THIS AMENDMENT IS FOR TERMINATING DEFINED CONTRIBUTION PLANS ADOPTING AN INTERIM AMENDMENT FOR THE 2006 CUMULATIVE CHANGES.
{PLAN NAME}
AMENDMENT #___
Section 1. General Rules
1.1. Adoption and Effective Date. The purpose of adopting this Amendment is to incorporate required changes from the 2006 Cumulative List of Changes in Plan Qualification Requirements described in section 4 of Revenue Procedure 2005-66 as modified by Revenue Procedure 2007-44. {EMPLOYER NAME}, adopts the following Amendment to its {PLAN NAME} (the “Plan”) effective, for Plan Years beginning on or after {EFFECTIVE DATE}. The provisions of this Amendment shall apply as of this date, including any options elected below.
1.2. Precedence. The requirements of this Article will take precedence over any inconsistent provisions of the Plan, including any previous amendments adopted by the Employer. Where appropriate, the term “Plan” shall mean the Plan and Trust.
1.3. Requirements of Treasury Regulations Incorporated. All matters addressed under this Article will be determined and made in accordance with the Treasury Regulations sections 1.401(a)-2, 1.401(a)(9)-5, 1.401(k)-1, 1.402(c)-2, 1.415(a)-1, through 1.415(j)-1, 1.457-4, 1.457-6 and 1.457-10.
Section 2. Normal Retirement and Benefit Accruals.
2.1 Normal Retirement Age. (For plans subject to section 412(a) of the Internal Revenue Code (“the Code”)) Normal Retirement Age (“NRA”) is the age selected in the Plan or modified below in the Adoption Section. If the Employer enforces a mandatory retirement age, the Normal Retirement Age is the lesser of that mandatory age or the age specified below in the Adoption Section.
Under the provisions of Treasury Regulations section 1.401(a)-1(b)(2), a plan’s NRA cannot be earlier than what is reasonably representative of the typical retirement age for the industry in which the Participants work. An NRA of 62 or older is deemed to satisfy this requirement. An NRA under 55 is presumed not to satisfy this requirement unless the Commissioner of Internal Revenue determines that the facts and circumstances show otherwise. Whether an NRA between 55 and 62 satisfies this requirement depends on facts and circumstances.
1 2.2 Discontinuing or Reduction of Accruals. (a) Notwithstanding any provision of the Plan to the contrary, the discontinuance or reduction of the accrual of benefits upon the Participant’s attainment of any specified age (including NRA) is not permitted effective May 22, 2007.
(b) Protection of Accrued Benefits
(1) General rule. Under section 411(d)(6)(A) of the Code, the Plan will not be a qualified plan (and a trust forming a part of such plan is not a qualified trust) if a Plan amendment decreases the Accrued Benefit of any plan Participant, except as provided in section 412(c)(8) of the Code, section 4281 of the Employee Retirement Income Security Act of 1974 as amended (ERISA), or other applicable law (see, for example, sections 418D and 418E of the Internal Revenue Code, and section 1541(a)(2) of the Taxpayer Relief Act of 1997, Public Law 105-34 (111 Stat. 788, 1085)). For purposes of this Section, a Plan amendment includes any changes to the terms of the Plan, including changes resulting from a merger, consolidation, or transfer (as defined in section 414(l) of the Code) or a plan termination. The protection of section 411(d)(6) of the Code applies to a Participant's entire Accrued Benefit under the Plan as of the applicable amendment date, without regard to whether the entire Accrued Benefit was accrued before a Participant's Severance from Employment or whether any portion was the result of an increase in the Accrued Benefit of the Participant pursuant to a Plan amendment adopted after the Participant's Severance from Employment.
(2) Plan provisions taken into account.
(i) Direct or indirect reduction in Accrued Benefit. For purposes of determining whether a Participant's Accrued Benefit is decreased, all of the amendments to the provisions of the Plan affecting, directly or indirectly, the computation of Accrued Benefits are taken into account. Plan provisions indirectly affecting the computation of Accrued Benefits include, for example, provisions relating to Years of Service and compensation.
(ii) Amendments effective with the same applicable amendment date. In determining whether a reduction in a Participant's Accrued Benefit has occurred, all Plan amendments with the same applicable amendment date are treated as one amendment. Thus, if two amendments have the same applicable amendment date and one amendment, standing alone, increases Participants' Accrued Benefits and the other amendment, standing alone, decreases Participants' Accrued Benefits, the amendments are treated as one amendment and will only violate section 411(d)
2 (6) of the Code if, for any Participant, the net effect is to decrease Participants' Accrued Benefit as of that applicable amendment date.
