Exhibit 4.27
AMENDMENT NO. 1
TO
RETIREMENT SAVINGS TRUST AND
PLAN
A PROTOTYPE PLAN SPONSORED
BY
CALFEE, HALTER & GRISWOLD
LLP
This Amendment No. 1 is executed as
of the date set forth below by Calfee, Halter & Griswold LLP
(hereinafter called the “Sponsor”);
WITNESSETH
:
WHEREAS, the Sponsor previously
adopted a Retirement Savings Trust and Plan in the form of a
Prototype Plan (hereinafter called the “Trust and
Plan”), which was approved by the Internal Revenue Service on
February 26, 2002; and
WHEREAS, the Sponsor reserved the
right, pursuant to Section 28.1 of the Trust and Plan to amend the
Trust and Plan and its related Adoption Agreements; and
WHEREAS, the Sponsor now desires to
amend the Trust and Plan and the Adoption Agreements in order to
conform said documents with certain changes to the plan
qualification requirements under Section 401(a) of the Internal
Revenue Code which were made by the Economic Growth and Tax Relief
Reconciliation Act of 2001 (“EGTRRA”), as further
amended by the Job Creation and Worker Assistance Act of
2002;
NOW, THEREFORE, pursuant to Section
28.1 of the Trust and Plan, the Sponsor hereby amends the Trust and
Plan and the related Adoption Agreements (which are attached hereto
and made a part hereof in the form of Exhibits A and B), as
follows:
PART I - AMENDMENTS TO THE
TRUST AND PLAN
1.
Section 2.14 of Article 2 of the Trust and Plan is hereby amended,
effective as of January 1, 2002, by the deletion of subparagraphs
(b) and (c) of said Section 2.14 and the substitution in lieu
thereof of new subparagraphs (b) and (c) to read as
follows:
“(b)
Safe Harbor Adjustments to
Compensation. To the
extent elected in the Adoption Agreement, the following adjustments
will be made to the “Compensation” of an
Employee:
(i)
Compensation shall be increased for
salary reduction amounts which are excluded from the taxable income
of the Employee under Code Sections 125 (including amounts deemed
to be contributions under Code Section 125), 132(f)(4), 402(e)(3)
and 402(h).
(ii)
Compensation shall be reduced by all
of the following amounts even if they are taxable to the
Employee:
(A)
Expense reimbursements, expense
allowances or moving expenses;
(B)
Cash and noncash fringe benefits and
welfare benefits; and
(C)
Deferred compensation.
(c)
Compensation Limit
. In addition to other applicable
limitations set forth in the Trust and Plan, and notwithstanding
any other provision of the Trust and Plan to the contrary, the
maximum annual Compensation of each Employee that can be taken into
account for any purpose under the Trust and Plan subsequent to
December 31, 1999 shall be: (A) for Plan Years beginning before
January 1, 2002, One Hundred Seventy Thousand Dollars ($170,000);
and (B) for Plan Years beginning on or after January 1, 2002, Two
Hundred Thousand Dollars ($200,000), plus such adjustments for cost
of living as shall be prescribed by the Secretary of the Treasury
in accordance with Code Section 401(a)(17)(B). The cost-of-living
adjustment in effect for a calendar year applies to any period, not
exceeding twelve (12) months, over which Compensation is determined
(determination period) beginning in such calendar year. If a
determination period consists of fewer than twelve (12) months, the
annual Compensation limit will be multiplied by a fraction, the
numerator of which is the number of months in the determination
period, and the denominator of which is twelve
(12).”
2.
Section 5.6 of Article 5 of the Trust and Plan is hereby amended,
effective as of January 1, 2002, by the deletion of said Section
5.6 in its entirety and the substitution in lieu thereof of a new
Section 5.6 to read as follows:
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“5.6
Suspension of Pre-Tax Contributions .
In the event a Participant receives
a distribution from his Pre-Tax Account as a result of hardship as
described in Article 14, such Participant’s pre-tax
contributions under Section 4.3, Section 5.1 and Section 5.8 hereof
shall be suspended: (A) for hardship distributions taken prior to
January 1, 2002, for a twelve (12) month period after his receipt
of such hardship distribution; and (B) for hardship distributions
taken on or after January 1, 2002, for a six (6) month period after
his receipt of such hardship distribution. Notwithstanding the
foregoing, if the Company shall so elect pursuant to the Adoption
Agreement, the pre-tax contributions of Participants who took
hardship distributions on or after January 1, 2001 and prior to
January 1, 2002 shall be suspended for a period ending on the later
of (i) the date which is six (6) months after his receipt of the
hardship distribution, and (ii) January 1, 2002.”
