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Exhibit 10(f)(i)
HARRIS CORPORATION RETIREMENT PLAN
(AMENDED AND RESTATED EFFECTIVE JULY 1, 2007)
Harris Corporation Retirement Plan
(Amended and Restated Effective July 1, 2007)
(Amended and Restated Effective July 1, 2007)
Table of Contents
| Page | ||||||||
| ARTICLE 1 TITLE | 1 | |||||||
| ARTICLE 2 DEFINITIONS | 1 | |||||||
| ARTICLE 3 PARTICIPATION | 16 | |||||||
| Section 3.1 |
Eligibility for
Participation
|
16 | ||||||
| Section 3.2 |
Election of
Pre-Tax Contributions, Designated Roth and After-Tax
Contributions
|
17 | ||||||
| Section 3.3 |
Transfers to
Affiliates
|
18 | ||||||
| ARTICLE 4 PRE-TAX, DESIGNATED ROTH, MATCHING AND PROFIT SHARING CONTRIBUTIONS | 18 | |||||||
| Section 4.1 |
Pre-Tax
Contributions and Designated Roth Contributions
|
18 | ||||||
| Section 4.2 |
Matching
Contributions
|
21 | ||||||
| Section 4.3 |
Profit Sharing
Contributions
|
22 | ||||||
| Section 4.4 |
Deposit of
Contributions
|
23 | ||||||
| Section 4.5 |
Form of
Contributions
|
23 | ||||||
| ARTICLE 5 AFTER-TAX AND ROLLOVER CONTRIBUTIONS | 23 | |||||||
| Section 5.1 |
After-Tax
Contributions
|
23 | ||||||
| Section 5.2 |
Rollover
Contributions
|
25 | ||||||
| ARTICLE 6 LIMITATIONS ON CONTRIBUTIONS | 26 | |||||||
| Section 6.1 |
Annual Limit on
Pre-Tax Contributions and Designated Roth Contributions
|
26 | ||||||
| Section 6.2 |
Limits on
Contributions for Highly Compensated Employees
|
29 | ||||||
| Section 6.3 |
Maximum Annual
Additions under Section 415 of the Code
|
39 | ||||||
| Section 6.4 |
Other Limitations
on Employer Contributions
|
42 | ||||||
| ARTICLE 7 TRUST AND INVESTMENT FUNDS | 43 | |||||||
| Section 7.1 |
Trust
|
43 | ||||||
| Section 7.2 |
Investments
|
43 | ||||||
| ARTICLE 8 PARTICIPANT ACCOUNTS AND INVESTMENT ELECTIONS | 44 | |||||||
| Section 8.1 |
Participant
Accounts
|
44 | ||||||
-i-
Table of Contents
(continued)
(continued)
| Page | ||||||||
| Section 8.2 |
Investment
Elections
|
46 | ||||||
| Section 8.3 |
Valuation of Funds
and Plan Accounts
|
47 | ||||||
| Section 8.4 |
Valuation of Units
within the Harris Stock Fund
|
47 | ||||||
| Section 8.5 |
Allocation of
Contributions Other than Profit Sharing Contributions
|
48 | ||||||
| Section 8.6 |
Allocation of
Profit Sharing Contributions
|
48 | ||||||
| Section 8.7 |
Correction of
Error
|
49 | ||||||
| ARTICLE 9 WITHDRAWALS AND DISTRIBUTIONS | 49 | |||||||
| Section 9.1 |
Withdrawals Prior
to Termination of Employment
|
49 | ||||||
| Section 9.2 |
Distribution of
Account Upon Termination of Employment
|
54 | ||||||
| Section 9.3 |
Time and Form of
Distribution upon Termination of Employment
|
56 | ||||||
| Section 9.4 |
Payment of Small
Account Balances
|
59 | ||||||
| Section 9.5 |
Medium and Order
of Withdrawal or Distribution
|
59 | ||||||
| Section 9.6 |
Direct Rollover
Option
|
60 | ||||||
| Section 9.7 |
Designation of
Beneficiary
|
61 | ||||||
| Section 9.8 |
Missing
Persons
|
62 | ||||||
| Section 9.9 |
Distributions to
Minor and Disabled Distributees
|
63 | ||||||
| Section 9.10 |
Payment of Group
Insurance Premiums
|
64 | ||||||
| ARTICLE 10 LOANS | 64 | |||||||
| Section 10.1 |
Making of
Loans
|
64 | ||||||
| Section 10.2 |
Restrictions
|
65 | ||||||
| Section 10.3 |
Default
|
65 | ||||||
| Section 10.4 |
Applicability
|
66 | ||||||
| ARTICLE 11 SPECIAL PARTICIPATION AND DISTRIBUTION RULES | 66 | |||||||
| Section 11.1 |
Change of
Employment Status
|
66 | ||||||
| Section 11.2 |
Reemployment of a
Terminated Participant
|
66 | ||||||
| Section 11.3 |
Employment by
Affiliates
|
67 | ||||||
| Section 11.4 |
Leased
Employees
|
67 | ||||||
| Section 11.5 |
Reemployment of
Veterans
|
68 | ||||||
-ii-
Table of Contents
(continued)
(continued)
| Page | ||||||||
| ARTICLE 12 |
SHAREHOLDER RIGHTS
WITH RESPECT TO HARRIS STOCK
|
71 | ||||||
| Section 12.1 |
Voting Shares of
Harris Stock
|
71 | ||||||
| Section 12.2 |
Tender
Offers
|
71 | ||||||
| ARTICLE 13 ADMINISTRATION | 74 | |||||||
| Section 13.1 |
The Administrative
Committee
|
74 | ||||||
| Section 13.2 |
Named
Fiduciaries
|
76 | ||||||
| Section 13.3 |
Allocation and
Delegation of Responsibilities
|
77 | ||||||
| Section 13.4 |
Professional and
Other Services
|
77 | ||||||
| Section 13.5 |
Indemnification
and Expense Reimbursements
|
77 | ||||||
| Section 13.6 |
Claims
Procedure
|
78 | ||||||
| Section 13.7 |
Notices to
Participants
|
80 | ||||||
| Section 13.8 |
Notices to
Administrative Committee or Employers
|
80 | ||||||
| Section 13.9 |
Electronic
Media
|
81 | ||||||
| Section 13.10 |
Records
|
81 | ||||||
| Section 13.11 |
Reports of Trustee
and Accounting to Participants
|
81 | ||||||
| Section 13.12 |
Limitations on
Investments and Transactions/ Conversions
|
81 | ||||||
| ARTICLE 14 PARTICIPATION BY EMPLOYERS | 83 | |||||||
| Section 14.1 |
Adoption of
Plan
|
83 | ||||||
| Section 14.2 |
Withdrawal from
Participation
|
83 | ||||||
| Section 14.3 |
Company,
Administrative Committee, Compensation Committee, Executive
Committee and Investment Committee as Agents for Employers
|
83 | ||||||
| Section 14.4 |
Continuance by a
Successor
|
84 | ||||||
| ARTICLE 15 MISCELLANEOUS | 85 | |||||||
| Section 15.1 |
Expenses
|
85 | ||||||
