EX-10.3 4 ex10-3.htm NEWLINK GENETICS CORPORATION 401(K) ADOPTION AGREEMENT, EFFECTIVE AS OF JANUARY 1, 2005. ex10-3.htm
Exhibit 10.3


 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
NEWLINK GENETICS CORPORATION
401(K) PLAN
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Nonstandardized 401(k) Plan
 
ADOPTION AGREEMENT #005
NONSTANDARDIZED 401(k) PLAN
 [Related Employers only]
 
The undersigned Employer, by executing this Adoption Agreement, establishes a retirement plan and trust (collectively "Plan") under the Alliance Benefit Group North Central States, Inc. Defined Contribution Prototype Plan and Trust (basic plan document #01). The Employer, subject to the Employer's Adoption Agreement elections, adopts fully the Prototype Plan and Trust provisions. This Adoption  Agreement, the basic  plan document and any attached  Appendices or agreements  permitted or referenced therein, constitute the Employer's entire plan and trust document. All "Election" references within this Adoption Agreement are Adoption Agreement Elections. All "Article" or "Section" references are basic plan document references. Numbers in parentheses which follow election numbers are basic plan document references. Where an Adoption Agreement election calls for the Employer to supply text, the Employer (without altering the content of any existing printed text) may lengthen any space or line, or create additional tiers. When Employer-supplied text uses terms substantially similar to existed printed options, all clarifications and caveats applicable to the printed options apply to the Employer-supplied text  unless the context requires otherwise. The Employer makes the following elections granted under the corresponding provisions of the basic plan document.
 
ARTICLE I
DEFINITIONS
 
1.     EMPLOYER (1.23).
 
Name:  NewLink Genetics Corporation                                                                                                                                              
Address:  2901 South Loop Drive, Suite 3900, Ames, Iowa 50010-8646 
Phone number:  (515) 296-5555 
E-mail (optional): _______________________________________                                                                               
Employer's Taxable Year:  December 31st 
EIN:  42 -1491350                                                                               
 
2.     PLAN (1.40).
Name:  NewLink Genetics Corporation 401(k) Plan                                                                                                                                              
Plan number:  001                                                                                     (3-digit number for For m 5500 reporting)
Trust EIN (optional) :  ________________________________                                                                              
 
3.     PLAN/LIMITATION YEAR (1.42/1.33). Plan Year and Limitation Year mean the 12 consecutive month period (except for a short Plan/Limitation Year) ending every (Complete (a) and (b)):
 
[Note: Complete any applicable blanks under Election 3 with a specific date, e.g., "June 30" OR "the last day of February" OR "the first Tuesday in January." In the case of a Short Plan Year or a Short Limitation Year, include the year, e.g., "May 1, 2008."]
 
(a)    Plan Year (Choose one of (1) or (2) and choose (3) if applicable):
 (1)
[X]
December 31.
 (2)
[   ]
Fiscal Plan Year: ending:                                .
 (3)
[   ]
Short Plan Year: commencing:                                and ending:                               .
 
(b) Limitation Year (Choose one of (1) or (2) and choose (3) if applicable):
 (1)
[X]
Generally same as Plan Year. The Limitation Year is the same as the Plan Year except where the Plan Year is a short year in which event the Limitation Year is always a 12 month period, unless the s hort Plan Year (and short Limitation Year) result from a Plan amendment.
 (2)
[   ]
Different Limitation Year: ending:                               .
 (3)
[   ]
Short Limitation Year: commencing:                                and ending:                               .
 
4.     EFFECTIVE DATE (1.19). The Employer's adoption of the Plan is a (Choose one of (a), (b), or (c). Choose (d) if applicable):
 
(a)
[  ]
New Plan. The Plan's Effective Date is:                                       .
(b)
[X]
Restated Plan. The Plan's restated Effective Date is:  January 1, 2005. The Plan's original Effective Date was: January 1, 200.

[Note: See Section 1.51 for the definition of Restated Plan. If this Plan is an EGTRRA restatement: (i) the EGTRRA restatement Effective Date must be the later of the beginning of the 2002 Plan Year or the Plan's original Effective Date; and (ii) if specific Plan provisions, as reflected in this Adoption Agreement, do not date back to the EGTRRA restatement Effective Date, indicate as such in Appendix A.]
 
© 2008
1

 
 
Nonstandardized 401(k) Plan
 
(c)
[ ]
Restatement of surviving and merging plans. The Plan restates two (or more) plans (Complete (1) and (2). Choose (3) as applicable):
 
(1)
This (surviving) Plan. The Plan’s restated Effective Date is: _____. The Plan’s original Effective Date was: _____.
 
[Note: If this Plan is an EGTRRA restatement: (i) the EGTRRA restatement Effective Date must be the later of the beginning of the 2002 Plan Year or the Plan’s original Effective Date; and (ii) if specific Plan provisions, as reflected in this Adoption Agreement, do not date back to the EGTRRA restatement Effective Date, indicate as such in Appendix A.]
     
 
(2)
Merging plan. The _____ Plan was or will be merged into this surviving Plan as of: _____. The merging plan’s restated Effective Date is:_____. The merging plan’s original Effective Date was: _____.
     
 
[See the Note under Election 4(c)(1) if this document is the merging plan’s EGTRRA restatement.]

 
(3)
[  ]
Additional merging plans. The following additional plans were or will be merged into this surviving Plan (Complete a. and b. as applicable):
 
           
Restated
 
Original
   
Name of merging plan
 
Merger date
 
Effective Date
 
Effective Date
 
a.
____________________
 
____________
 
____________
 
____________
 
b.
____________________
 
____________
 
____________
 
____________
 

(d)
[  ]
Special Effective Date for Elective Deferral provisions: ________________________________________________
     
5.
TRUSTEE (1.65). The Trustee executing this Adoption Agreement is (Choose one or more of (a), (b), or (c). Choose (d) if applicable):
     
(a)
[  ]
A discretionary Trustee. See Section 8.02(A).
     
(b)
[X]
A nondiscretionary (directed) Trustee or Custodian. See Section 8.02(B).
     
(c)
[  ]
A Trustee under the: (specify name of trust), a separate trust agreement the Trustee has executed and that the IRS has approved for use with this Plan. Under this Election 5(c) the Trustee is not executing the Adoption Agreement and Article VIII of the basic plan document does not apply, except as indicated otherwise in the separate trust agreement. See Section 8.11(C).
     
(d)
[  ]
Permitted Trust amendments apply. Under Section 8.11 the Employer in Appendix C has made certain permitted amendments to the Trust. Such amendments do not constitute a separate trust under Election 5(c).
     
6.
CONTRIBUTION TYPES (1.12). The Employer and/or Participants, in accordance with the Plan terms, make the following Contribution Types to the Plan/Trust (Choose one or more of (a) through (h) as applicable. Choose (i) if applicable):
     
(a)
[X]
Pre-Tax Deferrals. See Section 3.02 and Elections 20-23.
     
(b)
[X]
Roth Deferrals. See Section 3.02(E) and Elections 20, 21, and 23. [ Note: The Employer may not limit Elective Deferrals to Roth Deferrals only.]
     
(c)
[  ]
Matching. See Sections 1.34 and 3.03 and Elections 24 -26. [Note: The Employer may make an Operational QMAC without electing 6(c). See Section 3.03(C)(2).]
     
(d)
[X]
Nonelective. See Sections 1.37 and 3.04 and Elections 27-29. [Note: The Employer may make an Operational QNEC without electing 6(d). See Section 3.04(C)(2).]
     
(e)
[X]
Safe Harbor/Additional Matching. The Plan is (or pursuant to a delayed election, may be) a safe harbor 401(k) Plan. The Employer will make (or under a delayed election, may make) Safe Harbor Contributions as it elects in Election 30. The Employer may or may not make Additional Matching Contributions as it elects in Election 30. See Election 26 as to matching Catch-Up Deferrals. See Section 3.05.
     
(f)
[  ]
Employee (after-tax). See Section 3.09 and Election 35.
     
(g)
[  ]
SIMPLE 401(k). The Plan is a SIMPLE 401(k) Plan. See Section 3.10. The Employer operationally will elect for each Plan Year to make a SIMPLE Matching Contribution or a SIMPLE Nonelective Contribution as described in Section 3.10(E). The Employer must notify Participants of the Employer’s SIMPLE contribution election and of the Participants’ deferral election rights and limitations within a reasonable period of time before the 60th day prior to the beginning of the Plan Year. [Note: The Employer electing 6(g) may not elect any other Contribution Types except under Elections 6(a), 6(b), and 6(h).]
     
(h)
[  ]
Designated IRA. See Section 3.12 and Election 36.
     
(i)
[  ]
None (frozen plan). The Plan is/was frozen effective as of: . See Sections 3.01(J) and 11.04.
 
[Note: Elections 20 through 30 and Elections 35 through 37 do not apply to any Plan Year in which the Plan is frozen.]
 
© 2008

 
2

 
 
Nonstandardized 401(k) Plan
7.
DISABILITY (1.15). Disability means (Choos e one of (a) or (b)):
     
(a)
[X]
Basic Plan. Disability as defined in Section 1.15(A).
     
(b)
[  ]
Describe: _____________________________________________________________________________________
 
[Note: The Employer may elect an alternative definition of Disability for purposes of Plan distributions. However, the use of an alternative definition may result in loss of favorable tax treatment of the Disability distribution. ]
 
8. EXCLUDED EMPLOYEES (1.21(D)). The following Employees are not Eligible Employees but are Excluded Employees (Choose one of (a) or (b)):
 
[Note: Regardless of the Employer’s elections under Election 8: (i) Employees of any Related Employers (excluding the Signatory Employer) are Excluded Employees unless the Related Employer becomes a Participating Employer; and (ii) Reclassified Employees and Leased Employees are Excluded Employees unless the Employer in Appendix B elects otherwise. See Sections 1.21(B), 1.21(D)(3) and 1.23(D).]
     
(a)
[  ]
No Excluded Employees. All Employees are Eligible Employees as to all Contribution Types.
     
(b)
[X]
Exclusions. The following Employees are Excluded Employees (either as to all Contribution Types or to the designated Contribution Type) (Choose one or more of (1) through (7) as applicable):
 
[Note: For this Election 8, unless described otherwise in Election 8(b)(7), Elective Deferrals includes Pre -Tax Deferrals, Roth Deferrals, Employee Contributions and Safe Harbor Contributions. Matching includes all Matching Contributions except Safe Harbor Matching Contributions. Nonelective includes all Nonelective Contributions except Safe Harbor Nonelective Contributions.]

       
(1)
 
(2)
(3)
(4)
       
All
 
Elective
   
       
Contributions
 
Deferrals
Matching
Nonelective
 
(1)
[ ]
No exclusions. No exclusions as to the
N/A
                [ ]               [ ]                   [ ]
     
designated Contribution Type.
(See Election
       
       
8(a))
       
 
(2)
[ ]
Collective Bargaining (union) Employees.
[ ]
OR
[ ]
[ ]
[ ]
     
As described in Code §410(b)(3)(A).
         
     
See Section 1.21(D)(1).
         
 
(3)
[ ]
Non-Resident Aliens. As described in Code
[ ]
OR
[ ]
[ ]
[ ]
     
§410(b)(3)(C). See Section 1.21(D)(2).
         
 
(4)
[ ]
HCEs. See Section 1.21(E). See Election 30(e)
[ ]
OR
[ ]
[ ]
[ ]
     
as to exclusion of some or all HCEs
         
     
from Safe Harbor Contributions.
         
