EXHIBIT 10.25
ENGLOBAL 401(K) PLAN
FINAL 401(k)/4Gl(m) REGULATIONS AMENDMENT
FINAL 401(k)/401(m) REGULATIONS AMENDMENT
ARTICLE I
PREAMBLE
I.I Adoption and effective date of amendment. The sponsor adopts this Amendment
to the Plan to reflect certain provisions of the Final Regulations under
Code Sections 401(k) and 401(m) that were published on December 29, 2004
(hereinafter referred to as the "Final 401(k) Regulations"). The sponsor
intends this Amendment as good faith compliance with the requirements of
these provisions. This Amendment shall be effective with respect to Plan
Years beginning after December 31, 2005.
1-2 Supersession of inconsistent provisions. This Amendment shall supersede the
provisions of the Plan to the extent those provisions are inconsistent with
the provisions of this Amendment.
1.3 Application of provisions. Certain provisions of this Amendment relate to
elective deferrals of a 401(k) plan; if the Plan to which this Amendment
relates is not a 401(k) plan, then those provisions of this Amendment do
not apply. Certain provisions of this Amendment relate to matching
contributions and /or after-tax employee contributions subject to Code
Section 401 (m); if the Plan to which this Amendment relates is not subject
to Code Section 401(m), then those provisions of this Amendment do not
apply.
ARTICLE II
EMPLOYER ELECTIONS
2.1 Effective Date. This Amendment is effective, and the Plan shall implement
the provisions of the Final 401 (k) Regulations, with respect to Plan Years
beginning after December 31, 2005.
2.2 ACP Test Safe Harbor. Unless otherwise selected below, if this Plan uses
the ADP Test Safe Harbor provisions, then the provisions of Amendment
Section 9.2(a) apply and all matching contributions under the Plan will be
applied without regard to any allocation conditions except as provided in
that Section.
a. [ ] The provisions of Amendment Section 9.2(b) apply. The allocation
conditions applicable to matching contributions under the Plan
continue to apply (if selected, the Plan is not an ACP Test Safe
Harbor Plan).
b. [X ]The provisions of Amendment Section 9.2(c) apply. All matching
contributions under the Plan will be applied without regard to any
allocation conditions as of the effective date of this Amendment.
ARTICLE III
GENERAL RULES
3.1 Deferral elections. A cash or deferred arrangement ("CODA") is an
arrangement under which eligible Employees may make elective deferral
elections. Such elections cannot relate to compensation that is currently
available prior to the adoption or effective date of the CODA. In addition,
except for occasional, bona fide administrative considerations,
contributions made pursuant to such an election cannot precede the earlier
of (1) the performance of services relating to the contribution and (2)
when the compensation that is subject to the election would be currently
available to the Employee in the absence of an election to defer.
3.2 Vesting provisions. Elective Contributions are always fully vested and
nonforfeitable. The Plan shall disregard Elective Contributions in applying
the vesting provisions of the Plan to other contributions or benefits under
Code Section 41 l(a)(2). However, the Plan shall otherwise take a
participant's Elective Contributions into account in determining the
Participant's vested benefits under the Plan. Thus, for example, the Plan
shall take Elective Contributions into account in determining whether a
Participant has a nonforfeitable right to contributions under the Plan for
purposes of forfeitures, and for applying provisions permitting the
repayment of distributions to have forfeited amounts restored, and the
provisions of Code Sections 410(a)(5)(D)(iii) and 411(a)(6)(D)(iii)
permitting a plan to disregard certain service completed prior to
breaks-in- service (sometimes referred to as "the rule of parity").
ARTICLE IV
HARDSHIP DISTRIBUTIONS
4.1 Applicability. The provisions of this Article IV apply if the Plan provides
for hardship distributions upon satisfaction of the deemed immediate and
heavy financial need standards set forth in Regulation Section
1.401(k)-l(d)(2)(iv)(A) as in effect prior to the issuance of the Final
40l(k) Regulations.
