Exhibit 10.35
Sixth Amendment
to
Adaptec, Inc. Savings and Retirement Plan
THIS SIXTH AMENDMENT to the Adaptec, Inc. Savings and Retirement
Plan, originally effective January 1, 1986 and most recently
restated in its entirety January 1, 1997, as amended (the "Plan"),
is adopted effective as of January 1, 2008:
The Plan is hereby amended as follows:
1. Section
1.7(a) of the Plan is amended in its entirety to read as
follows:
"1.7
"COMPENSATION" shall mean:
(a) For purposes of determining
Elective Deferral Contributions and Employer Matching Contributions
under Sections 3.1 and 3.2(b), subject to the limitation under
Treasury Regulation section 1.401(k)-1(e)(8), Compensation shall
mean base wage or salary payments, overtime, payments under the
Adaptec Incentive Plan, merit lump sum bonuses, commissions, shift
differentials, and payments for paid time off and any elective
deferral as defined in section 402(g)(3) of the Code and any amount
which is contributed or deferred by the Employer at the election of
the Participant and which is not includable in the Participant's
gross income by reason of section 125 or 457 of the Code.
Compensation shall be limited to that actually paid (or would have
been paid but for a cash or deferred election) during the
applicable period and in accordance with Treasury Regulation
section 1.401(k)-1(e)(8). Compensation shall not include moving
allowances, car allowances, bonuses (except payments under the
Adaptec Incentive Plan and merit lump sum bonuses), severance pay,
post-termination payments made pursuant to an agreement, relocation
payments or other compensation not included above. Compensation
shall not include amounts which have been deferred pursuant to a
non-qualified deferred compensation plan or amounts which are paid
pursuant to such a deferred compensation plan. Compensation shall
not exceed the maximum dollar limit established under section
401(a)(17) of the Code, as adjusted for increases in the
cost-of-living pursuant to section 401(a)(17)(B) of the Code
($230,000 in 2008).
2. Section
15.1 of the Plan is amended in its entirety to read as
follows:
"15.1 Limitation of
Annual Additions .
(a) Definitions.
(1) Annual Additions
. "Annual Additions" means, with respect to each
Participant, the sum of employer contributions, employee
contributions and forfeitures as specified and defined in Treasury
Regulation section 1.415(c)- 1(b) for the Limitation Year under
this Plan, or any other defined contribution plan to which
contributions are or have been made on behalf of Participants in
this Plan or that is required to be aggregated after applying the
provisions of Treasury Regulation section 1.415(f)-1("Other
Plan(s)").
1
(2) Excess Amount . "Excess
Amount" means the amount of Annual Additions which, if credited to
a Participant's Account under this Plan and any Other Plan(s) for a
Limitation Year, would exceed the maximum Annual Additions
permitted under section 415(c)(1) of the Code and as set forth in
paragraph (b) below.
(3) Limitation Year .
"Limitation Year" means the twelve-consecutive month period ending
on the last day of the Plan Year. If the Limitation Year is amended
(or deemed amended under Treasury Regulation section 1.415(j)-1) to
a different twelve- consecutive month period, then the new
Limitation Year must begin on a date within the Limitation Year in
which the amendment is made effective.
(b) Maximum Annual
Additions . The amount of Annual
Additions that may be credited to the Participant's Account under
this Plan and any Other Plan(s) for any Limitation Year shall not
exceed the lesser of:
(1) the dollar amount specified in
section 415(c)(1)(A) of the Code, as adjusted annually for
increases in the cost-of-living pursuant to section 415(d) of the
Code (i.e., $46,000 for Limitation Years beginning in 2008), or
(2) one hundred percent (100%) of the
Participant's Compensation for the Limitation Year. The limitation
with respect to Compensation shall not apply to an individual
medical benefit account (as defined in section 415(l) of the Code)
or a post- retirement medical benefits account for a key employee
(as defined in section 419A(d)(1) of the Code). If a short
Limitation Year is created because of an amendment changing the
Limitation Year to a different twelve-consecutive month period,
then the maximum amount will not exceed the dollar limitation set
forth in subparagraph (1) above, multiplied by the following
fraction the numerator of which is the number of months in the
Short Limitation Year and the denominator of which is twelve.
(c) Disposition of Excess
Amount . If an Excess Amount exists for one or more
Participants for a Limitation Year, such Excess Amount shall be
disposed of or corrected under the permissible methods provided for
under the Employee Plans Compliance Resolution System or other
applicable guidance. Amounts held in the suspense account as a
result of a correction as provided above shall be held unallocated
and shall be used to reduce current or future Employer Matching
Contributions or Employer Discretionary Contributions until the
suspense account is reduced to zero. Earnings attributable to the
assets of the Trust shall be allocated to the suspense account. No
contributions to this Plan or, if applicable, Other Plan(s), shall
be made by the Employer while t
