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CENVEO 401(k) SAVINGS AND RETIREMENT PLAN

Employee Benefits Plan Agreement

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CENVEO, INC

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Title: CENVEO 401(k) SAVINGS AND RETIREMENT PLAN
Date: 5/18/2010
Industry: Printing Services     Sector: Services

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EXHIBIT 4.5


 

 


 

CENVEO 401(k) SAVINGS AND RETIREMENT PLAN

 

As Amended and Restated Effective January 1, 2009

 

 

 

 


 

 

TABLE OF CONTENTS

 

 

Page

 

 

 

 

1

 

1.1

Qualification and Purpose

1

 

1.2

Rights Under Plans

1

 

1.3

Defined Terms

1

 

1.4

Historical Statement

1

 

 

3

 

2

 

2.1

Eligibility to Participate

2

 

2.2

Participation

3

 

2.3

Form and Manner of Contribution Reduction Authorization

4

 

2.4

Duration and Participation

4

 

 

6

 

5

 

3.1

Elective Contributions

5

 

3.2

Matching Contributions

5

 

3.3

Profit Sharing Contributions

5

 

3.4

Catch-up Contributions

5

 

3.5

Qualified Nonelective Contributions

5

 

3.6

Rollover Contributions

6

 

3.7

Crediting of Contributions

6

 

3.8

Time for Making Contributions

6

 

3.9

Certain Limits Apply

6

 

3.10

Return of Contributions

6

 

3.11

Establishment of Trust

6

 

3.12

Veterans’ Reemployment and Benefits Rights

6

 

 

9

 

7

 

4.1

Accounts

7

 

4.2

Adjustment of Accounts

7

 

4.3

Investment of Accounts

7

 

4.4

Appointment of Investment Managers

8

 

4.5

Section 404(c) Compliance

8

 

4.6

Transfers From Other Plans.

8

 

4.7

Voting and Tender Offers of Cenveo Common Stock

9

 

4.8

Investment Committee

9

 

 

12

ARTICLE 5.

 

9

 

5.1

Immediate Vesting of Certain Accounts

9

 

5.2

Deferred Vesting of Matching Contribution, Profit Sharing Contribution, and ESOP Accounts

9

 

5.3

Special Vesting Rules

10

 

5.4

Changes in Vesting Schedule

10

 

5.5

Forfeitures.

10

 

5.6

Vesting of Accounts Transferred From Other Plans

11

 

 

14

 

11

 

6.1

Hardship Withdrawals.

11

 

6.2

Withdrawals After Age 59½

12

 

6.3

Rollover Withdrawals

12

 

6.4

Restrictions on Certain Distributions

12

 

6.5

Limitation of Withdrawable Amount

12

 

6.6

Required Distributions After Required Beginning Date

12

 

 

 

- i -


 

 

 

6.7

Distributions Required by a Qualified Domestic Relations Order

13

 

6.8

Withdrawals by Certain Former Participants in Other Plans

13

 

 

17

 

13

 

7.1

In General

13

 

7.2

Rules and Procedures

13

 

7.3

Maximum Amount of Loan

13

 

7.4

Minimum Amount of Loans; Limit on Number of Loans

14

 

7.5

Credit Agreement; Security; Interest

14

 

7.6

Repayment

14

 

7.7

Severance From Employment

14

 

7.8

Default

14

 

7.9

Credit Agreement as Trust Asset

14

 

7.10

Nondiscrimination

15

 

7.11

Designation of Accounts

15

 

 

1919

 

15

 

8.1

Severance from Employment for Reasons Other Than Death

15

 

8.2

Time of Distributions

15

 

8.3

Distribution of Small Benefits.

16

 

8.4

Amount of Distribution.

16

 

8.5

Distribution After a Participant’s Death.

16

 

8.6

Designation of Beneficiary.

17

 

8.7

Direct Rollovers of Eligible Distributions.

18

 

 

26

 

20

 

9.1

Administrator

20

 

9.2

Administrative Committee

20

 

9.3

Administrator’s Duties and Responsibilities

20

 

9.4

Power and Authority

21

 

9.5

Availability of Records

21

 

9.6

No Action with Respect to Own Benefit

21

 

9.7

Delegation

21

 

9.8

Effect of Interpretation or Determination

22

 

9.9

Reliance on Tables, etc

22

 

9.10

Claims and Review Procedures

22

 

9.11

Indemnification of Administrator and Investment Committee

22

 

9.12

Annual Report

22

 

 

29

 

22

 

10.1

Amendment

22

 

10.2

Termination

22

 

10.3

Distributions upon Termination of the Plan

23

 

10.4

Merger or Consolidation of Plan; Transfer of Plan Assets

23

 

10.5

Plan-To-Plan Transfers and Distribution Restriction

23

 

 

30

 

23

 

11.1

Code Section 404 Limits

23

 

11.2

Code Section 415 Limits.

23

 

11.3

Code Section 402(g) Limits.

24

 

11.4

Code Section 401(k)(3) Limits.

26

 

11.5

Code Section 401(m)(2) Limits

28

 

 

38

 

29

 

12.1

Provisions to Apply

29

 

12.2

Minimum Contribution

29

 

 

 

- ii -


 

 

 

12.3

Definitions

30

 

 

43

 

32

 

13.1

Exclusive Benefit Rule

32

 

13.2

Limitation of Rights

32

 

13.3

Nonalienability of Benefits

33

 

13.4

Adequacy of Delivery

33

 

13.5

Reclassification of Employment Status

33

 

13.6

Governing Law

33

 

 

44

 

33

 

14.1

“ADP Test”

33

 

14.2

“Account”

33

 

14.3

“Actual Deferral Ratio”

33

 

14.4

“Administrator”

33

 

14.5

“Affiliated Employer”

33

 

14.6

“Applicable Contribution Rate”

34

 

14.7

“Bargaining Unit Employee”

34

 

14.8

“Beneficiary”

34

 

14.9

“Business Day”

34

 

14.10

“CBA”

34

 

14.11

“Catch-Up Contribution”

34

 

14.12

“Cenveo Common Stock”

34

 

14.13

“Code”

34

 

14.14

“Company”

34

 

14.15

“Compensation”

34

 

14.16

“Compensation Reduction Authorization”

35

 

14.17

“Disability”

35

 

14.18

“Differential Wage Payment”

35

 

14.19

“Elective Contribution”

35

 

14.20

“Elective Contribution Account”

35

 

14.21

“Eligible Employee”

35

 

14.22

“Employee”

35

 

14.23

“Entry Date”

35

 

14.24

“ERISA”

36

 

14.25

“ESOP Account”

36

 

14.26

“Excess Contributions”

36

 

14.27

“Excess Deferrals”

36

 

14.28

“Gap Period”

36

 

14.29

“Highly Compensated Employee”

36

 

14.30

“Highly Compensated Group”

36

 

14.31

“Hour of Service”

36

 

14.32

“Investment Committee”

37

 

14.33

“Investment Manager”

37

 

14.34

“Leased Employee”

37

 

14.35

“Matching Contribution”

37

 

14.36

“Matching Contribution Account”

37

 

14.37

“Nonhighly Compensated Employee”

37

 

14.38

“Nonhighly Compensated Group”

37

 

14.39

“Normal Retirement Age”

38

 

14.40

“Participant”

38

 

14.41

“Participating Employer”

38

 

14.42

“Period of Service”

38

 

14.43

“Plan”

38

 

14.44

“Plan Year”

38

 

14.45

“Predecessor Employer”

38

 

 

 

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14.46

“Profit Sharing Contribution”

38

 

14.47

“Profit Sharing Contribution Account”

38

 

14.48

“Qualified Domestic Relations Order”

38

 

14.49

“Qualified Military Service”

39

 

14.50

“Qualified Nonelective Contribution”

39

 

14.51

“QNEC Account”

39

 

14.52

“Regulation”

39

 

14.53

“Representative Contribution Rate”

39

 

14.54

“Required Beginning Date”

39

 

14.55

“Rollover Contribution”

39

 

14.56

“Rollover Contribution Account”

39

 

14.57

“Severance from Employment”

39

 

14.58

“Trust”

39

 

14.59

“Trustee”

39

 

14.60

“Union 401(k) Plan”

39

 

14.61

“Valuation Date”

39

 

14.62

“Year of Service for Participation”

40

 

14.63

“Year of Service for Vesting”

40

 

 

 

 

 

 

 

- iv -


 

 

 

APPENDIX A

Appendix A-1

SCHEDULE A

Schedule A-1

SCHEDULE B

Schedule B-1

SCHEDULE B-1

Schedule B-1-1

SCHEDULE B-2

Schedule B-2-1

SCHEDULE B-3

Schedule B-3-1

SCHEDULE B-4

Schedule B-4-1

SCHEDULE B-5

Schedule B-5-1

SCHEDULE B-6

Schedule B-6-1

SCHEDULE B-7

Schedule B-7-1

SCHEDULE B-8

Schedule B-8-1

SCHEDULE B-9

Schedule B-9-1

SCHEDULE B-10

Schedule B-10-1

SCHEDULE C

Schedule C-1

 

 

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ARTICLE 1.

