Exhibit 10.2
XXXXXXX COMPUTER SERVICES, INC.
PROFIT SHARING AND RETIREMENT FUND
AMENDMENT NO. 39
This Amendatory Agreement adopted as of this 6th day of November, 1996, by
Xxxxxxx Computer Services, Inc., a Delaware corporation (hereinafter referred to
as the "Company"), and is delivered to the Trustees under the terms of the Trust
Agreement dated July 30, 1952, as amended, establishing the Xxxxxxx Computer
Services, Inc. Profit Sharing and Retirement Fund (hereinafter referred to as
the "Plan").
W I T N E S S E T H:
WHEREAS, the Plan permits the Company to amend the Plan subject to the
terms and conditions therein specified;
WHEREAS, the Board of Directors of the Company by action taken as of
November 6, 1996, authorized the amendment hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein contained, the Company adopts the amendments hereinafter set forth:
1. Section 2.2 of the Plan shall be amended to read as follows:
2.2. COMPENSATION. The term "Compensation" means a
Participant's total earnings from the Company paid during a Fiscal Year for
services rendered, including bonuses, overtime, and commissions, but excluding:
(a) any earnings in excess of $160,000, as adjusted for cost of living under
Section 401(a)(17) or any other applicable provision of the Code; (b) any
contributions or benefits under this Plan or under any other pension, profit
sharing, insurance, hospitalization, or other plan or policy maintained by the
Company for the benefit of such Participant; (c) any extraordinary compensation
of a non-recurring nature; and (d) all other benefits accorded to such
Participant by the Company that are not paid in cash. In any case where a
Participant commences participation in the Plan, or resumes active participation
in the Plan after incurring a One Year Break in Service, on any day other than
the first day of a Fiscal Year, Compensation for that Fiscal Year shall be that
portion of compensation as determined under this Section 2.2 paid during the
period of participation in the Plan for that Fiscal Year.
2. Section 2.5 of the Plan shall be amended to read as follows:
2.5. EARNINGS. The term "Earnings" means a Participant's
Compensation plus the amount contributed to a Participant's Tax
Deferred Account for any Limitation Year pursuant to a Tax Deferred
Election under Section 5.9. The amount of Earnings of any Participant
which may be taken into account for any purpose under the Plan for any
Limitation Year shall not exceed any limitation amount set forth in
Section 401(a)(17) or any other applicable provision of the Code, as
adjusted from time to time.
3. Section 4.1(a) of the Plan shall be amended to read as follows:
4.1. ELIGIBILITY FOR PARTICIPATION
(a) An Employee is eligible to become a Participant in the
Plan on the first day of any month subsequent to the
satisfaction of the following requirements:
(1) With respect to the ability to make Tax Deferred
Contributions pursuant to Section 5.9, the Employee has
completed the lesser of (i) thirty-one (31) days as a
regular, full-time Employee (any individual whose
customary employment is (x) more than twenty (20)
hours per week and (y) more than six (6) months in a
Plan Year) or (ii) One Year of Service;
(2) With respect to the right to be credited with
Company Contributions and Forfeitures pursuant to
Section 6.4, the Employee has completed One Year of
Service;
(3) The Employee is not included in a unit of
employees covered by a collective bargaining agreement
between employee representatives and the Company, if
retirement benefits were the subject of good faith
bargaining between such employee representatives and
the Company, and if as a result of such negotiations,
the Employee is either covered by another retirement
plan to which Company makes contributions or there has
been no agreement between such parties for coverage
under this Plan;
(4) The Employee is not a "leased employee" as that
term is used in Section 414(n) of the Code; and
(5) in the event a prior Employee is rehired, all
prior service with the Company shall be used to satisfy
eligibility requirements.
4. Section 5.5 of the Plan shall be amended to read as follows:
5.5. Required Contributions by Participants. Each Participant,
upon the satisfaction of the eligibility standards set forth in Section
4.1(a)(2), shall contribute to the Trust Fund an amount which shall not be less
than 3% nor more than 5% of the Compensation paid by the Company to the
Participant each calendar year. The determination as to the percentage amount
shall be made by the Board of Directors of the Company from time to time,
provided that such adjustments shall apply to the contributions of all
Participants. Tax Deferred Contributions made on behalf of the Participant
shall first be credited against the requirements of this section.
