Exhibit 4.28
AMENDMENT NO. 2
TO
RETIREMENT SAVINGS TRUST AND
PLAN
A PROTOTYPE PLAN SPONSORED
BY
CALFEE, HALTER & GRISWOLD
LLP
This Amendment No. 2 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 most recently approved by the Internal
Revenue Service on February 26, 2002; and
WHEREAS, the Sponsor previously
adopted Amendment No. 1 to the Trust and Plan and its related
Adoption Agreements 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; and
WHEREAS, the Sponsor now desires to
amend the Trust and Plan and the Adoption Agreements in order to
further conform said documents with additional changes now required
or permitted by EGTRRA and other new laws;
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-2 and B-2), as
follows:
PART I - AMENDMENTS TO THE
TRUST AND PLAN
1.
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:
“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), and the limit under Code Section 404(a)(7) shall not
apply for any year in which no contributions (other than elective
deferrals under Code Section 402(g)(3)) are made to the
employer’s defined contribution plans. This limitation shall
not apply to contributions
2
which may be required in order to
provide the minimum contributions described in Article 25 for any
Plan Year in which the Participating Company is required to make a
top-heavy contribution to a defined contribution plan which is
maintained pursuant to an Adoption Agreement. 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.”
2.
Section 18.5 of Article 18 of the Trust and Plan is hereby amended,
effective as of January 1, 2002, by the deletion of the heading
thereto and the substitution in lieu thereof of a new heading to
read as follows:
“18.5
Restrictions on Distributions (Prior to the Effective Date of
the 2002 Final and Temporary Code Section 401(a)(9)
Regulations) .”
3.
A new Section 18.5A of the Trust and Plan is hereby added,
effective as of January 1, 2002, to read as follows:
“18.5A
Restrictions on Distributions (On and After the Effective Date
of the 2002 Final and Temporary Code Section 401(a)(9)
Regulations) .”
(a)
General Rules
(i)
Effective Date . Unless an earlier effective date is
specified in the Adoption Agreement, the provisions of this Section
will apply for purposes of determining required minimum
distributions for calendar years beginning with the 2003 calendar
year.
(ii)
Coordination with Minimum Distribution Requirements Previously
in Effect . If the Adoption Agreement specifies an effective
date of this Section that is earlier than the date set forth in
Paragraph 18.5A(a)(i), required minimum distributions for 2002
under this Section will be determined as follows. If the total
amount of 2002 required minimum distributions under the Trust and
Plan made to the distributee prior to the effective date of this
Section equals or exceeds the required minimum distributions
determined under this Section, then no additional distributions
will be required to be made for 2002 on or after such date to the
distributee. If the total amount of 2002 required minimum
distributions under the Trust and Plan made to the distributee
prior to the effective date of this Section is less than the amount
determined under this Section, then required minimum distributions
for 2002 on and after such date will be determined so that the
total amount of required minimum distributions for 2002 made to the
distributee will be the amount determined under this
Section.
(iii)
Precedence . The requirements of this Section will take
precedence over any inconsistent provisions of the Trust and
Plan.
3
(iv)
Requirements of Treasury Regulations Incorporated . All
distributions required under this Section will be determined and
made in accordance with the Treasury regulations under Code Section
401(a)(9).
(v)
TEFRA Section 242(b)(2) Elections . Notwithstanding the
other provisions of this Section, distributions may be made under a
designation made before January 1, 1984, in accordance with Section
242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA)
and the provisions of the Trust and Plan that relate to Section
242(b)(2) of TEFRA.
(b)
Time and Manner of Distribution .
(i)
Required Beginning Date . The Participant’s entire
interest will be distributed, or begin to be distributed, to the
Participant no later than the Participant’s Required
Beginning Date, as defined in Section 18.5A(e)(v),
below.
(ii)
Death of Participant Before Distributions Begin . If the
Participant dies before distributions begin, the
Participant’s entire interest will be distributed, or begin
to be distributed, no later than as follows:
(A)
If the Participant’s surviving spouse is the
participant’s sole designated Beneficiary, then distributions
to the surviving souse will begin by December 31 of the calendar
year immediately following the calendar year in which the
Participant died, or by December 31 of the calendar year in which
the Participant would have attained age 70 1/2, if
later.
(I)
Alternatively, the Participant or surviving spouse Beneficiary may
elect to have the Participant’s entire interest distributed
to such surviving spouse Beneficiary by December 31 of the calendar
year containing the fifth anniversary of the Participant’s
death. The election must be made no later than the earlier of
September 30 of the calendar year in which distribution would be
required to begin under the preceding Subparagraph (A) or by
September 30 of the calendar year which contains the fifth
anniversary of the Participant’s (or, if applicable,
surviving spouse’s) death. If the Participant’s
surviving spouse is the Participant’s sole designated
Beneficiary, and an election is made in accordance with this
Subparagraph (I) and the surviving spouse dies after the
Participant but before distributions to either the Participant or
the surviving spouse begin, this election will apply as if the
surviving spouse were the Participant.
(B)
If the Participant’s surviving spouse is not the
Participant’s sole designated Beneficiary, then distributions
to the designated Beneficiary will begin by December 31 of the
calendar year immediately following the calendar year in which the
Participant died.
