AMENDMENT NO. 1
GARMIN INTERNATIONAL, INC. SAVINGS AND PROFIT SHARING PLAN
The Plan named above gives the Employer the right to amend it at any time.
According to that right, the Plan is amended effective 12/01/2000 as follows:
By striking the definition of Eligible Employee in the DEFINITIONS SECTION of
Article I and substituting the following:
ELIGIBLE EMPLOYEE means any Employee of the Employer but excluding:
a) Union Employees. Any Employee whose employment is governed by the
Terms of a collective bargaining agreement between Employee
representatives (within the meaning of Code Section 7701(a)(46)
and the Employer under which retirement benefits were the subject
of good faith bargaining between the parties, unless the agreement
requires inclusion of the Employee in the Plan.
b) Leased Employees. Any person who performs services for an Employer
by and through a contract or agreement, whether written or verbal,
with a third-party and who is paid by such third-party, including
any person who is a leased employee within the meaning of Section
414(n) of the Code, a co-employee or joint employee, or an
outsourced employee even if such person is subsequently determined
by any governmental agency or court to be, or have been, a common
law employee of the Employer.
c) Independent Contractors. Any individual who performs services for
an Employer Pursuant to a contract or agreement, whether written
or verbal, which provides that the person is an independent
contractor or consultant, even if such person is subsequently
determined to be a common-law employee of an Employer.
d) Nonresident Aliens. Employees who are nonresident aliens (within
the meaning of Code Section 7701(b)(1)(B) and who receive no
earned income (within the meaning of Code Section 911(d)(2) from
an Employer which constitutes income from sources within the
United States (within the meaning of Code Section 861(a)(3).
By striking the definition of Named Fiduciary in the DEFINITIONS SECTION of
Article I and substituting the following:
NAMED FIDUCIARY means the Trustee or other person or persons who may be
Designated by the Primary Employer to control and manage the operation and
administration of the Plan.
By adding the following Sections to the TABLE OF CONTENTS:
Section 4.01A ---- Investment in Qualifying Employer Securities
Section 8.07 ---- Voting and Tender of Qualifying Employer Securities
By adding the following definitions to the DEFINITIONS SECTION of Article I:
QUALIFYING EMPLOYER SECURITIES means any security which is issued by the
Employer or any Controlled Group member and which meets the requirements of Code
Section 409(l) and ERISA Section 407(d)(5). This shall also include any
securities that satisfied the requirements of the definition when these
securities were assigned to the Plan.
QUALIFYING EMPLOYER SECURITIES FUND means that part of the assets of the Trust
Fund that is designated to be held, as nearly as possible, in whole shares of
Qualifying Employer Securities, with the value of any fractional shares
maintained in cash. Notwithstanding the foregoing sentence, participants
recordkeeping will be kept on the basis of whole and fractional shares, with the
value of any cash held in the fund after a share transaction denominated as
fractional shares when recorded to the accounts of the affected Participants.
VALUATION DATE means the date on which the value of the assets of the Investment
Fund Is determined. The value of each Account which is maintained under this
Plan shall be determined on the Valuation Date. In each Plan Year, the Valuation
Date shall be the last day of the Plan Year. At the discretion of the Plan
Administrator, Trustee, or Insurer (whichever applies), assets of the Investment
Fund may be valued more frequently. These dates shall also be Valuation Dates.
By adding to Article IV the following new SECTION 4.01A:
SECTION 4.01A - INVESTMENT IN QUALIFYING EMPLOYER SECURITIES
All or any portion of the Participant's Account may be invested in the
Qualifying Employer Securities Fund. In the absence of an election to invest in
the Qualifying Employer Securities Fund, Participants shall be deemed to have
elected to have their Accounts invested wholly in other investment funds
available under the Plan. Once an election is made, it shall be considered to
continue until a new election is made.
For purposes of determining the annual valuation of the Plan, and for reporting
to Participants and regulatory authorities, the assets of the Plan shall be
valued at least annually on the Valuation Date. The fair market value of
Qualifying Employer Securities shall be determined on such Valuation Date. The
prices of Qualifying Employer Securities as of the date of the transaction shall
apply for purposes of valuing distributions and other transactions of the Plan
to the extent such value is representative of the fair market value of such
securities in the opinion of the Plan Administrator. The value of a
Participant's Account held in the Qualifying Employer Securities Fund shall be
expressed in shares and fractional shares.
Cash dividends payable on the Qualifying Employer Securities held in the
Qualifying Employer Securities Fund shall be reinvested in additional shares of
such securities. In the event of any cash or stock dividend or any stock split,
such dividend or split shall be credited to the Accounts based on the number of
shares of Qualifying Employer Securities credited to each Account as of the
record date of such dividend or split.
