401(k) Plan, Employee Thrift Plan, Profit-Sharing Plan and Adoption Agreement - Aastrom Biosciences Inc.
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MERRILL LYNCH
----------
SPECIAL
----------
PROTOTYPE DEFINED
CONTRIBUTION PLAN
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401(k) PLAN
EMPLOYEE THRIFT PLAN
PROFIT-SHARING PLAN
ADOPTION AGREEMENT
THIS PROTOTYPE PLAN AND ADOPTION AGREEMENT ARE IMPORTANT LEGAL INSTRUMENTS WITH
LEGAL AND TAX IMPLICATIONS FOR WHICH THE SPONSOR, MERRILL LYNCH, PIERCE, FENNER
& SMITH, INCORPORATED DOES NOT ASSUME RESPONSIBILITY. THE EMPLOYER IS URGED TO
CONSULT WITH ITS OWN ATTORNEY WITH REGARD TO THE ADOPTION OF THIS PLAN AND ITS
SUITABILITY TO ITS CIRCUMSTANCES.
<PAGE>
ADOPTION OF PLAN
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The Employer named below hereby establishes or restates a profit-sharing
plan that includes a [X] 401(k), [_] profit-sharing and/or [_] thrift plan
feature (the "Plan") by adopting the Merrill Lynch Special Prototype Defined
Contribution Plan and Trust as modified by the terms and provisions of this
Adoption Agreement.
EMPLOYER AND PLAN INFORMATION
-----------------------------
Employer Name:* Aastrom Biosciences. Inc.
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Business Address: P.O. Box 376
-----------------------------
Ann Arbor. MI 48106
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Telephone Number: (313) 930-5555
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Employer Taxpayer I.D. Number: 94-3096597
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Employer Taxable Year ends on: June 30th
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Plan Name: Aastrom Biosciences, Inc. 401(k) Plan
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Plan Number: 001
---
401(k) PROFIT- THRIFT
SHARING
Effective Date of Adoption: 01/01/94
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Tax Reform Act of 1986
Restatement Date:
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Original Effective Date:
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IF THIS PLAN IS A CONTINUATION OR AN AMENDMENT OF A PRIOR PLAN, ALL OPTIONAL
FORMS OF BENEFITS PROVIDED IN THE PRIOR PLAN MUST BE PROVIDED UNDER THIS PLAN TO
ANY PARTICIPANT WHO HAD AN ACCOUNT BALANCE, WHETHER OR NOT VESTED, IN THE PRIOR
PLAN.
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* If there are any Participating Affiliates in this Plan, list below the
proper name of each Participating Affiliate.
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ARTICLE I. DEFINITIONS
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A. "COMPENSATION"
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(1) With respect to each Participant except as provided below, Compensation
shall mean the (select all those applicable for each column):
401(k) AND/ PROFIT
OR THRIFT SHARING
[X] [_] (a) amount reported in the "Wages Tips and Other
Compensation" Box on Form W-2 for the applicable period
selected in Item 5 below.
[_] [_] (b) compensation for Code Section 415 safe-harbor purposes
(as defined in section 3.9.1(H)(i) of basic plan
document #03) for the applicable period selected in Item
5 below.
[_] [_] (c) amount reported pursuant to Code Section 3401 (a) for the
applicable period selected in Item 5 below.
[_] [_] (d) all amounts received (under either option (a) or (b)
above) for personal services rendered to the Employer but
excluding (select one):
[_] overtime
[_] bonuses
[_] commissions
[_] amounts in excess of $
----------------------
[_] other (specify)
-----------------------------------.
(2) Treatment of Elective Contributions (select one):
[X] (a) For purposes of contributions, Compensation shall include
Elective Deferrals and amounts excludable from the gross
income of the Employee under Code Section 125, Code Section
402(e)(3), Code Section 402(h) or Code Section 403(b)
("elective contributions").
[_] (b) For purposes of contributions, Compensation shall not include
"elective contributions."
(3) CODA Compensation (select one):
[X] (a) For purposes of the ADP and ACP Tests, Compensation shall
include "elective contributions."
[_] (b) For purposes of the ADP and ACP Tests, Compensation shall not
include "elective contributions."
3
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(4) With respect to Contributions to an Employer Contributions Account,
Compensation shall include all Compensation (select one):
[_] (a) during tile Plan Year in which the Participant enters the
Plan.
[X] (b) after the Participant's Entry Date.
(5) The applicable period for determining Compensation shall be (select
one):
[X] (a) the Plan Year.
[_] (b) the Limitation Year.
[_] (c) the consecutive 12-month period ending on _________________.
B. "DISABILITY"
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(1) Definition
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Disability shall mean a condition which results in the Participant's
(select one):
[_] (a) inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment that
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.
[_] (b) total and permanent inability to meet the requirements of the
Participant's customary employment which can be expected to last
for a continuous period of not less than 12 months.
[_] (c) qualification for Social Security disability benefits.
[X] (d) qualification for benefits under the Employer's long-term
disability plan.