(iii) Multiple amendments.
(A) General rule. A Plan amendment violates the requirements of section 411(d)(6) of the Code if it is one of a series of Plan amendments that, when taken together, have the effect of reducing or eliminating a section 411(d) (6) of the Code protected benefit in a manner that would be prohibited by section 411(d)(6) of the Code if accomplished through a single amendment.
(B) Determination of the time period for combining Plan amendments. For purposes of applying the rule in Paragraph (2)(ii)(A) of this Section, generally only Plan amendments adopted within a 3-year period are taken into account.
(3) Application of section 411(a) nonforfeitability provisions with respect to section 411(d)(6) of the Code protected benefits.
(i) In general. The rules of this Section 2.2(b) apply to a Plan amendment that decreases a Participant's Accrued Benefit, or otherwise places greater restrictions or conditions on a Participant's rights to section 411(d)(6) of the Code protected benefits, even if the amendment merely adds a restriction or condition that is permitted under the vesting rules in section 411(a)(3) through (11) of the Code. However, such an amendment does not violate section 411(d)(6) of the Code to the extent it applies with respect to benefits that accrue after the applicable amendment date. See section 411(a)(10) and Section 1.411(a)-8 of the Code for additional rules relating to changes in the Plan's vesting schedule.
(ii) Exception for changes in the Plan's vesting computation period, a Plan amendment that satisfies the applicable requirements under 29 CFR 2530.203-2(c) (rules relating to vesting computation periods) does not fail to satisfy the requirements of section 411(d) (6) of the Code merely because the Plan amendment changes the Plan's vesting computation period.
2.3 Break in Service. In the case of a Participant who has had a Severance from Employment with the Employer and who is subsequently rehired, the period of the Participant’s high 3 Years of Service is calculated by excluding all years for which the Participant performs no services for and receives no compensation from the Employer
3 (referred to as the break period), and by treating the Year of Service immediately prior to and the Year of Service immediately after the break period as if such Years of Service were consecutive.
2.4 Restorative payments. Restorative payments allocated to a Participant’s Account, which include payments made to restore losses to the Plan resulting from actions (or a failure to act) by a Fiduciary for which there is a reasonable risk of liability under Title I of ERISA or under other applicable federal or state law, where similarly situated Participants are similarly treated, do not give rise to an Annual Addition for any Limitation Year.
3. Vesting.
3.1 Amendment of Vesting Schedule. If the Plan's vesting schedule is amended or the Plan is amended in any way that directly or indirectly affects the computation of a Participant's nonforfeitable percentage, or if the Plan is deemed amended by an automatic change to or from a Top-Heavy vesting schedule, in the case of an Employee who is a Participant as of the later of the date such amendment or change is adopted or the date it becomes effective, the nonforfeitable percentage (determined as of such date) of such Employee's Employer-provided Accrued Benefit will not be less than the percentage computed under the Plan without regard to such amendment or change.
3.2 Participant Elections. Furthermore, each Participant with at least 3 Years of Service with the Employer may elect within a reasonable period after the adoption of the amendment or change, to have his nonforfeitable percentage computed under the Plan without regard to such amendment or change. For Participants who do not have at least one Hour of Service in any Plan Year beginning after December 31, 1988, the preceding sentence shall be applied by substituting "5 years of service" for "3 Years of Service" where such language appears. The period during which the election may be made shall commence with the date the amendment is adopted or deemed to be made and shall end on the latest of:
(a) 60 days after the amendment is adopted; (b) 60 days after the amendment becomes effective; or (c) 60 days after the Participant is issued written notice of the amendment by the Employer or Plan Administrator.
With respect to benefits accrued as of the later of the adoption or effective date of the amendment, the vested percentage of each Participant will be the greater of the vested percentage under the old vesting schedule or the vested percentage under the new vesting schedule.
Section 4. Compensation
4.1 Limitation on Compensation. The definition of Compensation used in applying the limitations of section 415 of the Code shall not reflect compensation for a
4 year that is in excess of the limitation of section 401(a)(17) of the Code that applies to that year.
