Exhibit 10.88
The CORPORATEplan for RetirementSM
EXECUTIVE PLAN
Adoption Agreement
IMPORTANT NOTE
This document has not been approved by the Department of Labor, the Internal
Revenue Service or any other governmental entity. An Adopting Employer must
determine whether the plan is subject to the Federal securities laws and the
securities laws of the various states. An Adopting Employer may not rely on this
document to ensure any particular tax consequences or to ensure that the Plan is
"unfunded and maintained primarily for the purpose of providing deferred
compensation to a select group of management or highly compensated employees"
under the Employee Retirement Income Security Act with respect to the Employer's
particular situation. Fidelity Management Trust Company, its affiliates and
employees cannot provide you with legal advice in connection with the execution
of this document. This document should be reviewed by the Employer's attorney
prior to execution.
ADOPTION AGREEMENT
ARTICLE 1
1.01 PLAN INFORMATION
(a) Name of Plan:
This is the RailAmerica, Inc. Executive Deferred Compensation Plan
(the "Plan).
(b) Name of Plan Administrator, if not the Employer:
Address: ___________________________________________________________
Phone Number: ______________________________________________________
The Plan Administrator is the agent for service of legal process for
the Plan.
(c) Plan Year End is December 31.
(d) Plan Status (check one):
(1) |X| Effective Date of new Plan: 1/1/2003
(2) |_| Amendment Effective Date:
The original effective date of the Plan:
1.02 EMPLOYER
(a) The Employer is: RailAmerica, Inc.
Address: 0000 Xxxxxx Xxxxx Xxxxxxxxx, XX
Boca Raton, FL 33487
Contact's Name: Xx. Xxxxx Xxxxxxx
Telephone Number: (000) 000-0000
(1) Employer's Tax Identification Number: 00-0000000
(2) Business form of Employer (check one):
(A) |X| Corporation (Other than a Subchapter S corporation)
(B) |_| Other (e.g., Subchapter S corporation, partnership,
sole proprietor)
(3) Employer's fiscal year end: 12/31
(b) The term "Employer" includes the following Related Employer(s) (as
defined in Section 2.01(a)(21)):
those Related Employers designated on Attachment hereto
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
1.03 COVERAGE
(a) The following Employees are eligible to participate in the Plan:
(1) |X| Only those Employees listed in Attachment A will be
eligible to participate in the Plan.
(2) |_| Only those Employees in the eligible class described below
will be eligible to participate in the Plan:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(3) |_| Only those Employees described in the Board of Directors
Resolutions attached hereto and hereby made a part hereof will
be eligible to participate in the Plan.
(b) The Entry Date(s) shall be (check one):
(1) |_| each January 1.
(2) |_| each January 1 and each July 1.
(3) |X| each January 1 and each April 1, July 1 and October 1.
(4) |_| the first day of each month.
(5) |_| immediate upon meeting the eligibility requirements
specified in Subsection 1.03(a).
1.04 COMPENSATION
For purposes of determining Contributions under the Plan, Compensation
shall be as defined (check (a) or (b) below, as appropriate):
(a) |X| in Section 2.01(a) (6 , (check (1) or (2) below, if and as
appropriate)):
(1) |X| but excluding (check the appropriate box(es)):
(A) |_| Overtime Pay.
2
(B) |_| Bonuses.
(C) |_| Commissions.
(D) |X| The value of a qualified or a non-qualified stock
option granted to an Employee by the Employer to the
extent such value is includable in the Employee's
taxable income.
(E) |_| The following:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(2) |_| except as otherwise provided below:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(b) |_| in the __________ Plan maintained by the Employer to the extent
it is in excess of the limit imposed under Code Section 401(a) (1
7).
1.05 CONTRIBUTIONS
(a) Employee contributions (Complete all that apply)
(1) |X| Deferral Contributions. The Employer shall make a Deferral
Contribution in accordance with, and subject to, Section 4.01
on behalf of each Participant who has an executed salary
reduction agreement in effect with the Employer for the
calendar year (or portion of the calendar year) in question,
not to exceed 50% of Compensation for that calendar year,
subject, however, to any election regarding bonuses, as set
out in Subsection 1.05(a)(2).