(2) Contributions Due to Disability (select one):
-------------------------------
[X] (a) No contributions to an Employer Contributions Account will be made
on behalf of a Participant due to his or her Disability.
[_] (b) Contributions to an Employer Contributions Account will be made on
behalf of a Participant due to his or her Disability provided that
-------------
the Employer elected option (a) or (c) above as the definition of
Disability, contributions are not made on behalf of a Highly
Compensated Employee, the contribution is based on the Compensation
each such Participant would have received for the Limitation Year
if the Participant had been paid at the rate of Compensation paid
immediately before his or her Disability, and contributions made on
behalf of such Participant will be nonforfeitable when made.
4
<PAGE>
C "EARLY RETIREMENT" is (select one):
--------------------
[_] (1) not permitted.
[X] (2) permitted if a Participant terminates Employment before Normal
Retirement Age and has (select one):
[_] (a) attained age .
-----
[X] (b) attained age 55 and completed 10 Years of Service.
-- --
[_] (c) attained age and completed Years of Service
----- -----
as a Participant.
D. "ELIGIBLE EMPLOYEES" (select one):
-------------------
[X] (1) All Employees are eligible to participate in the Plan.
[_] (2) The following Employees are not eligible to participate in the
Plan (select all those applicable):
[_] (a) Employees included in a unit of Employees covered by a
collective bargaining agreement between the Employer or a
Participating Affiliate and the Employee representatives
(not including any organization more than half of whose
members are Employees who are owners, officers, or
executives of the Employer or Participating Affiliate) in
the negotiation of which retirement benefits were the
subject of good faith bargaining, unless the bargaining
agreement provides for participation in the Plan.
[_] (b) non-resident aliens who received no earned income from the
Employer or a Participating Affiliate which constitutes
income from sources within the United States.
[_] (c) Employees of an Affiliate.
[_] (d) Employees employed in or by the following specified
division, plant, location, job category or other
identifiable individual or group of Employees:
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5
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B. "ENTRY DATE"
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Entry Date shall mean (select as applicable):
401(k)
AND/OR PROFIT-
THRIFT SHARING
[_] [_] (1) If the initial Plan Year is less than twelve months, the
day of and thereafter:
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[_] [_] (2) the first day of the Plan Year following the date the
Employee meets the eligibility requirements. if the Employer
elects this option (2) establishing only one Entry Date, the
eligibility "age and service" requirements elected in Article
II must be no more than age 20-1/2 and 6 months of service.
[X] [_] (3) the first day of the month following the date the Employee
meets the eligibility requirements.
[_] [_] (4) the first day of the Plan Year and the first day of the
seventh month of the Plan Year following the date the
Employee meets the eligibility requirements.
[_] [_] (5) the first day of the Plan Year, the first day of the fourth
month of the Plan Year, the first day of the seventh month of
the Plan Year, and the first day of the tenth month of the
Plan Year following the date the Employee meets the
eligibility requirements.
[_] [_] (6) other:
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provided that the Entry Date or Dates selected are no later
than any of the options above.
F. "HOURS OF SERVICE"
------------------
Hours of Service for the purpose of determining a Participant's Period of
Severance and Year of Service shall be determined on the basis of the method
specified below:
(1) Eligibility Service: For purposes of determining whether a Participant
-------------------
has satisfied the eligibility requirements, the following method shall
be used (select one):
401(k)
AND/OR PROFIT-
THRIFT SHARING
[X] [_] (a) elapsed time method
[_] [_] (b) hourly records method
6
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(2) Vesting Service: A Participant's nonforfeitable interest shall be
----------------
determined on the basis of the method specified below (select one):
[_] (a) elapsed time method
[X] (b) hourly records method
[_] (c) if this item (c) is checked, the Plan only provides for
contributions that are always 100% vested and this item (2)
will not apply.
(3) Hourly Records: For the purpose of determining Hours of Service under
--------------
the hourly record method (select one):
[X] (a) only actual hours for which an Employee is paid or entitled to
payment shall be counted.
[_] (b) an Employee shall be credited with 45 Hours of Service if such
Employee would be credited with at least 1 Hour of Service
during the week.
G. "INTEGRATION LEVEL"
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[X] (1) This Plan is not integrated with Social Security.
[_] (2) This Plan is integrated with Social Security. The Integration
Level shall be (select one):
[_] (a) the Taxable Wage Base.
[_] (b) $ (a dollar amount less than the Taxable Wage Base).
------
[_] (c) % of the Taxable Wage Base (not to exceed 100%).
------
[_] (d) the greater of $10,000 or 20% of the Taxable Wage Base.
H. "LIMITATION COMPENSATION"
-------------------------
For purposes of Code Section 415, Limitation Compensation shall be
compensation as determined for purposes of (select one):
[_] (1) Code Section 415 Safe-Harbor as defined in Section
3.9.1(H)(i) of basic plan document #03.
[X] (2) the "Wages, Tips and Other Compensation" Box on Form W-2.
[_] (3) Code Section 3401(a) Federal Income Tax Withholding.