4.2 Limitation on Compensation in Prior Years. The Plan will not be treated as failing to satisfy Section 4.1 merely because, under provisions of the Plan adopted and in effect before April 5, 2007, the Plan’s definition of Compensation used for purposes of the limitations of section 415(c) of the Code reflects compensation for a year in excess of the limitation of section 401(a)(17) of the Code that applies to that year.)
4.3 Section 415 Compensation.
(a) Except as otherwise provided in this Section 4.3 and the Adoption Section, in order to be taken into account for a Limitation Year, compensation within the meaning of section 415(c)(3) of the Code must be actually paid or made available to an Employee (or, if earlier, includible in the gross income of the Employee) within the Limitation Year. For this purpose, compensation is treated as paid on a date if it is actually paid on that date or it would have been paid on that date but for an election under Section 401(k), 403(b), 408(k), 408(p)(2)(A)(i), 457(b), 132(f), or 125 of the Code.
(b) Payment prior to Severance from Employment. In order to be taken into account for a Limitation Year, compensation within the meaning of section 415(c)(3) of the Code must be paid or treated as paid to the Employee (in accordance with the rules of Section 4.3(a) of this Amendment) prior to Severance from Employment (within the meaning of section 401(k)(2)(B)(i)(I) of the Code) with the Employer maintaining the Plan.
(c) Certain de minimis timing differences. Notwithstanding the provisions of 4.3(a) of this Amendment, unless elected otherwise in the Adoption Section, the Plan may provide that compensation for a Limitation Year includes amounts earned during that Limitation Year but not paid during that Limitation Year solely because of the timing of pay periods and pay dates if:
(1) These amounts are paid during the first few weeks of the next Limitation Year;
(2) The amounts are included on a uniform and consistent basis with respect to all similarly situated Employees; and
(3) No compensation is included in more than one Limitation Year.
(d) Compensation paid after severance from employment.
(1) In general, any compensation described in Paragraph (d)(2) of this Section does not fail to be compensation (within the meaning of section 415(c)(3) of the Code) pursuant to the rule of Paragraph 4.3(a) of
5 this Section merely because it is paid after the Employee’s severance from employment with the Employer, provided the compensation is paid by the later of 2 ½ months after severance from employment with the Employer or the end of the Limitation Year that includes the date of severance from employment with the Employer. In addition, the Plan may provide that amounts described in Paragraph (d)(3) of this Section are included in compensation (within the meaning of section 415(c)(3) of the Code) if:
(A) Those amounts are paid by the later of 2 ½ months after severance from employment with the Employer or the end of the Limitation Year that includes the date of severance from employment with the Employer; and
(B) Those amounts would have been included in the definition of Compensation if they were paid prior to the Employee’s severance from employment with the Employer.
(2) Regular pay after severance from employment. An amount is described in this paragraph (d)(2) if:
(A) The payment is regular compensation for services during the Employee’s regular working hours, or compensation for services outside the Employee’s regular working hours (such as overtime or shift differential), commissions, bonuses, or other similar payments; and
(B) The payment would have been paid to the Employee prior to a severance from employment if the Employee had continued in employment with the Employer.
(3) Leave cashouts and deferred compensation. An amount is described in this Paragraph (d)(3) if the amount is either:
(A) Payment for unused accrued bona fide sick, vacation, or other leave, but only if the Employee would have been able to use the leave if employment had continued; or
(B) Received by an Employee pursuant to a nonqualified unfunded deferred compensation plan, but only if the payment would have been paid to the Employee at the same time if the Employee had continued in employment with the Employer and only to the extent that the payment is includible in the Employee’s gross income.
(4) Other post-severance payments. Any payment that is not described in Paragraph (d)(2) or (3) of this Section is not considered
6 compensation under Paragraph (d)(1) of this Section if paid after severance from employment with the Employer, even if it is paid within the time period described in Paragraph (d)(1) of this Section. Thus, compensation does not include severance pay, or parachute payments within the meaning of section 280G(b)(2) of the Code, if they are paid after severance from employment with the Employer, and does not include post-severance payments under a nonqualified unfunded deferred compensation plan unless the payments would have been paid at that time without regard to the severance from employment.