3.
Article 5 of the Trust and Plan is hereby amended, effective as of
January 1, 2002, by the addition of a new Section 5.8 at the
end of said Article 5 to read as follows:
“5.8
Age 50 Catch-Up Contributions .
If elected by the Company in the
Adoption Agreement, for periods beginning on or after January 1,
2002, any Active Participant who is eligible to make pre-tax
contributions to this Trust and Plan pursuant to Section 5.1 hereof
and who has attained age fifty (50) or will attain age fifty (50)
before the close of the taxable year for which contributions under
this Section 5.8 are made 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 be
additional pre-tax contributions, the amount of
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which shall not exceed the lesser of
(i) the “applicable dollar amount”, or (ii) the
Participant’s compensation (as defined in Code Section
415(c)(3)) for his taxable year reduced by any other elective
deferrals (within the meaning of Code Section 402(g)) of the
Participant for such taxable year. For purposes of this Section,
the “applicable dollar amount” shall be equal to the
following amounts:
|
Taxable Year of
|
|
|
|
|
Participant
|
|
Applicable Dollar Amount
|
|
|
|
|
|
|
|
2002
|
|
$
|
1,000.00
|
|
|
|
|
|
|
|
2003
|
|
$
|
2,000.00
|
|
|
|
|
|
|
|
2004
|
|
$
|
3,000.00
|
|
|
|
|
|
|
|
2005
|
|
$
|
4,000.00
|
|
|
|
|
|
|
|
2006
|
|
$
|
5,000.00
|
|
For taxable years beginning after
2006, the “applicable dollar amount” shall be an amount
determined annually by the Secretary of the Treasury in accordance
with Section 414(v)(2)(C) of the Code.
All amounts designated by a
Participant as catch-up contributions shall be paid to the Trustee
in cash not later than the earliest date on which such amounts can
reasonably be segregated from a Participating Company’s
general assets. In any event, such amounts shall be paid to the
Trustee not later than the fifteenth (15th) business day of the
month immediately following the month in which such amount would
otherwise have been payable to the Participant in cash. Catch-up
contributions made to the Trust and Plan on behalf of a Participant
shall be credited as of the date such amounts are
received
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by the Trustee to the Pre-Tax
Account established for the benefit of such Participant or, at the
Administrator’s discretion, to a separate subaccount of such
Pre-Tax Account. Such amounts shall be fully vested and
nonforfeitable at all times.
Notwithstanding any other provision
of this Trust and Plan to the contrary, catch-up contributions
shall not be taken into account in applying:
(a)
the limits of Code Section 415,
which limits are primarily described in Article 26
hereof;
(b)
the limit of Code Section 402(g),
which limit is primarily described in Section 8.2
hereof;
(c)
the limits of Code Section
401(a)(30) and the Plan provisions implementing the requirements of
Code Section 401(k)(3), which limits and requirements are primarily
described in Sections 8.3 hereof;
(d)
the Plan provisions implementing the
requirements of Code Section 416 for the Plan Year of contribution,
which provisions are set forth in Article 25 hereof; and
(e)
the requirements of Code Section
410(b) for the Plan Year of contribution.”
4.
Section 7.6 of Article 7 of the Trust and Plan is hereby amended,
effective as of January 1, 2002, by the deletion of said Section
7.6 and the substitution in lieu thereof of a new Section 7.6 to
read as follows:
“7.6
Suspension of Contributions .
In the event a Participant receives
a distribution from his Pre-Tax Account as a result of hardship as
described in Article 14, such Participant’s after tax
contributions under Section 7.1 hereof shall be suspended: (A) for
hardship distributions taken prior to January 1, 2002, for a twelve
(12) month period after his receipt of such hardship distribution;
and (B) for hardship distributions taken on or after January 1,
2002, for a six
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(6) month period after his receipt
of such hardship distribution. Notwithstanding the foregoing, if
the Company shall so elect pursuant to the Adoption Agreement, the
after tax contributions of Participants who took hardship
distributions on or after January 1, 2001 and prior to January 1,
2002 shall be suspended for a period ending on the later of (i) the
date which is six (6) months after receipt of the hardship
distribution and (ii) January 1, 2002.”
5.