With respect to any cash dividend or any stock dividend on Qualifying Employer
Securities held in the Qualifying Employer Securities Fund, the Participant
shall be entitled to a trailer distribution of such dividend if distribution of
his Account occurs between the record date and the payable date of such
dividend.
All purchases of Qualifying Employer Securities in the Qualifying Employer
Securities Fund shall be made at a price, or prices, which, in the judgement of
the Plan Administrator, do not exceed the fair market value of such securities.
The Plan Administrator may direct the Trustee to sell, resell, or otherwise
dispose of Qualifying Employer Securities held in the Qualifying Employer
Securities Fund to any person, including the Employer, provided that any such
sales to any disqualified person or party-in-interest, including the Employer,
will be made at not less than the fair market value and no commission will be
charged. Any such sale shall be made in conformance with ERISA Section 408(e).
The Employer is responsible for compliance with any applicable Federal or state
securities law with respect to all aspects of the Plan. If the Qualifying
Employer Securities or interest in this Plan are required to be registered in
order to permit investment in the Qualifying Employer Securities Fund as
provided in this section, then such investment will not be effective until the
later of the effective date of the Plan or the date such registration or
qualification is effective. The Employer, at its own expense, will take or cause
to be taken any and all such actions as may be necessary or appropriate to
effect such registration or qualification. Further, if the Trustee is directed
to dispose of any Qualifying Employer Securities held under the Plan under
circumstances which require registration or qualification of the securities
under applicable Federal or state securities laws, then the Employer will, at
its own expense, take or cause to be taken any and all such action as may be
necessary or appropriate to effect such registration or qualification. Principal
Life Insurance Company shall not be responsible for compliance requirements
under Section 16 of the Securities Act.
The Named Fiduciary shall have the authority to designate investment funds,
including those accounts available under the Trust or Group Contracts as
specified in 4.01, which may include the Qualifying Employer Securities Fund, to
be made available under the Plan for participant-directed investment of all or
any portion of the Plan contributions, as permitted by the Named Fiduciary. The
Named Fiduciary may, from time to time, designate additional funds with such
investment characteristics as he deems appropriate. The Named Fiduciary may also
terminate any investment fund or modify the investments characteristics of any
investment fund as he deems appropriate. The Named Fiduciary may issue rules and
regulations imposing such restrictions and limitations on the investment of
contributions in, and transfer of balances among, the investment funds as it
deems appropriate from time to time. Participant investment directions shall be
implemented as soon as administratively practicable; provided however, that the
Named Fiduciary may delay the implementation of any Participant investment
direction when, in his sole discretion, he determines that it would be imprudent
to implement such direction as soon as administratively practicable.
By adding the following to SECTION 5.06 LOANS TO PARTICIPANTS of Article V:
If the Participant's Account is held in more than one investment fund at
the time of the loan, the loan shall be made pro rata from each
investment fund; provided, however that the portion of the Participant's
Account held in the Qualifying Employer Securities Fund may be redeemed
for purposes of a loan only after the amount held in other investment
funds has been depleted.
By adding the following to SECTION 6.02b) OPTIONAL FORMS OF DISTRIBUTION AND
DISTRIBUTION REQUIREMENTS OF Article VI:
Distributions shall be made in cash or, at the discretion of the
Participant or Beneficiary, in cash plus the number of whole shares
(with cash in lieu of fractional shares) of Qualifying Employer
Securities allocated to the Participant's or Beneficiary's Accounts in
the Qualifying Employer Securities Fund. If the Participant or
Beneficiary elects cash distribution of all or any part of the
Qualifying Employer Securities allocated to the Participant's or
Beneficiary's Accounts in the Qualifying Employer Securities Fund, such
Qualifying Employer Securities shall be liquidated as soon as
administratively feasible following Such election.
By adding to Article VIII the following new SECTION 8.07:
SECTION 8.07 - VOTING AND TENDER OF QUALIFYING EMPLOYER SECURITIES
Voting rights with respect to Qualifying Employer Securities held in the
Qualifying Employer Securities Fund will be passed through to Participants.
Participants will be allowed to direct the voting rights of such Qualifying
Employer Securities for any matter put to the vote of shareholders.
Before each meeting of shareholders, the Employer shall cause to be sent to each
person with power to control such voting rights a copy of any notice and any
other information provided to shareholders and, if applicable, a form for
instructing the Trustee how to vote at such meeting (or any adjournment thereof)
the number of full and fractional shares subject to such person's voting
control. The Trustee may establish a deadline in advance of the meeting by which
such forms must be received in order to be effective.
