EXHIBIT 10.9
AMENDMENT NO. 4
TO SOUTHWEST AIRLINES CO. 401(k) PLAN
Pursuant to the authority of the Board of Directors of Southwest
Airlines Co., and the provisions of Section 17.1 thereof, the Southwest Airlines
Co. 401(k) Plan (the "Plan") is hereby amended in the following respects only,
effective as specifically provided herein.
(1) Article II, Section 2.1(v), is hereby amended, effective only if
the Morris Air Corporation Employee Retirement Plan (the "Morris Plan") is
merged in whole or in part into the Plan and in that event, effective as of the
date of such merger (the "Merger Date"), to read as follows:
"(v) Member: An Employee who has met the eligibility
requirements for participation in this Plan, as set forth in Article
III hereof. A former Member is a Member who has terminated employment
with the Company but who has an Individual Account under the Plan, and
shall include those individuals who have an Individual Account under
the Plan and who were not employed by the Company, but who were
formerly employed by Morris Air Corporation.
(2) Article III, Section 3.1, is hereby amended in its entirety,
effective December 1, 2003, to read as follows:
"3.1 Eligibility Requirements: Every Employee on the Effective
Date, who was a Member in the Prior Plan on the day before the
Effective Date, shall continue to be a Member in the Plan. Except as
otherwise provided herein, every other Employee shall be eligible to
become a Member in the Plan as of the first Entry Date concurrent with
or next following his employment commencement date. The employment
commencement date is the first day for which an Employee is entitled to
be credited hereunder with an Hour of Service. Non-resident aliens who
receive no earned income from the Company that constitutes income from
sources within the United States shall not be eligible to participate
in the Plan. Furthermore, "leased employees" (as such term is defined
in Section 2.1(n) hereof) and Employees classified by the Company as
interns shall not be eligible to participate in the Plan. A person who
is not treated as an Employee on the Company's books and records (such
as a person who as a matter of practice is treated by the Company as an
independent contractor, but who is later determined to be an Employee
as a matter of fact) shall not be an eligible Employee during any part
of a Plan Year in which such person was not treated as an Employee,
despite any retroactive recharacterization."
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(3) Article X, Section 10.4, is hereby amended in its entirety,
effective January 1, 2002, to read as follows:
"10.4 Forfeitures for Cause: In the event a Member who has not
completed at least three (3) years of Vesting Service is discharged due
to his dishonest or criminal act (proven by conclusive evidence to the
unanimous satisfaction of the Committee) or due to embezzlement, fraud,
or dishonesty against and damaging to the Company whereby the reasons
for such discharge are confirmed by resolution of the board of
directors or other governing authority of the Company, the entire
amount credited to the benefit of such Member in his Company Matching
Contribution Account shall be forfeited and neither he nor his
Beneficiary shall be entitled to any benefit hereunder with respect to
such amounts. Likewise, any amounts credited, but not distributed, to
the Company Matching Contribution Account of a former Member who has
not completed at least three (3) years of Vesting Service shall be
forfeited upon the discovery of any embezzlement, fraud, or dishonesty
of such former Member against and damaging to the Company.
Notwithstanding the foregoing, in the event the Plan is top-heavy for
any Plan Year, pursuant to Section 19.2 hereof, the provisions of
Section 10.1 shall supercede this Section 10.4 and shall be controlling
for all purposes hereunder."
(4) Article XI, Section 11.1, the third paragraph, is hereby amended,
effective only if the Morris Plan is merged in whole or in part into the Plan
and in that event, effective as of the Merger Date, to read as follows:
"The minimum amount that may be loaned is the sum of: (i) One
Thousand and No/100 Dollars ($1,000.00) and (ii) an amount equal to the
Plan's loan administration fee in effect on the date on which the loan
is made. Only one loan from the Plan per calendar year may be approved
for any Member, and no more than one such loan may be outstanding at
any time. Notwithstanding the foregoing, if, immediately prior to the
merger of the Morris Air Corporation Employee Retirement Plan (the
"Morris Air Plan") into this Plan, a Member had an outstanding loan
under this Plan and an outstanding loan under the Morris Air Plan, then
both such loans may remain outstanding. Loans shall be granted by the
Committee in a uniform and nondiscriminatory manner. Each loan shall
bear a reasonable rate of interest and be adequately secured and shall
by its terms require repayment in no later than five years, unless such
loan is used to acquire any dwelling unit that within a reasonable time
is to be used (determined at the time the loan is made) as a principal
residence of the Member. All loans shall be repaid pro rata to the
applicable account from which the loan proceeds were paid pursuant to a
salary deduction procedure established by the Company unless the Member
is on an authorized leave of absence, transfers to a location that does
not participate in a salary deduction procedure, or is subject to a
proceeding in bankruptcy that does not permit payments by salary
deduction, in which case payment may be made to the principal office of
the Company by check."