 
(5)
[ ]
Hourly paid Employees.
[ ]
OR
[ ]
[ ]
[ ]
 
(6)
[ ]
Part-Time/Temporary/Seasonal Employees.
[ ]
OR
[ ]
[ ]
[ ]
     
See Section 1.21(D)(4). A Part -Time, Temporary
         
     
or Seasonal Employee is an Employee
         
     
whose regularly scheduled Service is less than
         
     
______ (specify a maximum of 1,000)
         
     
Hours of Service in the relevant Eligibility
         
     
Computation Period.
         
 
[Note: If the Employer under Election 8(b)(6) elects to treat Part -Time, Temporary and Seasonal Employees as Excluded Employees and any such an Employee actually completes at least 1,000 Hours of Service during the relevant Eligibility Computation Period, the Employee becomes an Eligible Employee. See Section 1.21(D)(4).]
 
 
(7)
[X]
Describe exclusion category and/or Contribution Type: Employees classified as Consultants and Assistants shall be excluded from all contribution types         (e.g., Exclude Division B Employees OR Exclude salaried Employees from Discretionary Matching Contributions.)
 
[Note: Any exclusion under Election 8(b)(7), except as to Part-Time/Temporary/Seasonal Employees, may not be based on age or Service or level of Compensation. See Election 14 for eligibility conditions based on age or Service.]
 
© 2008

 
3

 
 
Nonstandardized 401(k) Plan
 
9. COMPENSATION (1.11(B)). The following base Compensation (as adjusted under Elections 10 and 11) applies in allocating Employer Contributions (or the designated Contribution Type) (Choose one or more of (a) through (d) as applicable) :
 
[Note: For this Election 9 all definitions i nclude Electiv e Deferrals unless excluded under Election 11. See Section 1.11(D). Unless described otherwise in Election 9(d), Elective Deferrals includes Pre-Tax Deferrals, Roth Deferrals and Employee Contributions, Matching includes all Matching Contributions and Nonelective includes all Nonelective Contributions. In applying any Plan definition which references Section 1.11 Compensation, where the Employer in this Election 9 elects more than one Compensation definition for allocation purposes, the Plan Administrator will use W-2 Wages for such other Plan definitions if the Employer has elected W-2 Wages for any Contribution Type or Participant group under Election 9. If the Employer has not elected W-2 Wages, the Plan Administrator for such other Plan definitions will use 415 Compensation.]

     
(1)
 
(2)
(3)
(4)
     
All
 
Elective
   
     
Contributions
 
Deferrals
Matching
Nonelective
               
(a)
[X]
W-2 Wages (plus Elective Deferrals).
[X]
OR
[ ]
[ ]
[ ]
   
See Section 1.11(B)(1).
         
               
(b)
[ ]
Code §3401 Federal Income Tax
[ ]
OR
[ ]
[ ]
[ ]
   
Withholding Wages (plus Elective
         
   
Deferrals). See Section 1.11(B)(2).
         
(c)
[ ]
415 Compensation (simplified).
[ ]
OR
[ ]
[ ]
[ ]
   
See Section 1.11(B)(3).
         
   
[Note: The Employer may elect an alternative
         
   
“general 415 Compensation” definition by
         
   
electing 9(c) and by electing the alternative
         
   
definition in Appendix B. See Section 1.11(B)(4).]
         
               
(d)
[ ]
Describe Compensation by Contribution Type or by Participant group:_____________________________________
 
[Note: Under Election 9(d), the Employer may: (i) elect Compensation from the elections available under Elections 9(a), (b), or (c), or a combination thereof as to a Participant group (e.g., W-2 Wages for Matching Contributions for Division A Employees and 415 Compensation in all other cases); and/or (ii) define the Contribution Type column headings in a manner which differs from the “all-inclusive” description in the Note immediately preceding Election 9(a) (e.g., Compensation for Safe Harbor Matching Contributions means W-2 Wages and for Additional Matching Contributions means 415 Compensation).]
 
10. PRE -ENTRY/POST -SEVERANCE COMPENSATION (1.11(H)/(I)). Compensation under Election 9 (Complete (a). Choose (b). if applicable):
 
[Note: The Plan does not take into account Post -Severance Compensation unless the Employer elects otherwise in Ap pendix B or except as otherwise specified in a Plan amendment. For this Election 10, unless described otherwise in Election 10(b), Elective Deferrals includes Pre-Tax Deferrals, Roth Deferrals and Employee Contributions, Matching includes all Matching Cont ributions and Nonelective includes all Nonelective Contributions.]

     
(1)
 
(2)
(3)
(4)
     
All
 
Elective
   
     
Contributions
 
Deferrals
Matching
Nonelective
(a)
[X]
Pre-Entry Compensation. Includes (Choose
         
   
(1) and (2) as applicable):
         
               
 
(1)
[ ]
Plan Year. Compensation for the entire
[ ]
OR
[ ]
[ ]
[ ]
     
Plan Year which includes the Participant’s
         
     
Entry Date.
         
                 
 
(2)
[X]
Participating Compensation. Only Participating
[X]
OR
[ ]
[ ]
[ ]
     
Compensation. See Section 1.11(H)(1).
         
 
[Note: Under a Participating Compensation election, in applying any Adoption Agreement elected contribution limit or formula, the Plan Administrator will count only the Participant’s Participating Compensation. See Section 1.11(H)(1) as to plan disaggregation.]
     
(b)
[ ]
Describe Pre-Entry Compensation by Contribution Type or by Participant group: _________________________
 
[Note: Under Election 10(b), the Employer may: (i) elect Compensation from the elections available under Election 10(a) or a combination thereof as to a Participant group (e.g., Participating Compensation for all Contribution Types as to Division A Employees, Plan Year Compensation for all Contribution Types to Division B Employees); and/or (ii) define the Contribution Type column headings in a manner which differs from the “all-inclusive” description in the Note immediately preceding Election 10(a) (e.g., Compensation for Nonelective Contributions is Participating Compensation and for Safe Harbor Nonelective Contributions is Plan Year Compensation).]
 
© 2008

 
4

 
 
Nonstandardized 401(k) Plan
 
11. EXCLUDED COMPENSATION (1.11(G)). Apply the following Compensation exclusions to Elections 9 and 10 (Choose one of (a) or (b)):
     
(a)
[X]
No exclusions. Compensation as to all Contribution Types means Compensation as elected in Elections 9 and 10.
     
(b)
[ ]
Exclusions. Exclude the following (Choose one or more of (1) through (9) as applicable):
 
[Note: In a safe harbor 401(k) plan, allocations qualifying for the ADP or ACP test safe harbors must be based on a non-discriminatory definition of Compensation. If the Plan applies permitted disparity, allocations also must be based on a non-discriminatory definition of Compensation if the Plan is to avoid more complex testing. Elections 11(b)(4) through (b)(9) may cause allocation Compensation to fail to be non-discriminatory. In a non-safe harbor 401(k) plan, Elections 11(b)(4) through (b)(9) which result in Compensation failing to be non-discriminatory may result in more complex nondiscrimination testing. For this Election 11, unless described otherwise in Election 11(b)(9), Elective Deferrals includes Pre-Tax Deferrals, Roth Deferrals and Employee Contributions, Matching includes all Matching Contributions and Nonelective includes all Nonelective Contributions.]

       
(1)
 
(2)
(3)
(4)
       
All
 
Elective
   
       
Contributions
 
Deferrals
Matching
Nonelective
                 
 
(1)
[ ]
No exclusions-limited. No
N/A
 
[ ]
[ ]
[ ]
     
exclusions as to the designated
(See
       
     
Contribution Type(s).
Election 11(a))
       
                 
 
(2)
[ ]
Elective Deferrals. See Section 1.20.
N/A
 
N/A
[ ]
[ ]
                 
 
(3)
[ ]
Fringe benefits. As described in Treas.
[ ]
OR
[ ]
[ ]
[ ]
     
Reg. §1.414(s) -1(c)(3).
         
                 
 
(4)
[ ]
Compensation exceeding $  _______.
[ ]
OR
[ ]
[ ]
[ ]
     
Apply this election to (Choose one of a. or b.):
         

   
a.
[ ]
All Participants. [Note: If the Employer
         
       
elects Safe Harbor Contributions under Election 6(e), the Employer may not elect 11(b)(4)a. to limit the Safe Harbor Contribution allocation to the NHCEs.]
         
   
b.
[ ]
HCE Participants only.
         

 
(5)
[ ]
Bonus.
[ ]
OR
[ ]
[ ]
[ ]
                 
 
(6)
[ ] 
Commission.
[ ]
OR
[ ]
[ ]
[ ]
                 
 
(7)
[ ] 
Overtime.
[ ]
OR
[ ]
[ ]
[ ]
                 
 
(8)
[ ] 
Related Employers. See Section 1.23(C).
[ ]
OR
[ ]
[ ]
[ ]
     
(If there are Related Employers, choose one or
         
     
both of a. and b. as applicable):
         

   
a.
[ ]
Non-Participating. Compensation paid to
[ ]
OR
[ ]
[ ]
[ ]
       
Employees by a Related Employer that is not a Participating Employer.
         
                   
   
b.
[ ]
Participating. As to the Employees of any
[ ]
OR
[ ]
[ ]
[ ]
       
Participating Employer, Compensation paid by any other Participating Employer to its Employees. See Election 28(g)(2)a.
         

 
(9)
[ ]
Describe Compensation exclusion(s): ___________________________________________________
 
[Note: Under Election 11(b)(9), the Employer may: (i) describe Compensation from the elections available under Elections 11(b)(1) through (8), or a combination thereof as to a Participant group (e.g., No exclusions as to Division A Employees and exclude bonus as to Division B Employees); (ii) define the Contribution Type column headings in a manner which differs from the “all-inclusive” description in the Note immediately preceding Election 11(b)(1) (e.g., Elective Deferrals means §125 cafeteria deferrals only OR No exclusions as to Safe Harbor Contributions and exclude bonus as to Nonelective Contributions); and/or (iii) describe another exclusion (e.g., Exclude shift differential pay).]
 
12. HOURS OF SERVICE (1.31). The Plan credits Hours of Service for the following purposes (and to the Employees described in Elections 12(d) or (e)) as follows (Choose one or more of (a) through (e) as applicable):

     
(1)
 
(2)
(3)
(4)
     
All
     
Allocation
     
Purposes
 
Eligibility
Vesting
Conditions
               
(a)
[X]
Actual Method. See Section 1.31(A)(1).
[X]
OR
[ ]
[ ]
[ ]
               
(b)
[ ]
Equivalency Method:  _________________ (e.g., daily,
[ ]
OR
[ ]
[ ]
[ ]
   
weekly, etc.). See Section 1.31(A)(2).
         

© 2008

 
5

 

Nonstandardized 401(k) Plan

(c)
[X]
Elapsed Time Method. See Section 1.31(A)(3).
[ ]
OR
[ ]
[ ]
[ ]
               
(d)
[  ]
Actual (hourly) and Equivalency (salaried).
[ ]
OR
[ ]
[ ]
[ ]
   
Actual Method for hourly paid Employees
         
   
and Equivalency Method:_______________
         
   
(e.g., daily, weekly, etc.) for salaried Employees.
         
               
(e)
[  ] 
Describe method: ________________________________________________________________________________
               
 
[Note: Under Election 12(e), the Employer may describe Hours of Service from the elections available under Elections 12(a) through (d), or a combination thereof as to a Participant group and/or Contribution Type (e.g., For all purposes, Actual Method applies to office workers and Equivalency Method applies to truck drivers).]
 