| Section 15.2 |
Non-Assignability
|
85 | ||||||
| Section 15.3 |
Employment
Non-Contractual
|
86 | ||||||
| Section 15.4 |
Merger or
Consolidation with Another Plan/Transfer Contributions
|
86 | ||||||
| Section 15.5 |
Gender and
Plurals
|
87 | ||||||
| Section 15.6 |
Statute of
Limitations for Actions Under the Plan
|
88 | ||||||
| Section 15.7 |
Applicable
Law
|
88 | ||||||
-iii-
Table of Contents
(continued)
(continued)
| Page | ||||||||
| Section 15.8 |
Severability
|
88 | ||||||
| Section 15.9 |
No Guarantee
|
88 | ||||||
| Section 15.10 |
Plan
Voluntary
|
89 | ||||||
| ARTICLE 16 TOP-HEAVY PLAN REQUIREMENTS | 89 | |||||||
| Section 16.1 |
Top-Heavy Plan
Determination
|
89 | ||||||
| Section 16.2 |
Definitions and
Special Rules
|
90 | ||||||
| Section 16.3 |
Minimum
Contribution for Top-Heavy Years
|
91 | ||||||
| ARTICLE 17 AMENDMENT, ESTABLISHMENT OF SEPARATE PLAN, PLAN TERMINATION AND CHANGE OF CONTROL | 92 | |||||||
| Section 17.1 |
Amendment
|
92 | ||||||
| Section 17.2 |
Establishment of
Separate Plan
|
92 | ||||||
| Section 17.3 |
Termination
|
93 | ||||||
| Section 17.4 |
Change of
Control
|
93 | ||||||
| Section 17.5 |
Trust Fund to Be
Applied Exclusively for Participants and Their Beneficiaries
|
94 | ||||||
-iv-
ARTICLE 1
TITLE
The title of this Plan shall be the
“Harris Corporation Retirement Plan.” This Plan is an
amendment and restatement of the Plan in effect as of June 30,
2007. Except as otherwise provided herein, this amendment and
restatement shall be effective as of July 1, 2007.
The rights and benefits of any
Participant whose employment with all Employers and Affiliates
terminates on or after July 1, 2007, and the rights and
benefits of any Beneficiary of any such Participant, shall be
determined solely by reference to the terms of the Plan as amended
and restated herein, as such plan may be amended from time to time.
The rights and benefits of any Participant whose employment with
all Employers and Affiliates terminated prior to July 1, 2007
and who is not reemployed after such date, and the rights and
benefits of any Beneficiary of any such Participant, generally
shall be determined solely by reference to the terms of the Plan as
in effect on the date of the Participant’s termination of
employment.
The Plan is designated as a
“profit sharing plan” within the meaning of U.S.
Treasury Regulation section 1.401-1(a)(2)(ii).
ARTICLE 2
DEFINITIONS
As used herein, the following words
and phrases shall have the following respective meanings when
capitalized:
Account . The aggregate of a
Participant’s subaccounts described in Section 8.1 and
such other subaccounts that may be established from time to time on
behalf of a Participant, to be credited with contributions made by
or on behalf of the Participant, adjusted for earnings and losses,
and debited by distributions to and withdrawals of the Participant
and expenses.
Administrative Committee .
The Employee Benefits Committee of the Company or any successor
thereto that is appointed pursuant to Section 13.1 to
administer the Plan. Reference herein to the Administrative
Committee also shall include any person or entity to whom the
Administrative Committee has delegated any of its authority
pursuant to Section 13.3 to the extent of the
delegation.
Affiliate . (a) A
corporation that is a member of the same controlled group of
corporations (within the meaning of section 414(b) of the Code) as
an Employer, (b) a trade or business (whether or not
incorporated) under common control (within the meaning of section
414(c) of the Code) with an Employer, (c) any organization
(whether or not incorporated) that is a member of an affiliated
service group (within the meaning of section 414(m) of the Code)
that includes an Employer, a corporation described in clause
(a) of this subdivision or a trade or business described in
clause (b) of this subdivision, or (d) any other entity
that is required to be aggregated with an Employer pursuant to
Regulations promulgated under section 414(o) of the Code.
After-Tax Account . The
subaccount established pursuant to Section 8.1 to which any
after-tax contributions made for the benefit of a Participant
pursuant to Section 5.1, and earnings and losses thereon, are
credited.
Beneficiary . A person
entitled under Section 9.7 to receive benefits in the event of
the death of a Participant.
Board . The Board of
Directors of the Company.
Break in Service . A period
other than a period included in an Employee’s Service;
provided , however , that a Break in Service shall
not include a period of absence from employment not in excess of 24
consecutive months because of (a) the Employee’s
pregnancy,
2
(b) the birth of the Employee’s child, (c) the
placement of a child with the Employee in connection with the
Employee’s adoption of such child or (d) the need of the
Employee to care for any such child for a period beginning
immediately following such birth or placement. Notwithstanding the
foregoing, the immediately preceding sentence shall not apply
unless the Employee timely furnishes to the Administrative
Committee or its delegate such information as it may reasonably
require to establish the reason for such absence and its
duration.
