Exhibit 10.22
FOURTH AMENDMENT
TO
THE ALLIANCE DATA SYSTEMS 401(k)
AND RETIREMENT SAVINGS PLAN
(amended and restated as of January 1,
2004)
ADS Alliance Data Systems, Inc.
hereby adopts this Amendment No. 4 to the Alliance Data
Systems 401(k) and Retirement Savings Plan, amended and restated as
of January 1, 2004 (the “Plan”), effective as of
such date, except as otherwise noted.
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1.
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The Preamble
to the Plan is amended to delete the period at the end of the first
sentence and to add the following new language:
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, and make changes necessary to
qualify the Plan for the “safe harbor” testing option
provided under Code Section 401(k)(12). For each year the Plan
intends to qualify for this testing option, the Committee shall
provide the notice to Participants required thereunder.
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2.
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Section 1.25 of the Plan is amended to read
as follows:
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1.25 Entry Date
The first day on which it is
administratively practicable to enroll in the Plan an Employee who
is eligible under Article 2, which date shall in no case be more
than 30 days after the date the Employee first becomes eligible
under Article 2.
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3.
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The final
sentence of Section 4.8 of the Plan shall be replaced with the
following:
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The Discretionary Profit Sharing
Contribution shall satisfy all applicable requirements of the Code,
shall be conditioned on its immediate deductibility under Code
Section 404, and, subject to the overall permitted disparity
limits described below, shall be allocated to the eligible
Participants’ Accounts as follows:
STEP ONE: The Discretionary Profit
Sharing Contribution shall be allocated to each eligible
Participant’s Account in the ratio that the sum of each
Participant’s Compensation and Compensation in excess of the
taxable wage base in effect under section 230 of the Social
Security Act at the beginning of the Plan Year (the
“TWB”) bears to the sum of all Participants’
Compensation and Compensation in excess of the TWB, but not in
excess of the Maximum Excess Allowance. For this purpose, the
Maximum Excess Allowance shall be exceeded to the extent that the
percentage of Compensation which is contributed with respect to
that portion of each Participant’s Compensation in excess of
the TWB (the “excess contribution percentage”) exceeds
the percentage of Compensation contributed with respect to that
portion of each Participant’s Compensation not in excess of
the TWB (the “base contribution percentage”), by the
lesser of (A) the base contribution percentage, or
(B) the greater of (i) 5.7 percentage points, or
(ii) the
percentage equal to the portion of
the rate of tax under Code section 3111(a) (in effect as of the
beginning of the year) which is attributable to old age
insurance.
STEP TWO: Any remaining
Discretionary Profit Sharing Contribution shall be allocated to
each Participant’s account in the ratio that each
Participant’s Compensation for the Plan Year bears to all
Participants’ Compensation that year.
Overall Permitted Disparity
Limits
Annual overall permitted disparity
limit: Notwithstanding the preceding paragraphs, for any Plan Year
a Discretionary Profit Sharing Contribution is allocated to any
Participant who benefits under another qualified plan or simplified
employee pension, as defined in § 408(k) of the Code,
maintained by the Employer that provides for permitted disparity
(or imputes disparity), the contribution will be allocated to the
account of such Participant in the ratio that such
Participant’s total Compensation bears to the total
Compensation of all Participants.
Cumulative permitted disparity
limit: The cumulative permitted disparity limit for a Participant
is 35 total cumulative permitted disparity years. Total cumulative
permitted years means the number of years credited to the
Participant for allocation or accrual purposes under this
Plan,