13. ELECTIVE SERVICE CREDITING (1.56(C)). The Plan must credit Related Employer Service under Section 1.23(C) and also must credit certain Predecessor Employer/Predecessor Plan Service under Section 1.56(B). The Plan also elects under Section 1.56(C) to credit as Service the following Predecessor Employer service (Choose one of (a) or (b)):
     
(a)
[ ]
Not applicable. No elective Predecessor Employer Service crediting applies.
(b)
[X]
Applies. The Plan credits the specified service with the following designated Predecessor Employers as Service for the Employer for the purposes indicated (Choose (1) and (2) as applicable. Complete (3). Choose (4) if applicable):
 
[Note: Any elective Service crediting under this Election 13 must be nondiscriminatory.]
       
 
(1)
[X]
All purposes. Credit Service for all purposes with Predecessor Employer(s): Merit Resources, Inc. and BioProtection Systems Corporation                     
      (insert as many names as needed)

     
(1)
(2)
(3)
         
Contribution
     
Eligibility
Vesting
Allocation
(2)
[ ]
Designated purposes. Credit Service with the following Predecessor Employer(s) for the designated purpose(s):
     
           
 
a.
Employer:____________
[ ]
[ ]
[ ]
           
 
b.
Employer:____________
[ ]
[ ]
[ ]
           
 
c.
Employer:____________
[ ]
[ ]
[ ]
 
 
(3)
Time period. Under Elections 13(b)(1) or (2), the Plan credits (Choose one or more of a., b., and c. as applicable):
 
 
a.
[ X ]
All. All Service under Election(s) 13(b)  (1) , regardless of when rendered.
   
           
 
b.
[ ]
Service after. All Service under Election(s) 13(b)___, which is or was rendered after:  _____(specify date).
   
           
 
c.
[ ]
Service  before.  All  Service  under  Election(s)  13(b)______,  which  is  or  was  rendered  before:  _______(specify date) .
   
           
(4)
[ ]
Describe elective Predecessor Employer Service crediting:
 
[Note: Under Election 13(b)(4), the Employer may describe service crediting from the elections available under Elections 13(b)(1) through (3), or a combination thereof as to a Participant group and/or Contribution Type (e.g., For all purposes credit service with X only on/after 1/1/05 OR Credit all service for all purposes with entities the Employer acquires after 12/31/04 OR Service crediting for X Company applies only for purposes of Nonelective Contributions and not for Matching Contributions).]
 
 © 2008

 
6

 
 
Nonstandardized 401(k) Plan
 
ARTICLE II ELIGIBILITY
REQUIREMENTS
 
14. ELIGIBILITY (2.01). To become a Participant in the Plan, an Eligible Employee must satisfy (Choose one of (a) or (b)):
 
[Note: If the Employer under a safe harbor plan elects “early” eligibility for Elective Deferrals (e.g., less than one Year of Service and age 21), but does not elect early eligibility for any Safe Harbor Contributions, also see Election 30(f).]
     
(a)
[ ]
No conditions. No eligibility conditions as to all Contribution Types. Entry is on the Employment Commencement Date (if that date is also an Entry Date), or if later, upon the next following Plan Entry Date.
 
[Note: No eligibility conditions apply to Prevailing Wage Contributions unless the Prevailing Wage Contract provides otherwise. See Section 2.01(D).]
     
(b)
[X]
Conditions. The following eligibility conditions (either as to all Contribution Types or as to the designated Contribution Type) (Choose one or more of (1) through (8) as applicable):
 
[Note: For this Election 14, unless described otherwise in Election 14(b)(8)), or the context otherwise requires, Elective Deferrals includes Pre-Tax Deferrals, Roth Elective Deferrals and Employee Contributions, Matching includes all Matching Contributions (except Safe Harbor Matching Contributions under Section 3.05(E)(3) and Operational QMACs under Section 3.03(C)(2)) and Nonelective includes all Nonelective Contributions (except Safe Harbor Nonelective Contributions under Section 3.05(E)(2) and Operational QNECs under Section 3.04(C)(2)). Safe Harbor includes Safe Harbor Nonelective and Safe Harbor Matching Contributions. If the Employer elects more than one Year of Service as to Additional Matching, the Plan will not satisfy the ACP test safe harbor. See Section 3.05(F)(3).]

       
(1)
 
(2)
(3)
(4)
(5)
       
All
 
Elective
   
Safe
       
Contributions
 
Deferrals
Matching
Nonelective
Harbor
                   
 
(1)
[ ]
None. Entry on the Employment
N/A
 
[ ]
[ ]
[ ]
[ ]
     
Commencement Date (if that date
(See Election
         
     
is also an Entry Date) or if later, upon
14(a))
         
     
the next following Plan Entry Date.
           
                   
 
(2)
[X]
Age 21 (not to exceed age 21).
[X]
OR
[ ]
[ ]
[ ]
[ ]
                   
 
(3)
[ ]
One Year of Service. See Election 16(a).
[ ]
OR
[ ]
[ ]
[ ]
[ ]
                   
 
(4)
[ ]
Two Years of Service (without an intervening
N/A
 
N/A
               [ ]                    [ ]
N/A
     
Break in Service). 100% vesting is required.
           
     
[Note: Two Years of Service does not apply to
           
     
Elective Deferrals, Safe Harbor Contributions
           
     
or SIMPLE Contributions.]
           
                   
 
(5)
[X]
 six (6) month(s) (not exceeding 12 months
[ X ]
OR
[ ]
[ ]
[ ]
[ ]
     
for Elective Deferrals, Safe Harbor Contributions
           
     
and SIMPLE Contributions and not exceeding 24
           
     
months for other contributions). If more than 12
           
     
months, 100% vesting is required. Service need
           
     
not be continuous (no minimum Hours of Service
           
     
required, and is mere passage of time).
           
                   
 
(6)
[ ]
             month(s) with at least ___Hours
[ ]
OR
[ ]
[ ]
[ ]
[ ]
     
of Service in each month (not exceeding 12
           
     
months for Elective Deferrals, Safe Harbor
           
     
Contributions and SIMPLE Contr ibutions and
           
     
not exceeding 24 months for other contributions).
           
     
If more than 12 months, 100% vesting is required.
           
     
If the Employee does not complete the designated
           
     
Hours of Service each month during the specified
           
     
monthly time period, the Employee is subject to
           
     
the one Year of Service (or two Years of Service
           
     
if elect more than 12 months) requirement with
           
     
1,000 Hours of Service per Year of Service. The
           
     
months during which the Employee completes the
           
     
specified Hours of Service (Choose one of a. or b.)
           
                   
   
a.
[ ]   Consecutive. Must be consecutive.
           
                   
   
b.
[ ]   Not consecutive. Need not be consecutive.
           
 
 © 2008

 
7

 

Nonstandardized 401(k) Plan

                   
 
(7)
[ ]
____Hours of Service within the_____________
[ ]
OR
[ ]
[ ]
[ ]
[ ]
     
time period following the Employee’s Employment
Commencement Date (not exceeding 12 months for
Elective Deferrals, Safe Harbor Contributions and
SIMPLE Contributions and not exceeding 24 months for other contributions). If more than 12 months, 100% vesting is required. If the Employee does not complete the designated Hours of Service during the specified time period (if any), the Employee is subject to the one Year of Service (or two Years of Service if elect more than 12 months) requirement with 1,000 Hours of Service per Year of Service.
           
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
 
[Note: The Employer may complete the second blank in Election 14(b)(7) with “N/A” if the Employer wishes to impose an Hour of Service requirement without specifying a time period within which an Employee must complete the required Hours of Service.]
 
          (8)     [ ]     Describe eligibility conditi ons: ____________________________
 
[Note: The Employer may use Election 14(b)(8) to describe different eligibility conditions as to different Contribution Types or Employee groups (e.g., As to all Contribution Types, no eligibility requirements for Division A Employees and one Year of Service as to Division B Employees). The Employer also may elect different ages for different Contribution Types and/or to specify different months or Hours of Service requirements under Elections 14(b)(5), (b)(6), or (b)(7) as to different Contribution Types. Any election must satisfy Code §410(a).]
 
15. SPECIAL ELIGIBILITY EFFECTIVE DATE (DUAL ELIGIBILITY) (2.01(E)). The eligibility conditions of Election 14 (Choose (a) or choose (b) and (c) as applicable):
     
(a)
[ ]
No exceptions. Apply to all Employees.
 
[Note: Elections 15(b) or (c) may trigger a coverage failure under Code §410(b).]
     
(a)
[X]
Waiver of eligibility conditions for certain Employees. For all Contribution Types, apply solely to an Eligible Employee employed or reemployed by the Employer after January 1, 2005 (specify date). If the Eligible Employee was employed or reemployed by the Employer by the specified date, the Employee will become a Participant on the latest of: (i) the Effective Date; (ii) the restated Effective Date; (iii) the Employee’s Employment Commencement Date or Re-Employment Commencement Date; or (iv) on the date the Employee attains age (not exceeding age 21).
 
[Note: If the Employer does not wish to impose an age condition under clause (iv) as part of the requirements for the eligibility conditions waiver, leave the age blank.]
     
(c)
[ ]
Describe special eligibility Effective Date(s):______________________________________________________________
 
[Note: Under Election 15(c), the Employer may describe special eligibility Effective Dates as to a Participant group and/or Contribution Type (e.g., Eligibility conditions apply only as to Nonelective Contributions and solely as to the Eligible Employees of Division B who were hired or reemployed by the Employer after January 1, 2007).]
 
16. YEAR OF SERVICE - ELIGIBILITY (2.02(A)). (Choose (a), (b), and (c) as applicable):
 
[Note: If the Employer under Election 14 elects a one or two Year(s) of Service condition (including any requirement which defaults to such conditions under Elections 14(b)(6), (7), and (8)) or elects to apply a Year of Service for eligibility under any other Adoption Agreement election, the Employer should complete Election 16. The Employer should not complete Election 16 if it elects the Elapsed Time Method for eligibility.]
     
(a)
[ ]
Year of Service. An Employee must complete ______ Hour(s) of Service during the relevant Eligibility Computation Period to receive credit for one Year of Service under Article II. [Note: The number may not exceed 1,000. If left blank, the requirement is 1,000 Hours of Service. Under Elections 14(b)(6) and (b)(7) and under Election 14(b)(8) if it incorporates Elections 14(b)(6) or (7), the number is 1,000 and the Employer should not supply any other number in the blank.]
     
(b)
[ ]
Subsequent Eligibility Computation Periods. After the Initial Eligibility Computation Period described in Section 2.02(C)(2), the Plan measures Subsequent Eligibility Computation Periods as (Choose one of (1), (2), or (3)):

 
(1)
[ ]
Plan Year. The Plan Year, beginning with the Plan Year which includes the first anniversary of the Employee’s Employment Commencement Date.
       
 
(2)
[ ]
Anniversary Year. The Anniversary Year, beginning with the Employee’s second Anniversary Year.
       
 
(3)
[ ]
Split. The Plan Year as described in Election 16(b)(1) as to:______(describe Contribution Type(s)) and the Anniversary Year as described in Election 16(b)(2) as to: ____(describe Contribution Type(s)).
 
[Note: To maximize delayed entry under a two Years of Service condition for Nonelective Contributions or Matching Contributions, the Employer should elect to remain on the Anniversary Year for such contributions.]
       
(c)
[ ]
Describe:_______ (e.g., Anniversary Year as to Division A and Plan Year as to Division B.)
 