(2) |X| Bonus Contributions. The Employer may allow Participants
upon proper notice and approval to enter into a special salary
reduction agreement to make Deferral Contributions in an
amount up to 100% of any Employer paid cash bonuses designated
by the Employer that are made for such Participants during the
calendar year. The Compensation definition elected by the
Employer in Section 1.04 must include bonuses if bonus
contributions are permitted.
3
(b) |_| Matching Contributions (Choose (1) or (2) below, and (3) below,
as applicable.)
(1) |_| The Employer shall make a Matching Contribution on behalf
of each Participant in an amount equal to the following
percentage of a Participant's Deferral Contributions during
the Plan Year (check one):
(A) |_| 50%
(B) |_| 100%
(C) |_| ____%
(D) |_| (Tiered Match) ________% of the first ______% of the
Participant's Compensation contributed to the Plan,
________% of the next ______% of the Participant's
Compensation contributed to the Plan,
________% of the next ______% of the Participant's
Compensation contributed to the Plan,
(E) |_| The percentage declared for the year, if any, by a
Board of Directors' resolution.
(F) |_| Other:
(2) |_| Matching Contribution Offset. For each Participant who has
made deferrals of at least the maximum amount allowed pursuant
to Section 402(g) of the Code or the maximum allowed under the
Employer's plan listed below to such plan, the Employer shall
make a Matching Contribution in an amount equal to (A) minus
(B) below:
(A) The Matching Employer Contribution, as defined in the
____________________________ Plan that the Participant
would have received under the
________________________Plan on the sum of the Deferral
Contributions and the Participant's deferrals hereunder,
as defined therein, that the Participant actually made
to such Plan, if no limits otherwise imposed by the
Code, and regulations issued thereunder, applied to such
Matching Employer Contribution and the Participant's
Deferral Contributions are deemed to have been made to
the Plan;
4
(B) The Matching Employer Contributions actually made to
such Participant under the __________________________
Plan for the Plan Year of the determination of the
Matching Contribution hereunder.
(3) Matching Contribution Limits (check the appropriate box(es)):
(A) |_| Deferral Contributions in excess of ______% of the
Participant's Compensation for the period in question
shall not be considered for Matching Contributions.
Note: If the Employer elects a percentage limit in (A)
above and requests the Trustee to account
separately for matched and unmatched Deferral
Contributions, the Matching Contributions
allocated to each Participant must be computed,
and the percentage limit applied, based upon each
period.
(B) |_| Matching Contributions for each Participant for each
Plan Year shall be limited to $__________.
(4) Eligibility Requirement(s) for Matching Contributions. A
Participant who makes Deferral Contributions during the Plan
Year under Section 1.05(a) shall be entitled to Matching
Contributions for that Plan Year if the Participant satisfies
the following requirement(s) (Check the appropriate box(es).
Options (B) and (C) may not be elected together):
(A) |_| Is employed by the Employer on the last day of the
Plan Year.
(B) |_| Earns at least 500 Hours of Service during the Plan
Year.
(C) |_| Earns at least 1,000 Hours of Service during the
Plan Year.
(D) |_| Other: _____________________________________________
________________________________________________________
(E) |_| No requirements.
Note: If option (A), (B) or (C) above is selected, then
Matching Contributions can only be made by the
Employer after the Plan Year ends. Any Matching
Contribution made before Plan Year end shall not
be subject to the eligibility requirements of this
Section l.05(b)(3)).
5
(c) Employer Contributions
(1) |_| Fixed Employer Contributions. The Employer shall make an
Employer Contribution on behalf of each Participant in an
amount determined as described below (check at least one):
(A) |_| In an amount equal to __% of each Participant's
Compensation each Plan Year.