INTRODUCTION

 

1.1   Qualification and Purpose .  The Cenveo 401(k) Savings and Retirement Plan (the “Plan”) and its related trust (the “Trust”) are intended to qualify as a profit sharing plan and trust under Code Sections 401(a) and 501(a), and the cash or deferred arrangement forming part of the Plan is intended to qualify under Code Section 401(k).  The Plan is intended to constitute a plan described in ERISA Section 404(c).  The provisions of the Plan and Trust shall be construed and applied accordingly.  The purpose of the Plan is to provide benefits to Participants in a manner consistent and in compliance with such Code Sections and Title I of ERISA.

 

1.2   Rights Under Plans .  The rights of participants in this Plan or any plan which has been merged into this Plan, who ceased to be employed by the applicable employer prior to January 1, 2009, and have not thereafter been reemployed by an Affiliated Employer, and the rights of their Beneficiaries, shall be determined in accordance with the terms of the applicable plan at the time they ceased to be employed.

 

1.3   Defined Terms .  All capitalized terms used in the following provisions of the Plan have the meanings given them under Article 14 hereof.

 

1.4   Historical Statement .

 

(a)   The original effective date of the Plan is March 1, 1994.

 

(b)   The Plan was amended and restated effective as of December 1, 1999, to reflect, among other things, changes in law made by the Small Business Job Protection Act of 1996, the Taxpayer Relief Act of 1997, Regulations and other IRS guidance.

 

(c)   The Plan was amended several times after the December 1, 1999, restatement of the Plan (and before this restatement), including the following amendments:  (i) the Fourth Amendment amended the Plan to reflect the Economic Growth and Tax Reconciliation Relief Act of 2001 (“EGTRRA”); (ii) an amendment to the Plan adopted on December 31, 2003, amended the Plan to reflect final Regulations under Code Section 401(a)(9); (iii) the Tenth Amendment to the Plan amended the Plan to provide for automatic enrollment of employees hired after 2003 who do not affirmatively elect not to participate in the Plan; (iv) the Twelfth Amendment to the Plan changed (among other things) the name of the Plan to the “Cenveo 401(k) Savings and Retirement Plan”; and (v) the Eighteenth Amendment to the Plan amended the Plan to reflect the automatic rollover provisions of Code Section 401(a)(31)(B).

 

(d)   Effective August 2, 2004, certain account balances of participants in the Mail-Well Employee Stock Ownership Plan (the “ESOP”) were merged into this Plan.  Separate subaccounts were established in this Plan for each Participant to maintain the benefits of each Participant who had an account balance transferred from the ESOP.  Effective as of the date of the merger, Participants were allowed to diversify 100% of their account balances transferred from the ESOP into any of the investment options under the Plan.  Additionally, the right to receive an in-kind distribution in stock, as permitted under the ESOP, was extended to all Cenveo Common Stock under the Plan effective as of the date of the merger.  The Fifteenth Amendment amended the Plan, including Schedule B hereto, to reflect such merger.

 

(e)   Effective December 1, 2004, the Valco Graphics, Inc. Salary Deferral Plan and Trust merged into the Plan, and the Fourteenth Amendment to the Plan amended Schedule B hereto, to reflect such merger.

 

(f)   Effective February 6, 2006, the Apico Corporation of Gerard Profit Sharing Plan merged into the Plan, and the Sixteenth Amendment to the Plan amended Schedule B hereto to reflect such merger.

 

(g)   Effective November 1, 2006, the assets of certain account balances under the Pfingsten Partners 401(k) Plan were transferred to the Plan, and the Eighteenth Amendment to the Plan amended Schedule B hereto to reflect such transfer.

 

 

 


 

(h)   Effective July 1, 2007, the Printegra Corporation 401(k) Plan merged into the Plan, and the Twenty-First Amendment to the Plan amended Schedule B hereto to reflect such merger.

 

(i)   Effective July 1, 2007, the Valco Graphics, Inc. Salary Deferral Plan & Trust (for Collectively Bargained Employees) merged into the Plan, and the Twenty-Third Amendment to the Plan amended Schedule B hereto to reflect such merger.

 

(j)   Effective August 1, 2007, the Cadmus Thrift Savings Plan merged into the Plan, and the Twenty-Fourth Amendment to the Plan amended the Plan, including Schedule B hereto, to reflect such merger.

 

(k)   Effective March 31, 2008, the Madison/Graham ColorGraphics, Inc. & Affiliated Corporation Employee’s Retirement Plan merged into the Plan, and the Twenty-Fifth Amendment to the Plan amended Schedule B hereto to reflect such merger.

 

(l)   Effective June 13, 2008, the Cenveo 401(k) Savings and Retirement Plan for Union Employees merged into the Plan, and the Twenty-Sixth Amendment to the Plan amended the Plan to reflect such merger.

 

(m)   Effective December 9, 2008, the Commercial Envelope Manufacturing Company 401(k) Plan merged into the Plan, and the Twenty-Seventh Amendment to the Plan (adopted December 5, 2008) amended Schedule B hereto to reflect such merger.

 

(n)   The Twenty-Seventh Amendment to the Plan (adopted December 30, 2008) amended the Plan to reflect final Regulations under Code Sections 401(k), 401(m), and 415.

 

(o)   This document amends and restates the Plan to (i) provide for the appointment of the Administrative Committee to serve as Administrator, (ii) provide for the appointment of the Investment Committee to select the investment funds offered hereunder and appoint investment managers hereunder, (iii) reflect the changes to the Code plan qualification requirements made by the Pension Protection Act of 2006, the Worker, Retiree, and Employer Recovery Act of 2008 and the Heroes Earnings Assistance and Relief Tax Act of 2008, (iv) change the method for calculating eligibility service under the Plan from the hours of service method to the elapsed time method, (v) provide for an annual discretionary Profit Sharing Contribution, which if made, will be allocated among the Profit Sharing Contribution Accounts of certain Eligible Employees in proportion to their Compensation, (vi) provide for the suspension of loan payments by Participants who are on qualified military leave, (vii) provide that, for purposes of determining eligibility for a mandatory cashout distribution, a Participant’s Rollover Contributions will be counted in determining the value of a Participant’s Accounts, (viii) provide that, upon the death of a Participant prior to distribution of his Accounts, distribution of his Accounts shall be made in a single sum as soon as practicable after his death, and (ix) make other technical, clarifying and conforming changes.  This amendment and restatement is effective January 1, 2009, except as otherwise provided herein.

 

ARTICLE 2.

ELIGIBILITY AND PARTICIPATION

 

2.1   Eligibility to Participate .

 

(a)   Participation on Effective Date .  Any Employee who was a Participant in the Plan on December 31, 2008, and is an Eligible Employee on January 1, 2009, shall be a Participant in the Plan on such date.

 

(b)   Employees Other Than Bargaining Unit Employees .  Except as otherwise provided in Schedule B hereto, any Employee who is not described in (a) above and is not a Bargaining Unit Employee shall become an Eligible Employee on the Entry Date coinciding with or next following the date on which the Employee completes the following service requirement, provided that he or she is an Employee on such Entry Date:

 

 

- 2 -


 

(i)  

If the Employee is classified by his or her Participating Employer as an Employee expected to work at least 1,000 Hours of Service in a Plan Year, the service requirement shall be the completion of a Period of Service of 30 days.

 

(ii)  

If the Employee is not classified by his or her Participating Employer as an Employee expected to work at least 1,000 Hours of Service in a Plan Year, the service requirement shall be the completion of (A) one Year of Service for Participation, for periods prior to January 1, 2010, or (B) a Period of Service of at least 12 months, for periods after December 31, 2009.

 

(c)   Bargaining Unit Employees .

 

(i)  

Except as otherwise provided in Schedule B hereto or the applicable CBA, a Bargaining Unit Employee who is not described in (a) above shall become an Eligible Employee on the Entry Date coinciding with or next following the date on which he or she completes a (A) one Year of Service for Participation, for periods prior to January 1, 2010, or (B) a Period of Service of at least 12 months, for periods after December 31, 2009, provided that he or she is an Employee on such Entry Date.

