EXHIBIT 10.52
SECOND AMENDMENT TO THE
CORVAS INTERNATIONAL, INC.
401(K) COMPENSATION DEFERRAL SAVINGS PLAN
AND TRUST AGREEMENT
The Corvas International, Inc. 401(k) Compensation Deferral Savings Plan
and Trust Agreement (the "Plan"), as amended and restated effective January 1,
1997, is hereby amended effective as of the dates shown herein, in the manner
set forth below:
I. The amendment set forth below is adopted as of the dates set forth
herein to enable the Plan to comply with the Economic Growth and Tax Relief
Reconciliation Act of 2001 ("EGTRRA"):
SECTION 1. GENERAL PROVISIONS
1. ADOPTION AND EFFECTIVE DATE OF AMENDMENT. This Amendment of the Plan is
adopted to reflect certain provisions of the Economic Growth and Tax Relief
Reconciliation Act of 2001 ("EGTRRA"). This Amendment is intended as good
faith compliance with the requirements of EGTRRA and is to be construed in
accordance with EGTRRA and guidance issued thereunder. Except as otherwise
provided, this Amendment shall be effective as of the first day of the
first Plan Year beginning after December 31, 2001.
2. SUPERSESSION OF INCONSISTENT PROVISIONS. This Amendment shall supersede
the provisions of the Plan to the extent those provisions are inconsistent
with the provisions of this Amendment.
SECTION 2. PLAN LOANS FOR OWNER-EMPLOYEES AND SHAREHOLDER EMPLOYEES
Effective for Plan loans made after December 31, 2001, Plan provisions
prohibiting loans to any owner-employee or shareholder-employee shall cease
to apply.
SECTION 3. LIMITATIONS ON CONTRIBUTIONS
1. EFFECTIVE DATE. This Section shall be effective for Limitation Years
beginning after December 31, 2001.
2. MAXIMUM ANNUAL ADDITION. Except to the extent permitted under Section 10
of this Amendment and Section 414(v) of the Code, if applicable, the annual
addition that may be contributed or allocated to a Participant's Account
under the Plan for any Limitation Year shall not exceed the lesser of:
(a) $40,000, as adjusted for increases in the cost-of-living under Section
415(d) of the Code, or
(b) 100 percent of the Participant's Compensation, within the meaning of
Section 415(c)(3) of the Code, for the Limitation Year.
The Compensation limit referred to in (b) shall not apply to any
contribution for medical benefits after separation from service (within the
meaning of Section 401(h) or Section 419A(f)(2) of the Code) which is
otherwise treated as an annual addition.
1.
SECTION 4. INCREASE IN COMPENSATION LIMIT
The annual Compensation of each Participant taken into account in
determining allocations for any Plan Year beginning after December 31,
2001, shall not exceed $200,000, as adjusted for cost-of-living increases
in accordance with Section 401(a)(17)(B) of the Code. Annual Compensation
means Compensation during the Plan Year or such other consecutive 12-month
period over which Compensation is otherwise determined under the Plan (the
determination period). The cost-of-living adjustment in effect for a
calendar year applies to annual Compensation for the determination period
that begins with or within such calendar year.
SECTION 5. MODIFICATION OF TOP-HEAVY RULES
1. EFFECTIVE DATE. This Section shall apply for purposes of determining
whether the Plan is a top-heavy plan under Section 416(g) of the Code for
Plan Years beginning after December 31, 2001, and whether the Plan
satisfies the minimum benefits requirements of Section 416(c) of the Code
for such years. This Section amends Article 15 of the Plan.
2. DETERMINATION OF TOP-HEAVY STATUS.
(a) KEY EMPLOYEE. Key Employee means any Employee or former Employee
(including any deceased Employee) who at any time during the Plan Year that
includes the determination date was an officer of the Employer having
annual Compensation greater than $130,000 (as adjusted under Section
416(i)(1) of the Code for Plan Years beginning after December 31, 2002), a
5-percent owner of the Employer, or a 1-percent owner of the Employer
having annual Compensation of more than $150,000. For this purpose, annual
Compensation means Compensation within the meaning of Section 415(c)(3) of
the Code. The determination of who is a Key Employee will be made in
accordance with Section 416(i)(1) of the Code and the applicable
regulations and other guidance of general applicability issued thereunder.