(B) |_| In an amount determined and allocated as described
below:
__________________________________________________
__________________________________________________
__________________________________________________
(C) |_| in an amount equal to (check at least one):
(i) |_| Any profit sharing contribution that the
Employer would have made on behalf of the
Participant under the following qualified defined
contribution plan but for the limitations imposed
by Code Section 401(a)(17):
__________________________________________________
__________________________________________________
__________________________________________________
(ii) |_| Any contribution described in Code Section
401(m) that the Employer would have made on behalf
of the Participant under the following qualified
defined contribution plan but for the limitations
imposed by Code Section 401(a)(17):
__________________________________________________
__________________________________________________
__________________________________________________
(2) |_| Discretionary Employer Contributions. The Employer
may make Employer Contributions to the accounts of
Participants in any amount, as determined by the
Employer in its sole discretion from time to time, which
amount may be zero.
(3) |_| Eligibility Requirement(s) for Employer
Contributions. A Participant shall only be entitled to
Employer Contributions under Section 1.05(c)(1) for a
Plan Year if the Participant satisfies the following
requirement(s) (Check the appropriate box(es). Options
(B) and (C) may not be elected together):
(A) |_| is employed by the Employer on the last day of
the Plan Year.
6
(B) |_| Earns at least 500 Hours of Service during the
Plan Year.
(C) |_| Earns at least 1,000 Hours of Service during
the Plan Year.
(D) |_| Other: _______________________________________
__________________________________________________
__________________________________________________
(E) |_| No requirements.
1.06 DISTRIBUTION DATES
Distribution from a Participant's Account pursuant to Section 8.02 shall
begin upon the following date(s) (check either (a) or (b); check (c), if
desired):
(a) |_| Non-Class Year Accounting (complete (1) and (2)).
(1) The earliest of termination of employment with the Employer
and the following event(s) (check appropriate box(es); if none
selected, all distributions will be upon termination of
employment):
(A) |_| Attainment of Normal Retirement Age (as defined in
Section 1.07(f).
(B) |_| Attainment of Early Retirement Age (as defined in
Section 1.07(g)).
(C) |_| The date on which the Participant becomes disabled
(as defined in Section 1.07(h)).
(2) Timing of distribution (check either (A) or (B)).
(A) |_| The Distribution of the Participant's Account will
be begin in the month following the event described in
(a)(1) above.
(B) |_| The Distribution of the Participant's Account will
begin as soon as administratively feasible in the
calendar year following distribution event described in
(a)(1) above.
(b) |X| Class Year Accounting (complete (1) and (2)).
(1) Upon (check at least one; (A) must be selected if plan has
contributions pursuant to section 1.05(b) or (c)):
(A) |X| Termination of employment with the Employer.
(B) |X| The date elected by the Participant, pursuant to
Plan Section 8.02, and subject to the restrictions
imposed in Plan Section 8.02 with respect to future
Deferral Contributions,
7
in which event such date of distribution must be at
least one year after the date such Deferral Contribution
would have been paid to the Participant in cash in the
absence of the election to make the Deferral
Contribution.
(2) Timing of distribution (check either (A) or (B)).
(A) |X| The Distribution of the Participant's Account will
begin on the first January 1st (specify month and day)
following the event described in (b)(1) above.
(B) |_| The Distribution of the Participant's Account will
begin _______ (specify month and day) of the calendar
year following the event described in (b)(1) above.
(c) |X| As soon as administratively feasible following a Change of
Control (as defined in Section 1.12).
1.07 VESTING SCHEDULE
(a) The Participant's vested percentage in Matching Contributions
elected in Section 1.05(b) shall be based upon the schedule(s)
selected below.
(1) |X| N/A - No Matching Contributions
(2) |_| 100% Vesting immediately
(3) |_| 3 year cliff (see C below)
(4) |_| 5 year cliff (see D below)
(5) |_| 6 year graduated (see E below)
(6) |_| 7 year graduated (see F below)
(7) |_| G below
(8) |_| Other (Attachment "B")
Years of Vesting Schedule
Service for -----------------------------------------------
Vesting C D E F G
----------- --- --- --- --- ---
0 0% 0% 0% 0% ___
1 0% 0% 0% 0% ___
2 0% 0% 20% 0% ___
3 100% 0% 40% 20% ___
4 100% 0% 60% 40% ___
5 100% 100% 80% 60% ___
8
Years of Vesting Schedule
Service for -----------------------------------------------
Vesting C D E F G
----------- --- --- --- --- ---
6 100% 100% 100% 80% ___
7 100% 100% 100% 100% 100%
(b) The Participant's vested percentage in Employer Contributions
elected in Section 1.05(c) shall be based upon the schedule(s)
selected below.
