EXHIBIT 10.54
AMENDMENT NO. 4
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 is hereby further amended to reflect certain
provisions of the Community Renewal Tax Relief Act of 2000 and the Economic
Growth and Tax Relief Reconciliation Act of 2001 ("EGTRRA"). This Amendment is
intended as good faith compliance with the requirements of EGTRRA and is to be
construed in accordance with EGTRRA and guidance issued thereunder. Except as
otherwise provided, this Amendment shall be effective as of January 1, 2002. The
provisions of this Amendment No. 4 shall supersede the provisions of the Plan to
the extent those provisions are inconsistent with the provisions of this
Amendment.
1. The definition of "Compensation" in Article I is hereby
amended to add the following to the end thereof:
For Plan Years beginning January 1, 2000, Compensation shall
include any amount that is contributed or deferred by the
Employer at the election of the Participant and that is not
includable in the gross income of the Participant by reason of
Code Section 132(f)(4).
The annual Compensation of each Participant taken into account
in determining allocations for any Plan Year beginning January
1, 2002, shall not exceed $200,000, as adjusted for
cost-of-living increases in accordance with Code Section
401(a)(17)(B). Annual Compensation means Compensation during
the Plan Year or such other consecutive 12-month period over
which Compensation is otherwise determined under the Plan (the
determination period). The cost-of-living adjustment in effect
for a calendar year applies to annual Compensation for the
determination period that begins with or within such calendar
year.
2. The definition of "Eligible Retirement Plan" in Article I is
hereby amended to add the following to the end thereof:
With respect to distributions made after December 31, 2001, an
Eligible Retirement Plan also shall mean an annuity contract
described in Code Section 403(b) and an eligible plan under
Code Section 457(b) which is maintained by a state, political
subdivision of a state, or any agency or instrumentality of a
state, or political subdivision of a state and which agrees to
separately account
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for amounts transferred into such plan from this Plan. The
definition of Eligible Retirement Plan also shall apply in the
case of a distribution to a surviving spouse or to a spouse or
former spouse who is the "alternate payee" under a qualified
domestic relations order, as defined in Code Section 414(p).
3. The definition of "Eligible Rollover Distribution" in Article
I is hereby amended to add the following to the end thereof:
With respect to distributions made after December 31, 2001,
any amount that is distributed on account of Hardship shall
not be an Eligible Rollover Distribution, and the distributee
may not elect to have any portion of such a distribution paid
directly to an Eligible Retirement Plan. In addition, a
portion of a distribution shall not fail to be an Eligible
Rollover Distribution merely because the portion consists of
after-tax Employee contributions that are not includible in
gross income. However, such portion may be transferred only to
an individual retirement account or annuity described in Code
Section 408(a) or (b) or to a qualified defined contribution
plan described in Code Section 401(a) or 403(a) that agrees to
separately account for amounts so transferred, including
separately accounting for the portion of such distribution
which is includible in gross income and the portion of such
distribution which is not so includible.
4. The definition of "Key Employee" in Article I is hereby
amended to add the following to the end thereof:
Effective January 1, 2002, Key Employee means any Employee or
former Employee (including any deceased Employee) who at any
time during the Plan Year that includes the determination date
was an officer of the Employer having annual Compensation
greater than $130,000 (as adjusted under Code Section
416(i)(1) for Plan Years beginning after December 31, 2002), a
5-percent owner of the Employer or a 1-percent owner of the
Employer having annual Compensation of more than $150,000. For
this purpose, annual Compensation means compensation within
the meaning of Code Section 415(c)(3). The determination of
who is a Key Employee will be made in accordance with Code
Section 416(i)(1) and the applicable regulations and other
guidance of general applicability issued thereunder.
5. The definition of "Maximum Permissible Amount" in Article I is
hereby amended to add the following to the end thereof:
For Limitation Years beginning January 1, 2002, except to the
extent permitted under Paragraph 8 of this Amendment and Code
Section 414(v), the Annual Addition that may be contributed or
allocated to a Participant's
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account under the Plan for any Limitation Year shall not
exceed the lesser of: (a) $40,000, as adjusted for increases
in the cost of living under Code Section 415(d) or (b) 100
percent of the Participant's Compensation, within the meaning
of Code Section 415(c)(3), for the Limitation Year. The
Compensation limit referred to in (b) shall not apply to any
contribution for medical benefits after separation from
service (within the meaning of Code Sections 401(h) or
419A(f)(2)) that is otherwise treated as an Annual Addition.
6. The definition of "Present Value" in Article I is hereby
amended to add the following to the end thereof:
Effective January 1, 2002, for purposes of determining the
Present Values of accrued benefits and the amounts of account
balances of Employees as of the determination date, the
Present Values of accrued benefits and the amounts of account
balances of an Employee as of the determination date shall be
increased by the distributions made with respect to the
Employee under the Plan and any plan aggregated with the Plan
under Code Section 416(g)(2) during the one-year period ending
on the determination date. The preceding sentence also shall
apply to distributions under a terminated plan which, had it
not been terminated, would have been aggregated with the Plan
under Code Section 416(g)(2)(A)(i). In the case of a
distribution made for a reason other than separation from
service, death, or disability, this provision shall be applied
by substituting "five-year period" for "one-year period." The
accrued benefits and accounts of any individual who has not
performed services for the Employer during the one-year period
ending on the determination date shall not be taken into
account.
