
distributed is equal to the total Excess Aggregate
Contributions attributable to Highly Compensated
Eligible Members.
If a distribution of the total Excess Aggregate Contributions
is made in accordance with Paragraphs (1) and (2) of this Section 6(c),
the limitations in Section 5 of this Appendix A shall be treated as
being met regardless of whether the actual contribution percentage, if
recalculated after such distributions, would have satisfied the
requirements of Section 5.
SECTION 7
Except to the extent limited by rules promulgated by the
Secretary of the Treasury, if a Highly Compensated Eligible Member is a
participant in any other plan of the Plan Sponsor or any Affiliate
which includes Matching Contributions, deferrals under a cash or
deferred arrangement pursuant to Code Section 401(k), or nondeductible
employee contributions, any contributions made by or on behalf of the
Member to the other plan shall be allocated with the same class of
contributions under the Plan for purposes of determining the `actual
deferral percentage' and `contribution percentage' under the Plan;
provided, however, contributions that are made under an `employee stock
ownership plan' (within the meaning of Code Section 4975(e)(7)) shall
not be combined with contributions under any plan which is not an
employee stock ownership plan (within the meaning of Code Section
4975(e)(7)).
Except to the extent limited by rules promulgated by the
Secretary of the Treasury, if the Plan and any other plans which
include Matching Contributions, deferrals under a cash or deferred
arrangement pursuant to Code Section 401(k), or nondeductible employee
contributions are considered as one plan for purposes of Code Section
401(a)(4) and 410(b)(1), any contributions under the other plans shall
be allocated with the same class of contributions under the Plan for
purposes of determining the `contribution percentage' and `actual
deferral percentage' under the Plan; provided, however, contributions
that are made under an `employee stock ownership plan' (within the
meaning of Code Section 4975(e)(7)) shall not be combined with
contributions under any plan which is not an employee stock ownership
plan (within the meaning of Code Section 4975(e)(7)).
SECTION 8
Effective January 1, 1999, notwithstanding any other provision
in this Appendix A to the contrary, to the extent otherwise applicable,
the limitations expressed in this Appendix A shall not apply with
respect to those Plan Years in which the Plan satisfies the
requirements of Code Sections 401(k)(11) and/or 401(k)(12)."
26. By deleting, effective January 1, 1999, the word "preceding"
from Section 2(a) and (b) and Section 5(a) and
(b) of Appendix A.
27. By deleting the existing first sentence of Section 3 of
Appendix B and substituting therefor the following:
"Prior to January 1, 2000, in the event a Plan Sponsor
maintains a defined benefit plan under which a Member also
participates, the sum of the defined benefit plan fraction and the
defined contribution plan fraction for any limitation year for any
Member may not exceed 1.0."
Except as specifically amended hereby, the Plan shall remain in full
force and effect as it was prior to this Fourth Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be executed as of the day and year first above written.
MORRISON MANAGEMENT SPECIALISTS, INC.
By: /s/Glenn A. Davenport
Glenn A. Davenport
Title: President, Chief Executive
Officer and Chairman of the Board
ATTEST:/s/John E. Fountain
John E. Fountain
Title: Vice President, General Counsel and Secretary
[CORPORATE SEAL]