 

(ii)  

Notwithstanding (c)(i) above, any Bargaining Unit Employee who was a participant in the Union 401(k) Plan on June 17, 2008, and is an Employee on June 18, 2008, shall be a Participant on such date.

 

(d)   Service with Prior Employers .  Except as otherwise provided in Schedule B, in the event the Company acquires a business of another employer, through an acquisition of either assets or stock, an Employee who was employed by such other employer immediately prior to such acquisition shall not have his or her prior service with such other employer taken into account for purposes of this Section 2.1.

 

2.2   Participation .

 

(a)   General .  Subject to (b) and (c) below, an Eligible Employee may elect to become a Participant by completing and filing with the Administrator a Compensation Reduction Authorization in which the Eligible Employee authorizes his or her Participating Employer to reduce his or her Compensation each pay period and make Elective Contributions to the Plan on the Eligible Employee’s behalf.  Elective Contributions for any pay period in a Plan Year shall not be less than 1%, nor exceed 50%, of the Participant’s Compensation for such pay period, and such amounts shall be in whole percentages only.

 

(b)   Automatic Enrollment .   Except as otherwise provided in Schedule B hereto or any applicable CBA, an Employee of a Participating Employer whose employment commencement date is on or after December 1, 2006,   who neither enters into a Compensation Reduction Authorization nor affirmatively elects to make no Elective Contributions, shall be deemed to have entered into a Compensation Reduction Authorization to reduce that Employee's Compensation by an amount equal to 4% of that Employee's Compensation effective as of the first pay period beginning after 60 days after the date such Employee becomes an Eligible Employee.  The Administrator shall provide each Employee who is or could be deemed to have made a Compensation Reduction Authorization with a notice (i) explaining that failure, within a specified period of time, to either enter into a Compensation Reduction Authorization or affirmatively elect to make no Elective Contributions will cause the Employee's Compensation to be automatically reduced as described above, (ii) describing the procedure for entering into a Compensation Reduction Authorization and affirmatively electing to make, or not to make, Elective Contributions, (iii) explaining the automatic increases in an Eligible Employee’s Elective Contributions, as described in (c) below, and (iv) how automatic Elective Contributions will be invested hereunder.

 

 

- 3 -


 

(c)   Automatic Increase in Elective Contributions .  Subject to the prohibition on Elective Contributions under the hardship withdrawal provision in Section 6.1(d) hereof and except as otherwise provided in Schedule B hereto or any applicable CBA, unless a Participant elects to have a specified percentage of his or her Compensation reduced (an “Elective Contribution Percentage”) each year by completing a Compensation Reduction Authorization, each Participant with an Elective Contribution Percentage of at least 1% but not more than 7% shall be automatically increased by 1% each year until the Participant's Elective Contribution Percentage is at 8%.  The effective date of each such automatic increase shall be on January 1 of the respective Plan Year, or on such other date as the Administrator shall determine depending on whether the Participant is subject to (b) above, and whether the Participant previously elected to participate in a program providing for automatic increases to the Participant's Elective Contribution Percentage.  As of the effective date of an automatic increase in a Participant's Elective Contribution Percentage (or thereafter), a Participant may change the date of any future automatic increases to the Participant's Elective Contribution Percentage, or revoke such election in accordance with Section 2.3 hereof.

 

(d)   Participation upon Profit Sharing Contribution Allocation .  Each Eligible Employee who does not become a Participant under (a) or (b) above shall become a Participant on the date as of which his or her Participating Employer makes a Profit Sharing Contribution, if any, on his or her behalf pursuant to Section 3.3 hereof.

 

2.3   Form and Manner of Contribution Reduction Authorization .

 

(a)   Form .  Each Compensation Reduction Authorization shall be in a form (which may be telephonic or electronic) prescribed or approved by the Administrator and may be entered into as of any Business Day upon such prior notice as the Administrator may prescribe.

 

(b)   Effective Date .  A Compensation Reduction Authorization shall be effective with respect to Compensation that an Eligible Employee could otherwise elect to receive in cash and that is not payable until after the effective date of the Compensation Reduction Authorization.

 

(c)   Change or Revocation .  A Compensation Reduction Authorization may be changed or revoked by an Eligible Employee at any time, upon such prior notice as the Administrator may prescribe.  An Eligible Employee who revokes a Compensation Reduction Authorization may enter into a new Compensation Reduction Authorization as of any subsequent Business Day upon such prior notice as the Administrator may prescribe.  Any change in or revocation of a Compensation Reduction Authorization, or new Compensation Reduction Authorization, made pursuant to this Section shall be effective as soon as reasonably practicable following the next payroll period.

 

(d)   Frequency of Election .  Notwithstanding (a) through (c) above, the Administrator shall provide an Eligible Employee with an effective opportunity to make or change a Compensation Reduction Authorization at least once during each Plan Year.

 

2.4   Duration and Participation .  An Eligible Employee who has become a Participant under the Plan shall remain a Participant for as long as an Account is maintained hereunder for his or her benefit, or until his or her death, if earlier.  Notwithstanding the preceding sentence and unless otherwise expressly provided for hereunder, no Contribution shall be made with respect to a Participant who is not an Eligible Employee.  If an employee of an Affiliated Employer becomes an Employee, such Employee shall become an Eligible Employee on the first Entry Date thereafter on which he or she has satisfied the requirements of Section 2.1 hereof taking into consideration his service as an employee with the Affiliated Employer.  A Participant or former Participant who is reemployed as an Employee shall again become eligible to make Elective Contributions on the first Entry Date on or after reemployment.

 

 

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ARTICLE 3.

CONTRIBUTIONS

 

3.1   Elective Contributions .  On behalf of each of its Eligible Employees for whom a Compensation Reduction Authorization is, or is deemed to be, in effect, for any pay period, a Participating Employer shall contribute to the Trust, as an Elective Contribution, an amount equal to the amount by which the Eligible Employee’s Compensation for the pay period is reduced pursuant to the Compensation Reduction Authorization.

 

3.2   Matching Contributions .

 

(a)   Eligible Employees Who Are Not Bargaining Unit Employees .  No Matching Contributions shall be made hereunder, on behalf of any Eligible Employee who is not a Bargaining Unit Employee.

 

(b)   Bargaining Unit Employees .  Each pay period, a Participating Employer shall make a Matching Contribution to the Trust for the benefit of each of its Eligible Employees who are Bargaining Unit Employees on whose behalf it made Elective Contributions for the pay period to the extent required by the applicable CBA(s).

 

3.3   Profit Sharing Contributions .

 

(a)   Eligible Employees Who Are Not Bargaining Unit Employees .  For any Plan Year, a Participating Employer may contribute to the Plan, on behalf of each of its Eligible Employees who is not a Bargaining Unit Employee and who satisfies the applicable eligibility requirement in (i) or (ii) below, such amount, if any, as the Participating Employer may determine with the consent of the Company.  Any Profit Sharing Contribution for a Plan Year shall be made in cash, and allocated among the Profit Sharing Accounts of the respective Eligible Employees in proportion to their relative amounts of Compensation for the Plan Year.  For purposes of this Section 3.3(a), an Eligible Employee is eligible for an allocation of a Profit Sharing Contribution, if any, for a Plan Year if he or she:

 

(i)  

Is an Eligible Employee on the last day of the Plan Year and has completed 1,000 Hours of Service in the Plan Year (except that this 1,000 Hours of Service requirement shall not apply in his or her first Plan Year), or

 

(ii)  

Has ceased to be an Eligible Employee during the Plan Year by reason of death, Severance from Employment after attaining age 65 or on account of Disability.

 

(b)   Bargaining Unit Employees .  For any Plan Year, a Participating Employer shall make a Profit Sharing Contribution on behalf of its Eligible Employees who are Bargaining Unit Employees only to the extent required by the applicable CBA(s), which Contribution shall be allocated among the Profit Sharing Accounts of the eligible Bargaining Unit Employees in accordance with the allocation formula set forth in the applicable CBA(s).

 

3.4   Catch-up Contributions .  Each Eligible Employee who has attained age 50 before the close of the calendar year shall be eligible to make Catch-Up Contributions in accordance with, and subject to the limitations of, Code Section 414(v).  Such Catch-Up Contributions shall not be taken into account for purposes of the provisions of the Plan implementing the required limitations of Code Sections 402(g) and 415.  The Plan shall not be treated as failing to satisfy the provisions of the Plan implementing the requirements of Code Section 401(k)(3), 401(k)(11), 401(k)(12), 410(b), or 416, as applicable, by reason of the making of such Catch-Up Contributions.