© 2008

 
8

 
 
Nonstandardized 401(k) Plan
 
17. ENTRY DATE (2.02(D)). Entry Date means the Effective Date and (Choose one or more of (a) through (f) as applicable):
 
[Note: For this Election 17, unless described otherwise in Election 17(f), Elective Deferrals includes Pre-Tax Deferrals, Roth Elective Deferrals and Employee Contributions, Matching includes all Matching Contributions (except Operational QMACs under Section 3.03(C)(2)) and Nonelective includes all Nonelective Contributions (except Operational QNECs under Section 3.04(C)(2)). Entry as to Prevailing Wage Contributions is on the Employment Commencement Date unless the Prevailing Wage Contract provides otherwise. See Section 2.02(D).]

     
(1)
 
(2)
 
(3)
(4)
     
All
 
Elective
     
     
Contributions
 
Deferrals
 
Matching
Nonelective
                 
(a)
[ ]
Semi-annual. The first day of the first month
[ ]
     OR
[ ]
 
[ ]
[ ]
   
and of the seventh month of the Plan Year.
           
                 
(b)
[ ]
First day of Plan Year
[ ]
     OR
[ ]
 
[ ]
[ ]
                 
(c)
[ ]
First day of each Plan Year quarter
[ ]
     OR
[ ]
 
[ ]
[ ]
                 
(d)
[X]
The first day of each month
[X]
     OR
[ ]
 
[ ]
[ ]
                 
(e)
[ ]
Immediate. Upon Employment Commencement Date
[ ]
     OR
[ ]
 
[ ]
[ ]
   
or if later, upon satisfaction of eligibility conditions.
           
                 
(f)
[ ]
Describe Entry Date(s): ______________________________________________________________________
 
[Note: Under Election 17(f), the Employer may describe Entry Dates from the elections available under Elections 17(a) through (e), or a combination thereof as to a Participant group and/or Contribution Type or may elect additional Entry Dates (e.g., As to Matching Contributions excluding Additional Matching, immediate as to Division A Employees and semi-annual as to Division B Employees OR the earlier of the Plan’s semi-annual Entry Dates or the entry dates under the Employer’s medical plan).]
 
18. PROSPECTIVE/RETROACTIVE ENTRY DATE (2.02(D)). An Employee after satisfying the eligibility conditions in Election 14 will become a Participant (unless an Excluded Employee under Election 8) on the Entry Date (if employed on that date) (Choose one or more of (a) through (f) as applicable):
 
[Note: Unless otherwise excluded under Election 8, an Employee who remains employed by the Employer on the relevant date must become a Participant by the earlier of: (i) the first day of the Plan Year beginning after the date the Employee completes the age and service requirements of Code §410(a); or (ii) 6 months after the date the Employee completes those requirements. For this Election 18, unless described otherwise in Election 18(f), Elective Deferrals includes Pre-Tax Deferrals, Roth Deferrals and Employee Contributions, Matching includes all Matching Contributions (except Operational QMACs under Section 3.03(C)(2)) and Nonelective includes all Nonelective Contributions, (except Operational QNECs under Section 3.04(C)(2)).]
 
     
(1)
 
(2)
(3)
(4)
     
All
 
Elective
   
     
Contributions
 
Deferrals
Matching
Nonelective
               
(a)
[X]
Immediately following or coincident with the date
[X]
OR
[ ]
[ ]
[ ]
   
the Employee completes the eligibility conditions.
         
               
(b)
[ ]
Immediately following the date the Employee
[ ]
OR
[ ]
[ ]
[ ]
   
completes the eligibility conditions.
         
               
(c)
[ ]
Immediately preceding or coincident with the date
N/A
 
N/A
[ ]
[ ]
   
the Employee completes the eligibility conditions.
         
               
(d)
[ ]
Immediately preceding the date the Employee
N/A
 
N/A
[ ]
[ ]
   
completes the eligibility conditions.
         
               
(e)
[ ]
Nearest the date the Employee completes the
N/A
 
N/A
[ ]
[ ]
   
eligibility conditions.
         

(f)
[ ]
Describe retroactive/prospective entry relative to Entry Date: _________________________________________
 
[Note: Under Election 18(f), the Employer may describe the timing of entry relative to an Entry Date from the elections available under Elections 18(a) through (e), or a combination thereof as to a Participant group and/or Contribution Type (e.g., As to Matching Contributions excluding Additional Matching nearest as to Division A Employees and immediately following as to Division B Employees).]
 
19. BREAK IN SERVICE – PARTICIPATION (2.03). The one year hold-out rule described in Section 2.03(C) (Choose one of (a), (b), or (c)):
     
(a)
[X]
Does not apply.
     
(b)
[ ]
Applies. Applies to the Plan and to all Participants.
 
© 2008

 
9

 


 
Nonstandardized 401(k) Plan
     
(c)
[ ]
Limited application. Applies to the Plan, but only to a Participant who has incurred a Severance from Employment.
 
[Note: The Plan does not apply the rule of parity under Code §410(a)(5)(D) unless the Employer in Appendix B specifies otherwise. See Section 2.03(D).]
 
ARTICLE III
PLAN CONTRIBUTIONS AND FORFEITURES
 
20. ELECTIVE DEFERRAL LIMITATIONS (3.02(A)). The following limitations apply to Elective Deferrals under Elections 6(a) and 6(b), which are in addition to those limitations imposed under the basic plan document (Choose (a) or choose (b) and (c) as applicable):
     
(a)
[X]
None. No additional Plan imposed limits.
 
[Note: The Employer under Election 20 may not impose a lower deferral limit applicable only to Catch -Up Eligible Participants and the Employer’s elections must be nondiscriminatory. The elected limits apply to Pre-Tax Deferrals and to Roth Deferrals unless described otherwise. Under a safe harbor plan: (i) NHCEs must be able to defer enough to receive the maximum Safe Harbor Matching and Additional Matching Contribution under the plan and must be permitted to defer any lesser amount; and (ii) the Employer may limit Elective Deferrals to a whole percentage of Compensation or to a whole dollar amount. See Section 1.54(C) as to administrative limitations on Elective Deferrals.]
     
(b)
[ ]
Additional Plan limit(s). (Choose (1) and (2) as applicable. Complete (3) if (1) or (2) is chosen):
 
 
(1)
[ ]
Maximum deferral amount. A Participant’s Elective Deferrals may not exceed: (specify dollar amount or percentage of Compensation).
       
 
(2)
[ ]
Minimum deferral amount. A Participant’s Elective Deferrals may not be less than: _______________________  (specify dollar amount or percentage of Compensation) .
       
       
 
(3)
Application of limitations. The Election 20(b)(1) and (2) limitations apply based on Elective Deferral Compensation described in Elections 9 – 11. If the Employer elects Plan Year/Participation Compensation under column (1) and in Election 10 elects Participating Compensation, in the Plan Years commencing after an Employee becomes a Participant, apply the elected minimum or maximum limitations to the Plan Year. Apply the elected limitation based on such Compensation during the designated time period and only to HCEs as elected below. (Choose a. or choose b. and c. as applicable. Under each of a., b. or c. choose one of (1) or (2). Choose (3) if applicable):
 
         
(1)
(2)
(3)
         
Plan Year/Participating
Payroll period
HCEs only
         
Compensation
   
   
a.
[ ]
Both. Both limits
[ ]
[ ]
[ ]
       
under Elections 20(b)(1) and (2).
     
               
   
b.
[ ]
Maximum limit. The maximum
[ ]
[ ]
[ ]
       
amount limit under Election 20(b)(1).
     
               
   
c.
[ ]
Minimum limit. The minimum
[ ]
[ ]
[ ]
       
amount limit under Election 20(b)(2).
     
 
(c)
[ ]
Describe Elective Deferral limitation(s):  ______________________________________________________________
 
[Note: Under Election 20(c), the Employer: (i) may describe limitations on Elective Deferrals from the elections available under Elections 20(a) and (b) or a combination thereof as to a Participant group (e.g., No limit applies to Division A Employees. Division B Employees may not defer in excess of 10% of Plan Year Compensation); (ii) may elect a different time period to which the limitations apply; and/or (iii) may apply a different limitation to Pre-Tax Deferrals and to Roth Deferrals.]
 
21. AUTOMATIC DEFERRAL (3.02(B)). The Automatic Deferral provisions of Section 3.02( B) (Choose one of (a) or (b)):
 
(a)
[X]
Do not apply.
     
(b)
[ ]
Apply. The Automatic Deferral Effective Date is:___ (specify date). (Complete (1), (2), and (3). Choose (4) as applicable):
     
 
(1)
Automatic Deferral Amount. The Employer, as to each Participant affected, will withhold as the Automatic Deferral Amount, ___% from the Participant’s Compensation each payroll period unless the Participant makes a Election.
     
 
(2)
Participants affected. The Automatic Deferral applies to (Choose one of a., b., c., or d.):

   
a.
[ ]
All Participants. All Participants, regardless of any prior Salary Reduction Agreement, unless and until they make a Contrary Election after the Automatic Deferral Effective Date.
         
   
b.
[ ]
Election of at least Automatic Deferral amount. All Participants, except those who have in effect a Salary Reduction Agreement on the Automatic Deferral Effective Date provided that the Elective Deferral amount under the Agreement is at least equal to the Automatic Deferral Amount.
 
 © 2008

 
10

 
 
Nonstandardized 401(k) Plan
         
   
c.
[ ]
No existing Salary Reduction Agreement. All Participants, except those who have in effect a Salary Reduction Agreement on the Automatic Deferral Effective Date regardless of the Elective Deferral amount under the Agreement.
         
   
d.
[ ]
New Participants. Each Employee whose Entry Date is on or following the Automatic Deferral Effective Date.
         
 
(3)
Scheduled increases. The Automatic Deferral Amount will or will not increase (as a percentage of Compensation) in Plan Years following the Plan Year containing the Automatic Deferral Effective Date (or, if later, the Plan Year in which the Automatic Deferral first applies to a Participant) as follows (Choose one of a., b., or c.) :
         
   
a.
[ ]
No scheduled increase. The Automatic Deferral Amount applies in al l Plan Years.
         
   
b.
[ ]
Scheduled increase. The Automatic Deferral Amount will increase as follows:
 
 
Plan Year of application to a Participant
 
Automatic Deferral Amount
 
 
1
 
3%
 
 
2
 
3%
 
 
3
 
4%
 
 
4
 
5%
 
 
5 and thereafter
 
6%
 

   
c.
[ ]
Other scheduled increase. The Automatic Deferral Amount will increase as follows:
 
 
Plan Year of application to a Participant
 
Automatic Deferral Amount
 
 
_____
 
_____%
 
 
_____
 
_____%
 
 
_____
 
_____%
 
 
_____
 
_____%
 
 
_____
 
_____%
 

 
(4)
Describe Automatic Deferral: _____________________________________________________________________
 
[Note: Under Election 21(b)(4), the Employer may describe Automatic Deferral provisions from the elections available under Election 21 and/or a combination thereof as to a Participant group (e.g., Automatic Deferrals do not apply to Division A Employees. All Division B Employee/Participants are subject to an Automatic Deferral Amount equal to 3% of Compensation effective as of January 1, 2008).]

22.
CODA (3.02(C)). The CODA provisions of Section 3.02(C) (Choose one of (a) or (b)):

(a)
[X]
Do not apply.
     
