Exhibit 10.13(c)
SECOND AMENDMENT TO
THE
ATLANTIC SOUTHEAST AIRLINES,
INC.
INVESTMENT SAVINGS
PLAN
THIS SECOND AMENDMENT is made on
this 31st day of December, 2002, by ATLANTIC SOUTHEAST AIRLINES,
INC., a corporation duly organized and existing under the laws of
the State of Georgia (the “Primary
Sponsor”).
W
I T N
E S S E T
H:
WHEREAS, the Primary Sponsor
maintains the Atlantic Southeast Airlines, Inc. Investment
Savings Plan (the “Plan”) which was last amended on
May , 2002; and
WHEREAS, the Primary Sponsor now
wishes to amend the Plan primarily to comply with and make changes
permitted by the Economic Growth and Tax Relief Reconciliation Act
of 2001 (“EGTRRA”);
WHEREAS, this amendment is intended
as good faith compliance with the requirements of EGTRRA and is to
be construed in accordance with EGTRRA and any guidance issued
thereunder; and
WHEREAS, this amendment shall
supersede the provisions of the Plan to the extent those provisions
are inconsistent with the provisions of this amendment.
NOW, THEREFORE, the Primary Sponsor
does hereby amend the Plan effective as of January 1,
2002:
1.
By deleting the existing
Section 1.4 and substituting therefor the
following:
“1.4
‘ Annual Compensation
Limit ’ means $200,000, which amount may be adjusted in
subsequent Plan Years based on changes in the cost of living as
announced by the Secretary of the Treasury.”
2.
By deleting the existing
Section 1.13 and substituting therefor the
following:
“1.4
‘ Disability ’
means a disability of a Participant within the meaning of Code
Section 72(m)(7), to the extent that the Participant is, or
would be, entitled to disability retirement benefits under the
federal Social Security Act or to the extent that the Participant
is entitled to recover benefits under any long term disability plan
or policy maintained by the Plan Sponsor.”
3.
By deleting the existing
Section 1.18 and substituting therefor the
following:
“1.18
‘ Eligible Retirement
Plan ’ means any of the following that will accept a
Distributee’s Eligible Rollover Distribution:
(a) an individual retirement account described in
Code Section 408(a);
(b) an individual retirement annuity described in
Code Section 408(b);
(c) an annuity plan described in Code
Section 403(a) or an annuity contract described in Code
Section 403(b);
(d) a qualified trust described in Code
Section 401(a); or
(e) an eligible plan under Code
Section 457(b) which is maintained by a state or
political subdivision of a state, or any agency or instrumentality
of a state or political subdivision and which agrees to separately
account for amounts transferred into such plan from this
Plan.
Effective for distributions after
December 31, 2005, if any portion of an Eligible Rollover
Distribution is attributable to payments or distributions from a
designated Roth account (as defined in Code Section 402A), an
Eligible Retirement Plan with respect to such portion shall include
only another designated Roth account and a Roth
IRA.”
4.
By deleting the existing
Section 1.19 and substituting therefor the
following:
“1.19
‘ Eligible Rollover
Distribution ’ means any distribution of all or any
portion of the Distributee’s Account, except that an Eligible
Rollover Distribution does not include:
(a) any distribution that is one of a series of
substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the Distributee
or the joint lives (or joint life expectancies) of the Distributee
and the Distributee’s designated Beneficiary, or for a
specified period of ten (10) years of more;
(b) any distribution to the extent such distribution
is required under Code Section 401(a)(9);
(c) any distribution which is made upon hardship of
the Employee; and
(d) except as otherwise provided in this Section,
the portion of any distribution that is not includable in gross
income (determined without regard to the exclusions for net
unrealized appreciation with respect to employer
securities).
‘Eligible Rollover
Distribution’ shall include any portion of the distribution
that is not includable in gross income provided such amount is
distributed directly to one of the following:
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(i)
an individual retirement account
described in Code Section 408(a) or an individual
retirement annuity described in Code
Section 408(b) (other than an endowment contract);
or
(ii)
a qualified trust as described in
Code Section 401(a) but only to the extent
that
(A)
the distribution is made in a direct
trustee-to-trustee transfer;
(B)
the transferee plan is a defined
contribution plan; and
(C)
the transferee plan agrees to
separately account for amounts transferred (including a separate
accounting for the portion of the distribution which is includable
in income and the portion which is not includable in
income).”
5.