 

3.5   Qualified Nonelective Contributions .  To the extent necessary to satisfy the Code Section 401(k)(3) limits with respect to Elective Contributions, the Company, in its discretion, may determine whether a Participating Employer may make a Qualified Nonelective Contribution to the Trust for a Plan Year and, if so, (i) the amount to be contributed by the Participating Employer(s), and (ii) the Eligible Employees on whose behalf the Qualified Nonelective Contribution will be made.  If the Company determines that a Qualified Nonelective Contribution shall be made, the Participating Employer(s) shall contribute its designated portion, if any, on behalf of its Eligible Employees.  A Qualified Nonelective Contribution for a Plan Year shall be allocated among the QNEC Accounts of such Eligible Employees in proportion to their relative amounts of Compensation for the Plan Year.  Qualified Nonelective Contributions shall be fully vested and subject to the same distribution rules (except hardship withdrawals) as Elective Contributions.

 

 

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3.6   Rollover Contributions .  A Participant who is an Eligible Employee may make a Rollover Contribution to the Plan upon demonstration to the Administrator that the contribution is eligible for transfer to the Plan pursuant to the rollover provisions of the Code.  Notwithstanding the foregoing, the Administrator, operationally and on a nondiscriminatory basis, may limit the source of Rollover Contributions that may be accepted by this Plan.  A Rollover Contribution shall be allocated to an Eligible Employee’s Rollover Account.

 

3.7   Crediting of Contributions .  Each type of Contribution for a Plan Year shall be allocated among and credited to the respective Accounts of Participants eligible to share in the Contribution as of the Valuation Date next following the date the Contribution is received by the Trustee.

 

3.8   Time for Making Contributions .  An Elective Contribution shall be paid in cash to the Trust as soon as such Elective Contribution can reasonably be segregated from the general assets of the Participating Employer, but in no event later than the time set forth in Department of Labor Regulations Section 2510.3-102.  Any other Contribution (other than a Rollover Contribution) shall be paid to the Trust not later than the due date (including extensions) of the Company’s federal income tax return for the year for which the Contribution is made.  Except for occasional, bona fide , administrative considerations, an Elective Contribution or a related Matching Contribution shall not be paid to the Trust earlier than the earlier of (i) the performance of services relating to such Contribution, or (ii) the date as of which the Compensation that is subject to the respective Compensation Reduction Authorization would be currently available to the Eligible Employee in the absence of the respective Compensation Reduction Authorization.

 

3.9   Certain Limits Apply .  All Contributions (other than Catch-Up Contributions and Rollover Contributions) are subject to the applicable limits set forth under Code Sections 401(k), 402(g), 404, and 415, as further described in Article 11 hereof.  In addition, certain minimum allocations may be required under Code Section 416, as described in Article 12 hereof.

 

3.10   Return of Contributions .  If any Contribution by a Participating Employer to the Trust is (a) made by reason of a mistake of fact, or (b) believed by the Participating Employer in good faith to be deductible under Code Section 404, but the deduction is disallowed, the Trustee shall, upon request by the Participating Employer, return to the Participating Employer the excess of the amount contributed over the amount, if any, that would have been contributed had there not occurred a mistake of fact or a mistake in determining the deduction.  Such excess shall be reduced by the losses of the Trust attributable thereto, if and to the extent such losses exceed the gains and income attributable thereto.  In no event shall the return of a Contribution hereunder cause any Participant’s Accounts to be reduced to less than they would have been had the mistaken or nondeductible amount not been contributed.  No return of a Contribution hereunder shall be made more than one year after the mistaken payment of the Contribution, or disallowance of the deduction, as the case may be.  The return of Contributions also may be made in accordance with Article 11 hereof.

 

3.11   Establishment of Trust .  The Company shall establish a Trust to accept and hold Contributions made under the Plan.  The Trust shall be governed by an agreement between the Company and the Trustee, and the terms of the Trust shall be consistent with the Plan provisions and intended qualification under Code Sections 401(a) and 501(a).

 

3.12   Veterans’ Reemployment and Benefits Rights .  Notwithstanding any provision of the Plan to the contrary,

 

(a)   Contributions, benefits and service credit with respect to Qualified Military Service will be provided in accordance with Code Section 414(u).

 

 

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(b)   In the case of a Participant who dies after December 31, 2006, while performing Qualified Military Service, the survivors of the Participant shall be entitled to any additional benefits (other than benefit accruals relating to the period of qualified military service) provided under the Plan had the Participant resumed employment with the Employer and subsequently had a Severance from Employment on account of death.

 

(c)   An individual who receives Differential Wage Payments after December 31, 2008, shall be treated as an Employee of the Participating Employer making the payment.  Differential Wage Payments shall be treated as Compensation hereunder, and the Plan shall not be treated as failing to meet the requirements of any provision described in Code Section 414(u)(1)(C) by reason of any contribution or benefit based on the Differential Wage Payments.

 

(d)   Solely for purposes of eligibility to withdraw his or her Elective Contributions hereunder after December 31, 2008, and to the extent required by Code Section 414(u), a Participant shall be treated as having had a Severance from Employment during any period in which the Participant is performing service in the uniformed services (as defined in chapter 43 of title 38, United States Code) while on active duty for a period of more than 30 days.  If a Participant elects to withdraw all or any part of his or her Elective Contributions because he or she is deemed to have had a Severance from Employment under this Section 3.12, he or she shall suspend Elective Contributions hereunder for the six-month period beginning on the date of such withdrawal.

 

ARTICLE 4.

PARTICIPANT ACCOUNTS

 

4.1   Accounts .  The Administrator shall establish and maintain (or cause the Trustee to establish and maintain) for each Participant, the following Accounts:  an Elective Contribution Account, a Matching Contribution Account, a Profit Sharing Contribution Account, a Rollover Account, and a QNEC Account.

 

4.2   Adjustment of Accounts .  As of each Valuation Date, each Account shall be adjusted to reflect the fair market value of the assets allocated to the Account.  In so doing, each Account balance shall be (a) increased by the amount of Contributions, income and gain allocable to such Account since the prior Valuation Date, and (b) decreased by the amount of distributions from the Account and expenses and losses allocable to the Account since the prior Valuation Date.  Any income, expense, gain or loss generated by a particular investment within the Trust shall be allocated among the Accounts invested in that investment in proportion to the balances of such Accounts as of the immediately preceding Valuation Date.  Any expenses relating to a Participant’s (or his or her Beneficiary’s) Accounts, including, without limitation, commissions or sales charges with respect to an Account investment or Account maintenance or administration fees, other than those expenses paid by the Employer, shall be charged solely to the Participant’s (or his or her Beneficiary’s) Accounts.

 

4.3   Investment of Accounts .

 

(a)   Investment Options .  A Participant’s Accounts shall be invested by the Trustee as the Participant (or his or her Beneficiary) directs from among such investment options as the Investment Committee (or the Company, for periods prior to October 1, 2009) may make available from time to time, which investment options shall include Cenveo Common Stock.  There shall be at least three investment options hereunder (other than Cenveo Common Stock) which shall be diversified and have materially different risk and return characteristics.

 

(b)   Cenveo Common Stock .  A Participant may direct that his or her Accounts be invested in Cenveo Company Stock, subject to such administrative requirements as the Administrator may prescribe.  Notwithstanding the foregoing, effective January 1, 2007, the Administrator’s rules governing the manner and timing of Participant investment elections, prescribed pursuant to (c) below, shall not impose unreasonable conditions or restrictions on the ability of a Participant (or his or her Beneficiary) to elect to transfer any portion of his Account balances invested in Cenveo Common Stock into another investment option under the Plan.  Such rules shall not (i) limit elections to diversify out of Cenveo Common Stock to less frequently than quarterly, (ii) impose a restriction on a Participant’s right to diversify out of Cenveo Common Stock that is not imposed on other Plan investment options, other than restrictions or conditions imposed by reason of the application of securities laws or a condition permitted under IRS Notice 2006-107 or other applicable guidance, or (iii) condition a benefit on investment in Cenveo Common Stock.

 

 

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(c)   Investment Elections .  The Administrator shall prescribe the manner in which such directions may be made or changed, the dates as of which they shall be effective, and the investment of Accounts with respect to which no investment directions are submitted, including Accounts established as a result of the automatic enrollment provisions of Section 2.2(b) hereof.  Any other assets of the Trust not specified above in this Section shall be invested by the Trustee in the sole discretion of the Trustee and in accordance with its fiduciary duties under ERISA; provided that, if an Investment Manager has been appointed with respect to all or a portion of such assets, the Trustee shall invest such portion as the Investment Manager or other named fiduciary directs.

 

4.4   Appointment of Investment Managers .  The Investment Committee (or the Company, for periods prior to October 1, 2009) may appoint one or more Investment Managers to manage any assets of the Plan.  An Investment Manager shall acknowledge in a writing delivered to the Investment Committee (or the Company, for periods prior to October 1, 2009) and the Trustee that it is a fiduciary with respect to the Plan.  The Investment Committee shall be a “named fiduciary” for purposes of ERISA Section 402(a)(2).

