Exhibit 10.3
AMENDMENT NO. 2
TO
THE RECTORSEAL CORPORATION AND JET-LUBE, INC.
EMPLOYEE STOCK OWNERSHIP PLAN
(As Revised and Restated Effective April 1, 1998)
THIS AMENDMENT NO. 2, executed this __ day of November, 2002, and effective
as of the dates specified herein, by The RectorSeal Corporation, a Delaware
corporation, having its principal office in Houston, Texas (hereinafter referred
to as the "Company").
W I T N E S S E T H:
WHEREAS, the Company revised and restated The RectorSeal Corporation and
Jet-Lube, Inc. Employee Stock Ownership Plan (the "Plan") effective April 1,
1998, except for certain provisions for which another effective date was
subsequently provided elsewhere in the terms of the Plan, to (i) incorporate the
prior amendment to the Plan and (ii) bring the Plan into compliance with the
Internal Revenue Code of 1986, as amended (the "Code"), as modified by the Small
Business Job Protection Act of 1996, the General Agreement on Tariffs and Trade
under the Uruguay Round Agreements Act, the Uniformed Services Employment and
Reemployment Rights Act of 1994, the Taxpayer Relief Act of 1997, the Internal
Revenue Service Restructuring and Reform Act of 1998, and the Community Renewal
Tax Relief Act of 2000, as well as all applicable rules, regulations and
administrative pronouncements enacted, promulgated or issued since the date the
Plan was last restated;
WHEREAS, the Company adopted Amendment No. 1 to the revised and restated
Plan, effective as of April 1, 2002, except as specifically provided otherwise
in Amendment No. 1, to (i) reflect certain provisions of the Economic Growth and
Tax Relief Reconciliation Act of 2001 ("EGTRRA") which generally became
applicable to the Plan effective as of April 1, 2002, and (ii) constitute good
faith compliance with the requirements of EGTRRA;
WHEREAS, final Treasury regulations were issued April 17, 2002 under
section 401(a)(9) of the Code relating to distributions under Section 11.4 of
the Plan (the "Final Distribution Regulations");
WHEREAS, the Pension and Welfare Benefits Administration of the Department
of Labor issued final regulations establishing new standards for processing
benefit claims of participants and beneficiaries under Section 11.6 of the Plan
which have been clarified by further guidance from the Pension and Welfare
Benefits Administration (collectively the "Final Claims Procedure Regulations");
and
WHEREAS, the Company now desires to adopt this Amendment No. 2 to (i)
revise Section 11.4 of the Plan, effective January 1, 2003, to reflect the Final
Distribution Regulations consistent with the Model Amendment provided by the
Internal Revenue Service in Rev. Proc. 2002-29, and (ii) revise Section 11.6 of
the Plan, effective April 1, 2002, to provide that the administrator of the Plan
shall process benefit claims of participants and beneficiaries pursuant to the
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claims procedure specified in the summary plan description for the Plan which
shall comply with the Final Claims Procedure Regulations, as may be amended from
time to time;
NOW, THEREFORE, in consideration of the premises and the covenants herein
contained, the Company hereby adopts the following Amendment No. 2 to the Plan:
1. Section 11.4 of the Plan is hereby amended in its entirety, effective
January 1, 2003, to read as follows:
Sec. 11.4 Additional Requirements Relating to Benefit Payments and Death
Distributions. Notwithstanding any other provisions of the Plan, the following
provisions shall be applicable to the Plan for calendar years beginning with the
2003 calendar year:
(a) General Distribution Deadline. Distribution of benefits shall be made,
unless the Participant otherwise elects, not later than the 60th day after
the last day of the Year in which the latest of the following events
occurs:
(i) the Participant reaches the earlier of age 65 or his Normal
Retirement Date;
(ii) the tenth anniversary of the date on which the Participant
commenced participation in the Plan occurs, but not later than the
April 1 of the calendar year following the calendar year in which the
Participant attains age 70 1/2 if such Participant is a Five-Percent
Owner; or
(iii) the date the Participant's employment with his Employer and all
Affiliated Companies terminates, but in no event later than the April
1 of the calendar year following the calendar year in which the
Participant attains age 70 1/2 if such Participant is a Five-Percent
Owner.
If a Participant is entitled to receive a distribution of all or a portion
of his Individual Account pursuant to Article VII, VIII, IX or X, he may
elect to defer the date of distribution of that amount, but not beyond his
Required Beginning Date. If the Participant fails to consent to a
distribution at a time when any part of the balance of the Individual
Account could be distributed prior to the Participant's Normal Retirement
Date, such failure shall be deemed to be an election to defer the date of
distribution of any benefit under this Section 11.4(a); provided that in no
event shall he receive distribution of the vested portion of his Individual
Account later than his Required Beginning Date.
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(b) Required Compliance with Code and Treasury Regulations. All
distributions required under this Article XI shall be determined and made
in accordance with Section 401(a)(9) of the Code and the Treasury
regulations thereunder.