(1) |X| N/A - No Employer Contributions
(2) |_| l00% Vesting immediately
(3) |_| 3 year cliff (see C below)
(4) |_| 5 year cliff (see D below)
(5) |_| 6 year graduated (see E below)
(6) |_| 7 year graduated (see F below)
(7) |_| G below
(8) |_| Other (Attachment "B")
Years of Vesting Schedule
Service for -----------------------------------------------
Vesting C D E F G
----------- --- --- --- --- ---
0 0% 0% 0% 0% ___
1 0% 0% 0% 0% ___
2 0% 0% 20% 0% ___
3 100% 0% 40% 20% ___
4 100% 0% 60% 40% ___
5 100% 100% 80% 60% ___
6 100% 100% 100% 80% ___
7 100% 100% 100% 100% 100%
(c) |_| Years of Service for Vesting shall exclude (check one):
(1) |_| for new plans, service prior to the Effective Date as
defined in Section 1.01(e)(l).
(2) |_| for existing plans converting from another plan document,
service prior to the original Effective Date as defined in
Section 1.01(e)(2).
9
(d) |_| A Participant will forfeit his Matching Contributions and
Employer Contributions upon the occurrence of the following
event(s):
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(e) |_| A Participant will be l00% vested in his Matching Contributions
and Employer Contributions upon (check the appropriate box(es), if
any; if 1.06(c) is selected, Participants will automatically vest
upon Change of Control as defined in Section 1.12):
(1) |_| Normal Retirement Age (as defined in Section 1.07(e)).
(2) |_| Early Retirement Age (as defined in Section 1.07(f).
(3) |_| Death.
(4) |_| The date on which the Participant becomes disabled, as
determined under Section 1.07(h) of the Plan.
(f) Normal Retirement Age under the Plan is (check one):
(1) |_| age 65.
(2) |_| age (specify from 55 through 64).
(3) |_| the later of age ___ (cannot exceed 65) or the fifth
anniversary of the Participant's Commencement Date.
If no box is checked in this Section 1.07(f), then Normal Retirement
Age is 65.
(g) |_| Early Retirement Age is the first day of the month after the
Participant attains age ___ (specify 55 or greater) and
completes_______ Years of Service for Vesting.
(h) |_| The date on which a Participant becomes disabled is determined
(check one):
(1) |_| under the long-term disability plan maintained by the
Employer in which the Participant participates.
(2) |_| under Title 11 or XVI of the Social Security Act.
(3) |_| in the sole discretion of the Administrator based on
factors applied in a uniform and nondiscriminatory manner.
10
1.08 PREDECESSOR EMPLOYER SERVICE
|_| Service for purposes of vesting in Section 1.07(a) and (b) shall
include service with the following employer(s):
(a) ______________________________________________________________
(b) ______________________________________________________________
(c) ______________________________________________________________
(d) ______________________________________________________________
1.09 UNFORESEEABLE EMERGENCY WITHDRAWALS
Participant withdrawals for unforeseeable emergency prior to termination
of employment (check one; (b) must be selected if 1.06(b) has been
selected):
(a) |_| will be allowed in accordance with Section 7.07, subject to a
$__________ minimum amount. (Must be at least $1,000)
(b) |_| will not be allowed.
1.10 DISTRIBUTIONS
Subject to Articles 7 and 8 distributions under the Plan are always
available as a lump sum. Check below to allow distributions in installment
payments:
|X| under a systematic withdrawal plan (installments) not to exceed 10
years.
1.11 INVESTMENT DECISIONS
(a) Investment Directions
Investments in which the Accounts of Participants shall be treated
as invested and reinvested shall be directed.(check one):
(1) |_| by the Employer among the options listed in (b) below.
(2) |_| by each Participant among the options listed in (b) below.