I. "LIMITATION YEAR"
-----------------
For purposes of Code Section 415, the Limitation Year shall be (select one):
[X] (1) the Plan Year.
[_] (2) the twelve consecutive month period ending on the day of the
----
month of .
------
7
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J. "NET PROFITS" are (select one):
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[X] (1) not necessary for any contribution.
[_] (2) necessary for (select all those applicable):
[_] (a) Profit-Sharing Contributions.
[_] (b) Matching 401(k) Contributions.
[_] (c) Matching Thrift Contributions.
K. "NORMAL RETIREMENT AGE"
-----------------------
Normal Retirement Age shall be (select one):
[X] (1) attainment of age 65 (not more than 65) by the Participant.
[_] (2) attainment of age (not more than 65) by the Participant or the
----
anniversary (not more than the 5th) of the first day of the
-----
Plan Year in which the Eligible Employee became a Participant
whichever is later.
[_] (3) attainment of age (not more than 65) by the Participant or
----
the anniversary (not more than the 5th) of the first day on
-----
which the Eligible Employee performed an hour of Service,
whichever is later.
L. "PARTICIPANT DIRECTED ASSETS" are:
----------------------------------
401(k) AND/ PROFIT-
OR THRIFT SHARING
[X] [_] (1) permitted.
[_] [_] (2) not permitted.
M. "PLAN YEAR"
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The Plan Year shall end on the 31ST day of DECEMBER.
N. "PREDECESSOR SERVICE"
---------------------
Predecessor service will be credited (select one):
[X] (1) only as required by the Plan.
[_] (2) to include, in addition to the Plan requirements and subject to
the limitations set forth below, service with the following
predecessor employer(s) determined as if such predecessors were
the Employer:
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8
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Service with such predecessor employer applies [select either or
both (a) and/or (b); (c) is only available in addition to (a)
and/or (b)]:
[_] (a) for purposes of eligibility to participate;
[_] (b) for purposes of vesting;
[_] (c) except for the following service:
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O. "VALUATION DATE"
----------------
Valuation Date shall mean (select one for each column, as applicable):
401(k) AND/ PROFIT-
OR THRIFT SHARING
[_] [_] (1) the last business day of each month.
[_] [_] (2) the last business day of each quarter within the Plan
Year.
[_] [_] (3) the last business day of each semi-annual period within
the Plan Year.
[_] [_] (4) the last business day of the Plan Year.
[X] [_] (5) other: DAILY.
ARTICLE II. PARTICIPATION
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PARTICIPATION REQUIREMENTS
--------------------------
An Eligible Employee must meet the following requirements to become a
Participant (select one or more for each column, as applicable):
401(k) AND/ PROFIT-
OR THRIFT SHARING
[_] [_] (1) Performance of one Hour of Service.
[_] [_] (2) Attainment of age (maximum 20 1/2) and completion of
---
(not more than 1/2) Years of Service. If this
-----
item is selected, no Hours of Service shall be counted.
[X] [_] (3) Attainment of age (maximum 21) and completion of 1/4
--- ---
Year(s) of Service. if more than one Year of Service is
selected, tile immediate 100% vesting schedule must be
selected in Article VII of this Adoption Agreement.
9
<PAGE>
[_] [_] (4) Attainment of age (maximum 21) and completion of
----
Years of Service. If more than one Year of Service
---
is selected, the immediate 100% vesting schedule must be
selected in Article VII of this Adoption Agreement.
[X] [_] (5) Each Employee who is an Eligible Employee on 01/01/94
--------
will be deemed to have satisfied the participation
requirements on the effective date without regard to
such Eligible Employee's actual age and/ or service.
ARTICLE III. 401(k) CONTRIBUTIONS AND ACCOUNT ALLOCATION
-------------------------------------------
A. ELECTIVE DEFERRALS
------------------
If selected below, a Participant's Elective Deferrals will be (select all
applicable):
[X] (1) a dollar amount or a percentage of Compensation, as specified by
the Participant on his or her 401(k) Election form, which may not
exceed 15% of his or her Compensation.
[_] (2) with respect to bonuses, such dollar amount or percentage as
specified by the Participant on his or her 401(k) Election form with
respect to such bonus.
B. MATCHING 401(k) CONTRIBUTIONS
-----------------------------
If selected below, the Employer may make Matching 401(k) Contributions for
each Plan Year (select one):
[X] (1) Discretionary Formula:
Discretionary Matching 401(k) Contribution equal to such a dollar
amount or percentage of Elective Deferrals, as determined by the
Employer, which shall be allocated (select one):
[_] (a) based on the ratio of each Participant's Elective Deferral
for the Plan Year to the total Elective Deferrals of all
Participants for the Plan Year. If inserted, Matching
40l(k) Contributions shall be subject to a maximum amount
of $ for each Participant or % of each
--------- ----
Participant's Compensation.