7. The definition of "Rollover Contribution" in Article I is
hereby amended to add the following to the end thereof:
Effective for Plan Years on or after January 1, 2002,
"Rollover Contribution" also means a contribution from another
plan qualified under Code Section 403(a), from an individual
retirement account or annuity under Code Section 408(a) or
(b), from an annuity contract described under Code Section
403(b), or from an eligible plan under Code Section 457(b)
which is maintained by a state, political subdivision of a
state, or any agency or instrumentality of a state, or
political subdivision of a state. In addition, "Rollover
Contribution" also shall include a distribution from any of
the foregoing that an Employee receives on behalf of his
surviving spouse.
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8. Section 4.5 is hereby amended to add the following to the end
thereof:
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) in effect
for such taxable year, except to the extent permitted by this
Amendment and Code Section 414(v).
Effective January 1, 2002, all Employees who are eligible to
make Elective Deferrals under this Plan and who have attained
age 50 before the close of the Plan Year shall be eligible to
make catch-up contributions in accordance with, and subject to
the limitations of, Code Section 414(v). Such catch-up
contributions shall not be taken into account for purposes of
the provisions of the plan implementing the required
limitations of Code Sections 402(g) and 415. The Plan shall
not be treated as failing to satisfy the provisions of the
plan implementing the requirements of Code Sections 401(k)(3),
401(k)(11), 401(k)(12), 410(b), or 416, as applicable, by
reason of the making of such catch-up contributions.
9. Sections 5.1(b), 5.2(c), and 6.2(e) are hereby amended to
replace the term "separation from Service" with the term
"severance from employment."
10. Section 6.4 is hereby amended to add the following to the end
thereof:
Effective January 1, 2002, Rollover Contributions shall not be
counted in determining whether a Participant's Vested Account
Balance derived from Employer and Employee contributions
exceeds $5,000.
11. Section 6.7 is hereby amended to substitute the following for
the second paragraph thereof:
Elective Deferrals, Qualified Non-Elective Contributions, and
Qualified Matching Contributions, and income allocable to each
are not distributable to a Participant or his or her
Designated Beneficiary or Beneficiaries, in accordance with
such Participant's or Beneficiary's or Beneficiaries'
election, earlier than on severance from employment, death, or
Disability. Such amounts may also be distributed on:
(a) Termination of the Plan without the
establishment of another Defined
Contribution Plan.
(b) The Hardship of the Participant as described
in Paragraph 6.8.
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12. Section 9.2 is hereby amended to add the following to the end
thereof:
Effective January 1, 2002, a Participant's nonforfeitable
interest in his or her account attributable to Employer
contributions shall be determined in accordance with the
following table, provided that if a Participant is not already
fully vested, he or she shall become so on attaining Normal
Retirement Age, Early Retirement Age, on death before normal
retirement, on retirement due to Disability, or on termination
of the Plan:
Years of Service Vested Percentage
1 0%
2 0%
3 or more 100%
13. Section 14.2 is hereby amended to add the following to the
end thereof:
Notwithstanding the foregoing, effective January 1, 2002,
Matching Employer Contributions shall be taken into account
for purposes of satisfying the minimum contribution
requirements of Code Section 416(c)(2) and the Plan. The
preceding sentence shall apply with respect to Matching
Employer Contributions under the Plan or, if the Plan provides
that the minimum contribution requirement shall be met in
another plan, such other plan. Matching Employer Contributions
that are used to satisfy the minimum contribution requirements
shall be treated as matching contributions for purposes of the
actual contribution percentage test and other requirements of
Code Section 401(m).
Adopted this day of , 2001.
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Xxxxxxx Enterprises, Inc.
By:
-----------------------
Title:
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ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF JEFFERSON
BEFORE ME, the undersigned Notary Public, duly commissioned and
qualified in and for the State and Parish aforesaid, on this __________ day of
_______________ , 2001, personally appeared:
Xxxxxxx X. Xxxxx
who declared that he is the Executive Vice President & CFO of Xxxxxxx
Enterprises, Inc. (the "Corporation"), and that he/she executed the foregoing
Amendment No. Four to the Xxxxxxx Enterprises, Inc. Employees' Retirement Trust
(A Profit Sharing Plan) and Trust Agreement, in the presence of the two
respective witnesses opposite his/her signature and on behalf of the
Corporation, freely and voluntarily and for the purposes and considerations
therein set forth, and that he/she was duly authorized to do so.
XXXXXXX ENTERPRISES, INC.
----------------------------- By:
Witness Xxxxxxx X. Xxxxx
Executive Vice President
-----------------------------
Witness
-----------------------------
Notary Public
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