(3) |X| in accordance with investment directions provided by each
Participant for all contribution sources in a Participant's
Account except the following sources shall be invested as
directed by the Employer (check (A) and/or (B)):
(A) |X| Nonelective Employer Contributions
(B) |X| Matching Employer Contributions
11
The Employer must direct the applicable sources among
the same investment options made available for
Participant directed sources listed in the Service
Agreement.
(b) Plan Investment Options
Participant Accounts will be treated as invested among the
Investment Funds listed in the Service Agreement from time to time
pursuant to Participant and/or Employer directions, as applicable.
Note: The method and frequency for change of investments will be
determined under the rules applicable to the selected funds.
Information will be provided regarding expenses, if any, for
changes in investment options.
1.12 CHANGE IN CONTROL
If Section 1.06(c) is selected, then, pursuant to Section 7.08 and
notwithstanding any other provision of the Plan to the contrary, the
Account Balances of all Participants shall the become immediately
nonforfeitable and shall become payable to the Participants as soon as
practicable upon a change in the control of the Employer, as defined
below:
see Section 2.01(a)(29) of the Plan for the definition of Change in
Control __________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
Note: Internal Revenue Code Section 280G could impose certain, adverse tax
consequences on both Participants and the Employer as a result of
the application of Section 1.12. The Employer should consult with
its attorney prior to selecting to apply Section 1. 06(c).
1.13 RELIANCE ON PLAN
An adopting Employer may not rely solely on this Plan to ensure that the
Plan is "unfunded and maintained primarily for the purpose of providing
deferred compensation for a select group of management or highly
compensated employees" with respect to the Employer's particular
situation. This Agreement must be reviewed by the Employer's attorney
before it is executed.
This Adoption Agreement may be used only in conjunction with the
CORPORATEp1an for Retirement Executive Plan Basic Plan Document.
12
EXECUTION PAGE
(Fidelity's Copy)
IN WITNESS WHEREOF, the Employer has caused this Adoption Agreement to be
executed this 14th day of November, 2002.
Employer RailAmerica, Inc.
By: /s/ Xxxxx X. Xxxxxxx
Title: Vice President of Human Resources
Employer _______________________________
By: ____________________________________
Title: _________________________________
13
EXECUTION PAGE
(Employer's Copy)
IN WITNESS WHEREOF, the Employer has caused this Adoption Agreement to be
executed this 14th day of November, 2002.
Employer RailAmerica, Inc.
By: /s/ Xxxxx X. Xxxxxxx
Title: Vice President of Human Resources
Employer _______________________________
By: ____________________________________
Title: _________________________________
14
Attachment A
Pursuant to Section 1.03(a), the following are the Employees who are eligible to
participate in the Plan:
Employer _______________________________
By: ____________________________________
Title: _________________________________
Date: __________________________________
Note: The Employer must revise Attachment A to add Employees as they become
eligible or delete Employees who are no longer eligible. Attachment A
should be signed and dated every time a change is made.
15
Attachment B
(a) |_| The Participant's vested percentage in Matching Contributions
elected in Section 1.05(b) shall be based upon the following
schedule:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(b) |_| The Participant's vested percentage in Employer Contributions
elected in Section 1.05(c) shall be based upon the following
schedule:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
16
FIRST AMENDMENT TO THE
ADOPTION AGREEMENT
to the
CORPORATEPLAN FOR RETIREMENT EXECUTIVE PLAN
BASIC PLAN DOCUMENT
a/k/a THE RAILAMERICA, INC. EXECUTIVE DEFERRED COMPENSATION PLAN
THIS FIRST AMENDMENT (the "Amendment"), made on this 14th day of November,
2002, to the Adoption Agreement (the "Agreement") to the CORPORATEplan for
Retirement Executive Plan Basic Plan Document, a/k/a the RailAmerica, Inc.
Executive Deferred Compensation Plan (the "Basic Plan Document") (the Agreement
and the Basic Plan Document shall be collectively referred to herein as the
"Plan"), by RAILAMERICA, INC., a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Company maintains the Plan for the sole and exclusive benefit
of its eligible participants and their respective beneficiaries under the terms
and provisions of the Internal Revenue Code of 1986, as amended, and
WHEREAS, pursuant to Section 9.01 of the Plan, the Company has the power
to amend the Plan;
NOW, THEREFORE, effective as of January 1, 2003, the Adoption Agreement of
the Plan shall be amended as follows:
2. Section 1.02(b) of the Adoption Agreement is hereby amended to read as
follows:
"(b) The term "Employer" includes the following Related Employer(s)
(as defined in Section 2.01(a)(21)) designated on Attachment C
hereto."