4.2 Hardship events. A distribution under the Plan is hereby deemed to be on
account of an immediate and heavy financial need of an Employee if the
distribution is for one of the following or any other item permitted under
Regulation Section L401(k)-l{d)(3)(iii)(B):
(a) Expenses for (or necessary to obtain) medical care that would be
deductible under Code Section 213(d) (determined without regard to
whether the expenses exceed 7.5% of adjusted gross income);
(b) Costs directly related to the purchase of a principal residence for
the Employee (excluding mortgage payments);
(c) Payment of tuition, related educational fees, and room and board
expenses, for up to the ......... next twelve (12) months of
post-secondary education for the Employee, the Employee's spouse,
children, or dependents (as defined in Code Section 152, and, for
taxable years beginning on or after January 1, 2005, without regard to
Code Section 152(b)(l), (b)(2), and(d)(l)(B));
(d) Payments necessary to prevent the eviction of the Employee from the
Employee's principal residence or foreclosure on the mortgage on that
residence;
(e) Payments for burial or funeral expenses for the Employee's deceased
parent, spouse, children or dependents (as defined in Code Section
152, and, for taxable years beginning on or after January 1, 2005,
without regard to Code Section 152(d)(l)(B)); or
(f) Expenses for the repair of damage to the Employee's principal
residence that would qualify for the casualty deduction under Code
Section 165 (determined without regard to whether the loss exceeds 10%
of adjusted gross income).
4.3 Reduction of Code Section 402(g) limit following, hardship distribution. If
the Plan provides for hardship distributions upon satisfaction of the safe
harbor standards set forth in Regulation Sections 1.401(k)-l(d)(3)(iii)(B)
(deemed immediate and heavy financial need) and 1.401(k)-l(d)(3)(iv)(E)
(deemed necessary to satisfy immediate need), then there shall be no
reduction in the maximum amount of elective deferrals that a Participant
may make pursuant to Code Section 402(g) solely because of a hardship
distribution made by this Plan or any other plan of the Employer.
ARTICLE V ACTUAL DEFERRAL PERCENTAGE (ADP) TEST
5.1 Targeted contribution limit. Qualified Nonelective Contributions (as
defined in Regulation Section l, 401(k)-6) cannot be taken into account in
determining the Actual Deferral Ratio (ADR) for a Plan Year for a
Non-Highly Compensated Employee (NHCE) to the extent such contributions
exceed the product of that NHCE's Code Section 414(s) compensation and the
greater of five percent (5%) or two (2) times the Plan's "representative
contribution rate." Any Qualified Nonelective Contribution taken into
account under an Actual Contribution Percentage (ACP) test under Regulation
Section 1.401(m)-2(a)(6) (including the determination of the representative
contribution rate for purposes of Regulation Section i
.401(m)-2(a)(6)(v)(B)), is not permitted to be taken into account for
purposes of this Section (including the determination of the
"representative contribution rate" under this Section). For purposes of
this Section:
(a) The Plan's "representative contribution rate" is the lowest
"applicable contribution rate" of any eligible NHCE among a group of
eligible NHCEs that consists of half of all eligible NHCEs for the
Plan Year (or, if greater, the lowest "applicable contribution rate"
of any eligible NHCE who is in the group of all eligible NHCEs for the
Plan Year and who is employed by the Employer on the last day of the
Plan Year), and
(b) The "applicable contribution rate" for an eligible NHCE is the sum of
the Qualified Matching Contributions (as defined in Regulation Section
1.401(k)-6) taken into account in determining the ADR for the eligible
NHCE for the Plan Year and the Qualified (a) Nonelective Contributions
made for the eligible NHCE for the Plan Year, divided by the eligible
NHCE's Code Section 414(s) compensation for the same period.
Notwithstanding the above, Qualified Nonelective Contributions that are
made in connection with an Employer's obligation to pay prevailing wages
under the Davis-Bacon Act (46 Stat. 1494), Public Law 71-798, Service
Contract Act of 1965 (79 Stat. 1965), Public Law 89-286, or similar
legislation can be taken into account for a Plan Year for an NHCE to the
extent such contributions do not exceed 10 percent (10%) of that NHCE's
Code Section 414(s) compensation.
