EXHIBIT 10.5
SECOND AMENDMENT TO THE
INGRAM MICRO 401(K) INVESTMENT SAVINGS PLAN
The Ingram Micro 401(k) Investment Savings Plan, which was restated as of
April 1, 2005, is hereby amended in the following manner in accordance with the
amendment procedures set forth in Section 12.1 of the Plan. This Amendment is
effective as of January 1, 2006.
1. Section 1.2 is amended by the addition of the following thereto:
"Actual Deferral Percentages shall be calculated in accordance with
Treasury Regulation Section 1.401(k)-2(a)(3)."
2. Sections 1.43 through 1.46, inclusive, are amended to read as follows:
"1.43 "QMAC" means a qualified matching contribution that (i) is made to
the Plan pursuant to Section 3.8, and (ii) complies with the definition of
qualified matching contribution set forth in Treasury Regulation Section
1.401(k)-6.
1.44 "QMAC Account" means the Account to which are credited QMACs made on
behalf of a Participant and earnings or losses on those contributions.
1.45 "QNEC" means a qualified nonelective contribution that (i) is made to
the Plan pursuant to Section 3.5, and (ii) complies with the definition of
qualified nonelective contribution set forth in Treasury Regulation Section
1.401(k)-6.
1.46 "QNEC Account" means the Account to which are credited QNECs made on
behalf of a Participant and earnings or losses on those contributions."
3. Section 3.l(a) is amended by the addition of the following thereto:
"(9) Except for occasional, bona fide administrative considerations,
Before-Tax or Catch-Up Contributions made pursuant to a cash or deferred
election by an Eligible Employee cannot precede the earlier of (1) the
performance of services relating to the contribution or (2) the date the
Compensation that is subject to the election would be currently available to the
Eligible Employee in the absence of an election to defer."
4. Section 3.5(b) is amended to read as follows:
"(b) If Before-Tax Contributions are made to the Plan for a Plan Year for
a Highly Compensated Employee who is eligible to have salary reduction
contributions allocated to his account under another plan maintained by the
Employer that provides a cash or deferred arrangement described in Section
401(k) of the Code, the Actual Deferral Percentage of that Highly Compensated
Employee shall be calculated as if all such other plans are part of the Plan. If
a Highly Compensated Employee participates in two (2) or more cash or deferred
arrangements that are part of plans that have different
plan years, all Before-Tax Contributions made during the Plan Year being tested
shall be aggregated, without regard to the plan years of the other plans.
Notwithstanding the foregoing, certain plans shall be treated as separate if
mandatorily disaggregated under Regulation Section 1.401(k)-1(b)(4)."
5. Section 3.5 is amended by the addition of the following thereto:
"(g) Notwithstanding the above, a QNEC cannot be taken into account in
determining the Actual Deferral Percentage of an Eligible Employee who is a
Non-highly Compensated Employee for the Plan Year to the extent that the QNEC
exceeds the product of the Eligible Employee's Compensation and the greater of
five percent (5%) or two (2) times the Plan's "representative contribution
rate." Any QNEC taken into account under an actual contribution percentage test
under Regulation Section 1.401(m)-2(a)(6)(including the determination of the
representative contribution rate for purposes of Regulation Section
1.401(m)-2(a)(6)(v)(B)) is not permitted to be taken into account for purposes
of Section 3.5 including the determination of the "representative contribution
rate" for purposes of subsection (1) below. For purposes of this Section:
(1) The Plan's "representative contribution rate" is the lowest
"applicable contribution rate" of any Eligible Employee who is a Non-highly
Compensated Employee among a group of eligible Non-highly Compensated Employees
that consists of half of all eligible Non-highly Compensated Employees for the
Plan Year (or, if greater, the lowest "applicable contribution rate" of any
Non-highly Compensated Employee who is an Eligible Employee or who is in the
group of all Eligible Employees who are Non-highly Compensated Employees for the
Plan Year and who is employed by the Employer on the last day of the Plan Year),
and
(2) The "applicable contribution rate" for a Non-highly Compensated
Employee who is an Eligible Employee is the sum of the QMACs taken into account
in determining the Actual Deferral Percentage for the Eligible Employee for the
Plan Year and the QNECs for the Eligible Employee for the Plan Year, divided by
the Eligible Employee's Compensation for the same period.
