Cyberguard Corp. Retirement Savings Plan

EXHIBIT 4.7


CYBERGUARD CORPORATION RETIREMENT SAVINGS PLAN,
AS AMENDED AND RESTATED


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MERRILL LYNCH


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SPECIAL


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PROTOTYPE


DEFINED CONTRIBUTION PLAN


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Base Plan Document #03 used in conjunction with:


Non-standardized Profit Sharing Plan with CODA
Letter Serial Number: D359287b
National Office Letter Date: 6/29/93


Non-standardized Money Purchase Pension Plan
Letter Serial Number: D359288b
National Office Letter Date: 6/29/93


Non-standardized Profit Sharing Plan
Letter Serial Number: D359289b
National Office Letter Date: 6/29/93


Non-standardized Target Benefit Plan
Letter Serial Number: D361009a
National Office Letter Date: 6/29/93


THIS PROTOTYPE PLAN AND ADOPTION AGREEMENT ARE IMPORTANT LEGAL INSTRUMENTS WITH
LEGAL AND TAX IMPLICATIONS FOR WHICH THE SPONSOR, MERRILL LYNCH, PIERCE, FENNER & SMITH, INCORPORATED, DOES NOT ASSUME RESPONSIBILITY. THE EMPLOYER IS
URGED TO CONSULT WITH ITS OWN ATTORNEY WITH REGARD TO THE ADOPTION OF
THIS PLAN AND ITS SUITABILITY TO ITS CIRCUMSTANCES.


INTERNAL REVENUE SERVICE Department of the Treasury


Plan Description: Prototype Non-standardized Profit Sharing Plan with CODA FFN: 50339816103-004 Case: 9201920 EIN: 13-5674085 Washington, DC: 20224 BPD: 03 Plan: 004 Letter Serial No: D359287b


Person to Contact: Mr. Wolf


MERRILL LYNCH PIERCE FENNER & SMITH INC
Telephone Number: (202) 622-8380


P O BOX 9038 Refer Reply to: E:EP:Q:1


PRINCETON, NJ 08543
Date: 06/29/93


Dear Applicant:


In our opinion, the amendment to the form of the plan identified above does not in and of itself adversely affect the plan's acceptability under section 401 of the Internal Revenue Code. This opinion relates only to the amendment to the form of the plan. It is not an opinion as to the acceptability of any other amendment or of the form of the plan as a whole, or as to the effect of other Federal or local statutes.


You must furnish a copy of this letter to each employer who adopts this plan: You are also required to send a copy of the approved form of the plan, any approved amendments and related documents to each Key District Director of Internal Revenue Service in whose jurisdiction there are adopting employers.


An employer who adopts the amended form of the plan after the date of the amendment should apply for a determination letter by filing an application with the Key District Director of Internal Revenue on Form 5307, Short Form Application for Determination for Employee Benefit Plan.


This letter with respect to the amendment to the form of the plan does not affect the applicability to the plan of the continued, interim and extended reliance provisions of sections 13 and 17.03 of Rev. Proc. 89-9, 1989-1 C.B. 780. The applicability of such provisions may be determined by reference to the initial opinion letter issued with respect to the plan.


If you, the sponsoring organization, have any questions concerning the IRS processing of this case, please call the above telephone number. This number is only for use of the sponsoring organization. Individual participants and/or adopting employers with questions concerning the plan should contact the sponsoring organization. The plan's adoption agreement must include the sponsoring organization's address and telephone number for inquiries by adopting employers.


If you write to the IRS regarding this plan, please provide your telephone number and the most convenient time for us to call in case we need more information. Whether you call or write, please refer to the Letter Serial Number and File Folder Number shown in the heading of this letter.


You should keep this letter as a permanent record. Please notify us if you modify or discontinue sponsorship of this plan.


Sincerely yours,


/s/


Chief, Employee Plans Qualifications Branch


2


INTERNAL REVENUE SERVICE Department of the Treasury


Plan Description: Prototype Non-standardized Money Purchase Pension Plan FFN: 50339816103-003 Case: 9201919 EIN: 13-5674085 Washington, DC: 20224 BPD: 03 Plan: 003 Letter Serial No: D359288b
Person to Contact: Mr. Wolf


MERRILL LYNCH PIERCE FENNER & SMITH INC
Telephone Number: (202) 622-8380
P O BOX 9038
Refer Reply to: E:EP:Q:1
PRINCETON, NJ 08543
Date: 06/29/93


Dear Applicant:


In our opinion, the amendment to the form of the plan identified above does not in and of itself adversely affect the plan's acceptability under section 401 of the Internal Revenue Code. This opinion relates only to the amendment to the form of the plan. It is not an opinion as to the acceptability of any other amendment or of the form of the plan as a whole, or as to the effect of other Federal or local statutes.