Qualified Matching Contributions may only be used to calculate an ADR to
the extent that such Qualified Matching Contributions are matching
contributions that are not precluded from being taken into account under
the ACP test for the Plan Year under the rules of Regulation Section
1.401(m)-2(a)(5)(ii) and as set forth in Section 7.1.
5.2 Limitation on QNECs and QMACs. Qualified Nonelective Contributions and
Qualified Matching Contributions cannot be taken into account to determine
an ADR to the extent such contributions are taken into account for purposes
of satisfying any other ADP test, any ACP test, or the requirements of
Regulation Section 1.401(k)-3, 1.401(m)-3, or 1.401(k)-4. Thus, for
example, matching contributions that are made pursuant to Regulation
Section 1.401(k)-3(c) cannot be taken into account under the ADP test.
Similarly, if a plan switches from the current year testing method to the
prior year testing method pursuant to Regulation Section 1.401(k)-2(c),
Qualified Nonelective Contributions that are taken into account under the
current year testing method for a year may not be taken into account under
the prior year testing method for the next year,
5.3 ADR of HCE if multiple plans. The Actual Deferral Ratio (ADR) of any
Participant who is a Highly Compensated Employee (HCE) for the Plan Year
and who is eligible to have Elective Contributions (as defined in
Regulation Section 1.401(k)-6) (and Qualified Nonelective- Contributions
and/or Qualified Matching Contributions, if treated as Elective
Contributions for purposes of the ADP test) allocated to such Participant's
accounts under two (2) or more cash or deferred arrangements described in
Code Section 401 (k), that are maintained by the same Employer, shall be
determined as if such Elective Contributions (and, if applicable, such
Qualified Nonelective Contributions and/or Qualified Matching
Contributions) were made under a single arrangement. If an HCE participates
in two or more cash or deferred arrangements of the Employer that have
different Plan Years, then alt Elective Contributions made during the Plan
Year being tested under all such cash or deferred arrangements shall be
aggregated, without regard to the plan years of the other plans. However,
for Plan Years beginning before the effective date of this Amendment, if
the plans have different Plan Years, then all such cash or deferred
arrangements ending with or within the same calendar year shall be treated
as a single cash or deferred arrangement. Notwithstanding the foregoing,
certain plans shall be treated as separate if mandatorily disaggregated
under the Regulations of Code Section 401(k).
5.4 Plans using different testing methods for the ADP and ACP test. Except as
otherwise provided in this Section, the Plan may use the current year
testing method or prior year testing method for the ADP test for a Plan
Year without regard to whether the current year testing method or prior
year testing method is used for the ACP test for that Plan Year. However,
if different testing methods are used, then the Plan cannot use:
(a) The recharacterization method of Regulation Section l,401(k)-2(b)(3)
to correct excess contributions for a Plan Year;
(b) The rules of Regulation Section 1.401(m)-2(a)(6)(ii) to take Elective
Contributions into account under the ACP test (rather than the ADP
test); or
(c) The rules of Regulation Section 1.401(k)-2(a)(6)(v) to take Qualified
Matching Contributions into account under the ADP test (rather than
the ACP test).
ARTICLE VI
ADJUSTMENT TO ADP TEST
6.1 Distribution of Income attributable to Excess Contributions. Distributions
of Excess Contributions must be adjusted for income (gain or loss),
including an adjustment for income for the period between the end of the
Plan Year and the date of the distribution (the "gap period"). The
Administrator has the discretion to determine and allocate income using any
of the methods set forth below:
(a) Reasonable, method of allocating income. The Administrator may use any
reasonable method for computing the income allocable to Excess
Contributions, provided that the method does not violate Code Section
403(a)(4), is used consistently for all Participants and for all
corrective distributions under the Plan for the Plan Year, and is used
by the Plan for allocating income to Participant's accounts. A Plan
will not fail to use a reasonable method for computing the income
allocable to Excess Contributions merely because the income allocable
to Excess Contributions is determined on a date that is no more than
seven (7) days before the distribution.
