Exhibit 4.1
EGTRRA
AMENDMENT TO THE
DAILYACCESS.COM, INC.
STANDARDIZED AND NONSTANDARDIZED
PROTOTYPE PLANS
ARTICLE I
PREAMBLE
1.1 Adoption and effective date of amendment. This amendment of the plan is
adopted to reflect certain provisions of the Economic Growth and Tax Relief
Reconciliation Act of 2001 ("EGTRRA"). This amendment is intended as good
faith compliance with the requirements of EGTRRA and is to be construed in
accordance with EGTRRA and guidance issued thereunder. Except as otherwise
provided, this amendment shall be effective as of the first day of the
first plan year beginning after December 31, 2001.
1.2 Adoption by prototype sponsor. Except as otherwise provided herein,
pursuant to Section 5.01 of Revenue Procedure 2000-20 (or pursuant to the
corresponding provision in Revenue Procedure 89-9 or Revenue Procedure
89-13), the sponsor hereby adopts this amendment on behalf of all adopting
employers.
1.3 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.
ARTICLE II
SPONSOR ELECTIONS
2.1 Vesting Schedule for Matching Contributions
If there are matching contributions subject to a vesting schedule that does
not satisfy EGTRRA, for participants who complete an hour of service in a
plan year beginning after December 31, 2001, the following vesting schedule
will apply to all matching contributions subject to a vesting schedule:
If the plan has a graded vesting schedule (i.e., the vesting schedule
includes a vested percentage that is more than 0% and less than 100%) the
following will apply:
Years of vesting service Nonforfeitable percentage
2 20%
3 40%
4 60%
5 80%
6 100%
If the plan does not have a graded vesting schedule, then matching
contributions will be nonforfeitable upon the completion of 3 years of
vesting service. The vesting schedule set forth herein will only apply to
matching contributions made in plan years beginning after December 31, 2001
(the prior vesting schedule will apply to matching contributions made in
prior plan years).
2.2 Exclusion of Rollovers in Application of Involuntary Cash-out Provisions
(for profit sharing and 401(k) plans only). If the plan is not subject to
the qualified joint and survivor annuity rules and includes involuntary
cash-out provisions, rollover contributions will be excluded in determining
the value of the participant's nonforfeitable account balance for purposes
of the plan's involuntary cash-out rules.
2.3 Suspension period of hardship distributions. If the plan provides for
hardship distributions upon satisfaction of the safe harbor (deemed)
standards as set forth in Treas. Reg. Section 1.401(k)-1(d)(2)(iv), then,
the suspension period following a hardship distribution shall only apply to
hardship distributions made after December 31, 2001.
2.4 Catch-up contributions (for 401(k) profit sharing plans only): The plan
permits catch-up contributions (Article VI).
2.5 For target benefit plans only: The increased compensation limit ($200,000
limit) shall apply to years prior to 2002.
ARTICLE III
VESTING OF MATCHING CONTRIBUTIONS
3.1 Applicability. This Article shall apply to participants who complete an
Hour of Service after December 31, 2001, with respect to accrued benefits
derived from employer matching contributions made in plan years beginning
after December 31, 2001.
3.2 Vesting schedule. A participant's accrued benefit derived from employer
matching contributions shall vest as provided in Section 2.1 of this
amendment.
ARTICLE IV
INVOLUNTARY CASH-OUTS
4.1 Applicability and effective date. If the plan provides for involuntary
cash-outs of amounts less than $5,000, this Article shall apply for
distributions made after December 31, 2001, and shall apply to all
participants. However, regardless of the preceding, this Article shall not
apply if the plan is subject to the qualified joint and survivor annuity
requirements of Sections 401(a)(11) and 417 of the Code.
4.2 Rollovers disregarded in determining value of account balance for
involuntary distributions. For purposes of the Sections of the plan that
provide for the involuntary distribution of vested accrued benefits of
$5,000 or less, the value of a participant's nonforfeitable account balance
shall be determined without regard to that portion of the account balance
that is attributable to rollover contributions (and earnings allocable
thereto) within the meaning of Sections 402(c), 403(a)(4), 403(b)(8),
408(d)(3)(A)(ii), and 457(e)(16) of the Code. If the value of the
participant's nonforfeitable account balance as so determined is $5,000 or
less, then the plan shall immediately distribute the participant's entire
nonforfeitable account balance.
ARTICLE V
HARDSHIP DISTRIBUTIONS
5.1 Applicability and effective date. If the plan provides for hardship
distributions upon satisfaction of the safe harbor (deemed) standards as
set forth in Treas. Reg. Section 1.401(k)-1(d)(2)(iv), then this Article
shall apply for calendar years beginning after 2001.
5.2 Suspension period following hardship distribution. A participant who
receives a distribution of elective deferrals after December 31, 2001, on
account of hardship shall be prohibited from making elective deferrals and
employee contributions under this and all other plans of the employer for 6
months after receipt of the distribution.