5. Section 5.7 of the Plan shall be amended to read as follows:
5.7 PAYMENT OF PARTICIPANT CONTRIBUTIONS. Participants'
contributions will be paid to the Trust Fund no later than the fifteenth (15th)
business day next following the payroll period for which the contributions were
made and will be credited to the Participant's Contributory Accounts (as
described in Section 6.1) in accordance with Section 6.5.
6. Section 5.10.1 of the Plan shall be amended to read as follows:
5.10. LIMITATION OF PARTICIPANT'S TAX DEFERRED CONTRIBUTIONS
5.10.1. DEFINITIONS. For purposes of this Article V,
the following terms shall have the following meanings:
(a) HIGHLY COMPENSATED EMPLOYEE. (i) GENERAL. The
term "Highly Compensated Employee" shall have the
meaning set forth in Section 414(q) of the Code and the
regulations thereunder. Generally, for any Plan Year,
an Employee will be considered to be a Highly
Compensated Employee if he or she meets either of the
following conditions:
(A) the Employee was at any time during the Plan Year
or the immediately preceding Plan Year the owner
of more than five percent of the outstanding stock
of the Company or of stock possessing more than
five percent (5%) of the total combined voting
power of all stock of the Company; or
(B) the Employee received Earnings from the Company
for the immediately preceding Plan Year in excess
of $80,000 (as that sum is adjusted annually
pursuant to Section 414(q)(1) of the Code).
(ii) Special Rules. The following special rules
shall be used in determining whether an Employee is a
Highly Compensated Employee:
(A) In determining an Employee's ownership of stock of
the Company for purposes of clause (A) of
subsection (a)(i) above -- (I) the rules of
Section 318 of the Code shall be applied, except
that subparagraph (C) of Section 318(a)(2) of the
Code shall be applied by substituting "5 percent"
for "50 percent"; and (II) the rules of Section
414(b), (c), and (m) of the Code shall not be
applied.
(B) At the election of the Company, an Employee will
not meet the condition of clause (B) of subsection
(a)(i) above unless the Employee was also in the
"top-paid group of Employees" during the
immediately preceding Plan Year. An Employee is
in the "top-paid group of Employees" for a Plan
Year if such Employee is in the group consisting
of the top twenty percent (20%) of all Employees
when ranked on the basis of Earnings.
(C) All references to the Company in this Section
5.10.1 shall include a reference to all members of
a Controlled Group of which the Company is a
member.
(b) Highly Compensated Participant Group. The term "Highly
Compensated Participant Group" shall mean that group of
Employees eligible to participate in the Plan who are Highly
Compensated Employees during the Plan Year.
(c) Standard Participant Group. The term "Standard Participant
Group" shall mean that group of Employees who, during the
immediately preceding Plan Year, were both eligible to
participate in the Plan and who were not Highly Compensated
Employees.
(d) Actual Deferral Percentage. The "Actual Deferral
Percentages" for the Highly Compensated Participant Group
and the Standard Participant Group shall be the average of
the ratios (calculated separately for each Employee in each
group) of the amount of the Company Elective Contributions
made on behalf of such Employee in the group for the
relevant Plan Year to such Employee's Earnings for such Plan
Year.
(e) Actual Contribution Percentage. The "Actual Contribution
Percentages" for the Highly Compensated Participant Group
and the Standard Participant Group shall be the average of
the ratios (calculated separately for each Employee in each
group) of the amount of the voluntary after-tax
contributions made by such Employee in the group for the
relevant Plan Year to such Employee's Earnings for such Plan
Year.
(f) After December 31, 1998, if the Company elects to satisfy
the minimum coverage requirements of Section 410(b) of the
Code separately with respect to Employees who have met the
minimum age and service requirements of Section 410(a)(1),
then the Company may also elect to exclude those Employees
from the Highly Compensated Participant Group and the
Standard Participant Group for purposes of this Article V.
7. The first sentence of Section 5.10.2 of the Plan shall be amended
to read as follows:
5.10.2. Actual Deferral Percentage Test. For each Plan Year,
the Actual Deferral Percentage of the Highly Compensated Participant Group for
such year shall bear a relationship to the Actual Deferral Percentage of the
Standard Participant Group for the immediately preceding Plan Year which meets
either of the following tests:
8. The first sentence of Section 5.10.2A of the Plan shall be
amended to read as follows:
5.10.2A. Actual Contribution Percentage Test. For each Plan
Year, the Actual Contribution Percentage of the Highly Compensated Participant
Group for such year shall bear a relationship to the Actual Contribution
Percentage of the Standard Participant Group for the immediately preceding Plan
Year which meets any of the following tests:
9. Subsection (c) of Section 5.10.3 is replaced with the following:
Special Rules for Calculating the Actual Deferral and Actual
Contribution Percentages.
