EXHIBIT 10.34
AMENDMENT NO. 5
TO THE
XXXXXXX ENTERPRISES
EMPLOYEES RETIREMENT TRUST
(A PROFIT SHARING PLAN)
AND TRUST AGREEMENT
The Xxxxxxx Enterprises Employees Retirement Trust (A Profit Sharing
Plan) and Trust Agreement (the "SEERT") is hereby further amended as follows:
A. SPINOFF. Effective as of January 1, 2003, the SEERT will no longer be offered
to Puerto Rico Employees of affiliates of Xxxxxxx Enterprises, Inc. The SEERT
shall spin off to the Xxxxxxx Enterprises Puerto Rico Employees Retirement Trust
all the assets and liabilities of the SEERT associated with the account balances
maintained by the SEERT for these employees. However, no assets shall be
spun-off from the SEERT to the Xxxxxxx Enterprises Puerto Rico Employees
Retirement Trust unless the following two conditions are met:
(a) The sum of the account balances for each Participant in
the SEERT and in the Xxxxxxx Enterprises Puerto Rico Employees
Retirement Trust immediately after the spin-off equals the account
balance of the Participant in the SEERT immediately before the
spin-off; and,
(b) The assets in the SEERT immediately after the spin-off
equal the sum of the account balances for all of the Participants in
the SEERT and the assets in the Xxxxxxx Enterprises Puerto Rico
Employees Retirement Trust immediately after the spinoff equal the sum
of the account balances for all participants in the Xxxxxxx Enterprises
Puerto Rico Employees' Retirement Trust.
1. Effective as of January 1, 2003, the first sentence of the
definition of "Employee" in Article I of the SEERT is amended to read as
follows:
Employee means any person whom the Employer classifies as its employee,
excluding any individual whom the Employer classifies as a leased
employee, as a contract employee, as an independent contractor, as
included in a unit of employees covered by a collective bargaining
agreement (unless that agreement by specific reference to this Plan
provides for coverage for such unit of employees under this Plan), as
an individual residing in Puerto Rico, or as a nonresident alien who
receives no earned income (within the meaning of Code Section 911(d)(2)
from the Employer which constitutes income from sources within the
United States (within the meaning of Code Section 861(a)(3)). These
groups of individuals shall be excluded from this Plan based on the
Employer's classification even if the Internal Revenue Service or any
other agency or a court
determines that the Employer's classification was incorrect or
reclassifies that individual as an employee for employment tax or any
other purpose.
2. Effective as of January 1, 2003, the second paragraph of Section 2.1
and Appendix A of the SEERT are hereby deleted in their entirety.
B. OTHER AMENDMENTS
1. Effective as of January 1, 2003, the last sentence of Section 3.1(a)
is hereby amended to read as follows:
In no event will the match on both Elective Deferrals and Voluntary
Contributions with respect to all Participants exceed the amount
specified in Code Section 404(a)(3).
2. Effective as of January 1, 2003, the first sentence of Section 4.1
of the SEERT is hereby amended to read as follows:
Subject to the limitations contained in Section 4.5, a Participant
shall be permitted to make after-tax Voluntary Contributions of up to
100% of his or her Compensation.
3. Effective as of January 1, 2003, Section 4.5 of the SEERT is hereby
amended to read as follows:
4.5 Elective Deferrals. A Participant may enter into a Salary Savings
Agreement authorizing the Employer to withhold a portion of such
Participant's Compensation not to exceed the amount specified in Code
Section 402(g)(1)(B) or, if lesser, up to 100% of Compensation and to
deposit such amount to the Plan. Notwithstanding anything in this
Article to the contrary, the total Voluntary Contributions and Elective
Deferrals shall not exceed 6% of the Plan Compensation for each Highly
Compensated Employee and shall not exceed 100% of the Plan Compensation
for each other Employee. No Participant shall be permitted to have
Elective Deferrals made under this Plan or any other qualified plan
maintained by the Employer, during any taxable year, in excess of the
dollar limitation contained in Code Section 402(g)(1)(B) in effect at
the beginning of such taxable year. Thus, the limit specified in Code
Section 402(g)(1)(B) may be reduced if a Participant contributes
pre-tax contributions to another qualified plan maintained by the
Employer. Any such contribution shall be credited to the Employee's
Elective Deferrals Account.
A Participant may amend his or her Salary Savings Agreement to
increase, decrease or terminate the percentage on 30 days written
notice to the Plan Administrator. The Plan Administrator may also amend
or terminate said
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agreement on written notice to the Participant. If a Participant has
not authorized the Employer to withhold at the maximum rate and desires
to increase the total withheld for a Plan Year, such Participant may
authorize the Employer on 30 days notice to withhold a supplemental
amount up to 100% of his or her Compensation for one or more pay
periods. In no event may the sum of the amounts withheld under the
Salary Savings Agreement plus the supplemental withholding exceed 100%
of a Participant's Compensation for a Plan Year for non-Highly
Compensated Employees or 6% of a Participant's Compensation for a Plan
Year for Highly Compensated Employees. The Plan Administrator may also
recharacterize as after-tax Voluntary Contributions all or any portion
of amounts previously withheld under any Salary Savings Agreement
within the Plan Year as provided for at paragraph 10.8. This may be
done to insure that the Plan will meet one of the anti-discrimination
tests under Code Section 401(k). Elective Deferrals shall be deposited
in the Trust within the time required under applicable law after being
withheld from the Participant's pay.
4. Effective as of October 1, 2002, the first sentence of Section 13.5
of the SEERT is hereby amended to read as follows:
Each Participant and/or beneficiary may direct the investment of the
following subaccounts maintained for him or her: Elective Deferrals,
Matching Employer Contributions, Discretionary Employer Contributions,
Voluntary Contributions, Qualified Voluntary Contributions, Rollover
Contributions, and Transfer Contributions (the "Participant Directed
Subaccounts").
Adopted this day of , 2002.
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Xxxxxxx Enterprises, Inc.
By:
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Title:
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