Exhibit 10.21
AMENDMENT OF THE PLAN FOR EGTRRA,
REVENUE RULING 2002-27 AND
REVENUE PROCEDURE 2002-29
AMENDMENT NUMBER ONE TO
ENGLOBAL 401 (K) PLAN
AMENDMENT OF THE PLAN FOR EGTRRA, REVENUE RULING 2002-27 AND
REVENUE PROCEDURE 2002-29
AMENDMENT NUMBER ONE TO ENGLOBAL 401(K) PLAN
BY THIS AGREEMENT, ENGlobal 40I (k) Plan (herein referred to as the Plan)
is hereby amended as follows:
ARTICLE I
PREAMBLE
1.1 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), the model amendment of Revenue Ruling
2002-27 and the model amendment of Revenue Procedure 2002-29. This amendment is
intended as good faith compliance with the requirements of EGTRRA, the model
amendment of Revenue Ruling 2002-27 and the model amendment of Revenue Procedure
2002-29 and is to be construed in accordance with EGTRRA, the model amendment of
Revenue Ruling 2002-27 and the model amendment of Revenue Procedure 2002-29 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.
1.2 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.
ARTICLE II
LIMITATIONS ON CONTRIBUTIONS
2.1 Effective date. This Article shall be effective for "limitation years"
beginning after December 31, 2001.
2.2 Maximum annual addition. Except to the extent permitted under Article VIII
of this amendment and Code Section 414(v), 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 Code
Section 415(d),or
(b) one-hundred percent (100%) of the Participant's "415 Compensation" for
the "limitation year."
The "415 Compensation" limit referred to in (b) shall not apply to any
contribution for medical benefits after separation from service (within the
meaning of Code Section 401(h) or Code Section 419A(f)(2)) which is otherwise
treated as an "annual addition.(1)'
ARTICLE III
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 Code Section 401(a)(17)(B).
ARTICLE IV
MODIFICATION OF TOP-HEAVY RULES
4.1 Effective date. This Article shall apply for purposes of determining whether
the Plan is a top-heavy plan under Code Section 416(g) for Plan Years beginning
after December 31, 2001, and whether the Plan satisfies the minimum benefits
requirements of Code Section 416(c) for such years. This Article amends Article
VIII of the Plan.
4.2 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 "415 Compensation" greater than $130,000 (as adjusted under
Code Section 416(i)(l) for Plan Years beginning after December 31,
2002), a 5-percent owner of the Employer, or a 1-percent owner of the
Employer having "415 Compensation" of more than $150,000. The
determination of who is a key employee will be made in accordance with
Code Section 416(i)(l) and the applicable regulations and other
guidance of general applicability issued thereunder.
(b) Determination of present values and amounts. This section (b) 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.
(1) 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 Code Section 416(g)(2) during the
1-year period ending on the determination date. The preceding sentence
shall also apply to distributions under a terminated plan which, had
it not been terminated, would have been aggregated with the Plan under
Code Section 416(g)(2)(A)(i). 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."
(2) 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,
4.3 Minimum benefits. Employer matching contributions shall be taken into
account for purposes of satisfying the minimum contribution requirements of
Code Section 416(c)(2) 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 Code Section 401(m).
ARTICLE V
DIRECT ROLLOVERS OF PLAN DISTRIBUTIONS
5.1 Effective date. This Article shall apply to distributions made after
December 31, 2001.
5.2 Modification of definition of eligible retirement plan. For purposes of the
direct rollover provisions in Section 6.13 p,63 of the Plan, an eligible
retirement plan shall also mean an annuity contract described in Code Section
403(b) and an eligible plan under Code Section 457(b) 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 shall also 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 Code Section 414(p).
5.3 Modification of definition of eligible rollover distribution to exclude
hardship distributions. For purposes of the direct rollover provisions in
Section 6.13 p. 63 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.
ARTICLE VI
ROLLOVERS FROM OTHER PLANS
The Administrator, operationally and on a nondiscriminatory basis, may
limit the source of rollover contributions that may be accepted by this Plan.
ARTICLE VII
REPEAL OF MULTIPLE USE TEST
The multiple use test described in Treasury Regulation Section 1.401(m)-2
and Section 4.7(a)(2) p.36 of the Plan shall not apply for Plan Years beginning
after December 31, 2001.