By deleting the existing
Section 1.37 and substituting therefor the
following:
“1.37
‘ Rollover Amount
’ means any amount transferred to the Fund by a Participant,
which amount qualifies as an Eligible Rollover Distribution under
Code Sections 402(c)(4), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii), or
457(e)(16), and any regulations issued thereunder. Rollover
Amount does not include any amount that would not be includable in
the Participant’s gross income if it was not rolled
over.”
6.
By deleting the existing
Section 1.39 and substituting therefor the
following:
“1.39
‘ Termination of
Employment ’ means a severance from employment (within
the meaning of Code Section 401(k)(2)(B)(i)(I)) of an Employee
from all Plan Sponsors and Affiliates for any reason other than
death, Disability, or attainment of a Retirement Date. Any
absence from active employment of the Plan Sponsor and Affiliates
by reason of an approved leave of absence shall not be deemed for
any purpose under the Plan to be a Termination of Employment.
Transfer of an Employee from one Plan Sponsor to another Plan
Sponsor or to an Affiliate shall not be deemed for any purpose
under the Plan to be a Termination of Employment. In
addition, transfer of an Employee to another employer (other than a
Plan Sponsor or an Affiliate) in connection with a corporate
transaction involving a sale of assets, merger, or sale of stock,
shall not be deemed to be a Termination of Employment, for purposes
of the timing of distributions under Section 8.1, if the
employer to which such Employee is transferred agrees with the Plan
Sponsor to accept a transfer of assets from the Plan to its
tax-qualified plan in a trust-to-trust transfer meeting the
requirements of Code Section 414(l).”
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7.
By deleting the existing
Section 3.1 and substituting therefor the
following:
“3.1
(a)
Deferral Amounts
. The Plan Sponsor shall make
a contribution to the Fund on behalf of each Participant who is an
Eligible Employee and has elected to defer a portion of his Annual
Compensation otherwise payable to him for the Plan Year and to have
such portion contributed to the Fund. Except to the extent
permitted under Section 3.1(c) and Code
Section 414(v), the contribution made by a Plan Sponsor on
behalf of a Participant under this Section 3.1(a) shall
be in one percent (1%) increments in an amount equal to the amount
specified in the Participant’s deferral election, but not
greater than twenty-five percent (25%) of the
Participant’s Annual Compensation for the 2002 Plan Year, and
not greater than fifty percent (50%) of the Participant’s
Annual Compensation for every Plan Year thereafter. Pursuant
to Section 4 of Appendix C, the Plan Administrator may
restrict the amount which Highly Compensated Employees may defer
under this Section 3.1(a).
(b)
Limit on Deferral
Amounts . Except to the
extent permitted under Section 3.1(c) and Code
Section 414(v), Elective Deferrals shall in no event exceed
the limit set forth in Code Section 402(g) in any one
taxable year of the Participant. In the event the amount of
Elective Deferrals exceeds Code Section 402(g) limit, in
any one taxable year then,
(1)
not later than the immediately
following March 1, the Participant may designate to the Plan
the portion of the Participant’s Deferral Amounts which
consist of excess Elective Deferrals, and
(2)
not later than the immediately
following April 15, the Plan may distribute the amount
designated to it under Paragraph (1) above, as adjusted to
reflect income, gain, or loss attributable to it through the end of
the Plan Year, and reduced by any ‘Excess Deferral
Amounts,’ as defined in Appendix C hereto, previously
distributed or recharacterized with respect to the Participant for
the Plan Year beginning with or within that taxable
year.
The payment of the excess Elective
Deferrals, as adjusted and reduced, from the Plan shall be made to
the Participant without regard to any other provision in the
Plan. In the event that a Participant’s Elective
Deferrals exceed the Code Section 402(g) limit, as
adjusted, in any one taxable year under the Plan and other plans of
the Plan Sponsor and its Affiliates, the Participant shall be
deemed to have designated for distribution under the Plan the
amount of excess Elective Deferrals, as adjusted and reduced, by
taking into account only Elective Deferral amounts under the Plan
and other plans of the Plan Sponsor and its Affiliates.
(c)
Catch-Up Contributions
. Effective November 1, 2002, a
Participant who is eligible to contribute Deferral Amounts to the
Plan and who has attained age 50 on or before the last day of the
Plan Year shall be eligible to elect to have a portion of his
Annual Compensation otherwise payable to him for
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the Plan Year contributed by the
Plan Sponsor to the Fund on his behalf as catch-up contributions in
accordance with and subject to the limitations of, Code
Section 414(v). Contributions made pursuant to this
Section 3.1(c) shall not be taken into account for
purposes of implementing the limitations set forth in
Section 3.1(a), 3.1(b) and Appendix A hereto. The
Plan shall not be treated as failing to satisfy the provisions of
Appendix B, Appendix C or Code Section 410(b), as applicable,
by reason of the making of the catch-up contributions as described
in this Section 3.1(c).