(b) Alternative method of allocating income. The Administrator may
allocate income to Excess Contributions for the Plan Year by
multiplying the income for the Plan Year allocable to the Elective
Contributions and other amounts taken into account under the ADP test
(including contributions made for the Plan Year), by a fraction, the
numerator of which is the Excess Contributions for the Employee for
the Plan Year, and the denominator of which is the sum of the:
(1) Account balance attributable to Elective Contributions and other
amounts taken into account under the ADP test as of the beginning
of the Plan Year, and
(2) Any additional amount of such contributions made for the Plan
Year.
(c) Safe harbor method of allocating gap period income. The Administrator
may use the safe harbor method in this paragraph to determine income
on Excess Contributions for the gap period. Under this safe harbor
method, income on Excess Contributions for the gap period is equal to
ten percent (10%) of the income allocable to Excess Contributions for
the Plan Year that would be determined under paragraph (b) above,
multiplied by the number of calendar months that have elapsed since
the end of the Plan Year. For purposes of calculating the number of
calendar months that have elapsed under the safe harbor method, a
corrective distribution that is made on or before the fifteenth (15th)
day of a month is treated as made on the last day of the preceding
month and a distribution made after the fifteenth day of a month is
treated as made on the last day of the month.
(d) Alternative method for allocating Plan, Year and gap period income.
The Administrator may determine the income for the aggregate of the
Plan Year and the gap period, by applying the alternative method
provided by paragraph (b) above to this aggregate period. This is
accomplished by (1) substituting the income for the Plan Year and the
gap period, for the income for the Plan Year, and (2) substituting the
amounts taken into account under the ADP test for the Plan Year and
the gap period, for the amounts taken into account under the ADP test
for the Plan Year in determining the fraction that is multiplied by
that income.
6.2 Corrective contributions. If a failed ADP test is to be corrected by making
an Employer contribution, then the provisions of the Plan for the
corrective contributions shall be applied by limiting the contribution made
on behalf of any NHCE pursuant to such provisions to an amount that does
not exceed the targeted contribution limits of Section 5.1 of this
Amendment, or in the case of a corrective contribution that is a Qualified
Matching Contribution, the targeted contribution limit of Section 7.1 of
this Amendment.
ARTICLE VII
ACTUAL CONTRIBUTION PERCENTAGE (ACP0 TEST
7.1 Targeted matching contribution limit. A matching contribution with respect
to an Elective. Contribution for a Plan Year is not taken into account
under the Actual Contribution Percentage
(ACP) test for an NHCE to the extent it exceeds the greatest of:
(a) five percent (5%) of the NHCE's Code Section 414(s) compensation for
the Plan Year;
(b) the NHCE's Elective Contributions for the Plan Year; and
(c) the product of two (2) times the Plan's "representative matching rate"
and the NHCE's Elective Contributions for the Plan Year.
For purposes of this Section, the Plan's "representative matching rate" is
the lowest "matching rate" for any eligible NHCE among a group of NHCEs
that consists of half of all eligible NHCEs in the Plan for the Plan Year
who make Elective Contributions for the Plan Year (or, if greater, the
lowest "matching rate" for all eligible NHCEs in the Plan who are employed
by the Employer on the last day of the Plan Year and who make Elective
Contributions for the Plan Year).
For purposes of this Section, the "matching rate" for an Employee generally
is the matching contributions made for such Employee divided by the
Employee's Elective Contributions for the Plan Year. If the matching rate
is not the same for all levels of Elective Contributions for an Employee,
then the Employee's "matching rate" is determined assuming that an
Employee's Elective Contributions are equal to six percent (6%) of Code
Section 414(s) compensation.