(e) The Employer may elect in the Adoption Section to include salary continuation payments for military service and Disabled Participants. The rule of Paragraph 4.3(b) does not apply to payments to an individual who does not currently perform services for the Employer by reason of Qualified Military Service (as that term is used in the Plan to the extent those payments do not exceed the amounts the individual would have received if the individual had continued to perform services for the Employer rather than entering Qualified Military Service, but only if the Plan so provides. In addition, the rule of Paragraph 4.3(b) does not apply to compensation paid to a Participant who is permanently and totally Disabled (as defined in section 22(e)(3) of the Code) if either the Participant is not a Highly Compensated Employee (as defined in the Plan immediately before becoming Disabled, or the Plan provides for the continuation of Compensation on behalf of all Participants who are permanently and totally Disabled for a fixed or determinable period, but only if the plan so provides. (f) Compensation shall include amounts that are includible in the gross income of an Employee under the rules of section 409A or section 457(f)(1)(A) of the Code or because the amounts are constructively received by the Employee.
Section 5. Excess Annual Additions. The final income tax regulations relating to section 415 of the Code that were made effective July 1, 2007 do not contain the correction methods for Excess Annual Additions that were in section 1.415-6(b)(6) of the 1981 Income Tax Regulations. If the Plan is eligible for self-correction under Rev. Proc. 2006- 27, 2006-22 I.R.B. 945, it may be able to implement corrections using these methods.
Section 6. Restorative Payments. Restorative payments allocated to a Participant’s Account, which include payments made to restore losses to the Plan resulting from actions (or a failure to act) by a Fiduciary for which there is a reasonable risk of liability under Title I of ERISA or under other applicable federal or state law, where similarly situated Participants are similarly treated, do not give rise to an Annual Addition for any Limitation Year.
Section 7. Reversion Upon Termination. Notwithstanding any Plan provision or section 1.401(a)-2 of the Income Tax Regulations, upon termination of the Plan, amounts contributed to the Plan that exceed the limitations imposed under section 415(c) of the
7 Code, to the extent set forth in rules prescribed by the Commissioner shall revert to the Employer.
Section 8. Right to Divest Employer Securities.
(a) In the case of the portion of an Applicable Individual’s Account attributable to Employee Contributions and Elective Deferrals which is invested in Employer Securities, the Applicable Individual may elect to direct the Plan to divest any such securities and to reinvest an equivalent amount in other investment options meeting the requirements of Subparagraph (c).
(b) In the case of the portion of the Account attributable to Employer contributions other than Elective Deferrals which is invested in Employer Securities, each Applicable Individual who is a Participant and who has completed at least 3 Years of Service, or is a Beneficiary of a Participant described above or of a deceased Participant may elect to direct the Plan to divest any such securities and to reinvest an equivalent amount in other investment options meeting the requirements of Subparagraph (c).
(c) The Plan must offer 3 investment options, other than Employer Securities, to which an Applicable Individual may direct the proceeds from the divestment of Employer Securities pursuant to this Section, each of which is diversified and has materially different risk and return characteristics.
d. Definitions
(1) Applicable Defined Contribution Plan means any defined contribution plan which holds any publicly traded Employer Securities, except certain Employee Stock Ownership Plans and one participant plans.
(2) Applicable Individual means any Participant in the Plan and any Beneficiary who has an Account under the Plan with respect to which the Beneficiary is entitled to exercise the rights of a Participant.
(e) Permitted Restrictions. A restriction imposed by reason of the application of securities laws or a restriction that is reasonably designed to ensure compliance with such laws is not an impermissible restriction or condition under this Section. In addition, an impermissible restriction or condition under this Section does not include the imposition of fees on other investment options under the Plan merely because fees are not imposed with respect to investments in Employer Securities. Further, the Plan may restrict the application of otherwise applicable diversification rights under the Plan for up to 90 days following an initial public offering of the Employer’s stock.
(f) Transition Rule Through March 30, 2007 for Continuation of Existing Restrictions or Conditions. For the period from January 1, 2007, through March 30, 2007, the Plan does not impose a restriction or condition prohibited by this section merely because the Plan restricts diversification rights with respect to Employer Securities
8 pursuant to a Plan provision that was in effect on December 18, 2006. However, any such restriction that continues to be imposed on or after March 31, 2007, violates this Section.