(b) DETERMINATION OF PRESENT VALUES AND AMOUNTS. This Section shall apply
for purposes of determining the present values of accrued benefits and the
amounts of account balances of Employees as of the determination date.
(c) DISTRIBUTIONS DURING YEAR ENDING ON THE DETERMINATION DATE. The present
values of accrued benefits and the amounts of account balances of an
Employee as of the determination date shall be increased by the
distributions made with respect to the Employee under the Plan and any plan
aggregated with the Plan under Section 416(g)(2) of the Code during the
1-year period ending on the determination date. The preceding sentence also
shall apply to distributions under a terminated plan which, had it not been
terminated, would have been aggregated with the Plan under Section
416(g)(2)(A)(i) of the Code. In the case of a distribution made for a
reason other than separation from service, death, or disability, this
provision shall be applied by substituting "5-year period" for "1-year
period."
(d) EMPLOYEES NOT PERFORMING SERVICES DURING YEAR ENDING ON THE
DETERMINATION DATE. The accrued benefits and accounts of any individual who
has not performed services for the Employer during the 1-year period ending
on the determination date shall not be taken into account.
2.
3. MINIMUM BENEFITS. Employer matching contributions shall be taken into
account for purposes of satisfying the minimum contribution requirements of
Section 416(c)(2) of the Code and the Plan. The preceding sentence shall
apply with respect to matching contributions under the Plan or, if the Plan
provides that the minimum contribution requirement shall be met in another
plan, such other plan. Employer matching contributions that are used to
satisfy the minimum contribution requirements shall be treated as matching
contributions for purposes of the Actual Contribution Percentage test and
other requirements of Section 401(m) of the Code.
SECTION 6. DIRECT ROLLOVERS OF PLAN DISTRIBUTIONS
1. EFFECTIVE DATE. This Section shall apply to distributions made after
December 31, 2001.
2. MODIFICATION OF DEFINITION OF ELIGIBLE RETIREMENT PLAN. For purposes of
the direct rollover provisions in Section 4.6 of the Plan, an Eligible
Retirement Plan also shall mean an annuity contract described in Section
403(b) of the Code and an eligible plan under Section 457(b) of the Code
which is maintained by a state, political subdivision of a state, or any
agency or instrumentality of a state or political subdivision of a state
and which agrees to separately account for amounts transferred into such
plan from this Plan. The definition of Eligible Retirement Plan also shall
apply in the case of a distribution to a surviving spouse, or to a spouse
or former spouse who is the alternate payee under a qualified domestic
relation order, as defined in Section 414(p) of the Code.
3. MODIFICATION OF DEFINITION OF ELIGIBLE ROLLOVER DISTRIBUTION TO EXCLUDE
HARDSHIP DISTRIBUTIONS. For purposes of the direct rollover provisions in
Section 4.6 of the Plan, any amount that is distributed on account of
Hardship shall not be an Eligible Rollover Distribution and the Distributee
may not elect to have any portion of such a distribution paid directly to
an Eligible Retirement Plan.
SECTION 7. ROLLOVERS FROM OTHER PLANS
If provided by the Employer, the Plan will accept Participant Rollover
Contributions and/or direct rollovers of distributions made after December
31, 2001, from the types of plans specified below, beginning on the
effective date specified below.
DIRECT ROLLOVERS:
The Plan will accept a direct rollover of an Eligible Rollover Distribution
from a qualified plan described in Section 401(a) or 403(a) of the Code,
excluding after-tax employee contributions; an annuity contract described
in Section 403(b) of the Code, excluding after-tax employee contributions;
and an eligible plan under Section 457(b) of the Code which is maintained
by a state, political subdivision of a state, or any agency or
instrumentality of a state or political subdivision of a state.