If the Plan provides a match with respect to the sum of the Employee's
after-tax Employee contributions and Elective Contributions, then for
purposes of this Section, that sum is substituted for the amount of the
Employee's Elective Contributions in subsections (b) & (c) above and in
determining the "matching rate," and Employees who make either after-tax
Employee contributions or Elective Contributions are taken into account in
determining the Plan's "representative matching rate." Similarly, if the
Plan provides a match with respect to the Employee's after-tax Employee
contributions, but not Elective Contributions, then for purposes of this
subsection, the Employee's after-tax Employee contributions are substituted
for the amount of the Employee's Elective Contributions in subsections (b)
& (c) above and in determining the "matching rate," and Employees who make
after-tax Employee contributions are taken into account in determining the
Plan's "representative matching rate."
7.2 Targeted QNEC limit. Qualified Nonelective Contributions (as defined in
Regulation Section 1.401(k)-6) cannot be taken into account under the
Actual Contribution Percentage (ACP) test for a Plan Year for an NHCE to
the extent such contributions exceed the product of that NHCE's Code
Section 414(s) compensation and the greater of five percent (5%) or two (2)
times the Plan's "representative contribution rate." Any Qualified
Nonelective Contribution taken into account under an Actual Deferral
Percentage (ADP) test under Regulation Section 1.401(k)-2(a)(6) (including
the determination of the "representative contribution rate" for purposes of
Regulation Section 1.401(k)-2(a)(6)(iv)(B)) is not permitted to be taken
into account for purposes of this Section (including the determination of
the "representative contribution rate" for purposes of subsection (a)
below). For purposes of this Section:
(a) The Plan's "representative contribution rate" is the lowest
"applicable contribution rate" of any eligible NHCE among a group of
eligible NHCEs that consists of half of all eligible NHCEs for the
Plan Year (or, if greater, the lowest "applicable contribution rate"
of any eligible NHCE who is in the group of all eligible NHCEs for the
Plan Year and who is employed by the Employer on the last day of the
Plan Year), and
(b) The "applicable contribution rate" for an eligible NHCE is the sum of
the matching contributions (as defined in Regulation Section
1.401(m)-l(a)(2)) taken into account in determining the ACR for the
eligible NHCE for the Plan Year and the Qualified Nonelective
Contributions made for that NHCE for the Plan Year, divided by that
NHCE's Code Section 414(s) compensation for the Plan Year.
Notwithstanding the above, Qualified Nonelective Contributions that are made in
connection with an Employer's obligation to pay prevailing wages under the
David-Bacon Act (46 Stat. 1494). Public Law 71-798, Service Contract Act of 1965
(79 Stat. 1965), Public Law 89-286, or similar legislation can be taken into
account for a Plan Year for an NHCE to the extent such contributions do not
exceed 10 Percent (10%) of that NHCE's Code Section 414(s) Compensation.
7-3 ACR of HCE if multiple plans. The Actual Contribution Ratio (ACR) for any
Participant who is a Highly Compensated Employee (HCE) and who is eligible
to have matching contributions or after-tax Employee contributions
allocated to his or her account under two (2) or more plans described in
Code Section 401 (a), or arrangements described in Code Section 401(k) that
are maintained by the same Employer, shall be determined as if the total of
such contributions was made under each plan and arrangement. If an HCE
participates in two (2) or more such plans or arrangements that have
different plan years, then all matching contributions and after-tax
Employee contributions made during the Plan Year being tested under all
such plans and arrangements shall be aggregated, without regard to the plan
years of the other plans. For plan years beginning before the effective
date of this Amendment, all such plans and arrangements ending with or
within the same calendar year shall be treated as a single plan or
arrangement. Notwithstanding the foregoing, certain plans shall be treated
as separate if mandatorily disaggregated under the Regulations of Code
Section 401(m).
7.4 Plans using different testing methods for the ACP and ADP test. Except as
otherwise provided in this Section, the Plan may use the current year
testing method or prior year testing method for the ACP test for a Plan
Year without regard to whether the current year testing method or prior
year testing method is used for the ADP test for that Plan Year. However,
if different testing methods are used, then the Plan cannot use:
(a) The recharacterization method of Regulation Section 1.401 (k)-2(b)(3)
to correct excess contributions for a Plan Year;
(b) The rules of Regulation Section 1.401(m)-2(a)(6)(ii) to take Elective
Contributions into account under the ACP test (rather than the ADP
test); or
(c) The rules of Regulation Section l,401(k)-2(a)(6) to take Qualified
Matching Contributions into account under the ADP test (rather than
the ACP test).