(g) Transition Rule for 2007 for Grandfathered Investments. For the period prior to January 1, 2008, the Plan does not impose a restriction or condition prohibited by this Section merely because the Plan, as in effect on December 18, 2006, (1) does not impose an otherwise applicable restriction on a stable value fund or (2) allows Applicable Individuals the right to divest Employer Securities on a periodic basis, but permits divestiture of another investment on a more frequent basis, provided that the other investment is not a generally available investment (e.g., the other investment is only available to a fixed class of Participants). However, any such restriction that continues to be imposed after December 31, 2007, violates this Section.
Section 9. 401(k) Hardship Criteria The Employer may elect to expand the Plan’s safe harbor hardship criteria such that if an event would constitute a hardship or unforeseeable emergency under the Plan if it occurred with respect to the Participant’s spouse or dependent, such event shall constitute a hardship or unforeseeable emergency if it occurs with respect to a Beneficiary under the Plan.
Section 10. Qualified Reservist Distributions A qualified reservist distribution is a distribution from the Plan attributable to Elective Deferrals under section 401(k) of the Code, made to an individual who (by reason of being a member of a reserve component as defined in section 101 of title 37 of the U.S. Code) was ordered or called to active duty for a period in excess of 179 days or for an indefinite period, and that is made during the period beginning on the date of such order or call to duty and ending at the close of the active duty period. The Plan will not violate the distribution restrictions applicable to the Plan by reason of making a qualified reservist distribution.
An individual who returns to employment and who received a qualified reservist distribution may, at any time during the two-year period beginning on the day after the end of the active duty period, make one or more contributions to the Plan in an aggregate amount not to exceed the amount of such distribution. The dollar limitations otherwise applicable to contributions to the Plan do not apply to any contribution made pursuant to the provision.
This provision applies to individuals ordered or called to active duty after September 11, 2001, and before December 31, 2007 and, applies to distributions after September 11, 2001. The two-year period for making recontributions of qualified reservist distributions does not end before the date that is two years after August 17, 2006.
Section 11. Direct Rollover of After-Tax Contributions (a) If elected in the Adoption Section the Plan may make a direct trustee to trustee transfer of an Eligible Rollover Distribution that includes Employee After-Tax
9 Contributions to a qualified trust or to an annuity contract described in section 403(b) of the Code, individual retirement account described in section 408(a) of the Code or an individual retirement annuity described in section 408(b) of the Code and such trust or contract account or annuity provides for separate accounting for amounts so transferred (and earnings thereon), including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible.
(b) In the case of a transfer described in a., the amount transferred shall be treated as consisting first of the portion of such distribution that is includible in gross income.
(c) If elected in the Adoption Section the Plan may accept a direct trustee to trustee transfer of an Eligible Rollover Distribution that includes Employee After-Tax Contributions. The Plan shall provide separate accounting for amounts so transferred (and earnings thereon), including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible.
Section 12 Distributions to an Inherited Individual Retirement Plan of Nonspouse Beneficiary. If elected in the Adoption Section, effective for distributions made after December 31, 2006 and before January 1, 2008, the Plan may make a direct trustee to trustee transfer to an individual retirement plan described in section 402(c)(8)(B)(i) or (ii) of the Code established for the purposes of receiving the distribution on behalf of an individual who is a designated Beneficiary of the Participant and is not the surviving spouse of the Participant. Such transfer shall be treated as an Eligible Rollover Distribution.
Effective for distributions after December 31, 2007 the Plan must offer this distribution option for the benefit to an individual who is a designated Beneficiary of the Participant and is not the surviving spouse of the Participant.
Section 13. Vesting – Employer Nonelective Contributions. Unless elected otherwise in the Adoption Section, effective January 1, 2007 the Participant’s vested interest in his Account balance shall be governed by the following schedule if for each Year of Service the schedule provides a greater Vested Account balance than the Plan’s existing Vesting schedule:
Years of Service Vested Percentage 2 20 3 40 4 60 5 80 6 100
Section 14. Notice and Consent Period Regarding distributions.