Change of Control . For
purposes hereof, a “Change of Control” shall be deemed
to have occurred if:
(a) any “person” (as such
term is defined in section 3(a)(9) of the Securities Exchange Act
of 1934 (the “Exchange Act”) and as used in sections
13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a
“beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
Company representing 20% or more of the combined voting power of
the Company’s then outstanding securities eligible to vote
for the election of the Board (the “Company Voting
Securities”); provided however , that the event
described in this paragraph (a) shall not be deemed to be a
Change of Control by virtue of any of the following acquisitions:
(1) by the Company or any Subsidiary, (2) by any employee
benefit plan sponsored or maintained by the Company or any
Subsidiary, (3) by any underwriter temporarily holding
securities pursuant to an offering of such securities, or
(4) pursuant to a “Non-Control Transaction” (as
defined in paragraph (c));
(b) individuals who, on July 1,
2006, constitute the Board (the “Incumbent Directors”)
cease for any reason to constitute at least a majority of the
Board, provided that any person becoming a director subsequent to
July 1, 2006, whose election or
3
nomination for
election was approved by a vote of at least two-thirds of the
Incumbent Directors who remain on the Board (either by a specific
vote or by approval of the proxy statement of the Company in which
such person is named as a nominee for director, without objection
to such nomination) shall also be deemed to be an Incumbent
Director; provided , however , that no individual
initially elected or nominated as a director of the Company as a
result of an actual or threatened election contest with respect to
directors or any other actual or threatened solicitation of proxies
or consents by or on behalf of any person other than the Board
shall be deemed to be an Incumbent Director;
(c) the consummation of a merger,
consolidation, share exchange or similar form of corporate
reorganization of the Company or any such type of transaction
involving the Company or any of its Subsidiaries that requires the
approval of the Company’s stockholders (whether for such
transaction or the issuance of securities in the transaction or
otherwise) (a “Business Combination”), unless
immediately following such Business Combination: (1) more than
80% of the total voting power of the corporation resulting from
such Business Combination (including, without limitation, any
corporation which directly or indirectly has beneficial ownership
of 100% of the Company Voting Securities) eligible to elect
directors of such corporation is represented by shares that were
Company Voting Securities immediately prior to such Business
Combination (either by remaining outstanding or being converted),
and such voting power is in substantially the same proportion as
the voting power of such Company Voting Securities immediately
prior to the Business Combination, (2) no person (other than
any publicly traded holding company resulting from such Business
Combination or any employee benefit plan sponsored or maintained by
the Company (or the corporation resulting from such
4
Business
Combination)), becomes the beneficial owner, directly or
indirectly, of 20% or more of the total voting power of the
outstanding voting securities eligible to elect directors of the
corporation resulting from such Business Combination, and
(3) at least a majority of the members of the board of
directors of the corporation resulting from such Business
Combination were Incumbent Directors at the time of the
Board’s approval of the execution of the initial agreement
providing for such Business Combination (any Business Combination
which satisfies the conditions specified in (1), (2) and
(3) shall be deemed to be a “Non-Control
Transaction”); or
(d) the stockholders of the Company
approve a plan of complete liquidation or dissolution of the
Company or the direct or indirect sale or other disposition of all
or substantially all of the assets of the Company and its
Subsidiaries.
Notwithstanding the foregoing, a
“Change of Control” shall not occur solely because any
person acquires beneficial ownership of 20% or more of the Company
Voting Securities as a result of the acquisition of Company Voting
Securities by the Company which reduces the number of Company
Voting Securities outstanding; provided however ,
that if after such acquisition by the Company such person becomes
the beneficial owner of additional Company Voting Securities that
increase the percentage of outstanding Company Voting Securities
beneficially owned by such person, a “Change of
Control” shall then occur.
For purposes of this definition of
“Change of Control,” the term “Subsidiary”
shall mean any corporation or other entity in which the Company has
a direct or indirect ownership interest of 50% or more of the total
combined voting power of the then outstanding securities of such
corporation or other entity entitled to vote generally in the
election of directors
5
or in which the Company has the right to receive 50% or more of the
distribution of profits or 50% or more of the assets on liquidation
or dissolution.
Code . The Internal Revenue
Code of 1986, as amended.
Company . Harris Corporation,
a Delaware corporation, and any successor thereto.
Compensation . The following
items of remuneration which a Participant is paid for work or
personal services performed for an Employer: (a) salary or
wages, including lump sum merit increases; (b) commission paid
pursuant to a sales incentive plan; (c) overtime premium,
shift differential or additional compensation in lieu of overtime
premium; (d) compensation in lieu of vacation; and
(e) any annual bonus or incentive compensation payable in the
form of cash pursuant to an Employer’s Annual Incentive Plan,
an Employer’s Performance Reward Plan, or other similar plan
or award program adopted from time to time by an Employer or any
stock award made in lieu of an annual cash bonus or incentive
compensation; provided , however , that Compensation
also shall include any remuneration which would have been paid to
the Participant for work or personal services performed for an
Employer but for the Participant’s election to have his or
her compensation reduced pursuant to a qualified cash or deferred
arrangement described in section 401(k) of the Code, a cafeteria
plan described in section 125 of the Code or an arrangement
providing qualified transportation fringes described in section
132(f) of the Code; provided further that the remuneration
described in this paragraph shall be Compensation for purposes of
the Plan only if it is paid on or before the later of (i) 2
1 / 2 months after the Participant’s
severance from employment and (ii) the last day of the Plan
Year during which the Participant’s severance from employment
occurs (the “Timing Limitation”), except that the
Timing Limitation shall not apply to payments to a Participant who
does not perform
6
services for an Employer at the time of payment by reason of
Qualified Military Service to the extent that such payments do not
exceed the amounts such Participant would have received if the
Participant had continued to perform services for the Employer
rather than entering Qualified Military Service.
Notwithstanding the foregoing, the
following items also shall be excluded from
“Compensation”: (1) any extraordinary compensation
of a recurring or non-recurring nature not included under items
(a) through (e) above, including one-time recognition
awards and rewards under a referral program of an Employer;
(2) any award made or amount paid pursuant to the Harris
Corporation Stock Incentive Plan or any successor thereto,
including, but not limited to, performance shares, stock options,
restricted stock, stock appreciation rights or other stock-based
awards or dividend equivalents; (3) severance pay, separation
pay, special retirement pay or parachute payments; (4) retention
bonuses or completion bonuses, unless authorized by the
Administrative Committee in a uniform and nondiscriminatory manner
to be included in Compensation; (5) reimbursement or
allowances with respect to expenses incurred in connection with
employment, such as tax equalization, reimbursement for moving
expenses, mileage or expense allowance or education expenses;
(6) indirect compensation such as employer-paid group
insurance premiums or contributions under this Plan or any other
qualified employee benefit plan, other than contributions described
in the immediately preceding paragraph or (7) payments under a
nonqualified unfunded deferred compensation plan.
Notwithstanding any provision herein
to the contrary, the Compensation of a Participant taken into
account for any purpose under the Plan shall not exceed $225,000
(as adjusted pursuant to section 401(a)(17)(B) of the Code). In
addition, in the Plan Year in which
7
an Eligible Employee becomes a Participant, only Compensation
received on or after the date he or she becomes a Participant shall
be taken into account under the Plan.
Compensation Committee . The
Management Development and Compensation Committee of the Board.
Reference herein to the Compensation Committee also shall include
any person or entity to whom the Compensation Committee has
delegated any of its authority pursuant to Section 13.3.
Designated Roth Account . The
subaccount established pursuant to Section 8.1 to which any
designated Roth contributions made for the benefit of a Participant
pursuant to Section 4.1, and earnings and losses thereon, are
credited.