(b)
[ ]
Apply. For each Plan Year for which the Employer makes a designated CODA contribution under Section 3.02(C), a Participant may elect to receive directly in cash not more than the following portion (or, if less, the El ective Deferral Limit) of his/her proportionate share of that CODA contribution (Choose one of (1) or (2)):
         
 
(1)
[ ]
All or any portion.
       
 
(2)
[ ]
______%
       
23.
CATCH-UP DEFERRALS (3.02(D)). A Catch-Up Eligible Participant (Choose one of (a) or (b)) :
       
a.
[X]
Permitted. May make Catch-Up Deferrals to the Plan.
     
b.
[ ]
Not Permitted. May not make Catch-Up Deferrals to the Plan.
 
© 2008

 
11

 
 
Nonstandardized 401(k) Plan
 
24. MATCHING CONTRIBUTIONS (EXCLUDING SAFE HARBOR MATCH AND ADDITIONAL MATCH UNDER SECTION 3.05) (3.03(A)). The Employer Matching Contributions under Election 6(c) are subject to the following additional elections regarding type (discretionary/fixed), rate/amount, limitations and time period (collectively, such elections are “the matching formula”) and the allocation of Matching Contributions is subject to Section 3.06 except as otherwise provided (Choose one or more of (a) through (g) as applicable; then, for the elected match, complete (1), (2), and/or (3) as applicable. If the Employer completes (2) or (3), also complete one of (4), (5), or (6)):
 
[Note: If the Employer wishes to make any Matching Contributions that satisfy the ADP or ACP safe harbor, the Employer should make these Elections under Election 30, and not under this Election 24.]
 
     
(1)
 
(2) Limit
(3)
(4)
 
(6) Apply
         
on
   
(5) Apply
limit(s) per
     
Match
 
Deferrals
Limit on
Apply
limit(s) per
designated
     
Rate/Amt [$/%
 
Matched
Match Amount
limit(s) per
payroll
time period
     
of Elective
 
[$/% of
[$/% of
Plan Year
period [no
[no "true-up]
     
Deferrals]
 
Compensation]
Compensation]
["true-up"]
"true-up"]
 
(a)
[ ]
Discretionary – see
     
____
____
[ ]
[ ]
[ ]
   
Section 1.34(B) (The
               
   
Employer may, but is
               
   
not      required      to
               
   
complete    (a)(1) -(6).
               
   
See      the      "Note"
               
   
following Election 24.)
               
                     
(b)
[ ]
Fixed     –     uniform
      ____  ____  [ ]  [ ]  [ ] 
   
rate/amount
               
                     
(c)
[ ]
Fixed – tiered
Elective
Matching
      [ ]  [ ]  [ ] 
     
Deferral %
Rate
           
     
____%
____%
           
     
____%
____%
           
     
____%
____%
           
     
____%
____%
           
                     
(d)
[ ]
Fixed   –   Years   of
Years
Matching
____
____
[ ]
[ ]
[ ]
____
   
Service
of Service
Rate
           
     
____
____%
           
     
____
____%
           
     
____
____%
           
     
____
____%
           
 
(1)
"Years of Service" under this Election 24(d) means (Choose one of a. or b.):
   
a.
[ ]
Eligibility. Years of Service for eligibility in Election 16.
   
b.
[ ]
Vesting. Years of Service for vesting in Elections 42 and 43.
(e)
 
Fixed     –    multiple
Formula 1:
_______
____
____
[ ]
[ ]
[ ]
____
   
formulas
               
     
Formula 2:
_______
____
____
[ ]
[ ]
[ ]
____
                     
     
Formula 3:
_______  ____ 
____
[ ]
[ ]
[ ]
____
 
(f)
[ ]
Related and Participating Employers. If any Related and Participating Employers contribute Matching Contributions to the Plan, the following apply (Complete (1) and (2)):
 
 
(1)
 
Matching formula. The matching formula for t he Participating Employer(s) (Choose one of a. or b.):

 
a.
[ ]
All the same. Is (are) the same as for the Signatory Employer under this Election 24.
       
 
b.
[ ]
At least one different. Is (are) as follows: .

 
(2)
Allocation sharing. The Plan Administrator will allocate the Matching Contributions made by the Signatory Employer and by any Participating Employer (Choose one of a. or b.):

 
a.
[ ]
Employer by Employer. Only to the Participants directly employed by the contributing Employer.
       
 
b.
[ ]
Across Employer lines. To all Participants regardless of which Employer directly employs them and regardless of whether their direct Employer made Matching Contributions for the Plan Year.
 
[Note: The Employer should not elect 24(f) unless there are Related Empl oyers which are also Participating Employers. See Section 1.23(D).]
 
 © 2008

 
12

 
Nonstandardized 401(k) Plan
     
(g)
[ ]
Describe: __________________________________________________________________ (e.g., A Discretionary Matching Contribution applies to Division A Participants. A Fixed Matching Contribution equal to 50% of Elective Deferrals not exceeding 6% of Plan Year Compensation applies to Division B Participants.)
 
[Note: See Section 1.34(A) as to Fixed Matching Contributions. A Participant’s Elective Deferral percentage is equal to the Participant’s Elective Deferrals divided by his/her Compensation. The matching rate/amount is the specified rate/amount of match for the corresponding Elective Deferral amount/percentage. Any Matching Contributions apply to Pre-Tax Deferrals and to Roth Deferrals unless described otherwise in Election 24(g). Matching Contributions for nondiscrimination testing purposes are subject to the targeting limitations. See Section 4.10(D). The Employer under Election 24(a) in its discretion may determine the amount of a Discretionary Matching Contribution and the matching contribution formula. Alternatively, the Employer in Election 24(a) may specify the Discretionary Matching Contribution formula.]
 
25. QMAC (PLAN -DESIGNATED) (3.03(C)(1)). The following provisions apply regarding Plan-Designated QMACs (Choose one of  (a) or (b)):
 
[Note: Regardless of its elections under this Election 25, the Employer under Section 3.03(C)(2) may elect for any Plan Year where the Plan is using Current Year Testing to make Operational QMACs which the Plan Administrator will allocate only to NHCEs for purposes of correction of an ADP or ACP test failure.]
     
(a)
[ ]
Not applicable. There are no Plan -Designated QMACs.
     
(b)
[ ]
Applies. There are Plan-Designated QMACs to which the following provisions apply (Complete (1) and (2)):

 
(1)
Matching Contributions affected. The following Matching Contributions (as allocated to the designated allocation group under Election 25(b)(2)) are Plan-Designated QMACs (Choose one of a. or b.):

   
(a)
[ ]
All. All Matching Contributions.
         
   
(b)
[ ]
Designated. Only the following Matching Contributions under Election 24: ______________________________.

 
(2)
Allocation Group. Subject to Section 3.06, allocate the Plan-Designated QMAC (Choose one of a. or b.):

   
(a)
[ ]
NHCEs only. Only to NHCEs who make Elective Deferrals subject to the Plan-Designated QMAC.
         
   
(b)
[ ]
All Participants. To all Participants who make Elective Deferrals subject to the Plan-Designated QMAC.______________________________.
 
The Plan Administrator will allocate all other Matching Contributions as Regular Matching Contributions under Section 3.03(B), except as provided in Sections 3.03(C)(2) or 3.05.
 
[Note: See Section 4.10(D) as to targeting limitations applicable to QMAC nondiscrimination testing.]
 
26. MATCHING CATCH-UP DEFERRALS (3.03(D)). If a Participant makes a Catch-Up Deferral, the Employer (Choose one of (a) or (b)):
     
(a)
[X]
Match. Will apply to the Catch-Up Deferral (Choose one of (1) or (2)):

 
(1)
[X]
All. All Matching Contributions.
       
 
(2)
[ ]
Designated. The following Matching Contributions in Election 24: .
       
 
(b)
[ ]
No Match. Will not match any Catch-Up Deferrals.
 
[Note: Election 26 does not apply to a safe harbor 401(k) plan unless the Employer will apply the ACP test. See Elections 37(a)(2)b. and 37(a)(2)c.(ii). In this case, Election 26 applies only to Additional Matching, if any. A safe harbor 401(k) Plan will apply the Basic Match or Enhanced Match to Catch-Up Deferrals. If the Employer elects to apply the ACP test safe harbor under Election 37(a)(2)a. or 37(a)(2)c.(i), Election 26 does not apply and the Plan also will apply any Additional Match to Catch-Up Deferrals.]
 
27. NONELECTIVE CONTRIBUTIONS (TYPE/AMOUNT INCLUDING PREVAILING WAGE CONTRIBUTIONS) (3.04(A)). The Employer Nonelective Contributions under Election 6(d) are subject to the following additional elections as to type and amount (Choose one or more of (a) through (e) as applicable) :
     
(a)
[X]
Discretionary. An amount the Employer in its sole discretion may determine.
     
(b)
[ ]
Fixed. (Choose one or more of (1), (2), and (3) as applicable):
 
 
(1)
[ ]
Uniform%. _________ % of each Participant’s Compensation, per___ (e.g., Plan Year, month) .
       
 
(2)
[ ]
Fixed dollar amount. $, _____ per _________________ (e.g., Plan Year, month, HOS, per Participant per month).
       
 
(3)
[ ]
Describe: __________________________________________________ (specify time period, e.g., per Plan Year quarter. If not specified, the time period is the Plan Year).
 
[Note: The Employer under Election 27(b)(3) may specify any Fixed Nonelective Contribu tion formula not described under Elections 27(b)(1) or (2) (e.g., For each Plan Year, 2% of net profits exceeding $50,000) and/or the Employer may describe different Fixed Nonelective Contributions as applicable to different Participant groups (e.g., A Fixed Nonelective Contribution equal to 5% of Plan Year Compensation applies to Division A Participants and a Fixed Nonelective Contribution equal to $500 per Participant each Plan Year applies to Division B Participants).]
 
 © 2008

 
13

 
 
Nonstandardized 401(k) Plan
       
(c)
[ ]
Prevailing Wage Contribution. The Prevailing Wage Contribution amount(s) specified for the Plan Year or other applicable period in the Employer’s Prevailing Wage Contract(s). The Employer will make a Prevailing Wage Contribution only to Participants covered by the Contract and only as to Compensation paid under the Contract. If the Participant accrues an allocation of Employer Contributions (including forfeitures) under the Plan or any other Employer plan in addition to the Prevailing Wage Contribution, the Plan Administrator will (Choose one of (1) or (2)):
       
 
(1)
[ ]
No offset. Not reduce the Participant’s Employer Contribution allocation by the amount of the Prevailing Wage Contribution.
       
 
(2)
[ ]
Offset. Reduce the Participant’s Employer Contribution allocation by the amount of the Prevailing Wage Contribution.
       
(d)
[ ]
Related and Participating Employers. If any Related and Participating Employers contribute Nonelective Contributions to the Plan, the contribution formula(s) (Choose one of (1) or (2)):
       
 
(1)
[ ]
All the same. Is (are) the same as for the Signatory Employer under this Election 27.
       
 
(2)
[ ]
At least one different. Is (are) as follows: ______________________________.
 
[Note: The Employer should not elect 27(d) unless there are Related Employers which are also Participating Employers. Se e Section 1.23(D). The Employer electing 27(d) also must complete Election 28(g) as to the allocation methods which apply to the Participating Employers.]
     
(e)
[ ]
Describe:  ____________________________________________________________________________________
 
[Note: Under Election 27(e), the Employer may describe the amount and type of Nonelective Contributions from the elections available under Election 27 and/or a combination thereof as to a Participant group (e.g., A Discretionary Nonelective Contribution applies to Division A Employees. A Fixed Nonelective Contribution equal to 5% of Plan Year Compensation applies to Division B Employees).]
 