ARTICLE VIII
CATCH-UP CONTRIBUTIONS
8.1 Effective date. This Article shall apply to catch-up contributions made on
and after January 1, 2006.
8.2 Applicability. All Employees who are eligible to make salary reductions
under this Plan and who are projected to attain age 50 before the end of a
calendar year shall be eligible to make catch-up contributions as of the January
1st of that calendar year in accordance with, and subject to the limitations of,
Code Section 414(v). Such catch-up contributions shall not be taken into account
for purposes of the provisions of the Plan implementing the required limitations
of Code Sections 402(g) and 415. The Plan shall not be treated as failing to
satisfy the provisions of the 8.1
Plan implementing the requirements of Code Section 401(k)(3), 401(k)(l 1),
401(k)(12), 410(b), or 416, as applicable, by reason of the making of such
catch-up contributions.
8.3 Matching contributions. Notwithstanding anything in the Plan to the
contrary, catch-up contributions shall not be matched.
ARTICLE IX
SUSPENSION PERIOD FOLLOWING HARDSHIP DISTRIBUTION
A Participant who, after December 31, 2001, receives a hardship
distribution pursuant to Regulation 1.401(k)-l(d)(2)(iv) of elective deferrals,
shall be prohibited from making elective deferrals and after-tax Employee
contributions under this Plan and all other plans maintained by the Employer for
six (6) months after receipt of the hardship distribution. A Participant who
receives such a hardship distribution in calendar year 2001 shall be prohibited
from making elective deferrals and after-tax Employee contributions under this
Plan and all other plans maintained by the Employer for six (6) months after
receipt of the hardship distribution or until January 1, 2002, if later.
The provisions of paragraph (4) of Section 6.1 l(b) of the Plan with
respect to limitations on the amount of deferrals in the year following a
hardship distribution shall not apply for years beginning on or after January 1,
2002.
ARTICLE X
DISTRIBUTION UPON SEVERANCE FROM EMPLOYMENT
10.1. Effective date. This Article shall apply for distributions occurring on
and after January 1, 2006 regardless of when severance from employment occurred.
10.2. New distributable event. A Participant's Elective 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.
ARTICLE XI
MODEL AMENDMENT UNDER REVENUE PROCEDURE 2002-29
MINIMUM DISTRIBUTION REQUIREMENTS
11.1 General Rules.
(a) Effective Date. The provisions of this Article will apply for purposes
of determining required minimum distributions for calendar years
beginning with the 2003 calendar year, as well as required minimum
distributions for the 2002 distribution calendar year that are made on
or after December 31, 2002.
(b) Coordination with Minimum Distribution Requirements Previously in
Effect. If the total amount of 2002 required minimum distributions
under the Plan made to the distributee prior to the effective date of
this Article equals or exceeds the required minimum distributions
determined under this Article, then no additional distributions will
be required to be made for 2002 on or after such date to the
distributee. If the total
amount of 2002 required minimum distributions under the Plan made to
the distributee prior to the effective date of this Article is less
than the amount determined under this Article, then required minimum
distributions for 2002 on and after such date will be determined so
that the total amount of required minimum distributions for 2002 made
to the distributee will be the amount determined under this Article.
(c) Precedence. The requirements of this Article will take precedence over
any inconsistent provisions of the Plan.
(d) Requirements of Treasury Regulations Incorporated. All distributions
required under this Article will be determined and made in accordance
with the Treasury regulations under Code Section 40I(a)(9).
11.2 Time and Manner of Distribution.
(a) 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.
(b) 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:
(1) If the Participant's surviving spouse is the Participant's sole
designated Beneficiary, then, except as provided in Section
11.2(b)(3), distributions to the surviving spouse will begin by
December 31st of the calendar year immediately following the calendar
year in which the Participant died, or by December 31st of the
calendar year in which the Participant would have attained age 70 1/2,
if later.
(2) If the Participant's surviving spouse is not the Participant's
sole designated Beneficiary, then, except as provided in Section
11.2(b)(3), distributions to the designated Beneficiary will begin by
December 31st of the calendar year immediately following the calendar
year in which the Participant died.