A QMAC may only be used to calculate an Actual Deferral Percentage to the
extent that such QMAC is a matching contribution that is not precluded from
being taken into account under Section 3.8 of the Plan for the Plan Year under
the rules of Regulation Section 1.401(m)-2(a)(5)(ii).
(h) Notwithstanding the above, QNECs and QMACs cannot be taken into
account to determine an Actual Deferral Percentage to the extent such
contributions are taken into account for purposes of satisfying any other actual
deferral percentage test, actual contribution percentage test, or the
requirements of Regulation Section 1.401(k)-3, 1.401(m)-3, or 1.401(k)-4."
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6. Section 3.7(b) is amended to read as follows:
"(b) Distributions of Excess Contributions must be adjusted for income
(gain or loss), including an adjustment for income for the period between the
end of the Plan Year and the date of the distribution (the "gap period"). The
Administrator has the discretion to determine and allocate income using any of
the methods set forth below:
(1) The Administrator may use any reasonable method for computing
the income allocable to Excess Contributions, provided that the method does not
violate Section 401(a)(4) of the Code, is used consistently for all Participants
and for all corrective distributions under the Plan for the Plan Year, and is
used by the Plan for allocating income to Participant Accounts. A Plan will not
fail to use a reasonable method for computing the income allocable to Excess
Contributions merely because the income allocable to Excess Contributions is
determined on a date that is no more than seven (7) days before the
distribution.
(2) The Administrator may allocate income to Excess Contributions
for the Plan Year by multiplying the income for the Plan Year allocable to the
Before-Tax Contributions and other amounts taken into account under Section 3.5
of the Plan, by a fraction, the numerator of which is the Excess Contributions
for the Participant for the Plan Year, and the denominator of which is the sum
of the:
(A) The Account balance attributable to Before-Tax
Contributions and other amounts taken into account under Section 3.5 of the Plan
as of the beginning of the Plan Year, and
(B) Any additional amount of such contributions made for the
Plan Year.
(3) The Administrator may use the safe harbor method in this
paragraph to determine income on Excess Contributions for the gap period. Under
this safe harbor method, income on Excess Contributions for the gap period is
equal to ten percent (10%) of the income allocable to Excess Contributions for
the Plan Year that would be determined under paragraph (2) above, multiplied by
the number of calendar months that have elapsed since the end of the Plan Year.
For purposes of calculating the number of calendar months that have elapsed
under the safe harbor method, a corrective distribution that is made on or
before the fifteenth (15th) day of a month is treated as made on the last day of
the preceding month and a distribution made after the fifteenth day of a month
is treated as made on the last day of the month.
(4) The Administrator may determine the income for the aggregate of
the Plan Year and the gap period, by applying the alternative method provided by
paragraph (2) above to this aggregate period. This is accomplished by (i)
substituting the income for the Plan Year and the gap period, for the income for
the Plan Year, and (ii) substituting the amounts taken into account under
Section 3.5 of the Plan for the Plan
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Year and the gap period, for the amounts taken into account under Section 3.5 of
the Plan for the Plan Year in determining the fraction that is multiplied by
that income."
7. Section 3.8(b) is amended to read as follows:
"(b) The Contribution Percentage for any Participant who is a Highly
Compensated Employee and who is eligible to have matching contributions or
after-tax contributions allocated to his account under two (2) or more plans
described in Section 401(a) of the Code, or arrangements described in Section
401(k) of the Code that are maintained by the same Employer, shall be determined
as if the total of such contributions was made under each plan and arrangement.
If a Highly Compensated Employee participates in two (2) or more such plans or
arrangements that have different plan years, all matching contributions and
after-tax contributions made during the Plan Year being tested under all such
plans and arrangements shall be aggregated, without regard to the plan years of
the other plans. Notwithstanding the foregoing, certain plans shall be treated
as separate if mandatorily disaggregated under Regulation Section 1.401(m)-1(b)
(4)."
8. Section 3.8 is amended by the addition of the following thereto:
"(g) Notwithstanding the above, a Matching Contribution for a Plan Year
cannot be taken into account under Section 3.8 of the Plan for any Eligible
Employee who is a Non-highly Compensated Employee to the extent it exceeds the
greatest of:
(1) five percent (5%) of the Eligible Employee's Compensation for
the Plan Year;
(2) the sum of the Eligible Employee's Before-Tax Contributions and
After-Tax Contributions for the Plan Year; and
(3) the product of two (2) times the Plan's "representative matching
rate" and the Eligible Employee's total Before-Tax Contributions and After-Tax
Contributions for the Plan Year.
