EXHIBIT 10.9
AMENDMENT NO. 2 TO THE
DELL COMPUTER CORPORATION
401(K) PLAN
THIS AMENDMENT is made as of the 1st day of January, 2001 by DELL
COMPUTER CORPORATION, a Texas corporation, (the "Company");
WHEREAS, the Company has heretofore adopted and maintains the Dell
Computer Corporation 401(k) Plan (the "Plan") for the benefit of eligible
employees of the Company and its participating affiliates; and
WHEREAS, the Company desires to amend the Plan's provisions concerning
participant loans and vesting in certain respects;
NOW THEREFORE, the Plan is hereby amended as follows, effective as of
January 1, 2001, except as otherwise indicated herein:
1. Plan Section 1.1 is hereby amended by revising Subsection (ii) to
add the following new Paragraph (7) to the end thereof, to be and read as
follows:
"(7) An individual's Period of Service shall include any period of
employment by such individual with Dell Financial Services,
L.P.; provided, however, that this provision shall apply
solely to an individual who becomes an Employee immediately
following the date of his or her termination of employment
with Dell Financial Services, L.P."
2. Plan Section 7.4 is hereby amended by adding the following new
Subsection (g) to the end thereof, to be and read as follows:
"(g) SPECIAL RULES FOR DFS EMPLOYEES. Notwithstanding the
preceding, any Participant who terminates his or her
employment with the Employer pursuant to a written agreement
which provides that he or she shall accept employment with
Dell Financial Services, L.P., which is an affiliate of the
Employer, shall be 100% vested in his or her account balance
as of December 31, 2001. This Subsection shall not apply to
individuals who terminate employment after December 31, 2001."
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3. Plan Section 9.1 is hereby amended to be and read as follows:
"9.1 ELIGIBILITY FOR LOAN.
(a) Subject to the provisions of this Article, the
following individuals shall be eligible for loans
under the Plan: (i) each Participant who is an
Employee and (ii) each party-in-interest, as that
term is defined in section 3(14) of ERISA, as to the
Plan, but only if such party-in-interest (i) retains
an Account balance under the Plan and (ii) is either
a Participant no longer employed by the Employer, a
beneficiary of a deceased Participant, or an
alternate payee under a qualified domestic relations
order, as that term is defined in section 414(p)(8)
of the Code. (An individual who is eligible to apply
for a loan under the Plan as described in the
preceding sentence shall hereinafter be referred to
as a "Participant" for purposes of this Article.)
(b) Notwithstanding the above, a Participant may not have
more than two (2) loan outstanding at any time;
provided, however, that for the Plan Year ending
December 31, 2001, a Participant may have up to three
(3) loans outstanding at any one time.
(c) Upon application by a Participant and subject to such
uniform and nondiscriminatory rules and regulations
as the Committee may establish, the Committee may in
its discretion direct the Trustee to make a loan or
loans to such Participant."
4. Plan Section 9.5(b) is hereby amended to be and read as follows:
"(b) The terms of the loan shall (i) require level amortization
with payments not less frequently than quarterly, (ii) require
that the loan be repaid (a) over an amortization period of one
to five years for the period from the Effective Date through
December 31, 2000, and (b) over an amortization period of one
to four and one-half years effective as of January 1, 2001,
(unless the Participant certifies in writing to the Committee
that the loan is to be used to acquire any dwelling unit which
within a reasonable time is to be used (determined at the time
the loan is made) as a principal residence of the Participant,
in which case the loan must be repaid over an amortization
period of five to twenty years), (iii) allow prepayment
without penalty at any time, provided that any prepayment must
be for the full outstanding loan balance (including interest),
(iv) require that the balance of the loan (including interest)
shall become due and payable (to the extent not otherwise due
and payable) within ninety days of the date the Participant
or, if applicable, the Participant's beneficiary, is first
entitled to a distribution from the Plan (other than a
distribution pursuant
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to Article VIII) irrespective of whether such Participant or
beneficiary elects or consents to such distribution, and (v)
provide that such Participant's outstanding loan balance
(including interest), if not paid in accordance with the
repayment provisions of the loan, shall be treated as a deemed
distribution upon the end of the "cure period" permitted by
applicable Treasury Regulations and repaid by offsetting such
balance against the amount in the Participant's segregated
loan fund pledged as security for the loan. With respect to
the correction of a loan pursuant to the "cure period"
provisions of Treas. Reg. Section 1.72(p)-1, Q&A-10, the
Employer may adopt a nondiscriminatory policy which permits
Participants who have failed to make one or more loan payments
to make addition payments to the Plan's Trust prior to the end
of the applicable "cure period" in the amount necessary to
permit such Participant's loan not to be treated as a deemed
distribution."
IN WITNESS WHEREOF, the Company has caused this Amendment to be
executed this 11thday of December, 2001, to be effective as of the day and year
first written above.
DELL COMPUTER CORPORATION
By: /s/ Kathleen Angel
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Its: Director of Global Benefits
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ATTEST:
Janet B. Wright
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Its: Corporate Counsel
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