AMENDMENT FOR THE FINAL 415
REGULATIONS
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1.1
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Effective date of
Amendment .
This Amendment is effective for limitation years and plan years
beginning on or after July 1, 2007, except as otherwise
provided herein.
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1.2
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Superseding of inconsistent
provisions .
This Amendment supersedes the provisions of the Plan to the extent
those provisions are inconsistent with the provisions of this
Amendment.
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1.3
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Employer’s
election. The
Employer adopts all Articles of this Amendment, except those
Articles that the Employer specifically elects not to
adopt.
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1.4
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Construction.
Except as otherwise
provided in this Amendment, any reference to “Section”
in this Amendment refers only to sections within this Amendment,
and is not a reference to the Plan. The Article and Section
numbering in this Amendment is solely for purposes of this
Amendment, and does not relate to any Plan article, section or
other numbering designations.
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1.5
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Effect of restatement of
Plan. If the
Employer restates the Plan, then this Amendment shall remain in
effect after such restatement unless the provisions in this
Amendment are restated or otherwise become obsolete (e.g., if the
Plan is restated onto a plan document which incorporates the final
Code §415 Regulation provisions).
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1.6
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Adoption by prototype
sponsor .
Except as otherwise provided herein, pursuant to the provisions of
the Plan and Section 5.01 of Revenue Procedure 2005-16, the
sponsor hereby adopts this Amendment on behalf of all adopting
employers.
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ARTICLE II
EMPLOYER ELECTIONS
The Employer
only needs to complete the questions in Section 2.2 in order
to override the default provisions set forth below. If the Plan
will use all of the default provisions, then these questions should
be skipped and the Employer does not need to execute this
amendment.
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2.1
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Default Provisions.
Unless the Employer
elects otherwise in Section 2.2, the following defaults will
apply:
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a.
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The
provisions of the Plan setting forth the definition of compensation
for purposes of Code § 415 (hereinafter referred to as
“415 Compensation”), as well as compensation for
purposes of determining highly compensated employees pursuant to
Code § 414(q) and for top-heavy purposes under Code § 416
(including the determination of key employees), shall be modified
by (1) including payments for unused sick, vacation or other
leave and payments from nonqualified unfunded deferred compensation
plans (Amendment Section 3.2(b)), (2) excluding salary
continuation payments for participants on military service
(Amendment Section 3.2(c)), and (3) excluding salary
continuation payments for disabled participants (Amendment
Section 3.2(d)).
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b.
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The
“first few weeks rule” does not apply for purposes of
415 Compensation (Amendment Section 3.3).
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c.
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The
provision of the Plan setting forth the definition of compensation
for allocation purposes (hereinafter referred to as “Plan
Compensation”) shall be modified to provide for the same
adjustments to Plan Compensation (for all contribution types) that
are made to 415 Compensation pursuant to this Amendment.
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2.2
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In lieu of default
provisions. In lieu of the default provisions
above, the following apply: (select all that apply; if no
selections are made, then the defaults apply)
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415
Compensation. (select all
that apply):
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a.
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[ ]
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Exclude leave cashouts and deferred
compensation (Section 3.2(b))
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b.
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[ ]
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Include military continuation
payments (Section 3.2(c))
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c.
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[ ]
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Include disability continuation
payments (Section 3.2(d)):
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1.
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[ ]
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For
Nonhighly Compensated Employees only
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2.
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[ ]
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For
all participants and the salary continuation will continue for the
following fixed or determinable period:_______________
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d.
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[ ]
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Apply the administrative delay
(“first few weeks”) rule (Section 3.3)
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Plan
Compensation . (select
all that apply):
NOTE: Elective Deferrals includes Pre-Tax Deferrals,
Roth Deferrals and Employee Contributions, Matching includes all
Matching Contributions and Nonelective includes all Nonelective
Contributions. For all Plans other than 401(k) plans, only use
column 1. or column 3. in the table below.
NOTE :
Under the GUST PPD document, the plan excludes all post- severance
compensation unless the Employer had elected otherwise in its
adoption agreement.
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Elective
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Nonelective
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All
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Deferrals
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Matching
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Profit Sharing
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e.
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Default
provisions apply
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1. N/A
OR
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2. [ ]
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3. [ ]
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4. [ ]
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f.
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No change from
existing Plan provisions
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1. [ ]
OR
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2. [ ]
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3. [ ]
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4. [ ]
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g.
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Exclude all
post-severance compensation
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1. [ ]
OR
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2. [ ]
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3. [ ]
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4. [ ]
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h.
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Exclude
post-severance regular pay
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1. [ ]
OR
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2. [ ]
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3. [ ]
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4. [ ]
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i.
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Exclude leave
cashouts and deferred compensation
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1. [ ]
OR
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2. [ ]
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3. [ ]
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4. [ ]
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j.
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Include
post-severance military continuation payments
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1. [ ]
OR
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2. [ ]
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3. [ ]
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4. [ ]
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k.
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Include
post-severance disability continuation payments:
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1. [ ]
OR
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2. [ ]
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3. [ ]
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4. [ ]
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a.
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[ ]
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For Nonhighly
Compensated Employees only
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b.
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[ ]
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For all
participants and the salary continuation will continue for the
following fixed or determinable period:
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l.
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Other_________________________
(describe)
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Plan
Compensation Special Effective Date . The definition of Plan Compensation is
modified as set forth herein effective as of the same date as the
415 Compensation change is effective unless otherwise
specified:
m.
(enter the effective date)
ARTICLE III
FINAL SECTION 415 REGULATIONS
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3.1
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Effective date.
The provisions of this
Article III shall apply to limitation years beginning on and
after July 1, 2007.
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3.2
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415 Compensation paid after
severance from employment. 415 Compensation shall be adjusted,
as set forth herein and as otherwise elected in Article II,
for the following types of compensation paid after a
Participant’s severance from employment with the Employer
maintaining the Plan (or any other entity that is treated as the
Employer pursuant to Code § 414(b), (c), (m) or (o)).
However, amounts described in subsections (a) and
(b) below may only be included in 415 Compensation to the
extent such amounts are paid by the later of 2 1/2 months after
severance from employment or by the end of the limitation year that
includes the date of such severance from employment. Any other
payment of compensation paid after severance of employment that is
not described in the following types of compensation is not
considered 415 Compensation within the meaning of Code §
415(c)(3), even if payment is made within the time period specified
above.
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(a)
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Regular pay. 415 Compensation shall include
regular pay after severance of employment if:
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(1) The payment is regular
compensation for services during the participant’s regular
working hours, or compensation for services outside the
participant’s regular working hours (such as overtime or
shift differential), commissions, bonuses, or other similar
payments; and
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(2) The payment would have been
paid to the participant prior to a severance from employment if the
participant had continued in employment with the
Employer.
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(b)
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Leave cashouts and deferred
compensation. Leave cashouts shall be included in
415 Compensation, unless otherwise elected in Section 2.2 of
this Amendment, if those amounts would have been included in the
definition of 415 Compensation if they were paid prior to the
participant’s severance from employment, and the amounts are
payment for unused accrued bona fide sick, vacation, or other
leave, but only if the participant would have been able to use the
leave if employment had continued. In addition, deferred
compensation shall be included in 415 Compensation, unless
otherwise elected in Section 2.2 of this Amendment, if the
compensation would have been included i
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