17
3. Section 1.03(a)(3) of the Adoption Agreement is hereby amended to read as
follows:
"(a) (1) |X| Only those Employees and Directors listed in
Attachments A-1 and A-2 will be eligible to participate in the
Plan."
4. Section 1.05(a) of the Adoption Agreement is hereby amended to read as
follows:
"(a) Deferral Contributions. The Employer shall make Deferral
Contributions in accordance with Section 4.01 of the Basic
Plan Document on behalf of each Participant who has an
executed compensation reduction agreement in effect with the
Employer for the Plan Year (or portion of the Plan Year) in
question, not to exceed the following:
(i) with respect to a Participant who is not a Director, (1)
50% of the Participant's base salary for that Plan Year, and
(2) 100% of any bonuses earned by the Participant for the Plan
Year; and
(ii) with respect to a Participant who is a Director, (1) 100%
of the Participant's monthly retainer fees earned during the
Plan Year, and (2) 100% of any meeting fees earned by the
Participant during the Plan Year."
5. Section 1.06(b)(1) of the Adoption Agreement is hereby amended to read as
follows:
"(1) Upon the earlier of:
(A) if the Participant is an Employee, the termination of
employment with the Employer, and if the Participant is a
Director, the termination of active service on the Board of
Directors of an Employer, and
(B) the date elected by the Participant, pursuant to and
subject to the restrictions in Section 8.02 of the Plan."
6. Section 1.06(b)(2) of the Adoption Agreement is hereby amended to read as
follows:
"(2) Timing of distribution (check either (A) or (B)).
18
(A) |X| The Distribution of the Participant's Account and/or
Sub-Account shall begin the first January 1st following the event
described in (b)(1) above.
(B) |_| The Distribution of the Participant's Account and/or
Sub-Account shall begin the first day of the calendar year following
the event described in (b)(1) above.
7. Section 1.07(f) of the Adoption Agreement is hereby amended to read as
follows:
"(f) Normal Retirement Age under the Plan is (check one):
(1) |_| age 65.
(2) |_| age (specify from 55 through 64).
(3) |_| the later of age ___ (cannot exceed 65) or the fifth
anniversary of the Participant's Commencement Date.
(4) |X| age 60.
If no box is checked in this Section 1.07(f), then Normal Retirement
Age is 65."
8. In all other respects, the Adoption Agreement shall remain unchanged by the
Amendment.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed
the day and year first above written.
RAILAMERICA, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President of Human Resources
19
SECOND AMENDMENT TO THE
ADOPTION AGREEMENT
to the
CORPORATEPLAN FOR RETIREMENT EXECUTIVE PLAN
BASIC PLAN DOCUMENT
a/k/a THE RAILAMERICA, INC. EXECUTIVE DEFERRED COMPENSATION PLAN
THIS SECOND AMENDMENT (the "Amendment"), made on this 11th day of
February, 2003, to the Adoption Agreement (the "Agreement") to the CORPORATEplan
for Retirement Executive Plan Basic Plan Document, a/k/a the RailAmerica, Inc.
Executive Deferred Compensation Plan (the "Basic Plan Document") (the Agreement
and the Basic Plan Document shall be collectively referred to herein as the
"Plan"), by RAILAMERICA, INC., a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Company maintains the Plan for the sole and exclusive benefit
of its eligible participants and their respective beneficiaries under the terms
and provisions of the Internal Revenue Code of 1986, as amended, and
WHEREAS, pursuant to Section 9.01 of the Plan, the Company has the power
to amend the Plan;
NOW, THEREFORE, effective as of March 1, 2003, the Adoption Agreement of
the Plan shall be amended as follows:
9. Section 1.03(a) of the Adoption Agreement is hereby amended to read as
follows:
"(a) (1) |X| Only those Employees and Directors listed in
Attachments A-1, A-2 and A-3 will be eligible to participate in the
Plan."