10
<PAGE>
[X] (b) in an amount not to exceed % of each Participants
----
first % of Compensation contributed as Elective
---
Deferrals for the Plan Year. If any Matching 40l(k)
Contribution remains, it is allocated to each such
Participant in an amount not to exceed % of the next
----
% of each Participant's Compensation contributed as
----
Elective Deferrals for the Plan Year.
Any remaining Matching 40l(k) Contribution shall be allocated to each such
Participant in the ratio that such Participant's Elective Deferral for the
Plan Year bears to the total Elective Deferrals of all such Participants for
the Plan Year. If inserted, Matching 40l(k) Contributions shall be subject
to a maximum amount of $ for each Participant or % of each
-------- -----
Participant's Compensation.
[_] (2) Nondiscretionary Formula:
A nondiscretionary Matching 40l(k) Contribution for each Plan Year
equal to (select one):
[_] (a) % of each Participant's Compensation contributed as
------
Elective Deferrals. If inserted, Matching 40l(k)
Contributions shall be subject to a maximum amount of
$ for each Participant or % of each Participant's
------ -----
Compensation.
[_] (b) % of the first % of the Participant's
----- ------
Compensation contributed as Elective Deferrals and %
------
of the next % of the Participant's Compensation
------
contributed as Elective Deferrals. If inserted, Matching
40l(k) Contributions shall be subject to a maximum amount
of $ for each Participant or % of each
------- ------
Participant's Compensation.
C. PARTICIPANTS ELIGIBLE FOR MATCHING 401(k) CONTRIBUTION ALLOCATION
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The following Participants shall be eligible for an allocation to their
Matching 401(k) Contributions Account (select all those applicable):
[_] (1) Any Participant who makes Elective Deferrals.
[_] (2) Any Participant who satisfies those requirements elected by the
Employer for an allocation to his or her Employer Contributions
Account as provided in Article IV Section C.
[_] (3) Solely with respect to a Plan in which Matching 40l(k)
Contributions are made quarterly (or on any other regular interval
that is more frequent than annually) any Participant whose 40l(k)
Election is in effect throughout such entire quarter (or other
interval).
11
<PAGE>
D. QUALIFIED MATCHING CONTRIBUTIONS
--------------------------------
If selected below, the Employer may make Qualified Matching Contributions for
each Plan Year (select all those applicable):
(1) In its discretion, the Employer may make Qualified Matching
Contributions on behalf of (select one):
[_] (a) all Participants who make Elective Deferrals in that Plan
Year.
[X] (b) only those Participants who are Nonhighly Compensated
Employees and who make Elective Deferrals for that Plan
Year.
(2) Qualified Matching Contributions will be contributed and allocated
to each Participant in an amount equal to:
[_] (a) % of the Participant's Compensation contributed as
----
Elective Deferrals. If inserted, Qualified Matching
Contributions shall not exceed % of the Participant's
-----
Compensation.
[X] (b) Such an amount determined by the Employer, which is
needed to meet the ACP Test.
(3) In its discretion, the Employer may elect to designate all or any
part of Matching 401(k) Contributions as Qualified Matching
Contributions that are taken into account as Elective Deferrals --
included in the ADP Test and excluded from the ACP Test -- on
behalf of (select one):
[_] (a) all Participants who make Elective Deferrals for that
Plan Year.
[X] (b) Only Participants who are Nonhighly Compensated Employees
who make Elective Deferrals for that Plan Year.
E. QUALIFIED NONELECTIVE CONTRIBUTIONS
-----------------------------------
If selected below, the Employer may make Qualified Nonelective Contributions
for each Plan Year (select all those applicable):
(1) In its discretion, the Employer may make Qualified Nonelective
Contributions on behalf of (select one):
[_] (a) all Eligible Participants.
[X] (b) only Eligible Participants who are Nonhighly Compensated
Employees.
12
<PAGE>
(2) Qualified Nonelective Contributions will be contributed and allocated
to each Eligible Participant in an amount equal to (select one):
[_] (a) % (no more than 15%) of the Compensation of each Eligible
----
Participant eligible to share in the allocation.
[X] (b) Such an amount determined by the Employer, which is needed to
meet either the ADP Test or ACP Test.
(3) At the discretion of the Employer, as needed and taken into account
as Elective Deferrals included in the ADP Test on behalf of (select
one):
[_] (a) all Eligible Participants.
[X] (b) only those Eligible Participants who are Nonhighly Compensated
Employees.
F. ELECTIVE DEFERRALS USED IN ACP TEST (select one):
-----------------------------------
[X] (1) At the discretion of the Employer, Elective Deferrals may be used
to satisfy tile ACP Test.
[_] (2) Elective Deferrals may not be used to satisfy the ACP Test.
G. MAKING AND MODIFYING A 401(k) ELECTION
--------------------------------------
An Eligible Employee shall be entitled to increase, decrease or resume his or
her Elective Deferral percentage with the following frequency during the Plan
Year (select one):
[_] (1) annually.
[_] (2) semi-annually.
[X] (3) quarterly.
[_] (4) monthly
[_] (5) other (specify): .