4
(I)
Alternatively, the Participant or Beneficiary may elect to have the
Participant’s entire interest distributed to such Beneficiary
by December 31 of the calendar year containing the fifth
anniversary of the Participant’s death. The election must be
made no later than the earlier of September 30 of the calendar year
in which distribution would be required to begin under the
preceding Subparagraph (B) or by September 30 of the calendar year
which contains the fifth anniversary of the Participant’s
death.
(C)
If there is no designated Beneficiary as of September 30 of the
calendar year following the calendar year of the
Participant’s death, the Participant’s entire interest
will be distributed by December 31 of the calendar year
containing the fifth anniversary of the Participant’s
death.
(D)
If the Participant’s surviving spouse is the
Participant’s sole designated Beneficiary and the surviving
spouse dies after the Participant but before distributions to the
surviving spouse begin, this Paragraph (b)(ii) (other than
Subparagraph (A)), will apply as if the surviving spouse were the
Participant.
For purposes of this Paragraph
(b)(ii) and Section 18.5A(d) (unless Subparagraph (D) of this
Paragraph (b)(ii) applies), distributions are considered to begin
on the Participant’s Required Beginning Date. If Subparagraph
(D) applies, distributions are considered to begin on the
date distributions are required to begin to the surviving spouse
under Subparagraph (A) of this Paragraph (b)(ii). If distributions
under an annuity purchased from an insurance company irrevocably
commence to the Participant before the Participant’s Required
Beginning Date (or to the Participant’s surviving spouse
before the date distributions are required to begin to the
surviving spouse under Subparagraph (A)), the date distributions
are considered to begin is the date distributions actually
commence.
(iii)
Forms of Distribution . Unless the Participant’s
interest is distributed in the form of an annuity purchased from an
insurance company or in a single lump sum on or before the Required
Beginning Date, as of the first distribution calendar year
distributions will be made in accordance with Section 18.5A(c) and
(d). If the Participant’s interest is distributed in the form
of an annuity purchased from an insurance company, distributions
thereunder will be made in accordance with the requirements of Code
Section 401(a)(9).
(c)
Required Minimum Distributions During Participant’s
Lifetime .
(i)
Amount of Required Minimum Distribution For Each Distribution
Calendar Year . During the Participant’s lifetime, the
minimum amount that will be distributed for each distribution
calendar year is the lesser of:
(A)
the quotient obtained by dividing the Participant’s account
balance by the distribution period in the Uniform Lifetime Table
set forth in
5
Section 1.401(a)(9)-9 of the
Treasury Regulations, using the Participant’s age as of the
Participant’s birthday in the distribution calendar year;
or
(B)
if the Participant’s sole designated Beneficiary for the
distribution calendar year is the Participant’s spouse, the
quotient obtained by dividing the Participant’s account
balance by the number in the Joint and Last Survivor Table set
forth in Section 1.401(a)(9)-9 of the Treasury Regulations, using
the Participant’s and spouse’s attained ages as of the
Participant’s and spouse’s birthdays in the
distribution calendar year.
(ii)
Lifetime Required Minimum Distributions Continue Through Year of
Participant’s Death . Required minimum distributions will
be determined under this Subsection (c) beginning with the first
distribution calendar year and up to and including the distribution
calendar year that includes the Participant’s date of
death.
(d)
Required Minimum Distributions After Participant’s
Death .
(i)
Death On or After Date Distributions Begin .
(A)
Participant Survived by Designated Beneficiary . If the
Participant dies on or after the date distributions begin and there
is a designated Beneficiary, the minimum amount that will be
distributed for each distribution calendar year after the year of
the Participant’s death is the quotient obtained by dividing
the Participant’s account balance by the longer of the
remaining life expectancy of the Participant or the remaining life
expectancy of the Participant’s designated Beneficiary,
determined as follows:
(I)
The Participant’s remaining life expectancy is calculated
using the age of the Participant as of the Participant’s
birthday in the calendar year of the Participant’s death,
reduced by one for each subsequent calendar year.
(II)
If the Participant’s surviving spouse is the
Participant’s sole designated Beneficiary, the remaining life
expectancy of the surviving spouse is calculated for each
distribution calendar year after the year of the
Participant’s death using the surviving spouse’s age as
of the spouse’s birthday in that year. For distribution
calendar years after the year of the surviving spouse’s
death, the remaining life expectancy of the surviving spouse is
calculated using the age of the surviving spouse as of the
spouse’s birthday in the calendar year of the spouse’s
death, reduced by one for each subsequent calendar year.
(III)
If the Participant’s surviving spouse is not the
Participant’s sole designated Beneficiary, the designated
Beneficiary’s remaining life expectancy is calculated using
the age of the Beneficiary in
6
the calendar year following the
calendar year of the Participant’s death, reduced by one for
each subsequent calendar year.
(B)
No Designated Beneficiary . If the Participant dies on or
after the date distributions begin and there is no designated
Beneficiary as of September 30 of the year after the year of the
Participant’s death, the minimum amount that will be
distributed for each distribution calendar year after the year of
the P