Disability . A
Participant’s total and permanent physical or mental
disability, as evidenced by the Participant’s eligibility for
disability benefits under Title II or Title XVI of the Federal
Social Security Act. A Participant’s Disability shall be
deemed to occur as of the effective date determined by the Social
Security Administration.
Effective Date . The
effective date of this amendment and restatement of the Plan,
which, with respect to the Company and any other Employer as of
June 30, 2007, shall, except as otherwise provided herein, be
July 1, 2007 and, with respect to an entity that becomes an
Employer on or after July 1, 2007, shall be the effective date
as of which the Plan is adopted by such entity.
Eligible Employee . An
Employee other than an Employee (a) the terms of whose
employment are subject to a collective bargaining agreement which
does not provide for the participation of such Employee in the
Plan; (b) who does not receive any Compensation payable in
United States dollars; (c) who is not treated as an Employee
of an Employer on such Employer’s payroll records
(notwithstanding any determination by a court or
administrative
8
agency that such individual is an Employee); (d) who is not a
United States citizen or a resident alien and who provides services
in a location other than the United States or (e) who is
eligible to participate in, or will be eligible to participate in
after satisfaction of applicable age, service or entry date
requirements, any other United States tax-qualified defined
contribution plan sponsored or maintained by the Company or any of
its subsidiaries. No individual who renders services for an
Employer shall be an Eligible Employee if such individual renders
services pursuant to an agreement or arrangement (written or oral)
(1) that such services are to be rendered by the individual as
an independent contractor; (2) with an entity, including a
leasing organization within the meaning of section 414(n)(2) of the
Code, that is not an Employer or Affiliate or (3) that contains a
waiver of participation in the Plan.
Eligible Profit Sharing
Participant . For any Plan Year, a Participant who has
completed a Year of Service on or prior to the last day of the
applicable Plan Year and who (a) is actively employed as an
Eligible Employee on the earlier of (1) the last day of such
Plan Year or (2) the June 30th nearest to the last day of
such Plan Year (the “Eligibility Date”); (b) was
actively employed as an Eligible Employee during such Plan Year but
is not actively employed on the Eligibility Date due to Leave of
Absence or a period of Qualified Military Service; or (c) was
actively employed as an Eligible Employee during such Plan Year but
terminated employment during such Plan Year (1) on or after
the attainment of age 55, (2) due to death or Disability,
(3) as a result of a Reduction in Force or (4) as a
result of a transfer from employment with an Employer to employment
with an Affiliate that is not an Employer.
Eligible Retirement Plan .
Any of (i) an individual retirement account described in
section 408(a) of the Code, (ii) an individual retirement
annuity described in section 408(b) of the Code (other than an
endowment contract), (iii) an employees’ trust described
in section
9
401(a) of the Code which is exempt from tax under section 501(a) of
the Code, (iv) an annuity plan described in section 403(a) of
the Code; (v) an eligible deferred compensation plan described
in section 457(b) of the Code which is maintained by a state,
political subdivision of a state or any agency or instrumentality
of a state or political subdivision of a state and (vi) an
annuity contract described in section 403(b) of the Code.
Employee . An individual
whose relationship with an Employer is, under common law, that of
an employee.
Employer . The Company or any
other entity that, with the consent of the Compensation Committee,
elects to participate in the Plan in the manner described in
Section 14.1, including any successor entity that is
substituted for an Employer pursuant to Section 14.4. If an
Employer withdraws from participation in the Plan pursuant to
Section 14.2, or terminates its participation in the Plan
pursuant to Section 17.3, it shall thereupon cease to be an
Employer. An entity automatically shall cease being an Employer as
of the date it ceases to be an Affiliate, unless the Compensation
Committee consents to such entity’s continued participation
in the Plan.
ERISA . The Employee
Retirement Income Security Act of 1974, as amended.
Executive Committee . The
Executive and Finance Committee of the Board (or such other
committee of the Board as the Board may designate from time to
time). Reference herein to the Executive Committee also shall
include any person or entity to whom the Executive Committee has
delegated any of its authority pursuant to Section 13.3.
Fiscal Year . The fiscal year
of the Company.
10
Full-Time Employee . An
Employee who regularly is scheduled by an Employer to work 30 or
more hours per week and who is not designated on the payroll
records of an Employer as a temporary employee, intern, or co-op
employee.
Harris Stock . Common stock
of the Company.
Harris Stock Fund . An
investment option, the assets of which consist primarily of shares
of Harris Stock.
Highly Compensated Employee .
For a Plan Year, any Employee who (a) is a 5%-owner (as
determined under section 416(i)(1) of the Code) at any time during
the current Plan Year or the preceding Plan Year or (b) for
the preceding Plan Year, was paid compensation in excess of
$100,000 (as adjusted in accordance with section 414(q)(1)(B) of
the Code) from an Employer or Affiliate and was a member of the
“top-paid group” (as defined in section 414(q)(3) of
the Code).
HITS Business Unit Employee .
An Eligible Employee of an Employer that is designated as a member
of the Harris Information Technology Services Business Unit,
including without limitation, Harris Technical Services Corporation
and Multimax Incorporated.
Hour of Service . Each hour
for which an Employee is paid or entitled to payment for the
performance of duties for an Employer.
Investment Committee . The
Investment Committee—Employee Benefit Plans of the Company.
Reference herein to the Investment Committee also shall include any
person or entity to whom the Investment Committee has delegated any
of its authority pursuant to Section 13.3.
Leave of Absence . A period
of interruption of the active employment of an Employee granted by
an Employer or Predecessor Company with the understanding that
the
11
Employee will return to active employment at the expiration of such
period (or such extension thereof granted by the Employer or
Predecessor Company). The term “Leave of Absence” does
not include a period of Qualified Military Service.
Legacy HTSC Employee . An
Eligible Employee who as of June 30, 2007 (i) was an
Employee of Harris Technical Services Corporation and (ii) was
a Participant in the Plan.
Matching Account . The
subaccount established pursuant to Section 8.1 to which any
matching contributions made for the benefit of a Participant
pursuant to Section 4.2, and earnings and losses thereon, are
credited.
Matching Eligibility
Requirement . The period of Service that a Participant must
complete to permit the Participant to be eligible to receive
matching contributions pursuant to Section 4.2. For a HITS
Business Unit Employee, such period is six months. For an Eligible
Employee other than a HITS Business Unit Employee, such period is
one Year of Service.