--------
Any such increase, decrease or resumption shall be effective as of the first
payroll period coincident with or next following the first day of each period
set forth above. A Participant may completely discontinue making Elective
Deferrals at any time effective for the payroll period after written notice
is provided to the Administrator.
13
<PAGE>
ARTICLE IV. PROFIT-SHARING CONTRIBUTIONS
----------------------------
AND ACCOUNT ALLOCATION
----------------------
A. PROFIT-SHARING CONTRIBUTIONS
----------------------------
If selected below, the following contributions for each Plan Year will be
made:
Contributions to Employer Contributions Accounts (select one):
[_] (a) Such an amount, if any, as determined by the Employer.
[_] (b) % of each Participant's Compensation.
------
B. ALLOCATION OF CONTRIBUTIONS TO EMPLOYER CONTRIBUTIONS ACCOUNTS (select one):
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[_] (1) Non-Integrated Allocation
The Employer Contributions Account of each Participant eligible to
share in the allocation for a Plan Year shall be credited with a
portion of the contribution, plus any forfeitures if forfeitures are
reallocated to Participants, equal to the ratio that the
Participant's Compensation for the Plan Year bears to the
Compensation for that Plan Year of all Participants entitled to share
in the contribution.
[_] (2) Integrated Allocation
Contributions to Employer Contributions Accounts with respect to a
Plan Year, plus any forfeitures if forfeitures are reallocated to
Participants, shall be allocated to the Employer Contributions
Account of each eligible Participant as follows:
(a) First, in the ratio that each such eligible Participant's
Compensation for the Plan Year bears to the Compensation for
that Plan Year of all eligible Participants but not in excess of
3% of each Participant's Compensation.
(b) Second, any remaining contributions and forfeitures will be
allocated in the ratio that each eligible Participant's
Compensation for the Plan Year in excess of the Integration
Level bears to all such Participants' excess Compensation for
the Plan Year but not in excess of 3%.
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<PAGE>
(c) Third, any remaining contributions and forfeitures will be
allocated in the ratio that the sum of each Participant's
Compensation and Compensation in excess of the Integration Level
bears to the sum of all Participants' Compensation and
Compensation in excess of the Integration Level, but not in
excess of the Maximum Profit-Sharing Disparity Rate (defined
below).
(d) Fourth, any remaining contributions or forfeitures
will be allocated in the ratio that each Participant's
Compensation for that year bears to all Participants'
Compensation for that year.
The Maximum Profit-Sharing Disparity Rate is equal to the lesser of:
(a) 2.7% or
(b) Tile applicable percentage determined in accordance with the
following table:
IF THE INTEGRATION
LEVEL IS (AS A % OF THE APPLICABLE
THE TAXABLE WAGE BASE ("TWB")). PERCENTAGE IS:
20% (or $10,000 if greater)
or less of the TWB 2.7%
More than 20% (but not less
than $10,001 ) but not more
than 80% of the TWB 1.3%
More than 80% but not less
than 100% of the TWB 2.4%
100% of the TWB 2.7%
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<PAGE>
C. PARTICIPANTS ELIGIBLE FOR EMPLOYER CONTRITION ALLOCATION
--------------------------------------------------------
The fo11owing Participants shall be eligible for an allocation to their
Employer Contributions Account (select all those applicable):
[_] (1) Any Participant who was employed during the Plan Year.
[_] (2) In the case of a Plan using the hourly record method for determining
Vesting Service, any Participant who was credited with a Year of
Service during the Plan Year.
[_] (3) Any Participant who was employed on the last day of the Plan Year.
[_] (4) Any Participant who was on a leave of absence on the last day of the
Plan Year.
[_] (5) Any Participant who during the Plan Year died or became Disabled
while an Employee or terminated employment after attaining Normal
Retirement Age.
[_] (6) Any Participant who was credited with at least 501 Hours of Service
whether or not employed on the last day of the Plan Year.
[_] (7) Any Participant who was credited with at least 1,000 Hours of
Service and was employed on the last day of the Plan Year.
ARTICLE V. THRIFT CONTRIBUTIONS
--------------------
THIS ARTICLE IS NOT APPLICABLE
A. EMPLOYEE THRIFT CONTRIBUTIONS
-----------------------------
If selected below, Employee Thrift Contributions, which are required for
Matching Thrift Contributions, may be made by a Participant in an amount
equal to (select one):
[_] (1) A dollar amount or a percentage of the Participant's Compensation
which may not be less than % nor may not exceed % of his or her
---- --
Compensation.
[_] (2) An amount not less than % of and not more than % of each
--- ---
Participant's Compensation.
-16-
<PAGE>
B. MAKING AND MODIFYING AN EMPLOYEE THRIFT CONTRIBUTION ELECTION
-------------------------------------------------------------
A Participant shall be entitled to increase, decrease or resume his or her
Employee Thrift Contribution percentage with the following frequency during
the Plan Year (select one):
[_] (1) annually
[_] (2) semi-annually
[_] (3) quarterly
[_] (4) monthly
[_] (5) other (specify)
-----------------------
Any such increase, decrease or resumption shall be effective as of the first
payroll period coincident with or next following the first day of each period
set forth above. A Participant may completely discontinue making Employee
Thrift Contributions at any time effective for the payroll period after
written notice is provided to the Administrator.