 

4.5   Section 404(c) Compliance .  The Plan is intended to be an “ERISA Section 404(c) plan” as described in ERISA Section 404(c) and title 29 of the Code of Federal Regulations Section 2550.404c-1, and shall be administered and interpreted in a manner consistent with that intent.  The investment direction requirements of Department of Labor Regulation Section 2550.404c-1(b)(2)(i)(B)(1)(iv) and (b)(2)(i)(A) and the requirements relating to the investment alternatives under the Plan are intended to be satisfied by Section 4.3 hereof, in each case taking into account related communications to Participants and Beneficiaries under the summary plan description for the Plan and other communications.  For purposes of ERISA Section 404(c), the “identified plan fiduciary” obligated to comply with Participant and Beneficiary investment instructions (except as provided in such section and regulations thereunder), the identified plan fiduciary obligated to provide Participants and Beneficiaries with the materials set forth in Department of Labor Regulation Section 2550.404c-1(b)(2)(i)(B), and the identified plan fiduciary obligated to comply with the confidentiality requirements and procedures under Department of Labor Regulation Section 2550.404c-1(d)(2)(ii)(E)(4)(viii) relating to employer securities shall be the Administrator.  The Administrator may decline to implement Participant and Beneficiary investment instructions which would result in a prohibited transaction described in ERISA Section 406 or Code Section 4975 or which would generate income that would be taxable to the Plan.

 

4.6   Transfers From Other Plans .

 

(a)   Allocation of Transferred Assets Among Accounts .  Unless otherwise provided herein, in the event that another plan is merged into the Plan, or accounts are otherwise transferred to the Plan from another plan, the assets transferred to the Plan shall be allocated as follows:

 

(i)  

Assets attributable to an individual’s elective contributions and qualified nonelective contributions (if any) shall be allocated to the Elective Contribution Account and QNEC Account, respectively, established for his or her benefit hereunder;

 

(ii)  

Assets attributable to matching employer contributions (if any) made on behalf of an individual, shall be allocated to the Matching Contribution Account established for his or her benefit hereunder;

 

(iii)  

Assets attributable to other employer contributions (if any) made on behalf of an individual, shall be allocated to the Profit Sharing Contribution Account established for his or her benefit hereunder; and

 

 

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(iv)  

Assets attributable to an individual’s rollover contributions shall be allocated to the Rollover Account established for his or her benefit hereunder.

 

(b)   Subaccounts; Investments .  The assets transferred may be separately accounted for in sub-accounts under the Plan as determined to be necessary by the Administrator in order to administer the provisions of Articles 5, 6, 7 and 8 hereof.  Unless otherwise provided in Schedule B hereto or in an acquisition agreement between a Participating Employer and the employer maintaining such transferor plan, all assets transferred under this Section 4.6 shall be invested in accordance with investment directions by the Participant under Section 4.3 hereof or, absent such directions, in a default investment fund designated by the Administrator.

 

(c)   Eligibility to Receive Contribution Allocations .  Any individual for whom accounts have been transferred under this Section 4.6 and who has not become a Participant under Section 2.2 hereof, or pursuant to such other special eligibility rules provided in Schedule B, shall be treated as a Participant for purposes of Articles 4, 5, 8, 9, 10 and 13 hereof and, so long as he or she is an Employee (or an employee of an Affiliated Employer), Articles 6 and 7 hereof.  Such an individual shall become a Participant  for all purposes of the Plan to the extent such individual satisfies the requirements of Section 2.1 hereof, or any other special eligibility rules provided in Schedule B which apply to such individual.

 

4.7   Voting and Tender Offers of Cenveo Common Stock .  A Participant shall be entitled to direct the Trustee how to vote, and respond to tender offers of, shares of Cenveo Common Stock allocated to the Participant’s Accounts hereunder in accordance with the procedures set forth in the Trust Agreement.  Information relating to the purchase, holding, and sale of Cenveo Common Stock, and the directions received by the Trustee from Participants pursuant to the Trust Agreement shall be held by the Trustee in confidence in accordance with procedures developed by the Administrator that are designed to safeguard the confidentiality of such information (except to the extent provided therein).

 

4.8   Investment Committee .  Effective October 1, 2009, the Investment Committee shall be a “named fiduciary” for purposes of ERISA Section 402(a)(2).  The Investment Committee shall be comprised of at least three members, including the following Company Employees:  General Counsel, Vice President Human Resources and Treasurer.  Each ex officio member of the Administrative Committee shall serve for as long as he or she continues to be employed in the respective employment position.  The ex officio members of the Investment Committee may appoint up to three additional members, who shall serve at the discretion of the ex officio members.

 

ARTICLE 5.

VESTING OF ACCOUNTS

 

5.1   Immediate Vesting of Certain Accounts .  A Participant shall at all times have a 100% vested interest in his or her Elective Contribution Account, QNEC Account and Rollover Account, if any.  In addition, effective August 8, 2002, a Participant who ceases to be an Eligible Employee by reason of the Filenet Division sale of assets shall become 100% vested in each of his or her Accounts.

 

5.2   Deferred Vesting of Matching Contribution, Profit Sharing Contribution, and ESOP Accounts .  Except as otherwise specified in the applicable CBA or as set forth in Schedule B, each Participant shall have a vested interest in his or her Matching Contribution Account, Profit Sharing Contribution Account, and ESOP Account, if any, in accordance with the following schedule and based on his or her Years of Service for Vesting:

 

Years of Service

For Vesting

Nonforfeitable Percentage

 

 

less than 1

0%

1 but less than 2

20%

2 but less than 3

40%

3 but less than 4

60%

4 but less than 5

80%

5 or more

100%

 

 

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5.3   Special Vesting Rules .  Notwithstanding any provision of the Plan to the contrary, a Participant will have 100% vested interest in all the Accounts maintained for his or her benefit upon the happening of any one of the following events:

 

(i)  

the Participant’s attainment of age 65 while an Employee;

 

(ii)  

the Participant’s Severance from Employment on account of Disability;

 

(iii)  

the Participant’s death while an Employee;

 

(iv)  

the termination of the Plan or the complete discontinuance of Contributions under the Plan; or

 

(v)  

the partial termination of the Plan with respect to the Participant.

 

5.4   Changes in 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 vested percentage (or if the Plan changes to or from a top-heavy vesting schedule), each Participant who has completed three Years of Service for Vesting may elect, within the period described below, to have his or her vested percentage determined without regard to such amendment or change.  The period referred to in the preceding sentence will begin on the date the amendment of the vesting schedule is adopted and will end 60 days after the latest of the following dates:

 

(a)   the date on which such amendment is adopted;

 

(b)   the date on which such amendment becomes effective; and

 

(c)   the date on which the Participant is issued written notice of such amendment by the Administrator.

 

5.5   Forfeitures .

 

(a)   In General .  Any portion of a Participant’s Accounts in which he or she is not vested upon Severance from Employment for any reason shall be forfeited as of the earlier of (i) the expiration of five consecutive Plan Years during each of which the Participant does not complete at least 501 Hours of Service, or (ii) the distribution of the vested portion of the Account if such distribution is made as a result of the Participant’s Severance from Employment.

 

(b)   Deemed Cashouts .  Any Participant who has a Severance from Employment when he has no vested interest in any of his or her Accounts attributable to Participating Employer Contributions, including his or her Elective Contribution Account, shall (i) be deemed to have received a complete distribution of the vested portion of his or her Accounts, and (ii) forfeit the novested portion of his or her Accounts, on the day he or she has the Severance from Employment.

 

(c)   Certain Restorations .  Notwithstanding (a) or (b) above, if a Participant forfeits any portion of an Account as a result of the complete or deemed distribution of his or her vested Accounts, but thereafter returns to the employ of an Affiliated Employer prior to the close of the fifth consecutive Plan Year in which the Participant does not complete at least 501 Hours of Service, the amount forfeited (without earnings) shall be restored upon the Participant’s reemployment.  A Participant’s vested percentage in the amount restored under this paragraph will thereafter be determined under the terms of the Plan as if no forfeiture had occurred.  The money required to effect the restoration of a Participant’s Account shall come from other Accounts forfeited during the Plan Year of restoration, and to the extent such funds are inadequate, from a special contribution by the Participant’s Participating Employer.