(3) Participants or Beneficiaries may elect on an individual basis
whether the 5-year rule or the life expectancy rule in Sections 1
l,2(b) and 11.4(b) 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 30th of the calendar year
in which distribution would be required to begin under Section
11.2(b), or by September 30th 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 Sections 11.2(b) and 11,4(b).
(4) If there is no designated Beneficiary as of September 30th of the
year following the year of the Participant's death, the Participant's
entire interest will be distributed by December 31st of the calendar
year containing the fifth anniversary of the Participant's death.
(5) 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 11,2(b), other than Section 11.2(b)(l), will apply as if
the surviving spouse were the Participant.
For purposes of this Section 11.2(b) and Section 11.4, unless Section
ll,2(b)(5) applies, distributions are considered to begin on the Participant's
required beginning date. If Section 11.2(b)(5) applies, distributions are
considered to begin on the date distributions are required to begin to the
surviving spouse under Section 11.2(b)(l). 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 11.2(b)(l)), the date distributions are
considered to begin is the date distributions actually commence.
(c) Form 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 11.3 and 11.4 of
this Article. 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 Code Section 401(a)(9) and the
Treasury regulations.
11.3 Required Minimum Distributions During Participant's Lifetime.
(a) 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:
(1) 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
(2) 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.
(b) Lifetime Required Minimum Distributions Continue Through Year of
Participant's Death. Required minimum distributions will be determined
under this Section 11.3 beginning with the first distribution calendar
year and up to and including the distribution calendar year that
includes the Participant's date of death,
11.4 Required Minimum Distributions After Participant's Death.
(a) Death On or After Date Distributions Begin.
(1) 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:
(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.
(2) No Designated Beneficiary. If the Participant dies on or after the
date distributions begin and there is no designated Beneficiary as of
September 30th 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.
(b) Death Before Date Distributions Begin.
(1) Participant Survived by Designated Beneficiary. Except as provided
in Section 11.4(b)(2), 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 11.4(a).
(2) Participants or Beneficiaries may elect on an individual basis
whether the 5-year rule or the life expectancy rule in Sections
11.2(b) and 11.4(b) 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 30th of the (1)
calendar year in which distribution would be required to begin under
Section 11.2(b), or by September 30th 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 Sections 11.2(b) and 11.4(b).
(3) No Designated Beneficiary. If the Participant dies before the date
distributions begin and there is no designated Beneficiary as of
September 30th of the year following the year of the Participant's
death, distribution of the Participant's entire interest will be
completed by December 31st of the calendar year containing the fifth
anniversary of the Participant's death.
(4) 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 11.2(b)(l), this Section 11.4(b) will apply as if
the surviving spouse were the Participant.
11.5 Definitions.
(a) Designated Beneficiary. The individual who is designated as the
Beneficiary under Section 1.7 p.2 of the Plan and is the designated
Beneficiary under Code Section 401(a)(9) and section 1.401(a)(9)-l,
Q&A-4, of the Treasury regulations.
(b) Distribution calendar year. 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 11.2(b). 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 31st of that distribution calendar year.
(c) Life expectancy. Life expectancy as computed by use of the Single Life
Table in section 1.401(a)(9)-9 of the Treasury regulations.
(d) 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.
(e) Required beginning date. The date specified in Sections 6.5(e) p.55
and 66(g) p 59 of the Plan.
ARTICLE XII
MODEL AMENDMENT UNDER REVENUE RULING 2002-27
COMPENSATION
12.1 Effective date. This Article shall apply to Plan Years and "limitation
years" beginning on and after January 1, 2006.
12.2 For purposes of the definition of compensation under the Plan that includes
a reference to amounts under Code Section 125, amounts under Code Section 125
include any amounts not available to a Participant in cash in lieu of group
health coverage because the Participant is unable to certify that he or she has
other health coverage. An amount will be treated as an amount under Code Section
125 only if the Employer does not request or collect information regarding the
Participant's other health coverage as part of the enrollment process for the
health plan. 12.1
IN WITNESS WHEREOF, this Amendment has been executed this 24th day of
October, 2005.
ENGlobal Engineering, Inc.
October 24, 2005
//s// William A. Coskey, CEO
EMPLOYER