10. Section 1.03(b) of the Adoption Agreement is hereby amended to read as
follows:
"(b) The Entry Date(s) shall be (check one) (check one):
20
(1) |_| each January 1.
(2) |_| each January 1 and each July 1.
(3) |_| each January 1, April 1, July 1 and October 1.
(4) |_| the first day of each month.
(5) |_| immediately upon meeting the eligibility requirements
specified in Subsection 1.03(a).
(6) |X| Other: as of the effective date of this Amendment if
the eligibility requirements specified in Subsection 1.03(a) are
met, and if not, upon the next January 1, April 1, July 1 and
October 1 thereafter."
21
11. Section 1.05(c) of the Adoption Agreement is hereby amended to read as
follows:
"(c) Employer Contributions.
(1) |X| Fixed Employer Contributions. The Employer shall make
an Employer Contribution in accordance with the following (check at
least one):
(A) |_| to all Participants in an amount equal to ___%
of each Participant's Compensation each Plan Year.
(B) |X| to those Participants listed on Attachment A-3
in the amounts determined and allocated as set forth on Attachment D
hereto.
(C) |_| In an amount equal to (check at least one):
(i) |_| Any profit sharing contribution that the
Employer would have made on behalf of the
Participant under the following qualified defined
contribution plan but for the limitations imposed
by Code Section 410(a)(17):
__________________________________________________
(ii) |_| Any contribution described in Code
Section 401(m) that the Employer would have made
on behalf of the Participant under the following
qualified defined contribution plan but for the
limitations imposed by Code Section 401(a)(17):
__________________________________________________
(2) |X| Discretionary Employer Contributions. The Employer may
make Employer Contributions to the accounts of one or more
Participants in any amount, as determined by the Employer in its
sole discretion from time to time, which amount may be zero.
(3) |X| Eligibility Requirement(s) for Employer Contributions.
A Participant shall only be entitled to Employer Contributions under
Section 1.05(c)(1) for a Plan Year if the Participant satisfies the
following requirement(s) (Check the appropriate box(es). Options (B)
and (C) may not be elected together):
(A) |_| is employed by the Employer on the last day of
the Plan Year.
22
(B) |_| earns at least 500 Hours of Service during the
Plan Year.
(C) |_| earns at least 1,000 Hours of Service during the
Plan Year.
(D) |X| other: (i) be a Participant listed on Attachment
A-3 and (ii) elect Deferral Contributions hereunder at a
rate of at least six percent (6%) of the Participant's
base salary for the applicable Plan Year, provided that
in the event that the Participant's Deferral
Contributions for a Plan Year shall be less than 6% but
at least three percent (3%), the amount of Employer
Contributions that would have been made on his or her
behalf in accordance with Attachment D hereto shall be
reduced by multiplying such amount by a faction the
numerator of which shall be the percentage of Deferral
Contributions made by the Participant for the Plan Year,
and the denominator of which shall be six percent (6%).
Notwithstanding the foregoing, the minimum amount of
Employer Contribution that shall be made on behalf of a
Participant for a Plan Year shall be two percent (2%) of
the Participant's Compensation for such Plan Year.
(E) |_| no requirements."
12. Section 1.07(b) of the Adoption Agreement is hereby amended to delete the
"X" in (1) and insert and "X" in (4) so that there shall be a 5 year cliff
vesting with respect to Employer Contributions.
13. Section 1.07(e) of the Adoption Agreement is hereby amended to read as
follows:
"(e) A Participant will be 100% vested in his Matching Contributions
and Employer Contributions upon (check the appropriate box(es), if
any; if Section 1.06(c) is selected, Participants will automatically
vest upon a Change In Control as defined in Section 1.12):
(1) |X| Normal Retirement Age (as defined in Section 1.07(e)).
(2) |_| Early Retirement Age (as defined in Section 1.07(f)).
(3) |X| Death.
(4) |_| The date on which the Participant becomes disabled, as
determined under Section 1.07(h) of the Plan."
23
14. Section 1.07(f) of the Adoption Agreement is hereby amended to read as
follows:
"(f) Normal Retirement Age under the Plan is (check one):
(1) |X| age 65.