If some or all of the Participants have not directed or have not timely directed
the Trustee on how to vote, then the Trustee shall vote such Qualifying Employer
Securities in the same proportion as those shares of Qualifying Employer
Securities for which the Trustee has received proper direction for such matter,
provided, however, that if the Trustee determine that the manner of voting and
the exercise of other shareholder rights with respect to Qualifying Employer
Securities held in Qualifying Employer Securities Fund is not proper or is
contrary to the provisions of ERISA (including, without limit, the fiduciary
responsibility requirements of Section 404 of ERISA), the Trustee shall
disregard such directions and assume responsibility for voting or the exercise
of other shareholder rights with respect to such shares of Qualifying Employer
Securities held in the Qualifying Employer Securities Fund. If applicable any
unallocated shares will be voted in the same proportion as those shares that are
voted, provided however that if the Trustee determines that the manner of voting
and the exercise of other shareholder rights with respect to Qualifying Employer
Securities held in the Qualifying Employer Securities Fund is not proper or is
contrary to the provisions of ERISA (including, without limit, the fiduciary
responsibility requirements of Section 404 of ERISA), the Trustee shall
disregard such directions and assume responsibility for voting or the exercise
of other shareholder rights with respect to such shares of Qualifying Employer
Securities held in the Qualifying Employer Securities Fund.
Tender rights or exchange offers for Qualifying Employer Securities will be
passed through to Participants. As soon as practicable after the commencement of
a tender or exchange offer for Qualifying Employer Securities, the Employer
shall cause each person with power to control the response to such tender or
exchange offer to be advised in writing the terms of the offer and, if
applicable, to be provided with a form for instructing the Trustee, or for
revoking such instruction, to tender or exchange shares of Qualifying Employer
Securities, to the extent permitted under the terms of such offer. In advising
such persons of the terms of the offer, the Employer may include statements from
the board of directors setting forth its position with respect to the offer.
If some or all of the Participants have not directed or have not timely directed
the Trustee on how to tender, then the Trustee shall tender such Qualifying
Employer Securities in the same proportion as those shares of Qualifying
Employer Securities for which the Trustee has received proper direction for such
matter, provided however, that if the Trustee determines that the manner of
voting and the exercise of other shareholder rights wit respect to Qualifying
Employer Securities held in the Qualifying Employer Securities Fund is not
proper or is contract to the provisions of ERISA (including, without limit, the
fiduciary responsibility requirements of Section 404 of ERISA), the Trustee
shall disregard such directions and assume responsibility for voting or the
exercise of other shareholder rights with respect to such shares of Qualifying
Employer Securities held in the Qualifying Employer Securities Fund.
If the tender or exchange offer is limited so that all of the share that the
Trustee has been directed to tender or exchange cannot be sold or exchanged, the
shares that each Participant directed to be tendered or exchanged shall be
deemed to have been sold or exchanged in the same ratio that the number of
shares actually sold or exchanged bears to the total number of shares that the
Trustee was directed to tender or exchange.
The Trustee shall hold information relating to the purchase, holding and sale of
Qualifying Employer Securities, and the exercise of voting, tender and similar
rights, with respect to such Qualifying Employer Securities by Participants and
Beneficiaries in accordance with procedures which are designed to safeguard the
confidentiality of such information, except to the extent necessary to comply
with Federal laws or state laws not preempted by ERISA.
The Named Fiduciary shall appoint an independent fiduciary to carry out
activities relating to any situations in which the Named Fiduciary determines
involves a potential for undue employer influence upon Participants and
Beneficiaries with regard to the direct or indirect exercise of shareholder
rights.
This amendment is made an integral part of the aforesaid Plan and is controlling
over the terms of said Plan with respect to the particular items addressed
expressly herein. All other provisions of the Plan remain unchanged and
controlling.
Unless otherwise stated on any page of this amendment, eligibility for benefits
and the amount of any benefits payable to or on behalf of an individual who is
an Inactive Participant on the effective date(s) stated above, shall be
determined according to the provisions of the aforesaid Plan as in effect on the
day before he became an Inactive Participant.
Signing this amendment, the Employer, as plan sponsor, has made the decision to
adopt this plan amendment and the Trustee has consent thereto. The Employer is
acting in reliance on its own discretion and on the legal and tax advice of its
own advisors, and not that of any member of the Principal Financial Group or any
representative of a member company of the Principal Financial Group.
Signed this 20th day of December, 2000.
GARMIN INTERNATIONAL, INC.
By /s/ Andrew R. Etkind
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General Counsel and Secretary
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Title
TRUSTEE:
/s/ Kevin Rauckman
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Kevin Rauckman