PARTICIPANT ROLLOVER CONTRIBUTIONS FROM OTHER PLANS:
The Plan will accept a Participant contribution of an Eligible Rollover
Distribution from a qualified plan described in Section 401(a) or 403(a) of
the Code; an annuity contract described in Section 403(b) of the Code; and
an eligible plan under Section 457(b) of the Code which is maintained by a
state, political subdivision of a state, or any agency or instrumentality
of a state or political subdivision of a state.
3.
PARTICIPANT ROLLOVER CONTRIBUTIONS FROM IRAS:
The Plan will accept a Participant rollover contribution of the portion of
a distribution from an individual retirement account or annuity described
in Section 408(a) or 408(b) of the Code that is eligible to be rolled over
and would otherwise be includible in gross income.
EFFECTIVE DATE OF DIRECT ROLLOVER AND PARTICIPANT ROLLOVER CONTRIBUTION
PROVISIONS:
Section 7, Rollovers From Other Plans, shall be effective January 1, 2002.
SECTION 8. ROLLOVERS DISREGARDED IN INVOLUNTARY CASH-OUTS
1. APPLICABILITY AND EFFECTIVE DATE. This Section shall apply if elected by
the Employer and shall be effective as specified below.
2. ROLLOVERS DISREGARDED IN DETERMINING VALUE OF ACCOUNT BALANCE FOR
INVOLUNTARY DISTRIBUTIONS. The value of a Participant's nonforfeitable
Account balance shall be determined without regard to that portion of the
Account balance that is attributable to Rollover Contributions (and
earnings allocable thereto) within the meaning of Sections 402(c),
403(a)(4), 403(b)(8), 408(d)(3)(A)(ii) and 457(e)(16) of the Code. If the
value of the Participant's nonforfeitable account balance as so determined
is $5,000 or less, the Plan shall immediately distribute the Participant's
entire nonforfeitable Account balance. This Section shall apply with
respect to distributions made after December 31, 2001, with respect to
Employees who separated from service after December 31, 2001.
SECTION 9. ELECTIVE DEFERRALS -- CONTRIBUTION LIMITATION
No Participant shall be permitted to have Elective Deferrals made under
this Plan, or any other qualified plan maintained by the Employer during
any taxable year, in excess of the dollar limitation contained in Section
402(g) of the Code in effect for such taxable year, except to the extent
permitted under Section 10 of this Amendment and Section 414(v) of the
Code, if applicable.
Effective November 1, 2002, the last sentence of Section 4.1(a) of the Plan
is amended to delete the reference to "a maximum of fifteen percent (15%)"
and substituting in its place a reference to "the maximum legal limit
allowed by applicable law."
SECTION 10. CATCH-UP CONTRIBUTIONS
All Employees who are eligible to make elective deferrals under this Plan
and who have attained age 50 before the close of the Plan Year shall be
eligible to make catch-up contributions in accordance with, and subject to
the limitations of, Section 414(v) of the Code. Such catch-up contributions
shall not be taken into account for purposes of the provisions of the Plan
implementing the required limitations of Sections 402(g) and 415 of the
Code. The Plan shall not be treated as failing to satisfy the provisions of
the Plan implementing the requirements of Section 401(k)(3), 401(k)(11),
401(k)(12), 410(b), or 416 of the Code, as applicable, by reason of the
making of such catch-up contributions.
4.
The over age-50 catch-up contributions shall apply to contributions after
December 31, 2001.
SECTION 11. SUSPENSION PERIOD FOLLOWING HARDSHIP DISTRIBUTION
A Participant who receives a distribution of elective deferrals after
December 31, 2001 on account of Hardship shall be prohibited from making
elective deferrals and Employee contributions under this and all other
plans of the Employer for six months after receipt of the distribution.
A Participant who receives a distribution of elective deferrals in calendar
year 2001 on account of Hardship shall be prohibited from making elective
deferrals and Employee contributions under this and all other plans of the
Employer for six months after receipt of the distribution or until January
1, 2002, if later.
Effective for Hardship distributions made after December 31, 2001, Section
9.6(b)(4) of the Plan, which limits the amount of Salary Deferral
Contributions that may be made to the Plan following a Hardship
distribution, is no longer effective and is deleted from the Plan.