(c) Time and Manner of Distribution.
(i) Required Beginning Date and Election to Defer Distribution Date.
The Participant's entire Individual Account shall be distributed to
the Participant no later than the Participant's Required Beginning
Date. An election of a Participant to defer the distribution date
shall be made by submitting to the Administrator a written statement
signed by the Participant describing the benefits and the date on
which the Participant requests that the distribution of his benefits
be made; provided, however, a Participant may not elect to defer
receipt of benefits beyond his Required Beginning Date.
(ii) Death of Participant Before Distribution to Him. If the
Participant dies before distribution to him of his entire Individual
Account under Section 11.1, the Participant's entire Individual
Account shall be distributed no later than as follows:
(A) If the Participant's surviving spouse is the Participant's
sole Designated Beneficiary, then, except as elected by the
surviving spouse as provided below, distribution to the surviving
spouse shall be made by December 31 of the calendar year
immediately following the calendar year in which the Participant
died, or by December 31 of the calendar year in which the
Participant would have attained age 70 1/2, if later.
(B) If the Participant's surviving spouse is not the
Participant's sole Designated Beneficiary, then, except as
provided below, distribution to the Designated Beneficiary shall
be made by December 31 of the calendar year immediately following
the calendar year in which the Participant died.
(C) If there is no Designated Beneficiary of the Participant as
of September 30 of the year following the year of the
Participant's death, the Participant's entire Individual Account
shall be distributed by December 31 of the calendar year
containing the fifth anniversary of the Participant's death.
(D) If the Participant's surviving spouse is the Participant's
sole Designated Beneficiary and the surviving spouse dies after
the Participant but before distribution to the surviving spouse
has been made, this Section 11.4(c)(ii), other than Section
11.4(c)(ii)(A), shall apply as if the surviving spouse were the
Participant.
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If the Participant dies before distribution to him of his entire Individual
Account and there is a Designated Beneficiary, distribution to the
Designated Beneficiary is not required to be made by the date specified
above in this Section 11.4(c)(ii), but the Participant's entire Individual
Account shall be distributed to the Designated Beneficiary by December 31
of the calendar year containing the fifth anniversary of the Participant's
death. If the Participant's surviving spouse is the Participant's
Designated Beneficiary, the surviving spouse may elect to apply the
distribution requirement of Section 11.4(c)(ii) without regard to the prior
sentence. If the Participant's surviving spouse is the Participant's sole
Designated Beneficiary and the surviving spouse dies after the Participant
but before distribution to either the Participant or the surviving spouse
has been made, this election shall apply as if the surviving spouse were
the Participant. For purposes of this Section 11.4(c)(ii), unless Section
11.4(c)(ii)(D) applies, distributions are considered to be made on the
Participant's Required Beginning Date. If Section 11.4(c)(ii)(D) applies,
distributions are considered to be made on the date distributions are
required to be made to the surviving spouse under Section 11.4(c)(ii)(A).
(d) Definitions. For purposes of this Section 11.4, the following terms
shall have the meanings set forth below:
(i) "Designated Beneficiary" means the individual who is designated as
the Beneficiary under Section 1.7 and is the designated beneficiary
under Section 401(a)(9) of the Code and Treas. Reg. ss.1.401(a)(9)-1,
Q&A-4.
(ii) "Five-Percent Owner" means a Participant who is a five-percent
owner of the Company within the meaning of Section 416(i)(1)(B)(i) of
the Code (determined in accordance with Section 416 of the Code but
without regard to whether the Plan is top heavy) at any time during
the Year ending with or within the calendar year in which such owner
attains age 70 1/2 or any subsequent Year.
(iii) "Required Beginning Date" of a Participant means the date
determined as follows:
(A) if the Participant is not a Five-Percent Owner and has not
attained age 70 1/2 prior to April 1, 2002, his Required
Beginning Date is the April 1 of the calendar year following the
later of (1) the calendar year in which the Participant attains
age 70 1/2 or (2) the calendar year in which the Participant
retires; or
(B) if the Participant is a Five Percent-Owner, or if the
Participant has attained age 70 1/2 prior to April 1, 2002, his
Required Beginning Date is the April 1 of the calendar year
following the calendar year in which the Participant attains age
70 1/2 even if he has not retired.
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2. Section 11.6 of the Plan is hereby amended in its entirety to read as
follows:
Sec. 11.6 Claims Procedure. The Administrator shall process all benefit
claims of Participants, Former Participants and Beneficiaries pursuant to the
claims procedure specified in the summary plan description for the Plan and
shall act in a manner which is consistent with regulations published from time
to time by the Department of Labor.
IN WITNESS WHEREOF, the Company, acting by and through its duly authorized
officers, has caused this Amendment No. 2 to be executed as of the day and year
first above written.
THE RECTORSEAL CORPORATION
By:
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COMPANY
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