ARTICLE VI
CATCH-UP CONTRIBUTIONS
Catch-up Contributions. All employees who are eligible to make elective
deferrals under this plan and who have attained age 50 before the close of the
plan year shall be eligible to make catch-up contributions in accordance with,
and subject to the limitations of, Section 414(v) of the Code. Such catch-up
contributions shall not be taken into account for purposes of the provisions of
the plan implementing the required limitations of Sections 402(g) and 415 of the
Code. The plan shall not be treated as failing to satisfy the provisions of the
plan implementing the requirements of Section 401(k)(3), 401(k)(11), 401(k)(12),
410(b), or 416 of the Code, as applicable, by reason of the making of such
catch-up contributions.
ARTICLE VII
INCREASE IN COMPENSATION LIMIT
Increase in Compensation Limit. The annual compensation of each participant
taken into account in determining allocations for any plan year beginning after
December 31, 2001, shall not exceed $200,000, as adjusted for cost-of-living
increases in accordance with Section 401(a)(17)(B) of the Code. Annual
compensation means compensation
during the plan year or such other consecutive 12-month period over which
compensation is otherwise determined under the plan (the determination period).
If this is a target benefit plan, for purposes of determining benefit accruals
in a plan year beginning after December 31, 2001, compensation for any prior
determination period shall be limited to $200,000. The cost-of-living adjustment
in effect for a calendar year applies to annual compensation for the
determination period that begins with or within such calendar year.
ARTICLE VIII
PLAN LOANS
Plan loans for owner-employees or shareholder-employees. If the plan permits
loans to be made to participants, then effective for plan loans made after
December 31, 2001, plan provisions prohibiting loans to any owner-employee or
shareholder-employee shall cease to apply.
ARTICLE IX
LIMITATIONS ON CONTRIBUTIONS (IRC SECTION 415 LIMITS)
9.1 Effective date. This Section shall be effective for limitation years
beginning after December 31, 2001.
9.2 Maximum annual addition. Except to the extent permitted under Article XIV
of this amendment and Section 414(v) of the Code, if applicable, the annual
addition that may be contributed or allocated to a participant's account
under the plan for any limitation year shall not exceed the lesser of:
(a) $40,000, as adjusted for increases in the cost-of-living under Section
415(d) of the Code, or
(b) 100 percent of the participant's compensation, within the meaning of
Section 415(c)(3) of the Code, for the limitation year.
The compensation limit referred to in (b) shall not apply to any
contribution for medical benefits after separation from service (within the
meaning of Section 401(h) or Section 419A(f)(2) of the Code) which is
otherwise treated as an annual addition.
ARTICLE X
MODIFICATION OF TOP-HEAVY RULES
10.1 Effective date. This Article shall apply for purposes of determining
whether the plan is a top-heavy plan under Section 416(g) of the Code for
plan years beginning after December 31, 2001, and whether the plan
satisfies the minimum benefits requirements of Section 416(c) of the Code
for such years. This Article amends the top-heavy provisions of the plan.
10.2 Determination of top-heavy status.
10.2.1 Key employee. Key employee means any employee or former
employee (including any deceased employee) who at any time during
the plan year that includes the determination date was an officer
of the employer having annual compensation greater than $130,000
(as adjusted under Section 416(i)(1) of the Code for plan years
beginning after December 31, 2002), a 5-percent owner of the
employer, or a 1-percent owner of the employer having annual
compensation of more than $150,000. For this purpose, annual
compensation means compensation within the meaning of Section
415(c)(3) of the Code. The determination of who is a key employee
will be made in accordance with Section 416(i)(1) of the Code and
the applicable regulations and other guidance of general
applicability issued thereunder.
10.2.2 Determination of present values and amounts. This Section
10.2.2 shall apply for purposes of determining the present values
of accrued benefits and the amounts of account balances of
employees as of the determination date.
a. Distributions during year ending on the determination date.
The present values of accrued benefits and the amounts of
account balances of an employee as of the determination date
shall be increased by the distributions made with respect to
the employee under the plan and any plan aggregated with the
plan under Section 416(g)(2) of the Code during the 1-year
period ending on the determination date. The preceding
sentence shall also apply to distributions under a
terminated plan which, had it not been terminated, would
have been aggregated with the plan under Section
416(g)(2)(A)(i) of the Code. In the case of a distribution
made for a reason other than separation from service, death,
or disability, this provision shall be applied by
substituting "5-year period" for "1-year period."
b. Employees not performing services during year ending on the
determination date. The accrued benefits and accounts of any
individual who has not performed services for the employer
during the 1-year period ending on the determination date
shall not be taken into account.