ARTICLE VIII ADJUSTMENT TO ACP TEST
8.1 Distribution of Income attributable to Excess Aggregate Contributions.
Distributions of Excess Aggregate Contributions must be adjusted for income
(gain or loss), including an adjustment for income for the period between
the end of the Plan Year and the date of the distribution (the "gap
period"). For the purpose of this Section, "income" shall be determined and
allocated in accordance with the provisions of Section 6.1 of this
Amendment, except that such Section shall be applied by substituting
"Excess Contributions" with "Excess Aggregate Contributions" and by
substituting amounts taken into account under the ACP test for amounts
taken into account under the ADP test
8.2 Corrective contributions. If a failed ACP test is to be corrected by making
an Employer contribution, then the provisions of the Plan for the
corrective contributions shall be applied by limiting the contribution made
on behalf of any NHCE pursuant to such provisions to an amount that does
not exceed the targeted contribution limits of Sections 7.1 and 7.2 of this
Amendment.
ARTICLE IX SAFE HARBOR PLAN PROVISIONS
9.1 Applicability. The provisions of this Article IX apply if the Plan uses the
alternative method of satisfying the Actual Deferral Percentage (ADP) test
set forth in Code Section 401(k)(12) (ADP Test Safe Harbor) and/or the
Actual Contribution Percentage (ACP) test set forth in Code Section 401
(m)(l 1) (ACP Test Safe Harbor).
9.2 Elimination of conditions on matching contributions. Unless otherwise
provided in Section 2.2 of this Amendment, the provisions of subsection (a)
below shall apply. However, if the Employer so elects in Section 2.2 of
this Amendment, then the provisions of subsection (b) or (c) below shall
apply.
(a) Default provision. If, prior to the date this Amendment has been
executed, an ADP Test Safe Harbor notice has been given for a Plan
Year for which this Amendment is effective (see Amendment Section 1.1)
and such notice provides that there are no allocation conditions
imposed on any matching contributions under the Plan, then (1) the
Plan will be an ACP Test Safe Harbor plan, provided the ACP Test Safe
Harbor requirements are met and (2) the Plan will not impose any
allocation conditions on matching contributions. However, if, prior to
the date this Amendment has been executed, an ADP Test Safe Harbor
notice has been given for a Plan Year for which this Amendment is
effective and such notice provides that there are allocation
conditions imposed on any matching contributions under the Plan, then
the provisions of this Amendment do not modify any such allocation
conditions or provisions for that Plan Year and the Plan must satisfy
the ACP Test for such Plan Year using the current year testing method.
With respect to any Plan Year beginning after the date this Amendment
has been executed, if the Plan uses the ADP Test Safe Harbor and
provides for matching contributions, then (1) the Plan will be an ACP
Test Safe Harbor plan, provided the ACP Test Safe Harbor requirements
are met and (2) the Plan will not impose any allocation conditions on
matching contributions.
(b) Retention of allocation conditions. If the Employer so elects in
Section 2.2 of this Amendment, then the Plan will retain any
allocation conditions contained in the Plan with regard to matching
contributions for any Plan Year for which this Amendment is effective.
In that case, the Plan must satisfy the ACP Test for each such Plan
Year.
(c) Elimination of allocation conditions. If the Employer so elects in
Section 2.2 of this Amendment, then (1) the Plan will be an ACP Test
Safe Harbor plan, provided the ACP Test Safe Harbor requirements are
met, and (2) the Plan will not impose any allocation conditions on
matching contributions.
9.3 Matching Catch-up contributions. If the Plan provides for ADP Test Safe
Harbor matching contributions or ACP Test Safe Harbor matching
contributions, then catch-up contributions (as defined in Code Section
414(v)) will be taken into account in applying such matching contributions
under the Plan.