You must furnish a copy of this letter to each employer who adopts this plan: You are also required to send a copy of the approved form of the plan, any approved amendments and related documents to each Key District Director of Internal Revenue Service in whose jurisdiction there are adopting employers.


An employer who adopts the amended form of the plan after the date of the amendment should apply for a determination letter by filing an application with the Key District Director of Internal Revenue on Form 5307, Short Form Application for Determination for Employee Benefit Plan.


This letter with respect to the amendment to the form of the plan does not affect the applicability to the plan of the continued, interim and extended reliance provisions of sections 13 and 17.03 of Rev. Proc. 89-9, 1989-1 C.B. 780. The applicability of such provisions may be determined by reference to the initial opinion letter issued with respect to the plan.


If you, the sponsoring organization, have any questions concerning the IRS processing of this case, please call the above telephone number. This number is only for use of the sponsoring organization. Individual participants and/or adopting employers with questions concerning the plan should contact the sponsoring organization. The plan's adoption agreement must include the sponsoring organization's address and telephone number for inquiries by adopting employers.


If you write to the IRS regarding this plan, please provide your telephone number and the most convenient time for us to call in case we need more information. Whether you call or write, please refer to the Letter Serial Number and File Folder Number shown in the heading of this letter.


You should keep this letter as a permanent record. Please notify us if you modify or discontinue sponsorship of this plan.


Sincerely yours,


/s/


Chief, Employee Plans Qualifications Branch


3


INTERNAL REVENUE SERVICE Department of the Treasury


Plan Description: Prototype Non-standardized Profit Sharing Plan Washington, DC: 20224 FFN: 50339816103-002 Case: 9201918 EIN: 13-5674085 BPD: 03 Plan: 002 Letter Serial No: D359289b Person to Contact: Mr. Wolf


MERRILL LYNCH PIERCE FENNER & SMITH INC Telephone Number: (202) 622-8380


P O BOX 9038 Refer Reply to: E:EP:Q:1


PRINCETON, NJ 08543 Date: 06/29/93


Dear Applicant:


In our opinion, the amendment to the form of the plan identified above does not in and of itself adversely affect the plan's acceptability under section 401 of the Internal Revenue Code. This opinion relates only to the amendment to the form of the plan. It is not an opinion as to the acceptability of any other amendment or of the form of the plan as a whole, or as to the effect of other Federal or local statutes.


You must furnish a copy of this letter to each employer who adopts this plan. You are also required to send a copy of the approved form of the plan, any approved amendments and related documents to each Key District Director of Internal Revenue Service in whose jurisdiction there are adopting employers.


An employer who adopts the amended form of the plan after the date of the amendment should apply for a determination letter by filing an application with the Key District Director of Internal Revenue on Form 5307, Short Form Application for Determination for Employee Benefit Plan.


This letter with respect to the amendment to the form of the plan does not affect the applicability to the plan of the continued, interim and extended reliance provisions of sections 13 and 17.03 of Rev. Proc. 89-9, 1989-1 C.B. 780. The applicability of such provisions may be determined by reference to the initial opinion letter issued with respect to the plan.


If you, the sponsoring organization, have any questions concerning the IRS processing of this case, please call the above telephone number. This number is only for use of the sponsoring organization. Individual participants and/or adopting employers with questions concerning the plan should contact the sponsoring organization. The plan's adoption agreement must include the sponsoring organization's address and telephone number for inquiries by adopting employers.


If you write to the IRS regarding this plan, please provide your telephone number and the most convenient time for us to call in case we need more information. Whether you call or write, please refer to the Letter Serial Number and File Folder Number shown in the heading of this letter.


You should keep this letter as a permanent record. Please notify us if you modify or discontinue sponsorship of this plan.


Sincerely yours,


/s/


Chief, Employee Plans Qualifications Branch


4


INTERNAL REVENUE SERVICE Department of the Treasury


Plan Description: Prototype Non-standardized Target Benefit Plan FFN: 50339816103-001 Case: 8904027 EIN: 13-5674085 Washington, DC: 20224 BPD: 03 Plan: 001 Letter Serial No: D361009a
Person to Contact: Mr. Wolf


MERRILL LYNCH PIERCE FENNER L SMITH INC
Telephone Number: (202) 622-8380
P O BOX 9038
Refer Reply to: E:EP:Q:1
PRINCETON, NJ 08543
Date: 06/29/93


Dear Applicant:


In our opinion, the form of the plan identified above is acceptable under section 401 of the Internal Revenue Code for use by employers for the benefit of their employees. This opinion relates only to the acceptability of the form of the plan under the Internal Revenue Code. It is not an opinion of the effect of other Federal or local statutes.