SECTION 12. DISTRIBUTION UPON SEVERANCE FROM EMPLOYMENT
1. EFFECTIVE DATE. This Section shall apply for distributions and
severances from employment occurring after the dates specified below.
2. NEW DISTRIBUTABLE EVENT. A Participant's elective deferrals, qualified
nonelective contributions, qualified matching contributions, and earnings
attributable to these contributions shall be distributed on account of the
Participant's severance from employment. However, such a distribution shall
be subject to the other provisions of the Plan regarding distributions,
other than provisions that require a separation from service before such
amounts may be distributed.
This Section, DISTRIBUTION UPON SEVERANCE FROM EMPLOYMENT, shall apply for
distributions after December 31, 2001, regardless of when the severance
from employment occurred.
5.
II. The amendment set forth below is adopted as of the dates set forth herein to
enable the Plan to comply with the revised required minimum distribution rules
under Section 401(a)(9) of the Code:
SECTION 1. GENERAL RULES.
1.1 EFFECTIVE DATE. Unless an earlier Effective Date is specified, the
provisions of this Amendment will apply for purposes of determining
required minimum distributions for calendar years beginning with the 2003
calendar year.
1.2 PRECEDENCE. The requirements of this Amendment will take precedence
over any inconsistent provisions of the Plan.
1.3 REQUIREMENTS OF TREASURY REGULATIONS INCORPORATED. All distributions
required under this Amendment will be determined and made in accordance
with the Treasury Regulations under Section 401(a)(9) of the Code.
1.4 TEFRA SECTION 242(b)(2) ELECTIONS. Notwithstanding the other provisions
of this Amendment, distributions may be made under a designation made
before January 1, 1984, in accordance with Section 242(b)(2) of the Tax
Equity and Fiscal Responsibility Act ("TEFRA") and the provisions of the
Plan that relate to Section 242(b)(2) of TEFRA.
SECTION 2. TIME AND MANNER OF DISTRIBUTION.
2.1 REQUIRED BEGINNING DATE. The Participant's entire interest will be
distributed, or begin to be distributed, to the Participant no later than
the Participant's Required Beginning Date.
2.2 DEATH OF PARTICIPANT BEFORE DISTRIBUTIONS BEGIN. If the Participant
dies before distributions begin, the Participant's entire interest will be
distributed, or begin to be distributed, no later than as follows:
(a) if the Participant's surviving spouse is the Participant's sole
Designated Beneficiary, then, except as otherwise provided in Section 4.2
of this Amendment, distributions to the surviving spouse will begin 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 seventy and one-half (70 1/2), if
later.
(b) if the Participant's surviving spouse is not the Participant's sole
Designated Beneficiary, then, except as otherwise provided in Section 4.2
of this Amendment, distributions to the Designated Beneficiary will begin
by December 31 of the calendar year immediately following the calendar year
in which the Participant died.
(c) if there is no Designated Beneficiary as of September 30 of the year
following the year of the Participant's death, the Participant's entire
interest will 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 distributions to the surviving spouse begin, this Section 2.2,
other than Section 2.2(a), will apply as if the surviving spouse were the
Participant.
6.
For purposes of this Section 2.2 and Section 4.2 of this Amendment, unless
Section 2.2(d) applies, distributions are considered to begin on the
Participant's Required Beginning Date. If Section 2.2(d) applies,
distributions are considered to begin on the date distributions are
required to begin to the surviving spouse under Section 2.2(a). If
distributions under an annuity purchased from an insurance company
irrevocably commence to the Participant before the Participant's Required
Beginning Date (or to the Participant's surviving spouse before the date
distributions are required to begin to the surviving spouse under Section
2.2(a)), the date distributions are considered to begin is the date
distributions actually commence.
2.3 FORMS OF DISTRIBUTION. Unless the Participant's interest is distributed
in the form of an annuity purchased from an insurance company or in a
single sum on or before the Required Beginning Date, as of the first
distribution calendar year distributions will be made in accordance with
Sections 3 and 4 of this Amendment. If the Participant's interest is
distributed in the form of an annuity purchased from an insurance company,
distributions thereunder will be made in accordance with the requirements
of Section 401(a)(9) of the Code and the Treasury Regulations.