C. THRIFT MATCHING CONTRIBUTIONS
-----------------------------
If selected below, the Employer will make Matching Thrift Contributions for
each Plan Year (select one):
[_] (1) Discretionary Formula:
A discretionary Matching Thrift Contribution equal to such a dollar
amount or percentage as determined by the Employer, which shall be
allocated (select one):
[_] (a) based on the ratio of each Participant's Employee Thrift
Contribution for the Plan Year to the total Employee Thrift
Contributions of all Participants for the Plan Year. If inserted,
Matching Thrift Contributions shall be subject to a maximum
amount of $ for each Participant or % of each
------- -----
Participant's Compensation.
[_] (b) in an amount not to exceed % of each Participant's first
-----
% of Compensation contributed as Employee Thrift
------
Contributions for the Plan Year. If any Matching Thrift
Contribution remains, it is allocated to each such Participant
in an amount not to exceed % of the next % of each
--- ---
Participant's Compensation contributed as Employee Thrift
Contributions for the Plan Year.
Any remaining Matching Thrift Contribution shall be allocated to
each such Participant in the ratio that such Participant's
Employee Thrift Contributions for the Plan Year bears to the
total Employee Thrift Contributions of all such Participants for
the Plan Year. If inserted, Matching Thrift Contributions shall
be subject to a maximum amount of $ for each Participant or
-----
% of each Participant's Compensation.
------
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<PAGE>
[_] (2) Nondiscretionary Formula:
A nondiscretionary Matching Thrift Contribution for each Plan Year
equal to (select one):
[_] (a) % of each Participant's Compensation contributed as
------
Employee Thrift Contributions. If inserted, Matching Thrift
Contributions shall be subject to a maximum amount of
$ for each Participant or % of each Participant's
------ ----
Compensation.
[_] (b) % of the first % of the Participant's Compensation
----- ----
contributed as Employee Thrift Contributions and % of the
----
next % of the Participant's Compensation contributed as
------
Employee Thrift Contributions. If inserted, Matching Thrift
Contributions shall be subject to a maximum amount of $
------
for each Participant or % of each Participant's
-----
Compensation.
D. QUALIFIED MATCHING CONTRIBUTIONS
--------------------------------
If selected below, the Employer may make Qualified Matching Contributions
for each Plan Year (select all those applicable):
(1) In its discretion, the Employer may make Qualified Matching
Contributions on behalf of (select one):
[_] (a) all Participants who make Employee Thrift Contributions.
[_] (b) only those Participants who are Nonhighly Compensated
Employees and who make Employee Thrift Contributions.
(2) Qualified Matching Contributions will be contributed and allocated
to each Participant in an amount equal to:
[_] (a) % of the Participant's Employee Thrift Contributions.
----
If inserted, Qualified Matching Contributions shall not
exceed % of the Participant's Compensation.
------
[_] (b) such an amount, determined by the Employer, which is
needed to meet the ACP Test.
ARTICLE VI. PARTICIPANT CONTRIBUTIONS
-------------------------
PARTICIPANT VOLUNTARY NONDEDUCTIBLE CONTRIBUTIONS
-------------------------------------------------
Participant Voluntary Nondeductible Contributions are (select one):
[_] (a) permitted.
[X] (b) not permitted.
18
<PAGE>
ARTICLE VII. VESTING
-------
A. EMPLOYER CONTRIBUTION ACCOUNTS
------------------------------
(1) A Participant shall have a vested percentage in his or her Profit-Sharing
Contributions, Matching 401(k) Contributions and/or Matching Thrift
Contributions, if applicable, in accordance with the following schedule
(Select one):
MATCHING 401(k)
AND/OR MATCHING
THRIFT PROFIT-SHARING
CONTRIBUTIONS CONTRIBUTIONS
------------- --------------
[_] [_] (a) 100% vesting immediately upon participation.
[_] [_] (b) 100% after (not more than 5) years of Vesting
---
Service.
[X] [X] (c) Graded vesting schedule:
0% 0% after 1 year of Vesting Service;
-- --
20% 20% after 2 years of Vesting Service;
-- --
40% 40% (not less than 20%) after 3 years of Vesting Service;
-- --
60% 60% (not less than 40%) after 4 years of Vesting Service;
-- --
80% 80% (not less than 60%) after 5 years of Vesting Service;
-- --
100% 100% (not less than 80%) after 6 years of Vesting Service;
--- ---
100% after 7 years of Vesting Service.
19
<PAGE>
(2) Top Heavy Plan
MATCHING 401(k)
AND/OR MATCHING
THRIFT PROFIT-SHARING
CONTRIBUTIONS CONTRIBUTIONS
------------- --------------
Vesting Schedule (Select one):
[_] [_] (a) 100% vesting immediately upon participation.