10.3 Minimum benefits.
10.3.1 Matching contributions. Employer matching contributions shall
be taken into account for purposes of satisfying the minimum
contribution requirements of Section 416(c)(2) of the Code and
the plan. The preceding sentence shall apply with respect to
matching contributions under the plan or, if the plan provides
that the minimum contribution requirement shall be met in another
plan, such other plan. Employer matching contributions that are
used to satisfy the minimum contribution requirements shall be
treated as matching contributions for purposes of the actual
contribution percentage test and other requirements of Section
401(m) of the Code.
10.3.2 Contributions under other plans. The employer may provide, in
an addendum to this amendment, that the minimum benefit
requirement shall be met in another plan (including another plan
that consists solely of a cash or deferred arrangement which
meets the requirements of Section 401(k)(12) of the Code and
matching contributions with respect to which the requirements of
Section 401(m)(11) of the Code are met). The addendum should
include 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.
ARTICLE XI
DIRECT ROLLOVERS
11.1 Effective date. This Article shall apply to distributions made after
December 31, 2001.
11.2 Modification of definition of eligible retirement plan. For purposes of the
direct rollover provisions of the plan, an eligible retirement plan shall
also mean an annuity contract described in Section 403(b) of the Code and
an eligible plan under Section 457(b) of the Code which is maintained by a
state, political subdivision of a state, or any agency or instrumentality
of a state or political subdivision of a state and which agrees to
separately account for amounts transferred into such plan from this plan.
The definition of eligible retirement plan shall also apply in the case of
a distribution to a surviving spouse, or to a spouse or former spouse who
is the alternate payee under a qualified domestic relation order, as
defined in Section 414(p) of the Code.
11.3 Modification of definition of eligible rollover distribution to exclude
hardship distributions. For purposes of the direct rollover provisions of
the plan, any amount that is distributed on account of hardship shall not
be an eligible rollover distribution and the distributee may not elect to
have any portion of such a distribution paid directly to an eligible
retirement plan.
11.4 Exclusion of after-tax employee contributions. For purposes of the direct
rollover provisions in the plan, a portion of a distribution that consists
of after-tax employee contributions which are not includible in gross
income shall not be considered an eligible rollover distribution. The plan
does not allow the acceptance of rollover contributions consisting of
after-tax employee contributions
ARTICLE XII
ROLLOVERS FROM OTHER PLANS
Rollovers from other plans. The employer, operationally and on a
nondiscriminatory basis, may limit the source of rollover contributions that may
be accepted by this plan.
ARTICLE XIII
REPEAL OF MULTIPLE USE TEST
Repeal of Multiple Use Test. The multiple use test described in Treasury
Regulation Section 1.401(m)-2 and the plan shall not apply for plan years
beginning after December 31, 2001.
ARTICLE XIV
ELECTIVE DEFERRALS
14.1 Elective Deferrals - Contribution Limitation. No participant shall be
permitted to have elective deferrals made under this plan, or any other
qualified plan maintained by the employer during any taxable year, in
excess of the dollar limitation contained in Section 402(g) of the Code in
effect for such taxable year, except to the extent permitted under Article
VI of this amendment and Section 414(v) of the Code, if applicable. Any
maximum limitation imposed on an Employee's salary reduction agreement by
an adoption agreement election is hereby revoked effective January 1, 2002.
Participants may defer up to the maximum amount allowed under Sections
402(g) and 415 of the Code subject to any federal or state tax withholding
requirements.
14.2 Maximum Salary Reduction Contributions for SIMPLE plans. If this is a
SIMPLE 401(k) plan, then except to the extent permitted under Article VI of
this amendment and Section 414(v) of the Code, if applicable, the maximum
salary reduction contribution that can be made to this plan is the amount
determined under Section 408(p)(2)(A)(ii) of the Code for the calendar
year.
ARTICLE XV
SAFE HARBOR PLAN PROVISIONS
Modification of Top-Heavy Rules. The top-heavy requirements of Section 416 of
the Code and the plan shall not apply in any year beginning after December 31,
2001, in which the plan consists solely of a cash or deferred arrangement which
meets the requirements of Section 401(k)(12) of the Code and matching
contributions with respect to which the requirements of Section 401(m)(11) of
the Code are met.
ARTICLE XVI
DISTRIBUTION UPON SEVERANCE OF EMPLOYMENT
16.1 Effective date. This Article shall apply for distributions and transactions
made after December 31, 2001, regardless of when the severance of
employment occurred.
16.2 New distributable event. A participant's elective deferrals, qualified
nonelective contributions, qualified matching contributions, and earnings
attributable to these contributions shall be distributed on account of the
participant's severance from employment. However, such a distribution shall
be subject to the other provisions of the plan regarding distributions,
other than provisions that require a separation from service before such
amounts may be distributed.
This amendment is hereby adopted by the prototype sponsor on behalf of all
adopting employers on December 18, 2001.
Sponsor Name: DailyAccess.Com, Inc.
By: /s/ Robert A. McKendry
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Director of Administration & Compliance