 

 

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(d)   Application of Forfeitures .  Any forfeitures occurring in a calendar quarter with respect to a Participant will be used by the Company to offset any outstanding Plan expenses to the extent not paid by the Company.  To the extent any forfeitures remain after such application, they will be applied toward the restoration of any amount previously forfeited as required under (c) above.  To the extent any forfeitures remain after all such applications, they will be applied toward future Employer Contributions under the Plan.

 

5.6   Vesting of Accounts Transferred From Other Plans .  In the event that another plan is merged into the Plan, or accounts are otherwise transferred to the Plan from another plan, the portion of each Account under this Plan that is attributable to a vested and nonforfeitable account, or portion of an account, under the transferor plan shall remain vested and nonforfeitable under this Plan.  The remaining portion of each Account under this Plan that is attributable to a transferor plan account shall vest in accordance with Sections 5.1 through 5.4 hereof, unless otherwise provided in Schedule B.

 

ARTICLE 6.

WITHDRAWALS PRIOR TO SEVERANCE FROM EMPLOYMENT

 

6.1   Hardship Withdrawals .

 

(a)   Immediate and Heavy Financial Need .  Subject to any administrative requirements established by the Administrator, a Participant may make a withdrawal from his or her Accounts (excluding his or her ESOP Account, QNEC Account and the portion of his or her Elective Contribution Account attributable to income credited after December 31, 1988) in the event of an immediate and heavy financial need arising from:

 

(i)  

Payments for burial or funeral expenses for the Participant’s deceased parent, spouse, children or dependents (as defined in Code Section 152, without regard to Code Section 152(d)(1)(B));

 

(ii)  

Expenses for (or necessary to obtain) medical care described in Code Section 213(d) previously incurred by the Participant, his or her spouse or any of his or her dependents (as defined in Code Section 152, without regard to subsections (b)(1), (b)(2) and (d)(1)(B) thereof) determined without regard to whether the expenses exceed 10% of adjusted gross income;

 

(iii)  

The payment of tuition, room and board expenses and related educational fees for the next 12 months of post-secondary education for the Participant, his or her spouse, children or dependents (as defined in Code Section 152, without regard to subsections (b)(1), (b)(2) and (d)(1)(B) thereof);

 

(iv)  

Costs directly related to the purchase of a principal residence of the Participant (excluding mortgage payments);

 

(v)  

Expenses for the repair of damage to the Participant's principal residence that would qualify for the casualty deduction under Code Section 165 (determined without regard to whether the loss exceeds 10% of adjusted gross income);

 

(vi)  

Payments necessary to prevent the eviction of the Participant from his or her principal residence or foreclosure on the mortgage on that principal residence; or

 

(vii)  

Any other need identified by the Commissioner of Revenue as a “financial hardship” for purposes of Section 401(k) plans through the publication of revenue rulings, notices and other guidance of general applicability.

 

 

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(b)   Determination of Immediate and Heavy Financial Need .  The Administrator’s determination of whether there is an immediate and heavy financial need as defined in (a) above shall be made solely on the basis of written evidence furnished by the Participant.  Such evidence must also indicate the amount of such need.

 

(c)   Distribution of Amount Necessary to Meet Need .  As soon as practicable after the Administrator’s determination that (i) an immediate and heavy financial need exists with respect to the Participant, (ii) the Participant has obtained all other distributions (other than hardship distributions) and all nontaxable loans currently available under the Plan and all other plans maintained by the Affiliated Employers, and (iii) no other resources are reasonably available to the Participant to satisfy the need, the Administrator will direct the Trustee to pay to the Participant the amount necessary to meet the need created by the hardship (but not in excess of the value of the Participant’s Elective Contribution Account, determined as of the Valuation Date next following the Administrator’s determination).  The amount necessary to meet the need may include any amounts necessary to pay any federal, state, or local income taxes or penalties reasonably anticipated to result from the distribution.

 

(d)   Effect of Hardship Distribution .  If a Participant receives a hardship distribution from his or her Elective Contribution Account, then any Elective Contribution election, or any cash or deferred or employee contribution election in effect with respect to the Participant under the Plan or any other qualified or nonqualified plan of deferred compensation maintained by an Affiliated Employer shall be suspended for the six-month period (12-month period for hardship withdrawals made prior to January 1, 2002) beginning with the date the Participant receives the distribution, and with respect to hardship withdrawals made before January 1, 2001, the amount of Elective Contributions made for the benefit of the Participant, together with any elective deferrals made on behalf of the Participant under any other plan maintained by the Affiliated Employers for the calendar year immediately following the calendar year of the hardship distribution must not exceed the applicable limit under Code section 402(g) for such next calendar year, less the amount of such contribution made on behalf of the Participant for the calendar year of the hardship distribution.

 

6.2   Withdrawals After Age 59½ .  A Participant who is an Employee and has attained age 59½ may make a withdrawal from any one or more of his or her Accounts for any reason, upon such prior notice and subject to such administrative requirements as the Administrator may prescribe.  Any such withdrawal shall be in the amount specified by the Participant, up to the vested value of the particular Account determined as of the Valuation Date next following the Administrator’s or Trustee’s receipt of notice of the withdrawal.  Payment to the Participant shall be made as soon as practicable after such Valuation Date.

 

6.3   Rollover Withdrawals .  A Participant may make a withdrawal from his or her Rollover Account for any reason, upon such prior notice and subject to such administrative requirements as the Administrator may prescribe.  Any such withdrawal shall be in the amount specified by the Participant, up to the value of the Participant’s Account determined as of the Valuation Date next following the Administrator’s receipt of notice of the withdrawal.  Payment to the Participant shall be made as soon as practicable after such Valuation Date.

 

6.4   Restrictions on Certain Distributions .  In the case of a Participant whose Accounts are valued in excess of $5,000 and who has not yet attained Normal Retirement Age, no distribution may be made to the Participant under this Article unless the notice and election procedures of Section 8.2 hereof are satisfied.  For purposes of this Section, a Participant’s Accounts shall be considered to be valued in excess of $5,000 if the value of his or her Accounts exceeds such amount at the time of the distribution in question.

 

6.5   Limitation of Withdrawable Amount .  In the event that there is allocated to a Participant’s Account a promissory note with respect to a loan made from the Plan, the maximum amount of cash that may be withdrawn from the Account prior to the Participant’s Severance from Employment shall be determined without regard to the value of such note.

 

6.6   Required Distributions After Required Beginning Date .  In the case of a Participant who remains an Employee on or after his or her Required Beginning Date, such Participant’s Accounts shall be distributed, beginning on his or her Required Beginning Date, in accordance with the minimum required distribution provisions of Appendix A hereto.

 

 

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6.7   Distributions Required by a Qualified Domestic Relations Order .  To the extent required by a Qualified Domestic Relations Order, the Administrator shall make distributions from a Participant’s Accounts to alternate payees named in such order in a manner consistent with the distribution options otherwise available under the Plan, regardless of whether the Participant is otherwise entitled to a distribution at such time under the Plan.

 

6.8   Withdrawals by Certain Former Participants in Other Plans .

 

(a)   After-tax contributions .  In the case of a Participant for whom amounts attributable to after-tax contributions have been transferred under Section 4.6 hereof from another plan, the Participant may make a withdrawal of such contributions for any reason, upon such prior notice and subject to such administrative requirements as the Administrator may prescribe.  Any such withdrawal shall be in the amount specified by the Participant, up to the value of such contributions determined as of the Valuation Date next following the Administrator’s or Trustee’s receipt of notice of the withdrawal.  Payment to the Participant shall be made as soon as practicable after such Valuation Date.

 

(b)   Other withdrawals .  In addition to the rights to take withdrawals prior to Severance from Employment as described in Sections 6.1, 6.2 and 6.3 hereof in the case of a Participant for whom amounts have been transferred under Section 4.6 hereof from another plan, the Participant shall be entitled to take withdrawals hereunder in the circumstances in which withdrawals prior to Severance from Employment would have been permitted under the transferor plan, as set forth in Schedule B.

 

ARTICLE 7.

LOANS TO PARTICIPANTS

 

7.1   In General .  Upon the request of a Participant, and subject to the conditions of this Article 7, the Administrator shall direct the Trustee to make a loan from the Trust to the Participant.  For purposes of this Article 7, “Participant” includes any Participant who is an Employee of a Participating Employer, and any other Participant (or Beneficiary of a deceased Participant) who is a “party in interest” within the meaning of ERISA Section 3(14).  Notwithstanding the foregoing, a Participant who was an owner-employee (as defined in Code Section 401(c)(3)) or a member of the family (as defined in Code Section 267(e)(4)) of an owner employee was not eligible to receive a loan under this Article 7 prior to January 1, 2002.

