Exhibit 10.5
AMENDMENT NO. 4 TO THE PLM INTERNATIONAL, INC.
EMPLOYEE STOCK OWNERSHIP PLAN
The definition of "Plan Year" in Article II of the Plan
shall be amended to read as follows:
"'Plan Year' shall mean the twelve-month period
beginning on January 1 and ending on December 31,
provided, however, that the initial Plan Year shall be
a short Plan Year commencing on the Effective Date and
the final Plan Year shall be a short Plan Year ending
on the effective date of termination of the Plan."
The definition of "Compensation" in Article II of the Plan
shall be amended, as conformed to Amendment No. 2, to read as
follows:
"'Compensation' shall mean, for each Plan Year,
the compensation (within the meaning of such term under
Section 415(c)(3) of the Code) paid to an Employee for
the performance of Service during such Plan Year,
including (except for purposes of Article X) amounts
otherwise excludable from such individual's gross
income under Section 125, 402(e)(3) or 402(h) of the
Code. Notwithstanding the foregoing, the maximum
amount of Compensation taken into account for an
individual in any Plan Year beginning before January 1,
1994, shall not exceed $200,000, as such amount is
adjusted for increases in the cost-of-living in
accordance with Section 401(a)(17) of the Code, and the
maximum amount of Compensation that may be taken into
account in any Plan Year beginning on or after January
1, 1994 shall not exceed $150,000, as such amount is
adjusted for increases in the cost-of-living in
accordance with Code section 401(a)(17). The cost-of-
living adjustment in effect for a calendar year applies
to any period, not exceeding 12 months, over which
compensation is determined (determination period)
beginning in such calendar year. If a determination
period consists of fewer than 12 months, the limit set
forth in this paragraph shall be multiplied by a
fraction, the numerator of which is the number of
months in the determination period, and the denominator
of which is 12."
A new section 9.8 of the Plan shall be added to read as
follows:
"9.8 Direct Rollovers. This Section applies to
distributions made on or after January 1, 1993.
Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a distributee's
election under this Article IX or a distribution on
Plan termination under Article XVII, a distributee may
elect, at the time and in the manner prescribed by the
Committee, to have any portion of an eligible rollover
distribution paid directly to an eligible retirement
plan specified by the distributee in a direct rollover.
(a) For purposes of this section, the following terms
shall be defined as follows:
(i) Eligible rollover distribution: An
eligible rollover distribution is any
distribution of all or any portion of
the balance to the credit of the
distributee, except that an eligible
rollover distribution does not include:
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 years or more; any distribution
to the extent such distribution is
required under section 401(a)(9) of the
Code; and the portion of any
distribution that is not includable in
gross income (determined without regard
to the exclusion for net unrealized
appreciation with respect to employer
securities). An eligible rollover
distribution also does not include
distribution of Code section 404(k)
dividends, and any additional items
designated by the Commissioner in
revenue rulings, notices, and other
guidance.
(ii) Eligible retirement plan: An eligible
retirement plan is an individual
retirement account described in section
408(a) of the Code, an individual
retirement annuity described in section
408(b) of the Code, an annuity plan
described in section 403(a) of the Code,
or a qualified trust described in
section 401(a) of the Code, that accepts
the distributee's eligible rollover
distribution. However, in the case of
an eligible rollover distribution to the
surviving spouse, an eligible retirement
plan is an individual retirement account
or individual retirement annuity.
(iii) Distributee: A distributee includes an
employee or former Employee. In
addition, the Employee's or former
Employee's Surviving Spouse and the
Employee's or former Employee's Spouse
or former Spouse who is the alternate
payee under a qualified domestic
relations order, as defined in section
414(p) of the Code, are distributees
with regard to the interest of the
Spouse or former Spouse.
(iv) Direct rollover: A direct rollover is a
payment by the plan to the eligible
retirement plan specified by the
distributee.
(b) The Committee may prescribe reasonable procedures
for the election of direct rollovers under this
section, including, but not limited to:
(i) Requirements that the distributee
provide the Committee with adequate
information, including, but not limited
to, the name of the eligible retirement
plan to which the rollover is to be
made, a representation that the
recipient plan is an individual
retirement plan, a qualified plan, or a
403(a) annuity, as appropriate,
acknowledgement from the recipient plan
that it will accept the direct rollover,
and any other information necessary to
make the direct rollover;
(ii) Requirements that direct rollover
elections be made within 30 days of
receipt of the notice required under
section 402(f) of the Code and
procedures for default which either
provide that a failure to make an
affirmative election within this time
period will constitute an election to
make a direct rollover or provide that
failure to make an affirmative election
within this time period shall constitute
an election to receive the distribution;
(iii) Requirements prohibiting the division of
an eligible rollover distribution into
separate distributions to be paid to
more than one plan;
(iv) Requirements prohibiting a direct
rollover if the total distributions for
the year to the distributee are
reasonably expected to total less than
$200;
(v) Requirements prohibiting division of an
eligible rollover distribution into a
portion to be paid in a direct rollover
and a portion to be paid to the
distributee, unless the amount to be
paid in the direct rollover is equal to
or greater than $500."
Section 9.1 of the Plan is amended by adding ", Section 9.9,
and Section 9.10" after the reference to "Section 9.6" in the
first line of text.