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(5) Article XI, Section 11.2(b), is hereby amended in its entirety,
effective only if the Morris Plan is merged in whole or in part into the Plan
and in that event, effective as of the Merger Date, to read as follows:
"(b) Attainment of Age 59 1/2. A Member who has attained the
age of fifty-nine and one-half (59 1/2) may elect, in writing, within
the time period established by the Committee for such elections, to
withdraw all or any portion of his vested interest (determined pursuant
to Section 10.1 hereof) in his Individual Account. Any partial
withdrawal shall be taken from such Member's Individual Account as
follows: first, from the after-tax amounts, if any, in the Member's
Individual Account until such amounts are fully depleted; second, from
the Member's Rollover Contribution Account until such account is fully
depleted; third, from the Member's Salary Reduction Contribution
Account until such account is fully depleted; and fourth, from the
Member's Company Matching Contribution Account until such account is
fully depleted. No more than one such withdrawal may be made by the
Member during any Plan Year. The amount available for withdrawal shall
be determined as of the Valuation Date next following the date on which
the Committee receives the Member's withdrawal election, and the
withdrawal amount shall be distributed to the Member as soon as
practicable thereafter."
(6) Article XI is hereby amended to add Section 11.2(c), effective only
if the Morris Plan is merged in whole or in part into the Plan and in that
event, effective as of the Merger Date, to read as follows:
"(c) Withdrawals from Rollover Contribution Account: A Member
may elect, in writing, within the time period established by the
Committee for such elections, to withdraw all or any portion of his
Rollover Contribution Account. No more than one such withdrawal may be
made by the Member during any Plan Year. The amount available for
withdrawal shall be determined as of the Valuation Date next following
the date on which the Committee receives the Member's withdrawal
election, and the withdrawal amount shall be distributed to the Member
as soon as practicable thereafter."
(7) Section 1 of Amendment No. 3 to Southwest Airlines Co. 401(k) Plan,
is hereby amended, effective January 1, 1997 through December 31, 2001, to read
as follows:
"(a) The 'deferral percentage' for each Employee who is then
eligible for Salary Reduction Contributions, which shall be the ratio
of the amount of such Employee's Salary Reduction Contributions for
such Plan Year to such Employee's compensation (as defined in Section
2.1(r) hereof) for such Plan Year;"
IN WITNESS WHEREOF, and as conclusive evidence of the adoption of the
foregoing instrument comprising Amendment No. 4 to the Southwest Airlines Co.
401(k) Plan, the
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Company has caused these presents to be duly executed in its name and behalf by
its proper officers thereunto duly authorized this 22nd day of December, 2003.
SOUTHWEST AIRLINES CO.
By: /s/ James F. Parker
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James F. Parker, Chief Executive Officer
ATTEST:
/s/ Deborah Ackerman
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Deborah Ackerman, Assistant Secretary
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STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned, a Notary Public in and for said County and
State, on this 22nd day of December, 2003, personally appeared JAMES F. PARKER,
to me known to be the identical person who subscribed the name of SOUTHWEST
AIRLINES CO., as its CHIEF EXECUTIVE OFFICER to the foregoing instrument and
acknowledged to me that he executed the same as his free and voluntary act and
deed and as the free and voluntary act and deed of such organization for the
uses and purposes therein set forth.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, the day and year last above
written
/s/
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Notary Public in and for the State of Texas
My Commission Expires:
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