28. NONELECTIVE CONTRIBUTION ALLOCATION (3.04(B)). The Plan Administrator, subject to Section 3.06, will allocate to each Participant any Nonelective Contribution (excluding QNECs) under the following contribution allocation formula (Choose one or more of (a) through (h) as applicable):
     
(a)
[ ]
Pro rata. As a uniform percentage of Participant Compensation.
     
(b)
[ ]
Permitted disparity. In accordance with the permitted disparity allocation provisions of Section 3.04(B)(2), under which the following permitted disparity formula and definition of “Excess Compensation” apply (Complete (1) and (2)):

 
(1)
Formula (Choose one of a. or b.):

   
a.
[ ]
Two-tiered.
         
   
b.
[ ]
Four-tiered.

 
(2)
Excess Compensation. For purposes of Section 3.04(B)(2), “Excess Compensation” means Compensation in excess of (Choose one of a. or b.):

   
a.
[ ]
Percentage amount. _____ % (not exceeding 100%) of the taxable wage base in effect on the first day of the Plan Year, rounded to the next highest $ _____ (not exceeding the taxable wage base).
         
   
b.
[ ]
Dollar amount. The following amount: $ _____ (not exceeding the taxable wage base in effect on the first day of the Plan Year).

(c)
[ ]
Incorporation of contribution formula. The Plan Administrator will allocate any Fixed Nonelective Contribution under Elections 27(b), 27(d) or 27(e), or any Prevailing Wage Contribution under Election 27(c), in accordance with the contribution formula the Employer adopts under those Elections.
     
(d)
[X]
Classifications of Participants. In accordance with the classifications allocation provisions of Section 3.04(B)(3). The classifications are (Choose one of (1), (2), or (3)):
 
[Note: Typically, the Employer would elect 28(d) where it intends to satisfy nondiscrimination requirements using “cross-testing” under Treas. Reg. §1.401(a)(4)-8. However, choosing this election does not necessarily require application of cross -testing and the Plan may be able to satisfy nondiscrimination as to its classification-based allocations by testing allocation rates. ]
       
 
(1)
[ ]
Each in own classification. Each Participant constitutes a separate classification.
       
 
(2)
[ ]
NHCEs/HCEs. Nonhighly Compensated Employee/Participants and Highly Compensated Employee/Participants.
       
 
(3)
[X]
Describe the classifications: A: Chief Executive Officer; B: Chief Medical Officer; C: Vice President Clinical & Regulatory Affairs; D: Quality Assurance Officer; E: Senior Vice President of Business Development; F: Vice President of Drug Development; G: CFO; H: All other Eligible Employees not listed in A-G
 
© 2008

 
14

 
 
Nonstandardized 401(k) Plan
 
[Note: Any classifications under Election 28(d) must result in a definitely determinable allocation under Treas. Reg. §1.401 -1(b)(1)(ii) and must constitute a reasonable classification within the meaning of Treas. Reg. §1.410(b) -4(b). The number of allocation rates is subject to the limitations in Section 3.04(B)(3)(b). Standard interest and mortality assumptions under Treas. Reg. §1.401(a)(4)-12 apply. In the case of a self-employed Participant, the requirements of Treas. Reg. §1.401(k)-1(a)(6) apply and the allocation method should not result in a cash or deferred election for the self-employed Participant. The Employer by the due date of its tax return (including extensions) must advise the Plan Administrator or Trustee in writing as to the allocation rate applicable to each Participant under Election 28(d)(1) or applicable to each classification under Elections 28(d)(2) or (3) for the allocation Plan Year. Under Election 28(d)(1), the Employer may decide from year to year the classification (allocation rate) applicable to each Participant, without the need to amend the Plan to change the classification.]
     
(e)
[ ]
Age-based. In accordance with the age-based allocation provisions of Section 3.04(B)(5). The Plan Administrator will use the Actuarial Factors based on the following assumptions (Complete both (1) and (2)):

 
(1)
Interest rate. (Choose one of a., b., or c.):
       
   
a.     [ ]     7.5%               b.     [ ]     8.0%               c.     [ ]     8.5%
       
 
(2)
Mortality table. (Choose one of a. or b.):

         
   
a.
[ ]
UP-1984. See Appendix D.
         
   
b.
[ ]
Alternative: _____________________(Specify 1983 GAM, 1983 IAM, 1971 GAM or 1971 IAM and attach applicable tables using such mortality table and the specified interest rate as replacement Appendix D.)

(f)
[ ]
Uniform points. In accordance with the uniform points allocation provisions of Section 3.04(B)(6). Under the uniform points allocation formula, a Participant receives (Choose one or both of (1) and (2). Choose (3) if applicable):
         
 
(1)
[ ]
Years of Service. ____________ point(s) for each Year of Service. The maximum number of Years of Service counted for points is __________.
       
   
“Year of Service” under this Election 28(f) means (Choose one of a. or b.):

   
a.
[ ]
Eligibility. Years of Service for eligibility in Election 16.
         
   
b.
[ ]
Vesting. Years of Service for vesting in Elections 42 and 43.

   
[Note: A Year of Service must satisfy Treas. Reg. §1.401(a)(4)-11(d)(3) for the uniform points a llocation to qualify as a safe harbor allocation under Treas. Reg. §1.401(a)(4)-2(b)(3).]

 
(2)
[ ]
Age. __________ point(s) for each year of age attained during the Plan Year.
         
 
(3)
[ ]
Compensation. _____________ point(s) for each $ (not to exceed $200) increment of Plan Year Compensation.
         
(g)
[ ]
Related and Participating Employers. If any Related and Participating Employers contribute Nonelective Contributions to the Plan, the Plan Administrator will allocate the Nonelective Contributions made by the Participating Employer(s) under Election 27(d) (Complete (1) and (2)):
         
 
(1)
Allocation Method. (Choose one of a. or b.):
         
   
a.
[ ]
All the same. Using the same allocation method as applies to the Signatory Employer under this Election 28.
         
   
b.
[ ]
At least one different. Under the following allocation method(s):_________ .
         
 
(2)
Allocation sharing. The Plan Administrator will allocate the Nonelective Contributions made by the Signatory Employer and by any Participating Employer (Choose one of a. or b.):
         
   
a.
[ ]
Employer by Employer. Only to the Participants directly employed by the contributing Employer.
         
   
b.
[ ]
Across Employer lines. To all Participants regardless of which Employer directly employs them and regardless of whether their direct Employer made Nonelective Contributions for the Plan Year.
 
[Note: The Employer should not elect 28(g) unless there are Related Employers which are also Participating Employers. See Section 1.23(D) and Election 27(d). If the Employer elects 28(g)(2)a., the Employer should also elect 11(b)(8)b., to disregard the Compensation paid by “Y” Participating Employer in determining the allocation of the “X” Participating Employer contribution to a Participant (and vice versa) who receives Compensation from both X and Y. If the Employer elects 28(g)(2)b., the Employer should not elect 11(b)(8)b. Election 28(g)(2)a. does not apply to Safe Harbor Nonelective Contributions.]
 
(h) [ ] Describe: ________________________________________________________ (e.g., Pro rata as to Division A Participants and Permitted Disparity (two-tiered at 100% of the SSTWB) as to Division B Participants.)
 
 © 2008

 
15

 
 
Nonstandardized 401(k) Plan
 
29. QNEC (PLAN-DESIGNATED) (3.04(C)(1)). The following provisions apply regarding Plan -Designated QNECs (Choose one of (a) or (b)):
 
[Note: Regardless of its elections under this Election 29, the Employer under Section 3.04(C)(2) may elect for any Plan Year where the Plan is using Current Year Testing to make Operational QNECs which the Plan Administrator will allocate only to NHCEs for purposes of correction of an ADP or ACP test failure.]
     
(a)
[X]
Not applicable. There are no Plan -Designated QNECs.
     
(b)
[ ]
Applies. There are Plan-Designated QNECs to which the following provisions apply (Complete (1), (2), and (3)):

 
(1)
Nonelective Contributions affected. The following Nonelective Contributions (as allocated to the designated allocation group under Election 29(b)(2)) are Plan-Designated QNECs (Choose one of a. or b.):

   
a.
[ ]
All. All Nonelective Contributions.
         
   
b.
[ ]
Designated. Only the following Nonelective Contributions u nder Election 27_____:.

 
(2)
Allocation Group. Subject to Section 3.06, allocate the Plan-Designated QNEC (Choose one of a. or b.):
         
   
a.
[ ]
NHCEs only. Only to NHCEs under the method elected in Election 29(b)(3).
         
   
b.
[ ]
All Participants. To all Participants under the method elected in Election 29(b)(3).

 
(3)
Allocation Method. The Plan Administrator will allocate a Plan-Designated QNEC using the following method (Choose one of a., b., c., or d.):
         
   
a.
[ ]
Pro rata.
         
   
b.
[ ]
Flat dollar.
         
   
c.
[ ]
Reverse. See Section 3.04(C)(3).
         
   
d.
[ ]
Describe: ___________________________________________________________________________
 
[Note: Any allocation method the Employer elects under Election 29(b)(3)d. must be definitely determinable. See Section 4.10(D) as to targeting limitations applicable to QNEC nondiscrimination testing.]
 
30. SAFE HARBOR 401(k) PLAN (SAFE HARBOR CONTRIBUTIONS/ADDITIONAL MATCHING CONTRIBUTIONS) (3.05). The Employer under Election 6(e) will (or in the case of the Safe Harbor Nonelective Contribution may) contribute the following Safe Harbor Contributions described in Section 3.05(E) and will or may contribute Additional Matching Contributions described in Section 3.05(F) (Choose one of (a), (b), (c), or (d) when and as applicable. Complete (e) and (h). Choose (f), (g), and (i) as applicable) :
     
(a)
[X]
Safe Harbor Nonelective Contribution. The Safe Harbor Nonelective Contribution equals 3% of a Participant’s Compensation [Note: The amount in the blank must be at least 3%. The Safe Harbor Nonelective Contribution applies toward (offsets) most other Employer Nonelective Contributions. See Section 3.05(E)(11).]
     
(b)
[ ]
Safe Harbor Nonelective Contribution/delayed year-by-year election (maybe and supplemental notices). In connection with the Employer’s provision of the maybe notice under Section 3.05(I)(1), the Employer elects into safe harbor status by giving the supplemental notice and by making this Election 30(b) to provide for a Safe Harbor Nonelective Contribution equal to _____ % (specify amount at least equal to 3%) of a Participant’s Compensation. This Election 30(b) and safe harbor status applies for the Plan Year ending: ______________________ (specify Plan Year end), which is the Plan Year to which the Employer’s maybe and supplemental notices apply.
 
[Note: If the Employer makes a delayed election into safe harbor status under Section 3.05(I)(1), the Employer must amend the Plan to provide for a Safe Harbor Nonelective Contribution equal to at least 3% of each Participant’s Compensation. The Employer may make this amendment by substitute Adoption Agreement page (electing Election 30(b)) or by another form of amendment under Section 11.02(B). An Employer using the maybe notice should not elect a Safe Harbor Nonelective Contribution under Election 30(a) unless the Employer intends to continue safe harbor status under this election in the subsequent Plan Year. By making its amendment into safe harbor status under Election 30(b), the Employer avoids the need to further amend the Plan if the Employer is not certain that it will apply the safe harbor in the subsequent Plan Year. By contrast, an Employer which gave the maybe notice and has decided to make the Safe Harbor Nonelective Contribution for that year and for future years should use Election 30(a). The Employer only elects 30(a) and should not elect 30(b) if prior to the Plan Year the Employer unequivocally decides to elect safe harbor status for the Plan Year and provides a safe harbor notice consistent with this election rather than giving the maybe notice. If the Employer gives the maybe notice and the Employer will or may make Matching Contributions, the Employer should elect Additional Matching under Election 30(h)(and should not elect Matching Contributions under Election 24) if it wishes to avoid ACP testing.]
 