Maximum Contribution
Percentage . The maximum percentage of a Participant’s
Compensation (other than PRP Compensation) for a payroll period
that may be contributed to the Plan pursuant to
Section 5.1(a), as determined from time to time by the
Administrative Committee. The Administrative Committee in its sole
discretion may establish different Maximum Contribution Percentages
with respect to Participants who are not Highly Compensated
Employees for a given Plan Year and Participants who are Highly
Compensated Employees for such Plan Year, and with respect to
classes of Highly Compensated Employees for a given Plan
Year.
Maximum Deferral Percentage .
The maximum percentage of a Participant’s Compensation (other
than PRP Compensation) for a payroll period that may be contributed
to the Plan pursuant to Section 4.1(a), as determined from
time to time by the Administrative
12
Committee. The Administrative Committee in its sole discretion may
establish different Maximum Deferral Percentages with respect to
Participants who are not Highly Compensated Employees for a given
Plan Year and Participants who are Highly Compensated Employees for
such Plan Year, and with respect to classes of Highly Compensated
Employees for a given Plan Year.
Participant . An Eligible
Employee who has satisfied the requirements set forth in
Section 3.1. An individual shall cease to be a Participant
upon the complete distribution of his or her vested Account.
Plan . The plan herein set
forth, as from time to time amended.
Plan Year . The Fiscal Year.
Plan Year . The Fiscal Year.
Predecessor Company . Any
entity (a) of which an Affiliate is a successor by reason of
having acquired all or substantially all of its business and assets
or (b) from which an Affiliate acquired a business formerly
conducted by such entity; provided , however , that
in the case of any such entity that continues to conduct a trade or
business subsequent to the acquisition by an Affiliate referred in
(a) or (b) above, the status of such entity as a
Predecessor Company relates only to the period of time prior to the
date of such acquisition.
Pre-Tax Account . The
subaccount established pursuant to Section 8.1 to which any
pre-tax contributions made for the benefit of a Participant
pursuant to Section 4.1, and earnings and losses thereon, are
credited.
Profit Sharing Account . The
subaccount established pursuant to Section 8.1 to which any
profit sharing contributions made for the benefit of a Participant
pursuant to Section 4.3, and earnings and losses thereon, are
credited.
13
PRP Compensation .
Compensation payable to a Participant pursuant to an
Employer’s Performance Reward Plan or any similar broad-based
cash incentive plan, or any successor plan thereto.
Qualified Military Service .
An individual’s service in the uniformed services (as defined
in 38 U.S.C. § 4303) if such individual is entitled to
reemployment rights under USERRA with respect to such
service.
Reduction in Force . An
involuntary or voluntary reduction in force, as defined in the
Company’s Severance Pay Plan.
Regulations . Written
regulations promulgated by the Department of Labor construing Title
I of ERISA or by the Internal Revenue Service construing the
Code.
Rollover Account . The
subaccount established pursuant to Section 8.1 to which any
rollover contributions made by a Participant pursuant to
Section 5.2, and earnings and losses thereon, are
credited.
Savings Account . The
subaccount established pursuant to Section 8.1 to which any
savings contributions under the Plan as in effect prior to
July 1, 1983, and earnings and losses thereon, are
credited.
Service . The aggregate of
the periods during which an Employee is employed by an Employer and
any periods of employment or service taken into account pursuant to
Sections 11.3 and 11.4, subject to the following:
(a) An Employee shall be deemed to be
employed by an Employer during (1) any period of absence from
employment by an Employer that is of less than twelve months’
duration, (2) the first twelve months of any period of absence
from employment by an Employer for any reason other than the
Employee’s quitting, retiring, being
14
discharged or
death, and (3) any period of absence from employment by an
Employer during which the Employee is in Qualified Military
Service, provided that the Employee returns to the employ of an
Employer within the period prescribed by USERRA.
(b) An Employee’s period of
employment by an entity other than an Affiliate that becomes a
Predecessor Company shall be included as Service only to the extent
expressly provided in the documents effecting the acquisition or
otherwise required by law.
(c) An Employee’s period of
employment by an entity in which the Company owns less than 80% but
more than 1% of the outstanding equity interest (a “joint
venture”) shall be included as Service if (1) the
Company or its delegate designates employment with the joint
venture as eligible for service credit under the Plan;
(2) such Employee was employed by an Affiliate prior to such
Employee’s employment by the joint venture and was not
employed by any person or entity other than an Affiliate (an
“unrelated employer”) between such Employee’s
employment by an Affiliate and the joint venture; and (3) such
Employee returns to employment with an Affiliate following the
Employee’s termination of employment with the joint venture
without having been employed by an unrelated employer between such
Employee’s employment by the joint venture and an
Affiliate.
(d) Solely for purposes of
determining the nonforfeitable portion of a Participant’s
Account under Section 9.2(b), if an Employee (1) is
terminated by an Employer or Affiliate in connection with a
Reduction in Force and (2) has, as of the date of such
termination, completed at least one Year of Service, the Service of
the Employee
15
shall include
the first twelve months of absence from employment, effective as of
the date of such termination of employment.
Service shall be computed in terms of completed years, completed
months and completed days.
Trust . The trust described
in Section 7.1 and created by agreement between the Company
and the Trustee.
Trust Fund . All money and
property of every kind of the Trust held by the Trustee pursuant to
the terms of the agreement governing the Trust.
Trustee . The person or
entity appointed by the Executive Committee and serving as trustee
of the Trust or, if there is more than one such trustee acting at a
particular time, all of such trustees collectively.
USERRA . The Uniformed
Services Employment and Reemployment Rights Act of 1994, as
amended.
Valuation Date . Each day on
which the New York Stock Exchange is open for trading and any other
day determined by the Administrative Committee.
Wage Determination HES
Employee . An Eligible Employee performing services for the
Harris Enterprise Services business unit of Harris Technical
Services Corporation who is covered by a wage determination
contract.
Year of Service . A period of
Service of 365 days.
ARTICLE 3
PARTICIPATION
Section 3.1. Eligibility for
Participation . Each Eligible Employee who was a Participant
immediately before the Effective Date shall continue to be a
Participant as of the
16
Effective Date. Each other Eligible Employee shall become a
Participant on the day he or she first performs an Hour of
Service.
Section 3.2. Election of
Pre-Tax Contributions, Designated Roth Contributions and After-Tax
Contributions . (a) Participant Election . A Participant
who desires to make pre-tax contributions, designated Roth
contributions or after-tax contributions to the Plan shall make an
election, in accordance with procedures prescribed by the
Administrative Committee, specifying the Participant’s chosen
rate of such contributions. Such election shall authorize the
Participant’s Employer to reduce the Participant’s
Compensation by the amount of any such pre-tax contributions, shall
authorize the Participant’s Employer to make regular payroll
deductions of any such designated Roth contributions or after-tax
contributions, and shall evidence the Participant’s
acceptance and agreement to all provisions of the Plan. Any
election made pursuant to this Section 3.2(a) shall be effective
only with respect to Compensation not currently available to the
Participant as of the effective date of such election and shall be
effective as of the first payroll period commencing after the date
on which the election is received, or such later date as may be
administratively practicable; provided , however,
that an election with respect to PRP Compensation shall be
effective for the first payment of PRP Compensation following the
election.