9.4 Plan Year requirement. Except as provided in Regulation Sections
1.401(k)-3(e) and 1.401 (k)- 3(f), and below, the Plan will fail to satisfy
the requirements of Code Section 401(k)(12) and this Section for a Plan
Year unless such provisions remain in effect for an entire twelve (12)
month Plan Year.
9.5 Change of Plan Year. If a Plan has a short Plan Year as a result of
changing its Plan Year, then the Plan will not fail to satisfy the
requirements of Section 9.4 of this Amendment merely because the Plan Year
has less than twelve (12) months, provided that:
(a) The Plan satisfied the ADP Test Safe Harbor and/or ACP Test Safe
Harbor requirements for the immediately preceding Plan Year; and
(b) The Plan satisfies the ADP Test Safe Harbor and/or ACP Test Safe
Harbor requirements (determined without regard to Regulation Section
1.40I(k)-3(g)) for the immediately following Plan Year (or for the
immediately following twelve (12) months if the immediately following
Plan Year is less than twelve (12) months).
9.6 Timing of matching contributions. If the ADP Test Safe Harbor contribution
being made to the Plan is a matching contribution (or any ACP Test Safe
Harbor matching contribution) that is made separately with respect to each
payroll period (or with respect to all payroll periods ending with or
within each month or quarter of a Plan Year) taken into account under the
Plan for the Plan Year, then safe harbor matching contributions with
respect to any elective deferrals and/or after-tax employee contributions
made during a Plan Year quarter must be contributed to the Plan by the last
day of the immediately following Plan Year quarter.
9.7 Exiting safe harbor matching. The Employer may amend the Plan during a Plan
Year to reduce or eliminate prospectively any or all matching contributions
under the Plan (including any ADP Test Safe Harbor matching contributions)
provided: (a) the Plan Administrator provides a supplemental notice to the
Participants which explains the consequences of the amendment, specifies
the amendment's effective date, and informs Participants that they will
have a reasonable opportunity to modify their cash or deferred elections
and, if applicable, after-tax Employee contribution elections; (b)
Participants have a reasonable opportunity (including a reasonable period
after receipt of the supplemental notice) prior to the effective date of
the amendment to modify their cash or deferred elections and, if
applicable, after-tax Employee contribution elections; and (c) the
amendment is not effective earlier than the later of: (i) thirty (30) days
after the Plan Administrator gives supplemental notice; or (ii) the date
the Employer adopts the amendment. An Employer which amends its Plan to
eliminate or reduce any matching contribution under this Section, effective
during the Plan Year, must continue to apply all of the ADP Test Safe
Harbor and/or ACP Test Safe Harbor requirements of the Plan until the
amendment becomes effective and also must apply for the entire Plan Year,
using current year testing, the ADP test and the ACP test.
9.8 Plan termination. An Employer may terminate the Plan during a Plan Year in
accordance with Plan termination provisions of the Plan and this Section.
(a) Acquisition/disposition or substantial business hardship. If the
Employer terminates the Plan resulting in a short Plan Year, and the
termination is on account of an acquisition or disposition transaction
described in Code Section 410(b)(6)(C), or if the termination is on
account of the Employer's substantial business hardship within the
meaning of Code Section 412(d), then the Plan remains an ADP Test Safe
Harbor and/or ACP Test Safe Harbor Plan provided that the Employer
satisfies the ADP Test Safe Harbor and/or ACP Test Safe Harbor
provisions through the effective date of the Plan termination.
(b) Other termination. If the Employer terminates the Plan for any reason
other than as described in Section 9.7(a) above, and the termination
results in a short Plan Year, the Employer must conduct the
termination under the provisions of Section 9.7 above, except that the
Employer need not provide Participants with the right to change their
cash or deferred elections.
ENGLOBAL 401(K) PLAN
FINAL 401(k)/401(m) REGULATIONS
AMENDMENT
ENGLOBAL CORPORATION
By: //s// William A. Coskey
Title: Chairman
Date: December 27, 2006
Witness //s// Natalie Hairston