 

7.2   Rules and Procedures .  The Administrator shall promulgate such rules and procedures, not inconsistent with the express provisions of this Article, as it deems necessary to carry out the purposes of this Article including, but not limited to, rules for charging loan fees directly to a Participant’s Accounts.  All such rules and procedures shall be deemed a part of the Plan for purposes of the Department of Labor Regulation Section 2550.408b-1(d).  Loans shall not be made available to Participants who are Highly Compensated Employees in an amount (determined under Department of Labor Regulation Section 2550.408b-1(b)) greater than the amount made available to other Participants.

 

7.3   Maximum Amount of Loan .  The following limitations shall apply in determining the amount of any loan to a Participant hereunder:

 

(a)   The amount of the loan, together with any other outstanding indebtedness of the Participant under the Plan or any other qualified retirement plan of the Affiliated Employers, shall not exceed $50,000 reduced by the excess of (i) the highest outstanding loan balance of the Participant from such plans during the one-year period ending on the day prior to the date on which the loan is made, over (ii) the Participant’s outstanding loan balance from such plans immediately prior to the loan.

 

(b)   The amount of the loan shall not exceed 50% of the Participant’s vested interest in his or her Accounts, determined as of the Valuation Date immediately preceding the date of the loan.

 

 

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7.4   Minimum Amount of Loans; Limit on Number of Loans .  The amount of any single loan under this Plan shall not be less than $1,000.  No more than one loan may be outstanding to a Participant at any one time.

 

7.5   Credit Agreement; Security; Interest .  Each loan shall be evidenced by a credit agreement signed by the Participant and shall be secured by the Participant’s vested interest in his or her Accounts, including in such security the credit agreement evidencing the loan.  The loan shall bear interest at a reasonable annual percentage interest rate to be determined by the Administrator.  In determining the interest rate, the Administrator shall take into consideration interest rates currently being charged by persons in the business of lending money with respect to loans made in similar circumstances.  The Administrator shall make such determination through consultation with one or more lending institutions, as the Administrator deems appropriate.

 

7.6   Repayment .  Each loan made to a Participant who is receiving regular payments of compensation from a Participating Employer shall be repayable by payroll deduction.  Loans made to other Participants (and, in all events, where payroll deduction is no longer practicable) shall be repayable in such manner as the Administrator may from time to time determine.  The documents evidencing a loan shall provide that payments shall be made not less frequently than quarterly and over a specified term as determined by the Administrator (but not to exceed five years; ten years if the loan is being applied toward the purchase of a principal residence for the Participant); such document shall also require that the loan be amortized with level payments of principal and interest.  A Participant may prepay all, but not less than all, of his or her loan at any time, without penalty, by paying the loan principal then outstanding together with interest accrued and unpaid to the date of payment.

 

7.7   Severance From Employment .  If, at the time a Participant has a Severance from Employment, there remains any unpaid balance of a loan hereunder, such unpaid balance shall, to the extent consistent with Department of Labor regulations, become immediately due and payable in full.  Such unpaid balance, together with any accrued but unpaid interest on the loan, shall be deducted from the Participant’s Accounts, subject to the default provisions below.  Except as may be required in order to comply (in a manner consistent with continued qualification of the Plan under Code Section 401(a) and with Department of Labor regulations) no loan shall be made or remain outstanding with respect to a Participant under this Article 7 after the Participant has a Severance from Employment.

 

7.8   Default .   In the event of a default in making any payment of principal or interest when due under the credit agreement evidencing any loan under this Article, if such default continues for more than 90 days of the due date thereof, the unpaid principal balance of the credit agreement shall immediately become due and payable in full.  Such unpaid principal, together with any accrued but unpaid interest, shall thereupon be deducted from the Participant’s Accounts, subject to the further provisions of this Section.  The amount so deducted shall be treated as distributed to the Participant and applied by the Participant as a payment of the unpaid interest and principal (in that order) under the credit agreement evidencing such loan.  In no event shall the Administrator apply the Participant’s Accounts to satisfy the Participant’s repayment obligation, whether or not he or she is in default, unless the amount so applied otherwise could be distributed in accordance with the Plan.  Notwithstanding the foregoing, (i) if a Participant with an outstanding loan under this Article is on an authorized leave of absence from his or her Participating Employer, the Participant’s failure to make any payments under this Article during the first twelve months of such leave of absence shall not constitute a default under this Section, and (ii) loan repayments may be suspended under this Plan as permitted under Code Section 414(u)(4).

 

(a)   To the extent required by the Secretary of Treasury pursuant to Code Section 72(p), a loan that is deemed distributed under Code Section 72(p) (including interest accruing thereafter), and that has not been offset against a Participant’s Accounts or repaid in accordance with (a) or (b) above, shall be considered outstanding for purposes of the limitations on any subsequent loan to the Participant set forth in this Article 7.

 

7.9   Credit Agreement as Trust Asset .  The credit agreement evidencing a loan to a Participant under this Article 7 shall be an asset of the Trust which is allocated to the Accounts of such Participant, and shall for purposes of the Plan be deemed to have a value at any given time equal to the unpaid principal balance of the credit agreement plus the amount of any accrued but unpaid interest.

 

 

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7.10   Nondiscrimination .  Loans shall be made available under this Article 7 to all Participants on a reasonably equivalent basis, except that the Administrator may make reasonable distinctions based on creditworthiness.

 

7.11   Designation of Accounts .  Unless the Administrator designates otherwise, loans shall be made proportionately from all Accounts and all investment funds to which the Participant’s Accounts are allocated.  The crediting of loan repayments shall be made to the foregoing Accounts in the same manner and shall be allocated among the investment options in accordance with the Participant’s then effective instructions regarding the investment of contributions made on his or her behalf.

 

ARTICLE 8.

BENEFITS UPON DEATH OR SEVERANCE FROM EMPLOYMENT

 

8.1   Severance from Employment for Reasons Other Than Death .  Following a Participant’s Severance from Employment for any reason other than death, the Participant shall be eligible to receive a distribution of the vested portion of his or her Accounts in cash in a single sum or, if the Participant so elects with respect to the portion of his or her Accounts then invested in whole or in part in Cenveo Common Stock, in whole shares thereof.  A Participant also may elect to receive the vested portion of his or her Accounts in monthly, quarterly, semiannual or annual installments over a period certain not to exceed the Participant’s life expectancy or the joint life and last survivor expectancy of the Participant and his Beneficiary.  Notwithstanding the foregoing, in the case of Participant for whom amounts have been transferred from another plan, as described in Section 4.6 hereof, the Participant shall be entitled to elect any other form of distribution set forth in Schedule B.

 

8.2   Time of Distributions .

 

(a)   General Rule .

 

(i)  

A distribution made under Section 8.1 hereof shall be made as soon as practicable after the Participant requests the distribution.  The distribution shall not be made unless (A) effective January 1, 2007, the Administrator notifies the Participant in writing, between the 30 th and 180 th day prior to the date distribution is to be made, of the Participant’s distribution options under the Plan, including the Participant’s right, if any, to defer distribution of his or her Accounts until April 1 of the calendar year following the year in which the Participant obtains age 70½, and the consequences of failing to defer distribution of his or her Accounts; and (B) the Participant consents to the distribution in writing after the information described above has been provided to him or her, and files such consent with the Administrator.

 

(ii)  

Notwithstanding the foregoing, such distribution may commence less than 30 days after the required notification described above is given, provided that (A) the 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 whether or not to elect a distribution; and (B) the Participant, after receiving the notice, elects a distribution.

 

(b)   Participants Aged 70½ and Older .  If a Participant has a Severance from Employment after age 70½, the vested portion of his or her Accounts shall be or begin to be distributed to him or her as soon as practicable after his or her Severance from Employment.

 

(c)   Distributions Required by Code Section 401(a)(14) .  Unless a Participant elects otherwise, distribution under Section 8.1 hereof shall be made no later than the 60 th  day after the close of the Plan Year in which occurs the later of the Participant’s Severance from Employment or the Participant’s attainment of the Normal Retirement Age.

 

 

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(d)   Required Beginning Date .  Notwithstanding any other provision of the Plan, distribution of a Participant’s Accounts hereunder shall be made or begin to be made no later than his or her Required Beginning Date, and all distributions hereunder shall comply with the minimum required distribution requirement provisions of Appendix A hereto.

 

8.3   Distribution of Small Benefits .

 

(a)   Mandatory Distributions .  Notwithstanding any other provision hereof, if the total value of a Participant's Accounts (including his or her Rollover Contributions Account) is $5,000 or less upon Severance from Employment (including death), the Plan shall distribute the entire vested portion of the Participant's Accounts in cash, or if the Participant (or his or her Beneficiary) so elects with respect to the portion of the Participant’s Accounts then invested in Cenveo Common Stock, in whole shares thereof, as soon as practicable after the Participant’s Severance from Employment.