(b) Deemed Election for
Full-Time Employees . A Participant who is a Full-Time Employee
and who does not at the time and in the manner prescribed by the
Administrative Committee elect otherwise shall be deemed to have
elected to make pre-tax contributions to the Plan each payroll
period at the rate of 6% of the Participant’s Compensation
(other than PRP Compensation) for such payroll period and to have
authorized the Participant’s Employer to reduce his or her
Compensation by the amount thereof. Any deemed election described
in this
17
Section 3.2(b) shall be effective only with respect to
Compensation not currently available to the Participant as of the
effective date of the deemed election and shall be effective as of
the first payroll period commencing after the Participant becomes
eligible to participate in the Plan, or such later date as may be
administratively practicable.
Section 3.3. Transfers to
Affiliates . If a Participant is transferred from one Employer
to another Employer or from an Employer to an Affiliate that is not
an Employer, such transfer shall not terminate the
Participant’s participation in the Plan, and such Participant
shall continue to participate in the Plan until an event occurs
which would have entitled the Participant to a complete
distribution of the Participant’s vested interest in his or
her Account had the Participant continued to be employed by an
Employer until the occurrence of such event. Notwithstanding the
foregoing, a Participant shall not be entitled to make pre-tax
contributions, designated Roth contributions, after-tax
contributions or rollover contributions to the Plan, to receive
under the Plan allocations of matching contributions or to receive
under the Plan allocations of profit sharing contributions during
any period of employment by an Affiliate that is not an Employer,
and periods of employment by an Affiliate that is not an Employer
shall be taken into account only to the extent set forth in
Section 11.3. Payments that are received by a Participant from
an Affiliate that is not an Employer shall not be treated as
Compensation for any purpose under the Plan.
ARTICLE 4
PRE-TAX, DESIGNATED ROTH, MATCHING AND PROFIT SHARING
CONTRIBUTIONS
Section 4.1. Pre-Tax
Contributions and Designated Roth Contributions . (a)
Initial Election . Subject to the limitations set forth in
Article 6, each Employer shall make a
18
pre-tax contribution and/or a designated Roth contribution for each
payroll period on behalf of each Participant who is an Eligible
Employee of such Employer in an amount equal to a whole percentage
of such Participant’s Compensation (other than PRP
Compensation) for such payroll period as elected by the Participant
pursuant to Section 3.2. The percentage of Compensation so
designated by a Participant for a payroll period may not be less
than 1% and may not be more than the Maximum Deferral Percentage
with respect to such Participant. Notwithstanding the foregoing,
the aggregate of a Participant’s pre-tax contributions and
designated Roth contributions for a payroll period pursuant to this
Section 4.1(a) and a Participant’s after-tax
contributions for a payroll period pursuant to Section 5.1(a)
may not exceed an amount equal to the Maximum Deferral Percentage
with respect to such Participant.
(b) Changes in the Rate or
Suspension of Pre-Tax Contributions and Designated Roth
Contributions . A Participant’s pre-tax contributions and
designated Roth contributions pursuant to Section 4.1(a) shall
continue in effect at the rate elected by the Participant pursuant
to Section 3.2 until the Participant changes or suspends such
election. A Participant may change or suspend such election at such
time and in such manner as may be prescribed by the Administrative
Committee, provided that only the last change made by a Participant
during a payroll period shall be effectuated. Such change or
suspension shall be effective as of the first payroll period
commencing after the date on which the change or suspension is
received, or such later payroll period as may be administratively
practicable. A Participant who has suspended pre-tax contributions
or designated Roth contributions pursuant to this subsection may
resume pre-tax contributions or designated Roth contributions by
making an election at such time and in such manner as may be
prescribed by the Administrative Committee.
19
(c) Performance Reward Plan
Deferral Election . Subject to the limitations set forth in
Article 6, a Participant may elect, in accordance with
procedures prescribed by the Administrative Committee, to have his
or her Employer make a pre-tax contribution and/or a designated
Roth contribution on his or her behalf of PRP Compensation, if any.
The percentage of PRP Compensation so elected by a Participant
pursuant to this Section 4.1(c), when aggregated with the
percentage of PRP Compensation contributed to the Plan on an
after-tax basis pursuant to Section 5.1(c), shall be 0%, 50%
or 100%.
(d) Catch-Up
Contributions . Each Participant who (i) is eligible to
make pre-tax contributions or designated Roth contributions under
the Plan and (ii) will attain age 50 before the end of a
calendar year ending with or within a Plan Year shall be eligible
to have pre-tax contributions and/or designated Roth contributions
made on his or her behalf in addition to those described in
Sections 4.1(a) and (c) (“catch-up
contributions”). Catch-up contributions shall be elected,
made, suspended, resumed and credited in accordance with and
subject to the rules and limitations of section 414(v) of the Code
and such other rules and limitations prescribed by the
Administrative Committee from time to time; provided ,
however , that (i) the amount of catch-up contributions
made on behalf of a Participant during a calendar year shall not
exceed the maximum amount permitted under section 414(v)(2) of the
Code for the calendar year ($5,000 for 2007) and (ii) the
amount of catch-up contributions made on behalf of a Participant
for a payroll period shall not exceed the percentage of the
Participant’s Compensation that is established from time to
time by the Administrative Committee. Catch-up contributions shall
not be taken into account for purposes of Sections 6.1 and
6.3, and the Plan shall not be treated as failing to satisfy its
provisions implementing the requirements of section 401(k)(3),
401(k)(11),
20
401(k)(12), 410(b) or 416 of the Code, as applicable, by reason of
the making of catch-up contributions.
(e) Designation of
Contributions as Pre-Tax Contributions or Designated Roth
Contributions . Elections by Participants to commence, change,
suspend or resume contributions under this Section 4.1 shall
designate (i) the portion of such contributions that are to be
pre-tax contributions excludable from the Participant’s gross
income pursuant to section 402(g) of the Code and (ii) the
portion of such contributions that are to be designated Roth
contributions includable in the Participant’s gross income
pursuant to section 402A of the Code. Such designations shall be
irrevocable with respect to contributions made pursuant to such
elections.
