Exhibit 4.20
AMENDMENT NUMBER FIVE
TO THE
PERRY DISTRIBUTORS, INC. 401(K) PLAN
(As Amended and Restated Effective as of January 1, 2001)
WHEREAS, Perry Distributors, Inc. (the "Corporation") has the
authority under the Perry Distributors, Inc. 401(k) Plan (the "Plan") to amend
the Plan; and
WHEREAS, the Corporation now wishes to amend the Plan to (i) provide
for a Plan loan program, (ii) amend the definitions of Pay and Test Pay under
the Plan to correspond with Section 401(a) (17) of the Internal Revenue Code,
(iii) allow eligibility as soon as an individual meets the eligibility
requirements and completes and files an enrollment form, and (iv) vest
participants based on an elapsed time method of counting years of service, all
to be effective retroactively in order to correct Plan document failures in
conjunction with the submission of the Plan to the IRS in accordance with
Revenue Procedure 2001-17 under the VCP program.
NOW, THEREFORE, effective as set forth herein the Plan is hereby
amended as follows:
1. Effective as of November 1, 1997, Section 11.6 is amended in its entirety
to read as follows:
"11.6 Member Loans: Loans to Members from the Fund shall be
permitted as provided in this Section.
In accordance with any loan policy or procedures adopted by
the Administrator, Plan loans to Members may be made under the
following circumstances:
(a) loans will be made available to all Members from each
Member's Plan Account on a reasonably equivalent basis;
(b) loans will not be made available to Members who are
Highly Compensated Employees, officers, or shareholders in an amount
greater than the amount made available to other Members;
(c) loans will bear a reasonable rate of interest;
(d) loans will be adequately secured;
(e) loans will provide for repayment over a reasonable
period of time; and
(f) loans may not be made from the portion of the Member's
Plan Account attributable to Employer Matching Contributions.
Loans shall provide for level amortization with payments to be made
not less frequently than quarterly over a period not to exceed five
(5) years. However, loans 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 Member shall provide
for periodic repayment over a reasonable period of time that may
exceed five (5) years. For this purpose, a principal residence has
the same meaning as a principal residence under Code Section 1034.
Up to two (2) outstanding loans shall be permitted for each Member at
any given time. Provided, effective January 1, 2002, a Member is
permitted to have only one (1) loan outstanding at a time, provided,
however; that if, prior to January 1, 2002, a Member had more than
one (1) Plan loan outstanding, the Member is permitted to continue
such loans, but will not be permitted to take a new loan until all
such loans have been repaid. For purposes of determining how many
outstanding loans a Member has, a loan that is in default shall be
considered outstanding.
Loans made pursuant to this Section when added to the outstanding
balance of all other Plan loans made to the Member will be limited to
the lesser of:
(i) $50,000 reduced by the excess (if any) of the highest
outstanding balance of Plan loans to the Member during the
one-year period ending on the day before the date on which
such loan is made, over the outstanding balance of loans
from the Plan to the Member on the date on which such loan
was made; or
(ii) one-half (1/2) of the vested portion of the Member's
Plan Account.
For purposes of this limit, all plans of the Employer shall be
considered one plan.
Anything herein to the contrary notwithstanding, loans shall not be
made to any owner-employee.
Any loan policy or procedures adopted by the Administrator shall be
contained in a separate written document which, when properly
executed, shall be incorporated by reference and made a part of the
Plan. Furthermore, such loan program may be modified or amended in
writing from time to time without the necessity of amending this
Section."
2. Effective as of November 1, 1996, the definition of "Pay" in Section 5.1 is
hereby amended by adding the following new language to the end thereof:
"Effective November 1, 1996, Pay in excess of
$150,000 shall be disregarded. Such amount shall be adjusted for
increases in the cost of living in accordance with Code Section
401(a)(17), provided, that the dollar increase in effect on January 1
of any calendar year shall be effective for the Plan Year beginning
with or within such calendar year. For any short Plan Year the Pay
limit shall be an amount equal to the Pay limit for the calendar year
in which the Plan Year begins multiplied by the ratio obtained by
dividing the number of full months in the short Plan Year by twelve
(12). Effective November 1, 1997, Pay of family members will not
affect application of this limit."
3. Effective as of November 1, 1997, Section 3.3(a) is hereby amended in its
entirety to read as follows:
"(a) Enrollment: Effective November 1, 1997, an
Employee will automatically be enrolled as an Active Member as soon
as practicable following his attainment of Eligibility Status after
he files a valid Pay Reduction Agreement (and any other enrollment
forms required by the Plan Administrator) with the Administrator."
4. Effective as of November 1, 1997, Section 4.3(c) is hereby amended in its
entirety to read as follows:
"(c) Vesting Service Credit: "Vesting Service"
means the credit used in determining an Employee's entitlement to
Plan benefits after he becomes a Member. Effective November 1, 1997,
Vesting Service Credits are calculated using the "elapsed time"
method described in Section 4.4."
5. Effective as of November 1, 1997, Section 4.4 is hereby amended by adding
the following language to the end thereof to read as follows:
"Vesting Service Credit: Notwithstanding the foregoing,
Effective November 1, 1997, Service Credits for purposes of
determining Vesting Service shall be determined using the
"elapsed time" method, in accordance with treasury
regulation 1.410(a)-7, as follows:
An Employee shall receive Service Credit for all Periods of
Service. "Period of Service" means the aggregate of all
periods commencing with the Employee's first day of
employment or reemployment with the Employer or a Related
Company and ending on the date the Employee quits, is
discharged, retires or dies, or if the Employee is absent
for any other reason, the first anniversary of the first
date of such absence. The first day of employment or
reemployment is the first day the Employee performs an Hour
of Service. An Employee will also receive credit for any
Period of Severance of less than 12 consecutive months.
Fractional periods of a year will be expressed in terms of
days. A "Period of Severance" means a continuous period of
time during which the Employee is not employed by the
Employer or a Related Company. Such period begins on the
date the Employee retires, quits or is discharged, or if
earlier, the first anniversary of the first date on which
the Employee was otherwise first absent from service. In the
case of an individual who is absent from work for maternity
or paternity reasons, the 12-consecutive month period
beginning on the first anniversary of the first day of such
absence shall not constitute a Period of Severance; however,
this period shall not constitute a year of Vesting Service.
For purposes of this paragraph, an absence from work for
maternity or paternity reasons means an absence (a) by
reason of the pregnancy of the individual, (b) by reason of
the birth of a child of the individual, (c) by reason of the
placement of a child with the individual in connection with
the adoption of such child by such individual, or (d) for
purposes of caring for such child for a period beginning
immediately following such birth or placement."
6. Effective as of November 1, 1996, the definition of "Test Pay" in Section
2.1 is hereby amended by adding the following new language to the end thereof:
"Effective November 1, 1996, Test Pay shall not
exceed $150,000, adjusted for increases in the cost of living in
accordance with Code Section 401(a)(17); any dollar increase in
effect on January 1 of any calendar year shall be effective for the
Plan Year beginning with or within such calendar year. Effective
November 1, 1997, compensation of family members will not affect
application of this limit."
7. In all other respects, the provisions of the Plan shall remain in full
force and effect.
IN WITNESS WHEREOF, this Amendment has been executed this 27th day of
May, 2003.
PERRY DISTRIBUTORS, INC.
By: /s/ Robert B. Sari
-----------------------------
Name: Robert B. Sari
Title: Senior Vice President,
General Counsel and
Secretary