SECTION 3. REQUIRED MINIMUM DISTRIBUTIONS DURING PARTICIPANT'S LIFETIME.
3.1 AMOUNT OF REQUIRED MINIMUM DISTRIBUTION FOR EACH DISTRIBUTION CALENDAR
YEAR. During the Participant's lifetime, the minimum amount that will be
distributed for each distribution calendar year is the lesser of:
(a) the quotient obtained by dividing the Participant's account balance by
the distribution period in the Uniform Lifetime Table set forth in Section
1.401(a)(9)-9 of the Treasury Regulations, using the Participant's age as
of the Participant's birthday in the distribution calendar year; or
(b) if the Participant's sole Designated Beneficiary for the distribution
calendar year is the Participant's spouse, the quotient obtained by
dividing the Participant's account balance by the number in the Joint and
Last Survivor Table set forth in Section 1.401(a)(9)-9 of the Treasury
Regulations, using the Participant's and spouse's attained ages as of the
Participant's and spouse's birthdays in the distribution calendar year.
3.2 LIFETIME REQUIRED MINIMUM DISTRIBUTIONS CONTINUE THROUGH YEAR OF
PARTICIPANT'S DEATH. Required minimum distributions will be determined
under this Section 3.2 beginning with the first distribution calendar year
and up to and including the distribution calendar year that includes the
Participant's date of death.
SECTION 4. REQUIRED MINIMUM DISTRIBUTIONS AFTER PARTICIPANT'S DEATH.
4.1 DEATH ON OR AFTER DATE DISTRIBUTIONS BEGIN.
(a) PARTICIPANT SURVIVED BY DESIGNATED BENEFICIARY. If the Participant dies
on or after the date distributions begin and there is a Designated
Beneficiary, the minimum amount that will be distributed for each
distribution calendar year after the year of the Participant's death is the
quotient obtained by dividing the Participant's account balance by the
longer of the remaining life expectancy of the Participant or the remaining
life expectancy of the Participant's Designated Beneficiary, determined as
follows:
7.
(i) the Participant's remaining life expectancy is calculated using the age
of the Participant in the year of death, reduced by one for each subsequent
year.
(ii) if the Participant's surviving spouse is the Participant's sole
Designated Beneficiary, the remaining life expectancy of the surviving
spouse is calculated for each distribution calendar year after the year of
the Participant's death using the surviving spouse's age as of the spouse's
birthday in that year. For distribution calendar years after the year of
the surviving spouse's death, the remaining life expectancy of the
surviving spouse is calculated using the age of the surviving spouse as of
the spouse's birthday in the calendar year of the spouse's death, reduced
by one for each subsequent calendar year.
(iii)if the Participant's surviving spouse is not the Participant's sole
Designated Beneficiary, the Designated Beneficiary's remaining life
expectancy is calculated using the age of the beneficiary in the year
following the year of the Participant's death, reduced by one for each
subsequent year.
(b) NO DESIGNATED BENEFICIARY. If the Participant dies on or after the date
distributions begin and there is no Designated Beneficiary as of September
30 of the year after the year of the Participant's death, the minimum
amount that will be distributed for each distribution calendar year after
the year of the Participant's death is the quotient obtained by dividing
the Participant's account balance by the Participant's remaining life
expectancy calculated using the age of the Participant in the year of
death, reduced by one for each subsequent year.
4.2 DEATH BEFORE DATE DISTRIBUTIONS BEGIN.
(a) PARTICIPANT SURVIVED BY DESIGNATED BENEFICIARY. If the Participant dies
before the date distributions begin and there is a Designated Beneficiary,
the minimum amount that will be distributed for each distribution calendar
year after the year of the Participant's death is the quotient obtained by
dividing the Participant's account balance by the remaining life expectancy
of the Participant's Designated Beneficiary, determined as provided in
Section 4.1 above.
Alternatively, if the Participant dies before distributions begin and there
is a Designated Beneficiary, distribution to the Designated Beneficiary is
not required to begin by the date specified in Section 2.2 above, but the
Participant's entire interest will 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 sole Designated Beneficiary and the surviving
spouse dies after the Participant but before distributions to either the
Participant or the surviving spouse begin, this election will apply as if
the surviving spouse were the Participant.