 

(b)   Automatic Rollovers .  If a mandatory distribution described in (a) above made on or after March 28, 2005, is greater than $1,000 and the Participant (or his or her Beneficiary) does not elect to have such distribution paid directly to an eligible retirement plan  specified by the Participant in a direct rollover or to receive the distribution directly in accordance with Section 8.1 or 8.5 hereof, then the Administrator shall pay the distribution in a direct rollover to an individual retirement plan designated by the Administrator.  The automatic rollover provisions of this paragraph shall apply to nonspouse Beneficiaries only with respect to mandatory distributions made after December 31, 2009.

 

8.4   Amount of Distribution .

 

(a)   Single Sums .  In the case of a distribution to be made in a single sum, the amount of the distribution shall be determined as of the Valuation Date on which authorized distribution directions are received by the Trustee.

 

(b)   Installments .  In the case of distributions to be made in monthly, quarterly, or annual installments, the aggregate installment amount for a particular calendar year (the “installment year”) shall be determined by dividing:

 

(i)  

the value of the vested portion of the Participant’s Accounts as of the last Valuation Date preceding the distribution date; by

 

(ii)  

the lesser of (A) the number of remaining installment years in the installment period elected by the Participant as of the beginning of the installment year and (B) the number of years in the applicable remaining life expectancy for the installment year determined pursuant to Regulation Section 1.401(a)(9)-1, or (if the Participant’s Beneficiary is not his or her spouse) the applicable divisor for the installment period determined under Regulation Section 1.401(a)(9)-2.  For purposes of determining the amount of any installment distribution, life expectancies will not be recalculated annually pursuant to Code Section 401(a)(9) unless the Participant elects otherwise.

 

8.5   Distribution After a Participant’s Death .

 

(a)   Death Prior to Severance from Employment .  If a Participant dies prior to his or her Severance from Employment, the Participant’s Beneficiary shall receive a distribution of the Participant’s Accounts in either of the following forms, as elected by the Beneficiary:

 

(i)  

in a single sum cash payment (or if the Beneficiary so elects with respect to the portion of the Participant’s Accounts then invested in Cenveo Common Stock, in whole shares thereof) as soon as practicable following the Participant’s death (but in no event later than December 31 of the calendar year following the year of the Participant’s death); or

 

 

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(ii)  

in monthly, quarterly, or annual installments over a period certain not to exceed the life expectancy of the Beneficiary, with such installments to (A) begin not later than December 31 of the calendar year following the year of the Participant’s death, and (B) be made in amounts determined in the same manner as under Section 8.4(b) hereof.  Effective January 1, 2010, a Beneficiary may not elect to receive distribution of a deceased Participant’s Accounts in the form of installment payments.

 

(b)   Death After Severance From Employment .  If a Participant dies after Severance from Employment but before the complete distribution of his or her Accounts has been made, the Participant’s Beneficiary shall receive the vested portion of the Participant’s Accounts.  Distribution shall be made in a single sum cash payment (or if the Beneficiary so elects with respect to the portion of the Participant’s Accounts then invested in Cenveo Common Stock, in whole shares thereof) as soon as practicable following the Participant’s death (but in no event later than December 31 of the calendar year following the year of the Participant’s death); provided, however, that if distribution to the Participant had begun following his or her Severance from Employment in a form elected by the Participant, distribution shall continue to be made to the Beneficiary at least as rapidly in such form unless the Beneficiary elects to receive the distribution in cash in a single sum as soon as practicable following the Participant’s death.

 

(c)     Valuation .  Any distribution to a Beneficiary under this Section shall be determined as of the Valuation Date immediately preceding the date distribution is to be made.

 

(d)   Election by  Beneficiary .  Any election made by a Beneficiary with respect to the form and/or timing of a distribution under this Section 8.5 shall be made in such form and at such time as the Administrator may prescribe.

 

(e)   Amount .  The amount of any distribution to a Beneficiary under this Section 8.5 shall be determined as of the Valuation Date immediately preceding the date distribution is to be made.

 

8.6   Designation of Beneficiary .

 

(a)   Designation of Beneficiary .  Subject to the provisions of this Section 8.6, a Participant’s Beneficiary shall be the person or persons and entity or entities, if any, designated by the Participant from time to time on a form approved by the Administrator.  In the absence of an effective Beneficiary designation, the full amount payable upon the death of the Participant shall be paid to his or her surviving spouse or, if none, to his or her estate.  If any Beneficiary survives the Participant but dies prior to receipt of his or her interest in the Participant’s Account, such Beneficiary’s remaining interest shall be paid to the Beneficiary’s estate (unless the Participant had effectively designated a successor or contingent Beneficiary for the Beneficiary’s remaining interest).

 

(b)   Spousal Consent to Nonspouse Beneficiary .

 

(i)  

A nonspouse Beneficiary designation by a Participant who is married at the time of his or her death shall not be effective unless:

 

(A)   prior to the Participant’s death, the Participant’s surviving spouse consented to and acknowledged the effect of the Participant’s designation of a specific nonspouse Beneficiary (including any class of Beneficiaries or any contingent Beneficiary) on a written form approved by the Administrator and witnessed by a notary public or a duly authorized Plan representative; or

 

 

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(B)   it is established to the satisfaction of the Administrator that spousal consent may not be obtained because there is no spouse, because the spouse has died (evidenced by a certificate of death), because the spouse cannot be located (based on information supplied by a government agency or independent investigator) or because of such other circumstances as the Secretary of the Treasury may prescribe; or

 

(C)   the spouse had earlier executed a general consent form permitting the Participant (I) to select from among certain specified Beneficiaries without any requirement of further consent by the spouse (and the Participant designates a Beneficiary from the specified list), or (II) to change his or her Beneficiary without any requirement of further consent by the spouse.  Any such general consent shall be on a form approved by the Administrator, and must acknowledge that the spouse has the right to limit consent to a specific beneficiary and that the spouse voluntarily elects to relinquish such right.

 

(ii)  

In the event a spouse is legally incompetent to give the consent described in (b)(i) above, the spouse’s legal guardian, even if the guardian is the Participant, may give consent on behalf of the spouse.  Any consent and acknowledgement by (or on behalf of) a spouse, or the establishment that the consent and acknowledgement cannot be obtained, shall be effectively only with respect to such spouse, but shall be irrevocable once made.

 

(c)   Special Rule for ESOP Account .  For any Participant who has an ESOP Account, until and unless a Participant executes a new Beneficiary designation form after August 2, 2004, any properly executed Beneficiary form that a Participant filed as a participant in the ESOP will control the distribution of his or her ESOP Account.  In the event that a Participant did not file an effective Beneficiary designation as a participant in the ESOP, an effective Beneficiary designation hereunder will control the distribution of the Participant’s Accounts, including the ESOP Account.  Upon filing an effective Beneficiary designation hereunder after August 2, 2004, such designation will control the distribution of all the Participant’s Accounts, including the ESOP Account.

 

8.7   Direct Rollovers of Eligible Distributions .

 

(a)   Direct Rollovers .  Notwithstanding any provision of the Plan to the contrary that may otherwise limit a Distributee’s election under this Section, a distribute may elect, at the time and in the manner prescribed by the Administrator, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distribute in a direct rollover.  For purposes of this Section, the following terms have the meanings described below.

 

(i)  

Eligible Rollover Distribution.

 

(A)   An “eligible rollover distribution” is any distribution of all or any portion of the balance to the credit of the distribute, except that an eligible rollover distribution does not include:  any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the distributee or the joint lives of the distributee and the distributee’s Beneficiary, or for a specified period of ten years or more; any distribution to the extent such distribution is required under Code Section 401(a)(9); the portion of any distribution that is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities); and any hardship distribution described in Code Section 401(k)(2)(B)(i)(IV).

 

(B)   Notwithstanding (A) above, effective for distributions made on and after January 1, 2002, a portion of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions which are not includible in gross income. However, such portion may be transferred only to (I) an individual retirement account or annuity described in Code Section 408(a) or (b); (II) effective for distributions after December 31, 2001, and before January 1, 2007, a qualified trust described in Code Section 401(a) forming part of a defined contribution plan that agrees to separately account for amounts so transferred, 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; and (III) effective for distributions after December 31, 2006, a qualified trust described in Code Section 401(a) or an annuity contract described in Code Section 403(b), if such qualified trust or annuity contract agrees to separately account for amounts so transferred, 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.

 

 

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(ii)  

Eligible Retirement Plan.

 

(A)   With respect to a distributee other than the Participant’s surviving spouse, an “eligible retirement plan” is an individual retirement account described in Code Section 408(a), an in


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