Section 9.2(a) of the Plan is amended by adding ", Section
9.9 and Section 9.10" after the reference to "Section 9.6" in the
first line of text.
A new section 9.9 of the Plan shall be added to read as
follows:
"9.9 Distribution of Vested Interest Less than or
Equal to $3,500. Notwithstanding any provision of this
Plan to the contrary, if the value of the Vested
Interest of a Member is less than or equal to $3,500
(and has never exceeded $3,500 at the time of any prior
distribution), then it shall be distributed in a lump
sum as soon as practicable on or after the later of
June 17, 1994 or the day the Member terminates Service.
For the purpose of determining the value of the Vested
Interest of a Member who has terminated Service under
this Section 9.9, Stock held in the Member's Account
shall be valued based on the fair market value of the
shares of common stock of PLM into which any Series A
Convertible Preferred Stock would be converted upon
distribution. For the purpose of this Section 9.9,
fair market value shall mean the closing price for the
common stock of PLM on the date immediately prior to
the date of distribution as reported on the America
Stock Exchange by the Wall Street Journal on such date,
or if no such common stock was traded on the relevant
date, on the next preceding day on which such common
stock was so traded. Any distribution made pursuant to
this Section 9.9 shall be made in kind, in whole shares
of Stock, consisting of shares of common stock of PLM
into which any Series A Convertible Preferred Stock
shall have been converted, together with any cash
credited to the Member either awaiting investment in
Stock or representing a fractional share of Stock."
A new section 9.10 of the Plan shall be added to read as
follows:
"9.10 Elective Distributions on Termination of
Service. Notwithstanding any provision of this Plan to
the contrary, a Member who has terminated Service may
elect, in such form and manner specified by the
Committee or its delegates, to receive the Vested
Interest of the Member in the Member's Account as soon
as practicable on or after the later of June 17, 1994
or the date of the Member's termination of Service.
Any distribution made pursuant to the Section 9.10
shall be made in kind, in whole shares of Stock,
consisting of shares of common stock of PLM into which
any Series A Convertible Preferred Stock shall have
been converted, together with any cash credited to the
Member either awaiting investment in Stock or
representing a fractional share of Stock."
Section 17.1 of the Plan shall be amended to read as
follows:
"17.1 Amendment, Suspension or Termination of
the Plan. (a) Subject to the provisions of
Section 17.1(b), the Board of Directors reserves
the right at any time to amend, suspend or
terminate the Plan, any Company Contributions
thereunder, or the Trust in whole or in part and
for any reason and without the consent of any
Participating Company, Member, Beneficiary or
other interested party. Any action taken pursuant
to this Subsection shall be formally adopted by
resolution, unanimous written consent, or any
other method authorized under the by-laws of PLM
and shall be effective on the date of its adoption
or such other date as may be specified in the
resolution or other Board of Directors' action."
Section 17.4 of the Plan shall be amended to read as
follows:
"17.4 Termination of the Plan. Upon
termination of the Plan, the Company shall not
make any further Company Contributions under the
Plan and no amount shall thereafter be payable
under the Plan to or in respect of any Member
except as provided in this Article XVII. Any
Financed Stock credited to the Loan Suspense
Account shall be used first to satisfy any
obligations under the ESOP Loan. Any Financed
Stock remaining after satisfaction of all
liabilities under the ESOP Loan shall be credited
to the Accounts of Members who are Employees on
the date of termination of the Plan in the
proportion that each such member's Covered
Compensation for the Plan Year bears to the
aggregate Covered Compensation of all such Member
for such Plan Year. To the maximum extent
permitted by ERISA, transfers, distributions or
other dispositions of the assets of the Plan as
provided in this Article XVII shall constitute a
complete discharge of all liabilities under the
Plan. The Committee shall remain in existence and
all of the provisions of the Plan which in the
opinion of the Committee are necessary for the
execution of the Plan and the administration and
distribution, transfer or other disposition of the
assets of the Plan in accordance with this Section
17.4 shall remain in force. After (i) payment of
or provision for all expenses and charges referred
to in Section 6.3 and Section 6.4 and (ii)
adjustment for earnings, profits and losses of the
Trust to such termination date in the manner
described in Section 6.1, the interest of each
Member in Service as of the date of such
termination in the amount, if any, credited to his
or her Account after the foregoing adjustments,
shall be nonforfeitable as of such date. As of
the date of termination, the shares and cash, if
any, credited to the Account of each Member or
former Member shall be paid in kind in a lump sum
as soon as practicable from the Trust to each
Member and former Member (or, in the event of the
death of a Member or former Member, the
Beneficiary thereof), if the Company and every
other entity within the same controlled group as
the Company does not maintain another defined
contribution plan. Otherwise, such lump sum shall
be transferred to another defined contribution
plan of the Company or an entity within the same
control group as the Company. Such a lump sum
shall include whole shares of Stock, consisting of
shares of common stock of PLM into which Series A
Cumulative Convertible Preferred stock shall have
been converted, together with any cash credited to
the Member or former Member's Account either
awaiting investment in Stock or representing a
fractional share of Stock. Any amounts remaining
unallocated in a suspense account created in
accordance with Section 415 of the Code shall,
after application to the extent necessary to
satisfy the outstanding balance on any ESOP Loan,
be returned to the Company specified by PLM.
All determinations, approvals and
notifications referred to above shall be in form
and substance and from a source satisfactory to
the Committee."