Exhibit 10.40.9
AMENDMENT NO. 9
TO THE
UNIFIED GROCERS,
INC.
SHELTERED SAVINGS
PLAN
Unified Grocers, Inc. (the
“Company”) hereby amends the above-named plan (the
“Plan”), effective as of January 1, 2008, except
as otherwise provided below, as follows:
1. Section 3.8 of the Plan is
hereby amended in its entirety to read as follows:
“ Section 3.8 :
Actual Deferral Percentage Test .
(a) It is the Company’s intent
that all Elective Contributions shall satisfy the requirements of
Code Section 401(k), as provided in the final Regulations
thereunder, effective for Plan Years beginning after
December 31, 2005, and the Plan should be construed
accordingly. Further, such Regulations are hereby incorporated by
reference.
(i) The amount of Elective
Contributions made in any Plan Year on behalf of all Highly
Compensated Employees shall not result in an Actual Deferral
Percentage for such Highly Compensated Employees that exceeds the
greater of:
(A) the Actual Deferral Percentage
for all Non-Highly Compensated Employees for the current Plan Year,
multiplied by 1.25; or
(B) the Actual Deferral Percentage
for all Non-Highly Compensated Employees for the current Plan Year,
multiplied by two, provided that the Actual Deferral Percentage for
all Highly Compensated Employees does not exceed the Actual
Deferral Percentage for all Non-Highly Compensated Employees for
the current Plan Year by more than two percentage
points.
(ii) For the
purposes of this subsection (a) , the amount of
Elective Contributions shall relate to Earnings that either
(A) would have been received by the Participant in the Plan
Year but for the Participant’s election to defer receipt of
his or her Earnings pursuant to the terms of the Plan; or
(B) is attributable to services performed by the Participant
in the Plan Year and, but for the Participant’s election to
defer, would have been received by the Participant within 2
1 / 2 months after the close of the
Plan Year.
(iii) RESERVED
(iv) RESERVED
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(v) If the Committee elects to apply
Code Section 410(b)(4)(B) to determine whether the cash or
deferred arrangement provided for in the Plan satisfies the
coverage requirements provided for in Code Section 410(b)(1),
then for purposes of subsection (i) above, the
Committee may either (A) exclude all eligible Employees (other
than Highly Compensated Employees) who have not met the minimum age
and service requirements of Code Section 410(a)(1)(A); or
(B) disaggregate the Plan and perform the ADP test separately
for all eligible Employees who have completed the minimum age and
service requirements of Code Section 410(a)(1)(A) and for all
eligible Employees who have not completed the minimum age and
service requirements of Code Section 410(a)(1)(A).
(vi) For purposes of determining the
ADP test, Elective Contributions, Deemed Elective Contributions and
Additional Contributions must be made before the end of the
12-month period immediately following the Plan Year to which the
contributions relate.
(b) Adjustment To Actual Deferral
Percentage Tests. If the Committee determines at any time that the
limitation on Elective Contributions set forth in
subsection (a) above will be exceeded for any Plan
Year:
(i) the Company may, at its sole
option (but still subject to the limitations contained elsewhere in
the Plan), either (A) designate that all or any portion of its
Non-Elective Contribution for such Plan Year (if, and to the
extent, it has been made prior to such date and has not been
previously allocated pursuant to Section 4.5 ) shall be
treated as an Elective Contribution (the ‘Deemed Elective
Contribution’) or (B) make an additional contribution
(the ‘Additional Contribution’) that shall be treated
as an Elective Contribution. In either case, it shall be made on
behalf of all Participants other than Highly Compensated Employees,
or on behalf of all Participants, as determined by the Committee,
in the amount necessary so that the limitation set forth in
subsection (a) will not be exceeded. If the Plan is
disaggregated pursuant to subsection (a)(v) , such Deemed
Elective Contribution or Additional Contribution may be made, as
determined by the Committee, to either or both portions of such
disaggregated Plan. Any Deemed Elective Contribution or Additional
Contribution shall be (A) prorated among the Participants on
whose behalf it was made, on the basis of each such
Participant’s Earnings for such Plan Year, and
(B) credited to each such Participant’s Deferred Income
Account; or
(ii) the Committee shall reduce the
amount of the Elective Contributions made by the Highly Compensated
Employees in the amount necessary so that the limitation set forth
in subsection (a) above will not be exceeded. The
amount by which each Highly Compensated Employee whose Elective
Contributions is reduced (the ‘Excess Contributions’)
shall be returned to the Company to be paid to such Highly
Compensated Employee pursuant to subsection (h) below.
For purposes of the foregoing, the amount of Excess Contributions
made by the Highly Compensated Employees for a Plan Year is
the
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excess of: (a) the aggregate
amount of Elective Contributions actually taken into account in
computing the Actual Deferral Percentage for all Highly Compensated
Employees for such Plan Year, over (b) the maximum amount of
such Elective Contributions permitted by the Actual Deferral
Percentage test (determined by hypothetically reducing
contributions made on behalf of Highly Compensated Employees in
order of the Actual Deferral Percentages, beginning with the
highest of such percentages). Such amount of Excess Contributions
shall be allocated to the Highly Compensated Employees who made the
largest amounts of Elective Contributions during the Plan Year,
beginning with the Highly Compensated Employee with the largest
amount of such Elective Contributions and continuing in descending
order until all the Excess Contributions have been allocated. This
leveling method, under which the Elective Contributions made by the
Highly Compensated Employee who made the largest amount of Elective
Contributions during the Plan Year is reduced, shall be repeated to
the extent required to:
(A) Enable the Plan to satisfy the
Actual Deferral Percentage test described in subsection (a)
above, or
(B) Cause such Highly Compensated
Employee’s Elective Contributions to equal the Elective
Contributions of the Highly Compensated Employee with the next
largest amount of Elective Contributions.