[_] [_] (b) 100% after ___ (not more than 3) years of
Vesting Service.
[X] [X] (c) Graded vesting schedule:
0% 0% after 1 year of Vesting Service;
-- --
20% 20% (not less than 20%) after 2 years of Vesting Service.
-- --
40% 40% (not less than 40%) after 3 years of Vesting Service.
-- --
60% 60% (not less than 60%) after 4 years of Vesting Service.
-- --
80% 80% (not less than 80%) after 5 years of Vesting Service.
-- --
100% after 6 years of Vesting Service.
Top Heavy Ratio:
(a) If the adopting Employer maintains or has ever maintained a qualified
defined benefit plan, for purposes of establishing present value to
compute the top-heavy ratio, any benefit shall be discounted only for
mortality and interest based on the following:
Interest Rate: 8 %
------
Mortality Table: UP' 84
------
(b) For purposes of computing the top-heavy ratio, the valuation date
shall be the last business day of each Plan Year.
20
<PAGE>
B. ALLOCATION OF FORFEITURES
-------------------------
Forfeitures shall be (select one from each applicable column):
MATCHING 401(k)
AND/OR MATCHING
THRIFT PROFIT-SHARING
CONTRIBUTIONS CONTRIBUTIONS
------------- -------------
[X] [_] (1) used to reduce Employer contributions for succeeding
Plan Year.
[_] [_] (2) allocated in the succeeding Plan Year in the ratio
which the Compensation of each Participant for
the Plan Year bears to the total Compensation of
all Participants entitled to share in the
Contributions. If the Plan is integrated with
Social Security, forfeitures shall be allocated
in accordance with the formula elected by the
Employer.
C. VESTING SERVICE
---------------
For purposes of determining Years of Service for Vesting Service [select (1)
or (2) and/or (3)]:
[X] (1) All Years of Service shall be included.
[_] (2) Years of Service before the Participant attained age 18 shall be
excluded.
[_] (3) Service with the Employer prior to the effective date of the Plan
shall be excluded.
ARTICLE VIII. DEFERRAL OF BENEFIT DISTRIBUTIONS,
IN-SERVICE WITHDRAWALS AND LOANS
--------------------------------
A. DEFERRAL OF BENEFIT DISTRIBUTIONS
---------------------------------
401(k) AND/ PROFIT-
OR THRIFT SHARING
----------- -------
[_] [_] If this item is checked, a Participant's vested benefit
in his or her Employer Accounts shall be payable as soon as practicable
after the earlier of: (1) the date the Participant terminates Employment
due to Disability or (2) the end of the Plan Year in which a terminated
Participant attains Early Retirement Age, if applicable, or Normal
Retirement Age.
21
<PAGE>
B. IN-SERVICE DISTRIBUTIONS
------------------------
[X] (1) In-service distributions may be made from any of the Participant's
vested Accounts, at any time upon or after the occurrence of the
following events (select all applicable):
[X] (a) a Participant's attainment of age 59-1/ 2.
[X] (b) due to hardships as defined in Section 5.9 of the Plan.
[_] (2) In-service distributions are not permitted.
C. LOANS ARE:
---------
401(k) AND/ PROFIT-
OR THRIFT SHARING
----------- -------
[X] [_] (1) permitted.
[_] [_] (2) not permitted.
ARTICLE IX. GROUP TRUST
-----------
[_] If this item is checked, the Employer elects to establish a Group Trust
consisting of such Plan assets as shall from time to time be transferred to
the Trustee pursuant to Article X of the Plan. The Trust Fund shall be a
Group Trust consisting of assets of this Plan plus assets of the following
plans of the Employer or of an Affiliate:
--------------------------------------
ARTICLE X. MISCELLANEOUS
-------------
A. IDENTIFICATION OF SPONSOR
-------------------------
The address and telephone number of the Sponsor's authorized representative
is 800 Scudders Mill Road, Plainsboro, New Jersey 08536; (609) 282-2272. This
--------
authorized representative can answer inquiries regarding the adoption of the
Plan, the intended meaning of any Plan provisions, and the effect of the
opinion letter.
The Sponsor will inform the adopting Employer of any amendments made to the
Plan or the discontinuance or abandonment of the Plan.
22
<PAGE>
B. PLAN OF REGISTRATION
--------------------
1. Initial Registration
--------------------
This Plan must be registered with the Sponsor, Merrill Lynch,
Pierce, Fenner & Smith Incorporated, in order to be considered a
Prototype Plan by the Sponsor. Registration is required so that the
Sponsor is able to provide the Administrator with documents, forms and
announcements relating to the administration of the Plan and with Plan
amendments and other documents, all of which relate to administering the
Plan in accordance with applicable law and maintaining compliance of the
Plan with the law.
The Employer must complete and sign the Adoption Agreement. Upon
receipt of the Adoption Agreement, the Plan will be registered as a
Prototype Plan of Merrill Lynch, Pierce, Fenner & Smith Incorporated. The
Adoption Agreement will be countersigned by an authorized representative
and a copy of the countersigned Adoption Agreement will be returned to the
Employer.