Section 8.1 of Article 8 of the Trust and Plan is hereby amended,
effective as of January 1, 2002, by the deletion of subparagraph
(d) of said Section 8.1 and the substitution in lieu thereof of a
new subparagraph (d) to read as follows:
“(d)
For Plan Years beginning prior to
January 1, 2002, the contributions described in paragraphs (b) and
(c) above shall be subject to the multiple use limit set forth in
Section 8.5 hereof;”
6.
Section 8.2 of Article 8 of the Trust and Plan is hereby amended,
effective as of January 1, 2002, by the deletion of the first
paragraph of said Section 8.2 and the substitution in lieu thereof
of a new first paragraph to read as follows:
“8.2
The Dollar Limit
.
Pre-tax contributions under Sections
4.3 and 5.1 of the Trust and Plan with respect to the taxable year
of a Participant plus similar amounts contributed on a similar
basis by any other employer (whether or not related to the
Participating Companies) required by law to be aggregated with such
contributions under this Trust and Plan shall not exceed Nine
Thousand Five Hundred Dollars ($9,500.00), plus any increase for
cost-of-living after 1997, as determined pursuant to regulations
issued by the Secretary of the Treasury or his delegate pursuant to
Code Section 415(d). Effective January 1, 2002, the limit on the
pre-tax contributions of Participants shall be determined in
accordance with
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Code Section 402(g)(1). In the event
the Trust and Plan is a Simple Plan, pre-tax contributions under
Sections 4.3 and 5.1 of the Trust and Plan with respect to the
taxable year of a Participant shall not exceed Six Thousand Dollars
($6,000.00), plus any increase for cost-of-living after 1997 as
determined pursuant to regulations issued by the Secretary of the
Treasury or his delegate. Effective January 1, 2002, if the Trust
and Plan is a Simple Plan, the limit on the pre-tax contributions
of Participants shall be determined in accordance with Code Section
408(p)(2)(E).”
7.
Section 8.5 of Article 8 of the Trust and Plan is hereby amended,
effective as of January 1, 2002, by the deletion of said Section
8.5 and the substitution in lieu thereof of a new Section 8.5 to
read as follows:
“8.5
Multiple Use .
For Plan Years beginning before
January 1, 2002, if the sum of the average Deferral Percentage and
the average Contribution Percentage of the Participants who are
Highly Compensated Employees exceeds the Aggregate Limit, then the
pre-tax contributions made by a Participant for a Plan Year
pursuant to Section 5.1, and the after tax contributions made by
the Participant pursuant to Section 7.1 and the matching
contributions made by the Company for such Plan Year pursuant to
Section 6.1 shall be limited so that the sum of the average
Deferral Percentage and the average Contribution Percentage for the
Participants who are Highly Compensated Employees for the current
Plan Year does not exceed the Aggregate Limit.”
8.
Section 8.6 of Article 8 of the Trust and Plan is hereby amended,
effective as of January 1, 2002, by the deletion of said Section
8.6 and the substitution in lieu thereof of a new Section 8.6 to
read as follows:
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“8.6
Deductibility Limit .
In no event shall the amount of all
contributions by a Participating Company pursuant to Article 6
hereof, together with all amounts contributed by the Participating
Companies to the Trustee pursuant to Participants’ elections
under Section 5.1 hereof, exceed the maximum amount allowable as a
deduction under Code Section 404(a)(3) or any statute of similar
import, and, effective January 1, 2002, taking into account Section
616 of The Economic Growth and Tax Relief Reconciliation Act of
2001. Unless specifically authorized by the Board of the
Participating Company, all such contributions are hereby expressly
conditioned on their deductibility. Notwithstanding the foregoing,
effective January 1, 2002, amounts contributed by the Participating
Companies pursuant to Participants’ elections under Sections
5.1 and 5.8 hereof shall not be considered in determining the
maximum amount allowable as a deduction under Code Section
404(a)(3). This limitation shall not apply to contributions which
may be required in order to provide the minimum contributions
described in Article 25 for any Plan Year in which this Trust and
Plan is top-heavy. Nor shall this limitation apply to contributions
which may be required in order to recredit the Account of any
rehired Participant whose Account is to be recredited with
previously forfeited amounts as described in Section 15.6
hereof.”
9.
Section 12.6 of Article 12 of the Trust and Plan is hereby amended,
effective as of January 1, 2002, by the deletion of said Section
12.6 and the substitution in lieu thereof of a new Section 12.6 to
read as follows:
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