(c) The Company may elect to apply the Actual Deferral
Percentage Test and the Actual Contribution Percentage Test
using the Actual Deferral and the Actual Contribution
Percentages of the Standard Participant Group for the Plan
Year, rather than the immediately preceding Plan Year. Such
election, if made, may not be revoked except as permitted by
the Secretary of Treasury.
10. Clause (a) of Section 5.10.4 of the Plan shall be amended to read
as follows:
5.10.4. Adjustment to Actual Deferral Percentage Tests.
(a) On or before the fifteenth day of the third month
following the end of each Plan Year, but in no event later
than the close of the following Plan Year, the Committee may
distribute to each Highly Compensated Participant, beginning
with the Participant having the largest share of the Company
Elective Contribution for the Plan Year, his portion of the
excess contribution (and any income allocable to such
portion) until one of the tests set forth in Section 5.10.2
or the combined test in Section 5.10.2A is satisfied.
11. Clause (a) of Section 5.10.4A of the Plan shall be amended to
read as follows:
5.10.4A. Adjustment to Actual Contribution Percentage Tests
(a) On or before the fifteenth day of the third month
following the end of each Plan Year, but in no event later
than the close of the following Plan Year, the Committee may
distribute to each Highly Compensated Participant, beginning
with the Participant having the largest amount of voluntary
after-tax contributions for the Plan Year, a portion of the
excess contribution (and any income allocable to such
portion) until one of the tests set forth in Section 5.10.2A
is satisfied.
12. Section 6.6.(a)(2) of the Plan shall be amended to read as
follows:
Twenty-five percent (25%) of the Compensation [for Plan
Years commencing after December 31, 1997 the term "Compensation" shall be
replaced by "Earnings"] paid to the Participant by the Company in that
limitation year.
13. Clause (c) of Section 9.1 shall be replaced with the following:
9.1. Methods and Time of Distribution.
(c) Notwithstanding the foregoing, distribution must
commence no later than the Participant's required beginning
date. The term "required beginning date" means April 1st of
the calendar year immediately following the calendar year in
which the Participant terminates employment after attaining
age 70 1/2 or, in the case of a Participant who is a "five-
percent owner" of the Company (as that term is defined in
Section 416(i)(1)(B)(i) of the Code), April 1st of the
calendar
year immediately following the calendar year in which he or
she attains age 70 1/2. Distributions to a Participant
shall be made in accordance with Section 401(a)(9) of the
Code and the regulations thereunder.
14. Section 9.7 of the Plan shall be amended to read as follows:
9.7. Election to Become a Limited Participant. A Participant
(1) who terminates on a Termination Date or a Retirement Date, (2) whose
combined Accounts total at least $3500, and (3) will receive deferred payment in
accordance with Section 9.1(a)(2) or (3), may elect Limited Participation. The
election must be made in writing to the Committee within 30 days of such Date.
If such election is made:
(a) The combined total of all the Participant's Accounts
will not be transferred to suspense.
(b) The Limited Participation Account will share only in
the gains and losses in the Net Value of the Funds as from
time to time determined on Calculation Dates, as provided in
Article VI.
15. Section 13.5 of the Plan shall be amended to read as follows:
13.5 Investment of Transferred Funds. Any Rollover Contribution
or account transferred from another employee benefit plan shall be allocated to
either Fund A or Fund B as the Participant may elect, subject to the same
limitations and conditions set forth in Section 6.1.(b)(2)(ii) with respect to
Voluntary Contributions. Such election shall be made within thirty-one (31)
days from the date of receipt by the Trust Fund of any transferred funds, and in
the absence of an election, all transferred funds shall be allocated to Fund B.
16. Except as otherwise provided herein, this Amendment shall become
effective as of January 1, 1997, upon the condition that said Amendment will not
adversely affect the previous rulings issued by the U.S. Treasury Department
with respect to the status of the Xxxxxxx Computer Services, Inc. Profit Sharing
and Retirement Fund.
17. All of the terms and conditions of said Plan, as heretofore
amended, except as herein specifically modified, shall remain in full force and
effect.
IN WITNESS WHEREOF, the Company has caused those presents to be executed in
its name by its proper officers pursuant to the authority granted by its Board
of Directors.
XXXXXXX COMPUTER SERVICES, INC.
BY: /s/ Xxxxxx X. Xxxxxx
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Its President
ATTEST:
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Secretary