2. Registration Renewal
--------------------
Annual registration renewal is required in order for the Employer to
continue to receive any and all necessary updating documents. There is an
annual registration renewal fee in the amount set forth with the initial
registration material. The adopting Employer authorizes Merrill Lynch,
Pierce, Fenner & Smith Incorporated, to debit the account established for
the Plan for payment of agreed upon annual fee; provided, however, if the
assets of an account are invested solely in Participant-Directed Assets, a
notice for this annual fee will be sent to the Employer annually. The
Sponsor reserves the right to change this fee from time to time and will
provide written notice in advance of any change.
C. PROTOTYPE REPLACEMENT PLAN
--------------------------
This Adoption Agreement is a replacement prototype plan for the (1)
Merrill Lynch Special Prototype Defined Contribution Plan and Trust -
40l(k) Plan #03-004 and (2) Merrill Lynch Asset Management, Inc., Special
Prototype Defined Contribution Plan and Trust - 401 (k) Plan Adoption
Agreement #03-004.
D. RELIANCE
--------
The adopting Employer may not rely on the opinion letter issued by the
National Office of the Internal Revenue Service as evidence that this Plan
is qualified under Code Section 401. In order to obtain reliance, the
Employer must apply to the appropriate date Key District Director of the
Internal Revenue Service for a determination letter with respect to the
Plan.
-23-
<PAGE>
EMPLOYER
Dated: 1/3 , 1994 By: /s/ R. Douglas Armstrong
-------- -- ------------------------------------------
To be executed by the sole proprietor, an
authorized partner or corporate officer, as
appropriate.
R. DOUGLAS ARMSTRONG
-------------------------------------------------
Print Name
PRESIDENT and CEO
-------------------------------------------------
Title, if a corporate officer
-------------------------------------------------
SPONSOR ACCEPTANCE
------------------
Subject to the terms and conditions of the Prototype Plan and this Adoption
Agreement, this Adoption Agreement is accepted by Merrill Lynch, Pierce, Fenner
& Smith Incorporated as the Prototype Sponsor.
Authorized Signature: /s/ Rebecca Freberg
---------------------------------------------------------
-24-
<PAGE>
MERRILL LYNCH TRUST COMPANY IS NOT A TRUSTEE
ACCEPTANCE BY TRUSTEE(S)
A. This Trustee Acceptance is to be completed only if the Employer appoints one
or more Trustees and does not appoint a Merrill Lynch Trust Company as
Trustee.
The undersigned hereby accept all of the terms, conditions, and obligations
of appointment as Trustee under the Plan. If the Employer has elected a Group
Trust in this Adoption Agreement, the undersigned Trustee(s) shall be the
Trustee(s) of the Group Trust.
as TRUSTEE
/s/ R. DOUGLAS R. ARMSTRONG R. DOUGLAS ARMSTRONG
--------------------------- --------------------
(Signature) (print or type name)
as TRUSTEE
/s/ TODD E. SIMPSON TODD E. SIMPSON
--------------------------- --------------------
(Signature) (print or type name)
as TRUSTEE
--------------------------- --------------------
(Signature) (print or type name)
as TRUSTEE
--------------------------- --------------------
(Signature) (print or type name)
Dated: , 19
------------ --
-25-
<PAGE>
MERRILL LYNCH TRUST COMPANY AS TRUSTEE
This Trustee Acceptance and designation of Investment Committee are to be
completed only when a Merrill Lynch Trust Company is appointed as Trustee.
The undersigned hereby accept all of the terms, conditions, and obligations
of appointment as Trustee under the Plan, If the Employer has elected a Group
Trust in this Adoption Agreement, the undersigned Trustee(s) shall be the
Trustee(s) of the Group Trust.
SEAL MERRILL LYNCH TRUST COMPANY
------------------------------
Dated: , 19 By:
----------- -- -------------------------------
DESIGNATION OF INVESTMENT COMMITTEE
The Investment Committee for the Plan is (print or type name):
------------------------------------------------------------------
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-26-
<PAGE>
MERRILL LYNCH TRUST COMPANY IS ONE OF THE TRUSTEES
This Trustee Acceptance is to be completed only if, in addition to a Merrill
Lynch Trust Company as Trustee, the Employer appoints an additional Trustee
of a second trust fund.
The undersigned hereby accept all of the terms, conditions, and obligations
of appointment as Trustee under the Plan. If the Employer has elected a
Group Trust in this Adoption Agreement, the undersigned Trustee(s) shall
be the Trustee(s) of the Group Trust.
as TRUSTEE
-------------------------------- ----------------------------------
(Signature) (print or type name)
Dated: , 19
------------ --
SEAL MERRILL LYNCH TRUST COMPANY
----------------------------------
Dated: , 19 By:
----------- --- ---------------------------------
DESIGNATION OF INVESTMENT COMMITTEE
The Investment Committee for the Plan is (print or type name):
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-27-