 © 2008

 
16

 
 
Nonstandardized 401(k) Plan
     
(c)
[ ]
Basic Matching Contribution. A Matching Contribution equal to 100% of each Participant’s Elective Deferrals not exceeding 3% of the Participant’s Compensation, plus 50% of each Participant’s Elective Deferrals in excess of 3% but not in excess of 5% of the Participant’s Compensation. See Sections 1.34(E) and 3.05(E)(4). (Complete (1)):
       
 
(1)
Time period. For purposes of this Election 30(c), “Compensation” and “Elective Deferrals” mean Compensation and Elective Deferrals for:_____________________. [Note: The Employer must complete the blank line with the applicable time period for computing the Basic Match, such as “each payroll period,” “each calendar month,” “each Plan Year quarter” or “the Plan Year.”]
       
(d)
[ ]
Enhanced Matching Contribution. See Sections 1.34(F) and 3.05(E)(5). (Choose one of (1) or (2) and complete (3) for any election):
       
 
(1)
[ ]
Uniform percentage. A Matching Contribution equal to__% of each Participant’s Elective Deferrals but not as to Elective Deferrals exceeding__% of the Participant’s Compensation.
       
 
(2)
[ ]
Tiered formula. A Matching Contribution equal to the specified matching rate for the corresponding level of each Participant’s Elective Deferral percentage. A Participant’s Elective Deferral percentage is equal to the Participant’s Elective Deferrals divided by his/her Compensation.
 
 
Elective Deferral Percentage
 
Matching Rate
 
 
_____%
 
_____%
 
 
_____%
 
_____%
 
 
_____%
 
_____%
 
 
 
(3)
Time period. For purposes of this Election 30(d), “Compensation” and “Elective Deferrals” mean Compensation and Elective Deferrals for: _______. [Note: The Employer must complete the blank line with the applicable time period for computing the Enhanced Match, such as “each payroll period,” “each calendar month,” “each Plan Year quarter” or “the Plan Year.”]
 
[Note: The matching rate may not increase as the Elective Deferral percentage increases and the Enhanced Matching formula otherwise must satisfy the requirements of Code §§401(k)(12)(B)(ii) and (iii). If the Employer elects to satisfy the ACP safe harbor under Election 37(a)(2)a., the Employer also must limit Elective Deferrals taken into account for the Enhanced Matching Contribution to a maximum of 6% of Plan Year Compensation.]
   
(e)
Participants who will receive Safe Harbor Contributions. The allocation of Safe Harbor Contributions (Choose one of (1), (2), or (3)):

 
(1)
[X]
Applies to all Participants. Applies to all Participants except as may be limited under Election 30(f).
       
 
(2)
[ ]
NHCEs only. Is limited to NHCE Participants only and may be limited further under Election 30(f). No HCE will receive a Safe Harbor Contribution allocation.
       
 
(3)
[ ]
NHCEs and designated HCEs. Is limited to NHCE Participants and to the following HCE Participants and may be limited further under Election 30(f):_________
 
[Note: Any HCE allocation group the Employer describes under Election 30(e)(3) must be definitely determinable. (e.g., Division “A” HCEs OR HCEs who own more than 5% of the Employer without regard to attribution rules).]
     
(f)
[ ]
Early Elective Deferrals/delay of Safe Harbor Contribution. The Employer may elect this Election 30(f) only if the Employer in Election 14 elects eligibility requirements for Elective Deferrals of less than age 21 and one Year of Service but elects age 21 and one Year of Service for Safe Harbor Matching or for Safe Harbor Nonelective Contributions. The Employer under this Election 30(f) limits the allocation of any Safe Harbor Contribution under Election 30 for a Plan Year to those Participants: (i) who have attained age 21; (ii) who have completed one Year of Service; and (iii) who the Plan Administrator in applying the OEE rule described in Section 4.06(C), treats as benefiting in the disaggregated plan covering the Includible Employees. Those Participants in the Plan Year whom the Plan Administrator treats as Otherwise Excludable Employees will not receive any Safe Harbor Contribution allocation and the Plan Administrator will apply the ADP (and, as applicable the ACP) test(s) to the disaggregated plan benefiting the Otherwise Excludable Employees. If the Employer in Election 10(a)(2) has elected “Participating Compensation” for allocating Elective Deferrals, Nonelective Contributions or Matching Contributions (as relevant to the allocation under this Election 30 based on the Contribution Type), the Plan Administrator, in allocating the Safe Harbor Contribution for the Plan Year in which the Participant crosses over to the Includible Employees group, will count Compensation and Elective Deferrals only on and following the Cross-Over Date. See Section 3.05(D).
     
(g)
[ ]
Another plan. The Employer will make the Safe Harbor Contribution to the following plan: _________.
 
 © 2008

 
17

 
 
Nonstandardized 401(k) Plan
   
(h)
Additional Matching Contributions. See Sections 1.34(G) and 3.05(F). (Choose one of (1) or (2)) :

 
(1)
[ ]
No Additional Matching Contributions. The Employer will not make any Additional Matching Contributions to its safe harbor Plan.
       
 
(2)
[X]
Additional Matching Contributions. The Employer will or may make the following Additional Matching Contributions to its safe harbor Plan. (Choose a. and b. as applicable) :

   
a.
[ ]
Fixed Additional Matching Contribution. The following Fixed Additional Matching Contribution (Choose (i) and (ii) as applicable and complete (iii) for any election):

     
(i)
[ ]
Uniform percentage. A Matching Contribution equal to __% of each Participant’s Elective Deferrals but not as to Elective Deferrals exceeding __% of the Participant’s Compensation.
           
     
(ii)
[ ]
Tiered formula. A Matching Contribution equal to the specified matching rate for the corresponding level of each Participant’s Elective Deferral percentage. A Participant’s Elective Deferral percentage is equal to the Participant’s Elective Deferrals divided by his/her Compensation.
 
 
Elective Deferral Percentage
 
Matching Rate
 
 
____%
 
____%
 
 
____%
 
____%
 
 
____%
 
____%
 
 
     
(iii)
[ ]
Time period. For purposes of this Election 30(h)(2)a., “Compensation” and “Elective Deferrals” mean Compensation and Elective Deferrals for: ____________. [Note: The Employer must complete the blank line with the applicable time period for computing the Additional Match, e.g., “each payroll period,” “each calendar month,” “each Plan Year quarter” OR “the Plan Year.” If the Employer elects a match under both (i) and (ii) and will apply a different time period to each match, the Employer may indicate as such in the blank line.]
           
   
b.
[X]
Discretionary Additional Matching Contribution. The Employer may make a Discretionary Additional Matching Contribution. If the Employer makes a Discretionary Matching Contribution, the Discretionary Matching Contribution will not apply as to Elective Deferrals exceeding 4 % of the Participant’s Compensation (complete the blank if applicable or leave blank).
 
[Note: If the Employer elects to satisfy the ACP safe harbor under Election 37(a)(2)a. or 37(a)(2)c.(i), then as to any and all Matching Contributions, including Fixed Additional Matching Contributions and Discretionary Additional Matching Contributions: (i) the matching rate may not increase as the Elective Deferral percentage increases; (ii) no HCE may be entitled to a greater rate of match than any NHCE; (iii) the Employer must limit Elective Deferrals taken into account for the Additional Matching Contributions to a maximum of 6% of Plan Year Compensation; (iv) the Plan must apply all Matching Contributions to Catch-Up Deferrals; and (v) in the case of a Discretionary Additional Matching Contribution, the contribution amount may not exceed 4% of the Participant’s Plan Year Compensation.]
     
(i)
[ ]
Multiple Safe Harbor Contributions in disaggregated Plan. The Employer elects to make different Safe Harbor Contributions and/or Additional Matching Contributions to disaggregated parts of its Plan under Treas. Reg. §1.401(k)-1(b)(4) as follows: _____________________________________________________ (Specify contributions for disaggregated plans, e.g., as to Collectively Bargained Employees a 3% Nonelective Safe Harbor Contribution applies and as to non-Collectively Bargained Employees, the Basic Matching Contribution applies).
 
31. ALLOCATION CONDITIONS (3.06(B)/(C)). The Plan does not apply any allocation conditions to: (i) Elective Deferrals; (ii) Safe Harbor Contributions; (iii) commencing as of the Final 401(k) Regulations Effective Date, Additional Matching Contributions which will satisfy the ACP test safe harbor; (iv) Employee Contributions; (v) Rollover Contributions; (vi) Designated IRA Contributions; (vii) SIMPLE Contributions; or (viii) Prevailing Wage Contributions, except as may be required by the Prevailing Wage Contract. To receive an allocation of Matching Contributions, Nonelective Contributions or Participant forfeitures, a Participant must satisfy the following allocation condition(s) (Choose one of (a) or (b). Choose (c) if applicable):
     
(a)
[ ]
No conditions. No allocation conditions apply to Matching Contributions, to Nonelective Contributions or to forfeitures.
     
(b)
[X]
Conditions. The following allocation conditions apply to the designated Contribution Type and/or forfeitures (Choose one or more of (1) through (7) as applicable):
 
[Note: For this Election 31, except as the Employer describes otherwise in Election 31(b)(7) or as provided in Sections 3.03(C)(2) and 3.04(C)(2) regarding Operational QMACs and Operational QNECs, Matching includes all Matching Contributions and Nonelective includes all Nonelective Contributions to which allocation conditions may apply. The Employer under Election 31(b)(7) may not impose an Hour of Service condition exceeding 1,000 Hours of Service in a Plan Year.]
 
 © 2008

 
18

 

Nonstandardized 401(k) Plan

       
(1)
 
(2)
(3)
(4)
       
Matching,
       
       
Nonelective
       
       
and Forfeitures
 
Matching
Nonelective
Forfeitures
 
(1)
[X]
None.
N/A
 
[X]
[ ]
[ ]
       
(See Election
       
       
31(a))
       
 
(2)
[ ]
501 HOS/terminees (91 consecutive days if
[ ]
OR
[ ]
[ ]
[ ]
     
Elapsed Time). See Section 3.06(B)(1)(b).
         
                 
 
(3)
[X]
Last day of the Plan Year.
[ ]
OR
[ ]
[ X ]
[ X ]
                 
 
(4)
[ ]
Last day of the Election 31(c) time period.
[ ]
OR
[ ]
[ ]
[ ]
                 
 
(5)
[X]
1,000 HOS in the Plan Year (182 consecutive
[ ]
OR
[ ]
[ X ]
[ X ]
     
days in Plan Year if Elapsed Time).
         
                 
 
(6)
[ ]
 ______ (specify) HOS within the Election
[ ]
OR
[ ]
[ ]
[ ]
     
31(c) time period, (but not exceeding 1,000 HOS in a Plan Year).
         
                 
 
(7)
[ ]
Describe conditions: ______________________________________________________________ (e.g., Last day of the Plan Year as to Nonelective Contributions for Participating Employer “A” Participants. No allocation conditions for Participating Employer “B” Participants).
       