(2) |_| age (specify from 55 through 64).
(3) |_| the later of age ___ (cannot exceed 65) or the
fifth anniversary of the Participant's Commencement Date.
(4) |_| age 60.
If no box is checked in this Section 1.07(f), then Normal Retirement
Age is 65."
15. A new Attachment A-3, attached hereto, is hereby added to the Plan.
16. A new Attachment D, attached hereto, is hereby added to the Plan.
17. In all other respects, the Adoption Agreement shall remain unchanged by the
Amendment.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed
the day and year first above written.
RAILAMERICA, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President of Human Resources
24
Attachment A-3
The following are the Employees who are eligible to participate in the Plan and
eligible to receive Employer Contributions:
Xxxxxx, Xxxx X.
Xxxxxxxx, Xxxxxx X.
Xxxxxxx, Xxxx X.
Xxxx, Xxxx
Xxxxxxxx, Xxxxx
Xxxx, Xxxxx X.
Xxxxxxx, Xxxxx X.
Xxxxx, Xxxxxx X.
Xxxxxxxx, Xxxx
Xxxxxx, Xxxxx X.
Xxxxxx, Xxxx X.
Xxxxx, Xxxx X.
Xxxxxx, Xxxxxxx X.
Xxxxxx, Xxxxxxx X.
Xxxxx, Xxxxxx X.
Xxxxxxx, X X.
Xxxxxx, Xxxxxx X.
Xxxxxxxxx, Xxxxxx
Xxxxxxxxxx, Xxxx
Xxxxxx, Xxxxx
Xxxxxxxxx, Xxxxxx
Xxxxxxx, Xxxxx X.
Employer ______________________________________
By ______________________________________
Title ______________________________________
Date ______________________________________
Note: The Employer must revise Attachment A-3 to add Employees as they become
eligible or delete Employees who are no longer eligible.
25
Attachment D
================================================================================
EMPLOYER
NAME DEPARTMENT CONTRIB. $
================================================================================
Xxxxxx, Xxxx X. Executive 372,464
--------------------------------------------------------------------------------
Xxxxxxxx, Xxxxxx X. Xxxx Administration 59,538
--------------------------------------------------------------------------------
Xxxxxxx, Xxxx Operations 65,800
--------------------------------------------------------------------------------
Xxxx, Xxxx Finance 52,309
--------------------------------------------------------------------------------
Xxxxxxxx, Xxxxx Legal 21,000
--------------------------------------------------------------------------------
Xxxx, Xxxxx Finance 8,087
--------------------------------------------------------------------------------
Xxxxxxx, Xxxxx International 4,716
--------------------------------------------------------------------------------
Xxxxx, Xxxxxx X. Finance 3,840
--------------------------------------------------------------------------------
Hinsdale, Mark International 4,341
--------------------------------------------------------------------------------
Xxxxxx, Xxx Operations 3,200
--------------------------------------------------------------------------------
Xxxxxx, Xxxx Legal 11,625
--------------------------------------------------------------------------------
Xxxxx, Xxxx Real Estate 11,700
--------------------------------------------------------------------------------
Xxxxxx, Xxxx IT 11,700
--------------------------------------------------------------------------------
Xxxxxx, Xxxxxxx Strategic Planning 7,149
--------------------------------------------------------------------------------
Xxxxx, Al Operations 2,940
--------------------------------------------------------------------------------
Xxxxxxx, Xxx Operations 3,000
--------------------------------------------------------------------------------
Xxxxxx, Xxx Operations 3,000
--------------------------------------------------------------------------------
Xxxxxxxxx, Xxxxxx Operations 2,900
--------------------------------------------------------------------------------
Xxxxxxxxxx, Xxxx Xxx 2,740
--------------------------------------------------------------------------------
August, Xxxxx Xxxxxxxx Relations 3,981
--------------------------------------------------------------------------------
Xxxxxxxx, Xxxxxx Xxxxx 6,250
--------------------------------------------------------------------------------
Xxxxxxx, Xxxxx X. Human Resources 6,500
--------------------------------------------------------------------------------
26