10 a. If either the value of a Participant's Vested Account balance derived from Employer and Employee contributions exceeds $5,000 or there are remaining payments to be made with respect to a particular distribution option that previously commenced, and the Vested Account balance is immediately distributable, the Participant and the Participant's spouse (or where either the Participant or the spouse has died, the survivor) must consent to any distribution of such Vested Account balance. The consent of the Participant and the Participant's spouse shall be obtained in writing within the 180-day period (90-day period for plan years beginning before January 1, 2007) ending on the Annuity Starting Date.
b. The Plan Administrator shall notify the Participant and the Participant's spouse of the right to defer any distribution until the Participant's Vested Account balance is no longer immediately distributable. Such notification shall include a general description of the material features, and an explanation of the relative values of, the optional forms of benefit available under the Plan in a manner that would satisfy the notice requirements of section 417(a)(3) of the Code and Treasury Regulation section 1.417(a)-3. For notices given in plan years beginning after December 31, 2006, such notification shall also include a description of how much larger benefits will be if the commencement of distributions is deferred.
c. The notification shall be provided no less than 30 days and no more than 180 days (90 days for notices given in plan years beginning before January 1, 2007) prior to the Annuity Starting Date. However, distribution may commence less than 30 days after the notice described in the preceding sentence is given, provided the distribution is one to which sections 401(a)(11) and 417 of the Code do not apply, the Plan Administrator clearly informs the Participant that the Participant has a right to a period of at least 30 days after receiving the notice to consider the decision of whether or not to elect a distribution (and, if applicable, a particular distribution option), and the Participant, after receiving the notice, affirmatively elects a distribution.
d. In the case of a Qualified Joint and Survivor Annuity, the Plan Administrator shall provide each Participant no less than 30 days and no more than 180 days (90 days for notices given in plan years beginning before January 1, 2007) prior to the Annuity Starting Date a written explanation of: (i) the terms and conditions of a Qualified Joint and Survivor Annuity; ii) the Participant's right to make and the effect of an election to waive the qualified Joint and Survivor Annuity form of benefit; (iii) the rights of a Participant's spouse; (iv) the right to make, and the effect of, a revocation of a previous election to waive the Qualified Joint and Survivor Annuity; and (v) the relative values of the various optional forms of benefit under the plan as provided in Treasury Regulations section1.417(a)-3. ======Adoption Section:
1. For each Participant Normal Retirement Age is: (select a. or b.)
11 NOTE: The Normal Retirement Age section of this Amendment can be delayed until the end of the first Plan Year beginning after June 30, 2008 if the Plan meets the requirements for relief provided in Notice 2007-69. a. [ ] i. age ____ (not to exceed 65). If the age selected is less than 55 or less than the earliest retirement age that is reasonably representative of the typical retirement age for the industry in which the Plan Participants work, then, effective as of the date specified below, the Normal Retirement Age shall be changed to the following later age:
[ ] ii. age _____ (not less than 55). (The age selected must not be earlier than the earliest retirement age that is reasonably representative of the typical retirement age for the industry in which the Plan Participants work. Age 62 or older automatically meets this requirement.)
If the second box under a. is also checked, the effective date of the change to the Normal Retirement Age is ______. (Specify a date between May 22, 2007, and the first day of the first Plan Year beginning after June 30, 2008.) b. [ ] the later of: (i) age ____ (not to exceed 65), or
(ii) the _____ (not to exceed 5th) anniversary of the participation commencement date. If, for Plan Years beginning before January 1, 1988, Normal Retirement Age was determined with reference to the anniversary of the participation commencement date (more than 5 but not to exceed 10 years), the anniversary date for Participants who first commenced participation under the Plan before the first Plan Year beginning on or after January 1, 1988, shall be the earlier of (A) the tenth anniversary of the date the Participant commenced participation in the Plan (or such anniversary as had been elected by the Employer, if less than 10) or (B) the fifth anniversary of the first day of the first Plan Year beginning on or after January 1, 1988. The participation commencement date is the first day of the first Plan Year in which the Participant commenced participation in the Plan. If the age selected in B.(i) is less than 55 or less than the earliest retirement age that is reasonably representative of the typical retirement age for the industry in which the Plan Participants work, then, effective as of the date specified below, the Normal Retirement Age shall be changed to the following later age:
[ ] the later of: (i) age _____ (not less than 55). (The age selected must not be earlier than the earliest retirement age that is reasonably representative of the typical retirement age for the industry in which the Plan Participants work. Age 62 or older automatically meets this requirement.), or
(ii) the _____ (not to exceed 5th) anniversary of the participation commencement date. If, for Plan Years beginning before January 1, 1988, Normal Retirement Age was
12 determined with reference to the anniversary of the participation commencement date (more than 5 but not to exceed 10 years), the anniversary date for Participants who first commenced participation under the Plan before the first Plan Year beginning on or after January 1, 1988, shall be the earlier of (A) the tenth anniversary of the date the Participant commenced participation in the Plan (or such anniversary as had been elected by the Employer, if less than 10) or (B) the fifth anniversary of the first day of the first Plan Year beginning on or after January 1, 1988. The participation commencement date is the first day of the first Plan Year in which the Participant commenced participation in the Plan. If the second box under B. is also checked, the effective date of the change to the Normal Retirement Age is ______. (Specify a date between May 22, 2007, and the first day of the first Plan Year beginning after June 30, 2008.)