The amount of Excess
Contributions to be distributed pursuant to subsection (h)
below for a Plan Year with respect to any Highly Compensated
Employee shall not exceed the amount of Elective Contributions made
on behalf of such Highly Compensated Employee for such Plan Year.
To the extent a Highly Compensated Employee has not reached his or
her Catch-up Contribution limit under the Plan, Excess
Contributions allocated to such Highly Compensated Employee shall
be treated as Catch-up Contributions and will not be treated as
Excess Contributions. If such excess amounts (other than Catch-up
Contributions) are distributed more than 2 1 / 2 months after the last day of the
Plan Year in which such excess amounts arose, a 10% excise tax will
be imposed on the Company with respect to such amounts. Excess
Contributions shall be treated as annual additions under the Plan
even if distributed.
(iii) In addition to the foregoing,
the Committee may also utilize any method provided under the Code
Section 401(k) Regulations in order to satisfy the Actual
Deferral Percentage Tests, including, without limitation,
recharacterizing Elective Contributions as Voluntary Contributions
and using alternative definitions of Compensation or Earnings for
testing purposes.
(c) For the purposes of this
Section, the following definitions shall apply:
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(i) ‘Actual Deferral
Percentage’ or ‘ADP’ shall mean, with respect to
the groups consisting of (A) all Highly Compensated Employees
and (B) all Non-Highly Compensated Employees, the average of
the Actual Deferral Ratios for each such group, calculated
separately for each Participant in each such Group.
(ii) ‘Actual Deferral
Ratio’ shall mean the ratio that:
(A) the amount of the Elective
Contributions (excluding Catch-up Contributions), Deemed Elective
Contributions, and Additional Contributions made on behalf of each
Participant for a Plan Year, bears to
(B) such Participant’s
Earnings for such Plan Year.
For purposes of computing Actual
Deferral Percentages, an Employee who would be a Participant but
for the failure to make Elective Contributions shall be treated as
a Participant on whose behalf no Elective Contributions are
made.
(d) For the purposes of this
Section, the Actual Deferral Percentage for any Highly Compensated
Employee who is eligible to have Elective Contributions, Deemed
Elective Contributions, or Additional Contributions allocated to
his or her account(s) under two or more plans or arrangements
described in Code Section 401(k) that are maintained by the
Company or any Affiliated Company shall be determined as if all
such Elective Contributions, Deemed Elective Contributions, and
Additional Contributions were made under a single
arrangement.
(e) The determination and treatment
of the Elective Contributions, Deemed Elective Contributions,
Additional Contributions, and Actual Deferral Percentage of any
Participant shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
(f) The determination of who is a
Highly Compensated Employee, including the determination of the
Earnings that is considered, will be made in accordance with Code
Section 414(q).
(g) Distribution Of Excess
Deferrals .
(i) If any Participant has any
Excess Deferrals for any calendar year, and if he or she makes a
claim pursuant to subsection (ii) below, then the
Excess Deferrals allocable to the Plan pursuant to such claim shall
be returned to the Company to be distributed to such Participant.
Such distribution shall be made no later than the April 15th
following the calendar year to which such Excess Deferrals
relate.
(ii) A Participant’s claim for
Excess Deferrals shall be in writing, signed by such Participant,
and submitted to the Committee no later than the March 1st
following the calendar year to which such Excess Deferrals relate.
Such claim shall also specify the amount of such
Participant’s Excess Deferrals
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for such calendar year allocable to
the Plan and shall be accompanied by such Participant’s
statement that, if such Excess Deferrals are not distributed, such
Excess Deferrals, when added to all amounts deferred by such
Participant under all plans, contracts or arrangements described in
Code Sections 401(k), 408(k), or 403(b) of the Company or any
Affiliated Company, exceed the limit imposed on such Participant by
Code Section 402(g) for the year to which the Excess Deferrals
relate.
(iii) For the purposes of this
Section, a Participant’s ‘Excess Deferrals’ shall
mean the amount of such Participant’s Elective Contributions
that are allocated to the Plan pursuant to
subsection (i) above, and that either (A) are made
during the Participant’s taxable year and exceed the dollar
limitation under Code Section 402(g) (including, if
applicable, the dollar limitation on Catch-up Contributions) for
such year, or (B) are made during the calendar year and exceed
the dollar limitation under Code Section 402(g) (including, if
applicable, the dollar limitation on Catch-up Contributions) for
the Participant’s taxable year beginning in such calendar
year, counting only Elective Contributions made under the Plan and
any other plan, contract, or arrangement maintained by the Company
or any Affiliated Company.
(iv) The Excess Deferrals shall be
adjusted for income, gain or loss for the Plan Year pursuant to any
reasonable method adopted by the Committee, provid