(d)
Deferral Elections
. The elections under this
Section 3.1 must be made before the Annual Compensation is
payable and may only be made in such manner and subject to such
rules and limitations as the Plan Administrator may prescribe
and shall specify the percentage or dollar amount, as applicable,
of Annual Compensation that the Participant desires to defer
pursuant to Section 3.1(a) and/or 3.1(c) and to have
contributed to the Fund. Once a Participant has made an
election for a Plan Year, the Participant may revoke or modify his
election to increase or reduce the rate of future deferrals, as
provided in the administrative procedures established by the Plan
Administrator.”
8.
By deleting the existing
Section 3.4 and by substituting therefor the
following:
“3.4
Rollover Contributions
. Any Eligible Employee may,
with the consent of the Plan Administrator and subject to such
rules and conditions as the Plan Administrator may prescribe
(which may include without limitation prohibitions against
transferring certain categories of Rollover Amounts to the Plan),
transfer a Rollover Amount to the Fund; provided, however, that the
Plan Administrator shall not administer this provision in a manner
which is discriminatory in favor of Highly Compensated
Employees.”
9.
By deleting the existing header
language of Section 7.1 and substituting therefor the
following:
“7.1
‘ Hardship Withdrawals
.’ The Trustee shall, upon the direction of the Plan
Administrator, withdraw all or portion of a Participant’s
Deferred Account consisting of Deferral Amounts (but not earnings
thereon), including Catch-Up Contributions made pursuant to
Section 3.1(c), prior to the time such account is otherwise
distributable in accordance with the other provisions of the Plan;
provided, however, that any such withdrawal shall be made only if
the Participant is an Employee and demonstrates that he is
suffering from ‘hardship’ as determined herein.
For purposes of this Section, a withdrawal will be deemed to be an
account of hardship if the withdrawal is on account
of:”
10.
By deleting the existing
Section 7.2(a)(2) and by substituting therefor the
following:
“(2)
the Plan Sponsor shall not permit
Elective Deferrals, including catch-up contributions as described
in Code Section 414(v), or after-tax employee contributions to
be made to the Plan or any other plan
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maintained by the Plan Sponsor, for
a period of six (6) months after the Participant receives the
withdrawal pursuant to this Section.”
11.
By deleting the existing
Section 7.2(a)(3) in its entirety.
12.
By deleting the existing
Section 8.2(b) and by substituting therefor the
following:
“(b)
his Matching Account computed
according to the following vesting schedule provided he has
completed at least one hour of Service during or after the 2002
Plan Year:
|
Full Years of
Vesting Service
|
|
Percentage
Vested
|
|
|
Less than 2
|
|
10
|
%
|
|
2
|
|
20
|
%
|
|
3
|
|
40
|
%
|
|
4
|
|
60
|
%
|
|
5
|
|
80
|
%
|
|
6 or more
|
|
100
|
%”
|
13.
By deleting the existing
Section 8.6 in its entirety.
14.
By deleting the existing
Section 11.1(a) in its entirety and by substituting
therefor the following:
“(a)
If the vested Account balance of a
Participant or a Beneficiary of a deceased Participant (in the case
of a deceased Participant who did not begin to receive payment of
his vested Account balance before his death) is $5,000 or less,
without consideration of amounts attributable to a
Participant’s Rollover Account, it shall be distributed in
one lump sum as soon as administratively practicable after the
Participant or Beneficiary is eligible for a distribution pursuant
to Article 8, 9, or 10, as applicable.”
15.
By deleting the existing header
language of Section 11.1(b) and substituting therefor the
following:
“(b)
If the vested Account balance of a
Participant or a Beneficiary of a deceased Participant (in the case
of a deceased Participant who did not begin to receive payment of
his vested Account balance before his death) exceeds $5,000,
without consideration of amounts attributable to a
Participant’s Rollover Account, and the Participant or
Beneficiary is eligible for a distribution pursuant to
Article 8, 9, or 10 , as applicable, the Participant or
Beneficiary will receive payment of the Account in one lump sum
unless the Participant elects to receive payment in one of the
forms listed below as soon as administratively practicable after
the Participant’s or Beneficiary’s written request to
the Plan Administrator for payment of the vested Account
balance.”
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