The Plan's "representative matching rate" is the lowest "matching rate"
for any Eligible Employee who is a Non-highly Compensated Employee among a group
of Eligible Employees who are Non-highly Compensated Employees that consists of
half of all Eligible Employees who are Non-highly Compensated Employees for the
Plan Year who make Before-Tax Contributions and/or After-Tax Contributions (or,
if greater, the lowest "matching rate" for all Eligible Employees who are
Non-highly Compensated Employees, who are employed by the Employer on the last
day of the Plan Year, and who make Before-Tax Contributions and/or After-Tax
Contributions for the Plan Year).
The "matching rate" for an Employee generally is the amount of Matching
Contributions made for such Employee divided by the sum of the Employee's
Before-Tax Contributions and After-Tax Contributions for the Plan Year. If the
matching rate is
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not the same for all levels of Before-Tax Contributions and After-Tax
Contributions made by an Employee, the Employee's "matching rate" is determined
assuming that an Employee's Before-Tax Contributions and After-Tax Contributions
equal six percent (6%) of Compensation.
(h) QNECs cannot be taken into account under Section 3.8 of the Plan for a
Plan Year for any Eligible Employee who is a Non-highly Compensated Employee to
the extent such contributions exceed the product of that Employee's Compensation
and the greater of five percent (5%) or two (2) times the Plan's "representative
contribution rate." Any QNEC taken into account under Section 3.5 of the Plan
(including the determination of the "representative contribution rate" for
purposes of Regulation Section 1.401(k)-2(a)(6)(iv)(B)) is not permitted to be
taken into account for purposes of this Section, including the determination of
the "representative contribution rate" for purposes of subsection (1) below. For
purposes of this Section:
(1) The Plan's "representative contribution rate" is the lowest
"applicable contribution rate" of any Eligible Employee who is a Non-highly
Compensated Employee among a group of eligible Non-highly Compensated Employees
that consists of half of all eligible Non-highly Compensated Employees for the
Plan Year (or, if greater, the lowest "applicable contribution rate" of any
eligible Non-highly Compensated Employee who is in the group of all Eligible
Non-highly Compensated Employees for the Plan Year and who is employed by the
Employer on the last day of the Plan Year), and
(2) The "applicable contribution rate" for any Eligible Employee who
is a Non-highly Compensated Employee is the sum of the matching contributions
(as defined in Regulation Section 1.401(m)-1(a)(2)) taken into account in
determining the Contribution Percentage for the eligible Non-highly Compensated
Employee for the Plan Year and the QNECs made for that Employee for the Plan
Year, divided by the Employee's Compensation for the Plan Year."
9. Section 3.9(b) is amended to read as follows:
"(b) Distributions of Excess Aggregate Contributions must be adjusted for
income (gain or loss), including an adjustment for income for the period between
the end of the Plan Year and the date of the distribution (the "gap period").
"Income" shall be determined and allocated in accordance with the provisions of
Section 3.7(b), except that such Section shall be applied by replacing "Excess
Contributions" with "Excess Aggregate Contributions" and by replacing amounts
taken into account under Section 3.8(a) of the Plan for amounts taken into
account under Section 3.5(a) of the Plan."
10. Section 6.2 is amended by the addition of the following thereto:
"(c) The Plan shall disregard Before-Tax and Catch-Up Contributions in
applying the vesting provisions of the Plan to other contributions or
benefits solely for purposes of Section 411(a)(2) of the Code."
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11. Section 6.4(a) is amended to read as follows:
"(a) If a former Participant whose Severance from Employment resulted in a
forfeiture of his entire Account pursuant to Section 6.3 resumes participation
in the Plan after at least five (5) consecutive One-Year Breaks in Service, he
shall have no right to restoration of any previously forfeited portion of his
Account. Such Participant's Years of Service or period of employment after the
break in service or period of absence shall not be taken into account in
determining the Participant's vested nonforfeitable right to the value of his
Account attributable to contributions made by the Employer before he resumed
participation in the Plan."
IN WITNESS WHEREOF, this Second Amendment is executed on the date set
forth below.
INGRAM MICRO, INC.
By: /s/ Matthew A. Sauer
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Title: SVP HUMAN RESOURCES
Date: 12/26/2006
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