Section 4.2. Matching
Contributions . (a) In General . Subject to the
limitations set forth in Article 6, each Employer shall make a
matching contribution for each payroll period on behalf of each
Participant who is an Eligible Employee of such Employer, and who
has satisfied the Matching Eligibility Requirement. The rate of
matching contribution shall be as set forth in Section 4.2(b),
(c) or (d), as applicable.
(b) Wage Determination HES
Employees . The rate of matching contribution with respect to a
Wage Determination HES Employee shall equal 50% of the aggregate of
(i) the pre-tax contribution and/or designated Roth
contribution made on behalf of such Participant pursuant to
Section 4.1(a) and (ii) the after-tax contribution made
on behalf of such Participant pursuant to Section 5.1(a);
provided , however , that the matching contribution
shall not exceed 4% of the Participant’s Compensation for a
payroll period.
(c) HITS Business Unit
Employees Other Than Wage Determination HES Employees . The
rate of matching contribution with respect to a HITS Business Unit
Employee who is a Legacy HTSC Employee shall equal 100% of the
aggregate of (i) the pre-tax
21
contribution and/or designated Roth contribution made on behalf of
such Participant pursuant to Section 4.1(a) and (ii) the
after-tax contribution made on behalf of such Participant pursuant
to Section 5.1(a). The rate of matching contribution with
respect to a HITS Business Unit Employee who is neither a Wage
Determination HES Employee nor a Legacy HTSC Employee shall equal
50% of the aggregate of (i) the pre-tax contribution and/or
designated Roth contribution made on behalf of such Participant
pursuant to Section 4.1(a) and (ii) the after-tax
contribution made on behalf of such Participant pursuant to
Section 5.1(a). In each case, however, the matching
contribution shall not exceed 6% of the Participant’s
Compensation for a payroll period.
(d) Eligible Employees Other
Than HITS Business Unit Employees . The rate of matching
contribution with respect to an Eligible Employee other than a HITS
Business Unit Employee shall equal 100% of the aggregate of
(i) the pre-tax contribution and/or designated Roth
contribution made on behalf of such Participant pursuant to
Section 4.1(a) and (ii) the after-tax contribution made
on behalf of such Participant pursuant to Section 5.1(a);
provided , however , that the matching contribution
shall not exceed 6% of the Participant’s Compensation for a
payroll period.
(e) Contributions Not
Eligible for Match . Notwithstanding the foregoing, an Employer
shall not make a matching contribution with respect to (i) any
contribution to the Plan of PRP Compensation, irrespective of
whether such contribution is made pursuant to Section 4.1(c)
or Section 5.1(c) or (ii) any catch-up contribution made
pursuant to Section 4.1(d).
Section 4.3. Profit Sharing
Contributions . Subject to the limitations set forth in
Article 6, each Plan Year the Employers in their discretion
may make a profit sharing contribution to the Trust in such amount
as the Employers in their discretion may determine.
22
Such discretionary profit sharing contribution shall be allocated
pursuant to Section 8.6 among Eligible Profit Sharing
Participants for the Plan Year.
Section 4.4. Deposit of
Contributions . An Employer shall deliver to the Trustee any
pre-tax contributions and designated Roth contributions as soon as
administratively practicable after the date such contributions
otherwise would have been paid to the Participants as cash
compensation, but in no event later than the 15th business day of
the month following the month during which such contributions
otherwise would have been paid to the Participants. An Employer
shall deliver to the Trustee any matching contributions
concurrently with the delivery of the pre-tax contributions,
designated Roth contributions or after-tax contributions to which
such matching contributions relate. An Employer shall deliver to
the Trustee any profit sharing contribution for a Plan Year no
later than the date prescribed by the Code, including any
authorized extensions thereof, for filing such Employer’s
federal income tax return for the Fiscal Year which ends with such
Plan Year.
Section 4.5. Form of
Contributions . Subject to Section 7.2(b) with respect to
contributions invested in the Harris Stock Fund, pre-tax
contributions, designated Roth contributions, matching
contributions and profit sharing contributions shall be contributed
to the Plan in cash.
ARTICLE 5
AFTER-TAX AND ROLLOVER CONTRIBUTIONS
Section 5.1. After-Tax
Contributions . (a) Initial Election . Subject to the
limitations set forth in Article 6, each Participant may elect
in accordance with Section 3.2 to make an after-tax
contribution of Compensation (other than PRP Compensation) for each
payroll period by payroll deduction. The percentage of Compensation
so designated for a payroll period
23
shall be a whole percentage not less than 1% and not more than the
Maximum Contribution Percentage with respect to such Participant.
Notwithstanding the foregoing, the aggregate of a
Participant’s pre-tax contributions and designated Roth
contributions for a payroll period pursuant to Section 4.1(a)
and a Participant’s after-tax contributions for a payroll
period pursuant to this Section 5.1(a) may not exceed an
amount equal to the Maximum Contribution Percentage with respect to
such Participant. An Employer shall deliver to the Trustee any
after-tax contributions as soon as administratively practicable
after the date such contributions otherwise would have been paid to
the Participants as cash compensation, but in no event later than
the 15th business day of the month following the month during which
such contributions otherwise would have been paid to the
Participants.
(b) Changes in the Rate or
Suspension of After-Tax Contributions . A Participant’s
after-tax contributions pursuant to Section 5.1(a) shall
continue in effect at the rate elected by the Participant pursuant
to Section 3.2 until the Participant changes or suspends such
election. A Participant may change or suspend such election at such
time and in such manner as may be prescribed by the Administrative
Committee, provided that only the last change made by a Participant
during a payroll period shall be effectuated. Such change or
suspension shall be effective as of the first payroll period
commencing after the date on which the change or suspension is
received, or such later payroll period as may be administratively
practicable. A Participant who has suspended after-tax
contributions pursuant to this subsection may resume after-tax
contributions by making an election at such time and in such manner
as may be prescribed by the Administrative Committee.
(c) Performance Reward Plan
Contribution Election . Subject to the limitations set forth in
Article 6, a Participant may elect, in accordance with
procedures
24
prescribed by the Administrative Committee, to make an after-tax
contribution of PRP Compensation, if any. The percentage of PRP
Compensation so elected by a Participant pursuant to this
Section 5.1(c), when aggregated with the percentage of PRP
Compensation contributed to the Plan as a pre-tax contribution
and/or designated Roth contribution pursuant to
Section 4.1(c), shall be 0%, 50% or 100%.
(d) Form of
Contributions . Subject to Section 7.2(b) with respect to
contributions invested in the Harris Stock Fund, after-tax
contributions shall be contributed to the Plan in cash.