Participants or beneficiaries may elect on an individual basis whether the
5-year rule or the life expectancy rule in Sections 2.2 and 4.2 of this
Amendment applies to distributions after the death of a Participant who has
a Designated Beneficiary. The election must be made no later than the
earlier of September 30 of the calendar year in which distribution would be
required to begin under Section 2.2 above, or by September 30 of the
calendar year which contains the fifth anniversary of the Participant's
(or, if applicable, surviving spouse's) death. If neither the Participant
nor beneficiary makes an election under this paragraph, distributions will
be made in accordance with Section 2.2 and the first paragraph of Section
4.2(a) of this Amendment. This election will apply to all distributions.
8.
A Designated Beneficiary who is receiving payments under the 5-year rule
may make a new election to receive payments under the life expectancy rule
until December 31, 2003, provided that all amounts that would have been
required to be distributed under the life expectancy rule for all
distribution calendar years before 2004 are distributed by the earlier of
December 31, 2003 or the end of the 5-year period.
(b) NO DESIGNATED BENEFICIARY. If the Participant dies before the date
distributions begin and there is no Designated Beneficiary as of September
30 of the year following the year of the Participant's death, distribution
of the Participant's entire interest will be completed by December 31 of
the calendar year containing the fifth anniversary of the Participant's
death.
(c) DEATH OF SURVIVING SPOUSE BEFORE DISTRIBUTIONS TO SURVIVING SPOUSE ARE
REQUIRED TO BEGIN. If the Participant dies before the date distributions
begin, the Participant's surviving spouse is the Participant's sole
Designated Beneficiary, and the surviving spouse dies before distributions
are required to begin to the surviving spouse under Section 2.2(a), this
Section 4.2 will apply as if the surviving spouse were the Participant.
SECTION 5. DEFINITIONS.
5.1 DESIGNATED BENEFICIARY. The individual who is designated as the
beneficiary under Sections 2.5 and 8.8 of the Plan and is the Designated
Beneficiary under Section 401(a)(9) of the Code and Section 1.401(a)(9)-1,
Q&A-4, of the Treasury Regulations.
5.2 DISTRIBUTION CALENDAR YEAR. A "Distribution Calendar Year" is defined
as a calendar year for which a minimum distribution is required. For
distributions beginning before the Participant's death, the first
distribution calendar year is the calendar year immediately preceding the
calendar year which contains the Participant's Required Beginning Date. For
distributions beginning after the Participant's death, the first
distribution calendar year is the calendar year in which distributions are
required to begin under Section 2.2 above. The required minimum
distribution for the Participant's first distribution calendar year will be
made on or before the Participant's Required Beginning Date. The required
minimum distribution for other distribution calendar years, including the
required minimum distribution for the distribution calendar year in which
the Participant's Required Beginning Date occurs, will be made on or before
December 31 of that distribution calendar year.
5.3 LIFE EXPECTANCY. Life Expectancy as computed by use of the Single Life
Table in Section 1.401(a)(9)-9 of the Treasury Regulations.
5.4 PARTICIPANT'S ACCOUNT BALANCE. The account balance as of the last
valuation date in the calendar year immediately preceding the distribution
calendar year (valuation calendar year) increased by the amount of any
contributions made and allocated or forfeitures allocated to the account
balance as of dates in the valuation calendar year after the valuation date
and decreased by distributions made in the valuation calendar year after
the valuation date. The account balance for the valuation calendar year
includes any amounts rolled over or transferred to the Plan either in the
valuation calendar year or in the distribution calendar year if distributed
or transferred in the valuation calendar year.
5.5 REQUIRED BEGINNING DATE. The date specified in Section 2.44 of the
Plan.
9.
IN WITNESS WHEREOF, this Second Amendment is executed this 16th day of
December, 2002.
CORVAS INTERNATIONAL, INC.
By: /s/ Carolyn M. Felzer
-------------------------------------
Printed Name: Carolyn M. Felzer
Title: Vice President and Controller
10.