2. Compensation a. Post-Severance Compensation - Unless elected below, Compensation under the Plan shall not include post-severance compensation for unused accrued bona fide sick, vacation, or other leave paid within 2 ½ months after Severance from Employment or if later, the end of the Limitation Year that includes the date of severance, as defined in Section 4.3 Select post-severance compensation to include in the Plan’s definitions of Compensation.
[ ] i. Include Post-severance compensation payments for unused accrued bona fide sick, vacation, or other leave, but only if the Employee would have been able to use the leave if employment had continued.
Post-Severance compensation shall be used in: (Select All Applicable)
[ ] ii. Plan Compensation
[ ] iii. Safe Harbor Compensation for ADP Safe Harbor and ACP Safe Harbor
[ ] iv. 415 and 416 Compensation
[ ] b. Exclude compensation not paid in the Limitation Year on account of de minimis timing differences described in Section 4.3(c).
[ ] c. If Compensation is defined as 415 safe-harbor compensation, amounts received by an Employee pursuant to a nonqualified unfunded deferred compensation plan shall be considered Compensation in the year the amounts are actually received. Such amounts may be considered Compensation only to the extent includible in gross income. d. (Complete this section to apply the Plan’s rules regarding certain post-severance compensation in Limitation Years beginning before July 1, 2007.) The provisions of the Plan regarding the inclusion of certain post-severance compensation in the definition of Compensation shall apply in Limitation Years beginning after: ______
13 {MM/DD/YYYY}.
[ ] e. Compensation shall include amounts paid to an individual who does not currently perform services for the Employer by reason of Qualified Military Service to the extent these payments do not exceed the amounts the individual would have received if the individual had continued to perform services for the Employer rather than entering Qualified Military Service. f. Compensation shall include post-severance compensation paid to (check one or neither)
[ ] i. any Participant who is permanently and totally disabled. (Check this box only if salary continuation applies to all Participants who are permanently and totally disabled for a fixed or determinable period.)
[ ] ii. any permanently and totally disabled Participant who, immediately before becoming so disabled, was not a Highly Compensated Employee.
3. Hardship
[ ] Expand hardship criteria to include an unforeseeable emergency if it occurs with respect to a Beneficiary under the Plan.
4. Direct Rollover of After-Tax Contributions
[ ] a. Permit Participant to make Direct Rollover of After-Tax Contributions
[ ] b. Plan will accept Direct Rollovers of after-tax contributions from another qualified plan.
5. Distribution to Nonspouse Beneficiary
[ ] Provide direct rollover option to nonspouse Beneficiary after December 31, 2006 and before January 1, 2008.
6. Vesting – Employer Contributions.
Years of Service Vested Percentage 2 ____ 3 ____ 4 ____ 5 ____ 6 ____
* * * * * The Employer hereby adopts this Amendment this _____ day of ______, ____.
14 Employer: Trustee:
______
Adopting Employer:
______
______Date
15 RESOLUTIONS OF THE BOARD OF DIRECTORS PLAN NAME
FOR THE ADOPTION OF INTERIM 2007 AMENDMENT
On <
RESOLVED that the form of the Amendment presented to this meeting is to adopt the required changes from the 2006 Cumulative List of Changes in Plan Qualification Requirements described in section 4 of Revenue Procedure 2005-66 as modified by Revenue Procedure 2007-44. Such amendment will be effective: January 1, 2007.
RESOLVED, that the proper Officers of the Employer shall act as soon as possible to notify employees of the Employer of the adoption of this Amendment.
RESOLVED, that the proper Officers of the Employer be, and hereby are, authorized and directed to execute any and all such documents and to perform any and all such acts as may be necessary and proper to effect the foregoing; and
THE UNDERSIGNED, does hereby certify that the foregoing is a full, true and correct copy of the Resolutions duly and regularly adopted by the Board of Directors of said Employer.
______Secretary
______Date
16