(c)
[ ]
Time period. Under Section 3.06(C), apply Elections 31(b)(4), (b)(6) or (b)(7) to the specified contributions/forfeitures based on each (Choose one of (1) through (5)):
                 
 
(1)
[ ]
Plan Year
[ ]
OR
[ ]
[ ]
[ ]
                 
 
(2)
[ ]
Plan Year quarter
[ ]
OR
[ ]
[ ]
[ ]
                 
 
(3)
[ ]
Calendar month
[ ]
OR
[ ]
[ ]
[ ]
                 
 
(4)
[ ]
Payroll period
[ ]
OR
[ ]
[ ]
[ ]
                 
 
(5)
[ ]
Describe time period: ___________________________________________________________________________
 
[Note: If the Employer elects 31(b)(4) or (b)(6), the Employer must choose (c). If the Employer elects 31(b)(7), choose (c) if applicable.]
 
32. ALLOCATION CONDITIONS – APPLICATION/WAIVER/SUSPENSION (3.06(D)/(F)). Under Section 3.06(D), in the event of Severance from Employment as described below, apply or do not apply Election 31(b) allocation conditions to the specified contributions/forfeitures as follows (If the Employer elects 31(b), the Employer must complete Election 32. Choose one of (a) or (b). Complete (c)):
 
[Note: For this Election 32, except as the Employer describes otherwise in Election 31(b)(7) or as provided in Sections 3.03(C)(2) and 3.04(C)(2) regarding Operational QMACs and Operational QNECs, Matching includes all Matching Contributions and Nonelective includes all Nonelective Contributions to which allocation conditions may apply. ]
       
(a)
[X]
Total waiver or application. If a Participant incurs a Severance from Employment on account of or following death, Disability or attainment of Normal Retirement Age (Choose one of (1) or (2)):
       
 
(1)
[X]
Do not apply. Do not apply elected allocation conditions to Matching Contributions, to Nonelective Contributions or to forfeitures.
       
 
(2)
[ ]
Apply. Apply elected allocation conditions to Matching Contributions, to Nonelective Contributions and to forfeitures.
 
     
(1)
 
(2)
(3)
(4)
     
Matching,
       
     
Nonelective
       
     
and Forfeitures
 
Matching
Nonelective
Forfeitures
               
(b)
[  ]
Application/waiver as to Contribution Types events. If a Participant incurs a Severance from
         
   
Employment, apply allocation conditions except
         
   
such conditions are waived if Severance is on
         
   
account of or following death, Disability or
         
   
attainment of Normal Retirement Age as
         
   
specified, and as applied to the specified
         
   
Contribution Types/forfeitures (Choose (1), (2),
         
   
and (3) as applicable):
         
                 
 
(1)
[  ]
Death
[  ]
OR
[  ]
[  ]
[  ]
 
(2)
[  ]
Disability
[  ]
OR
[  ]
[  ]
[  ]
 
 © 2008
 
 
19

 
 
Nonstandardized 401(k) Plan
               
 
(3)
[  ]
Normal Retirement Age
[  ]
OR
[  ]
[  ]
[  ]

(c)
Suspension. The suspension of allocation conditions of Section 3.06(F) (Choose one of (1) or (2)):
 
(1)
[  ]
Applies. Applies as follows (Choose one of a., b., or c.):
   
a.
[  ]
Both. Applies both to Nonelective Contributions and to Matching Contributions.
   
b.
[  ]
Nonelective. Applies only to Nonelective Contributions.
   
c.
[  ]
Match. Applies only to Matching Contributions.
 
(2)
[X]
Does not apply.
 
33. FORFEITURE ALLOCATION METHOD (3.07). The Plan Administrator will allocate a Participant forfeiture attributable to all Contribution Types or attributable to all Nonelective Contributions or to all Matching Contributions as follows (Choose one or more of (a) through (g) as applicable. Choose (e) only in conjunction with at least one other election):
 
[Note: Even if the Employer elects immediate vesting, the Employer should complete Election 33. See Section 7.07.]
 
 
(1) All
 
(2)
(3)
 
Forfeitures
 
Nonelective
Matching
         
Forfeitures
Forfeitures
(a)
[  ]
Additional Nonelective. Allocate as additional Discretionary
[  ]
OR
[  ]
[  ]
   
Nonelective Contribution.
       
(b)
[  ]
Additional Match. Allocate as additional Discretionary Matching
[  ]
OR
[  ]
[  ]
   
Contribution.
       
(c)
[X]
Reduce Nonelective. Apply to Nonelective Contribution.
[  ]
OR
[X]
[  ]
(d)
[X]
Reduce Match. Apply to Matching Contribution.
[  ]
OR
[  ]
[X]
             
(e)
[X]
Plan expenses. Pay reasonable Plan expenses first (See Section7.04(C)), then allocate in the manner described above.
[X]
OR
[  ]
[  ]
(f)
[  ]
Safe harbor/top-heavy exempt. Apply all forfeitures to Safe H arbor Contributions and Plan expenses in accordance with Section 3.07(A)(4).
       
(g)
[  ]
Describe:
       
   
(e.g., Forfeitures attributable to transferred balances from Plan X are allocated only to former Plan X participants.)
 
34. FORFEITURE ALLOCATION TIMING (3.07(B)). See Sections 3.07, 5.07 and 7.07 as to when a forfeiture occurs. Once a forfeiture occurs, this Election 34 determines the timing of the forfeiture allocation. The Plan Administrator will allocate a Participant’s forfeiture (Choose one or both of (a) and (b) as applicable):
 
     
(1)
 
(2)
(3)
     
All
 
Nonelective
Matching
     
Forfeitures
 
Forfeitures
Forfeitures
(a)
[X]
Same Plan Year. In the same Plan Year in which the designated
[X]
OR
[  ]
[  ]
   
forfeiture occurs.
       
             
(b)
[  ]
Next Plan Year. In the Plan Year following the Plan Year in which the designated forfeiture occurs.
[  ]
OR
[  ]
[  ]
 
[Note: The elected forfeiture allocation timing applies irrespective of when the Employer makes its contribution(s), if any, for a Plan Year. Even if the Employer elects immediate vesting, the Employer should complete Election 34. See Sections 3.07 and 7.07.]
 
35. EMPLOYEE (AFTER-TAX) CONTRIBUTIONS (3.09). The following additional elections apply to Employee Contributions under Election 6(f). (Complete (a) and (b)):
 
(a)
Limitations. The Plan permits Employee Contributions subject to the following limitations, if any, in addition to those already imposed under the Plan (Choose one of (1) or (2)):
   
(1)
[  ]
None. No additional limitations.
     
(2)
[  ]
Additional limitations. The following additional limitations: ______.
     
 
[Note: Any designated limitation(s) must be the same for all Participants and must be definitely determinable.]
   
(b)
Matching Contributions. (Choose one of (1) or (2)):
   
(1)
[  ]
None. The Employer will not make any Matching Contributions based on Employee Contributions.
     
(2)
[  ]
Applies. For each Plan Year, the Employer’s Matching Contribution made as to Employee Contributions is:______
 
© 2008
 
 
20

 
 
Nonstandardized 401(k) Plan
 
36. DESIGNATED IRA CONTRIBUTIONS (3.12). Under Election 6(h), a Participant may make Designated IRA Contributions effective for Plan Years beginning after (date specified must be no earlier than December 31, 2002). (Complete (a) and (b)):
 
(a)
Type of IRA contribution. A Participant’s Designated IRA Contributions wi ll be (Choose one of (1), (2), or (3)):
   
 
(1)
[  ]
 Traditional.
       
 
(2)
[  ]
Roth.
       
 
(3)
[  ]
Traditional/Roth. As the Participant elects at the time of contribution.
       
(b)
  Type of Account. A Participant’s Designated IRA Contributions will be held in the following form of Account(s) (Choose one of (1), (2), or (3)):
       
 
(1)
[  ]
IRA.
       
 
(2)
[  ]
Individual Retirement Annuity.
       
 
(3)
[  ]
IRA/Individual Retirement Annuity. As the Participant elects at the time of contribution.
 
ARTICLE IV LIMITATIONS
AND TESTING
 
[Note: The Employer, in the “Effective as of execution” column under Election 37, must elect those testing elections which are: (i) in effect as of date of the Employer’s execution of this Adoption Agreement; and (ii) if the Adoption Agreement restates the Plan, also are retroactive to the later of the Plan’s original Effective Date or EGTRRA restated Effective Date, except as indicated in Appendix A. If the Employer wishes to change any testing election after it executes this Adoption Agreement, the Employer must elect the changes in the “Changes post-execution” column under Election 37, and the Employer must specify the Plan Year Effective Date(s) of any changed election. The Employer may complete the Effective Date blanks specifying the changed election applies to a single Plan Year (e.g., “2011 only”), or a range of Plan Years (e.g., “2011-2015”) or may specify the change as becoming effective in a specified Plan Year (e.g., “commencing 2010”). If the Employer specifies a single Plan Year only or specifies a range of Plan Years, the Plan becomes subject to the election in the “Effective as of execution” column in the Plan Years commencing after the specified Year(s), unless the Employer subsequently changes the election. If the Employer specifies the change as commencing in a Plan Year, the election applies in the specified Plan Year and in all following Plan Years unless the Employer subsequently changes the election.]
 
37. ANNUAL TESTING ELECTIONS (4.06(B)). The Employer makes the following Plan specific annual t esting elections under Section 4.06(B). (Complete (a) and (b)):
 
     
(1)
(2)
     
Effective as of execution
Changes post-execution
     
(and retroactively
(specify Plan Year
     
if restatement)
Effective Date(s))
(a)
Nondiscrimination testing. (Choose one or more of (1), (2), or (3)):
   
 
(1)
[  ]
Traditional 401(k) Plan/ADP/ACP test.
   
     
The following testing method(s) apply
   
     
(Choose a. and b. as applicable) :
   
                   
[Note: The Plan may “split test” for Plan Years commencing in 2005.]
   
                 
   
a.
[  ]
Current Year Testing. See Section 4.11(E).
   
       
Current Year Testing applies to the ADP/ACP tests
   
       
as elected below (Choose one or both of (i) and (ii)):
   
               
     
(i)
[  ]
ADP test.
[  ]
[  ]  Effective Date(s):
               
     
(ii)
[  ]
ACP test.
[  ]
[  ]  Effective Date(s):
[Note: The Employer may leave (ii) blank if the Plan does not permit Matching Contributions or Employee Contributions and the Plan
Administrator will not recharacterize Elective Deferrals as Employee Contributions for testing.]
 
               
   
b.
[  ]
Prior Year Testing. See Section 4.11(I).
   
       
Prior Year Testing applies to the ADP/ACP tests as elected below. See Sections 4.10(B)(4)(f)(iv) and4.10(C)(5)(e)(iv) as to the first Plan Year. (Choose
   
       
one or both of (i) and (ii)):
   
     
(i)
[  ]
ADP test.
[  ]
[  ]  Effective Date(s):
                                                      _____________
     
(ii)
[  ]
ACP test.
[  ]
[  ]  Effective Date(s):
                                                      _____________
 
 © 2008
 
 
21

 
 
Nonstandardized 401(k) Plan
 
[Note: The Employer may leave (ii) blank if the Plan does not permit Matching Contributions or Employee Contributions and the Plan Administrator will not recharacterize Elective Deferrals as Employee Contributions for testing.]
             
(2)
[X]
Safe Harbor Plan/No testing or ACP test only.
     
   
(Choose one of a., b., or c.):