Section 5.2. Rollover
Contributions . (a) Requirements for Rollover
Contributions . If a Participant receives an “eligible
rollover distribution” (within the meaning of section
402(c)(4) of the Code) from an Eligible Retirement Plan, then such
Participant may contribute to the Plan an amount that does not
exceed the amount of such eligible rollover distribution (including
the proceeds from the sale of any property received as part of such
eligible rollover distribution). Notwithstanding the foregoing,
rollover contributions to the Plan may not include any portion of
an eligible rollover distribution that consists of
(i) after-tax employee contributions; (ii) designated
Roth contributions described in section 402A of the Code or any
related earnings with respect to such contributions or
(iii) contributions to a Roth individual retirement account
described in section 408A of the Code or any related earnings with
respect to such contributions. A rollover contribution may be in
the form of cash or, with the consent of the Administrative
Committee or its delegate, a promissory note evidencing an
outstanding loan balance.
(b) Delivery of Rollover
Contributions . Any rollover contribution made pursuant to this
Section shall be delivered by the Participant to the Trustee on or
before the 60th
25
day after the day on which the Participant receives the
distribution (or on or before such later date as may be prescribed
by law) or shall be transferred to the Trustee on behalf of the
Participant directly from the trust from which the eligible
rollover distribution is made. Any such contribution must be
accompanied by any information or documentation in connection
therewith requested by the Administrative Committee or the Trustee.
Notwithstanding the foregoing, the Administrative Committee shall
not permit a rollover contribution if in its judgment accepting
such contribution would cause the Plan to violate any provision of
the Code or Regulations.
ARTICLE 6
LIMITATIONS ON CONTRIBUTIONS
Section 6.1. Annual Limit on
Pre-Tax Contributions and Designated Roth Contributions . (a)
General Rule . Notwithstanding the provisions of
Section 4.1, the aggregate of pre-tax contributions and
designated Roth contributions made on behalf of a Participant for
any calendar year pursuant to such Section and pursuant to any
other plan or arrangement described in section 401(k) of the Code
which is maintained by an Employer or Affiliate shall not exceed
the dollar limitation in effect for such calendar year under
section 402(g) of the Code, except to the extent permitted under
Section 4.1(d) of the Plan and section 414(v) of the Code with
respect to “catch-up contributions.”
(b) Excess Pre-Tax
Contributions and Designated Roth Contributions .
(1) Characterization as After-Tax
Contributions . Except to the extent set forth in
Section 4.1(d) of the Plan and section 414(v) of the Code with
respect to “catch-up contributions,” if for any
calendar year the pre-tax contributions and designated Roth
contributions to the Plan or the aggregate of the pre-tax
26
contributions
and the designated Roth contributions to the Plan plus amounts
contributed under other plans or arrangements described in section
401(k), 403(b), 408(k) or 408(p) of the Code for a Participant
reach the limit imposed by subsection (a) of this Section for
such calendar year, any contributions under the Plan during the
calendar year that exceed such limit (“excess
deferrals”) shall be characterized as after-tax
contributions. The Participant for whom any contributions are
recharacterized as after-tax contributions pursuant to this
paragraph shall designate the extent to which the contributions to
be recharacterized shall be pre-tax contributions or designated
Roth contributions (but only up to the extent that such types of
contributions were made by the Participant to the Plan for the Plan
Year) and, in the event that any such designation is not made or is
incomplete, the Participant’s pre-tax contributions shall be
recharacterized up to the extent pre-tax contributions were made to
the Plan for the Plan Year and, to the extent that the
Participant’s excess deferrals exceed such pre-tax
contributions, the Participant’s designated Roth
contributions made to the Plan for the Plan Year shall be
recharacterized.
(2) Distribution .
Notwithstanding the foregoing, and except to the extent set forth
in Section 4.1(d) of the Plan and section 414(v) of the Code
with respect to “catch-up contributions,” if any excess
deferrals of a Participant are not characterized as after-tax
contributions, because of the limitation set forth in
Section 5.1 on the amount of after-tax contributions that may
be made to the Plan or otherwise, such Participant shall, pursuant
to such rules and at such time following such calendar year as
determined by the Administrative Committee, be
27
allowed to
submit a written request that the excess deferrals, plus any income
and minus any loss allocable thereto, be distributed to the
Participant. The amount of any income or loss allocable to such
excess deferrals shall be determined pursuant to Regulations. Such
amount of excess deferrals, as adjusted for income or loss, shall
be distributed to the Participant no later than April 15
following the calendar year for which such contributions were made.
Notwithstanding the provisions of this subsection (b)(2), any such
excess deferrals shall be treated as “annual additions”
for purposes of Section 6.3 for the limitation year in which
such contributions were made. The amount of excess deferrals that
may be distributed under this subsection (b)(2) with respect to a
Participant for a calendar year shall be reduced by any amounts
previously distributed pursuant to Section 6.2(d)(1) with
respect to such Participant for such year. The Participant to whom
any excess deferrals are distributed pursuant to this paragraph
shall designate the extent to which such distributed excess
deferrals are treated as pre-tax contributions or designated Roth
contributions (but only up to the extent that such types of
contributions were made by the Participant to the Plan for the Plan
Year) and, in the event that any such designation is not made or is
incomplete, such distributed excess deferrals shall be treated as
pre-tax contributions up to the extent pre-tax contributions were
made to the Plan for the Plan Year and, to the extent that such
distributed excess deferrals exceed such pre-tax contributions,
such excess deferrals shall be treated as distributions of
designated Roth contributions made to the Plan for the Plan
Year.
28
Section 6.2. Limits on
Contributions for Highly Compensated Employees .
(a) Actual Deferral
Percentage Test Imposed by Section 401(k)(3) of the Code .
Notwithstanding the provisions of Section 4.1, if the pre-tax
contributions and designated Roth contributions made pursuant to
Section 4.1 for a Plan Year fail, or in the judgment of the
Administrative Committee are likely to fail, to satisfy both of the
tests set forth in paragraphs (1) and (2) of this
subsection, the adjustments prescribed in Section 6.2(d)(1)
shall be made. Any pre-tax contributions or designated Roth
contributions which are “catch-up contributions”
described in Section 4.1(d) shall not be considered to be
pre-tax contributions or designated Roth contributions for purposes
of determining whether the tests set forth in paragraphs
(1) and (2) of this subsection are satisfied or for
purposes of making any adjustments prescribed by Section
6.2(d)(1).
(1) The HCE average deferral
percentage for such year does not exceed the product of the NHCE
average deferral percentage for such year and 1.25.
(2) The HCE average deferral
percentage for such year (i) does not exceed the NHCE average
deferral percentage for such year by more than two percentage
points and (ii) does not exceed the product of the NHCE
avera