You must furnish a copy of this letter to each employer who adopts this plan. You are also required to send a copy of the approved form of the plan, any approved amendments and related documents to each Key District Director of Internal Revenue Service in whose jurisdiction there are adopting employers.


Our opinion on the acceptability of the form of the plan is not a ruling or determination as to whether an employer's plan qualifies under Code section 401(a). Therefore, an employer adopting the form of the plan should apply for a determination letter by filing an application with the Key District Director of Internal Revenue Service on Form 5307, Short Form Application for Determination for Employee Benefit Plan.


If you, the sponsoring organization, have any questions concerning the IRS processing of this case, please call the above telephone number. This number is only for use of the sponsoring organization. Individual participants and/or adopting employers with questions concerning the plan should contact the sponsoring organization. The plan's adoption agreement must include the sponsoring organization's address and telephone number for inquiries by adopting employers.


If you write to the IRS regarding this plan, please provide your telephone number and the most convenient time for us to call in case we need more information. Whether you call or write, please refer to the Letter Serial Number and File Folder Number shown in the heading of this letter.


You should keep this letter as a permanent record. Please notify us if you modify or discontinue sponsorship of this plan.


Sincerely yours,


/s/


Chief, Employee Plans Qualifications Branch


5


TABLE OF CONTENTS


ARTICLE I DEFINITIONS


1.1 "Account" 1 1.2 "Account Balance" 1 1.3 "ACP Test" 1 1.4 "Actual Deferral Percentage" 1 1.5 "Adjustment Factor" 1 1.6 "Administrator" 1 1.7 "Adoption Agreement" 1 1.8 "ADP Test 1 1.9 "Affiliate" 1 1.10 "Annuity Contract" 1 1.11 "Average Actual Deferral Percentage" 2 1.12 "Average Contribution Percentage" 2 1.13 "Beneficiary" 2 1.14 "Benefit Commencement Date" 2 1.15 "CODA" 2 1.16 "CODA Compensation" 2 1.17 "Code" 2 1.18 "Compensation" 2 1.19 "Contribution Percentage" 3 1.20 "Contribution Percentage Amounts" 3 1.21 "Defined Benefit Plan" 3 1.22 "Defined Contribution Plan" 3 1.23 "Disability" 3 1.24 "Early Retirement" 4 1.25 "Early Retirement Date" 4 1.26 "Earned Income" 4 1.27 "Elective Deferrals" 4 1.28 "Elective Deferrals Account" 4 1.29 "Eligible Employee" 4 1.30 "Eligible Participant" 5 1.31 "Employee" 5 1.32 "Employee Thrift Contributions" 5 1.33 "Employee Thrift Contributions Account" 5 1.34 "Employer" 5 1.35 "Employer Account" 5 1.36 "Employer Contributions" 5 1.37 "Employer Contributions Account" 5 1.38 "Employment" 5 1.39 "Entry Date" 5 1.40 "ERISA" 5 1.41 "Excess Aggregate Contributions" 5 1.42 "Excess Contributions" 6 1.43 "Excess Elective Deferrals" 6 1.44 "Family Member" 6 1.45 "401(k) Contributions Accounts" 6 1.46 "401(k) Election" 6 1.47 "Fully Vested Separation" 6 1.48 "Group Trust" 6 1.49 "Highly Compensated Employee" 6 1.50 "Hour of Service" 7 1.51 "Immediately Distributable" 8 1.52 "Investment Manager" 8 1.53 "Key Employee" 8


TABLE OF CONTENTS


1.54 "Leased Employee" 8 1.55 "Limitation Year" 8 1.56 "Master or Prototype Plan" 8 1.57 "Matching 401(k) Contribution" 8 1.58 "Matching 401(k) Contributions Account" 9 1.59 "Matching Thrift Contributions" 9 1.60 "Matching Thrift Contributions Account" 9 1.61 "Net Profits" 9 1.62 "Nonhighly Compensated Employee" 9 1.63 "Nonvested Separation" 9 1.64 "Normal Retirement Age" 9 1.65 "Owner-Employee" 9 1.66 "Partially Vested Separation" 9 1.67 "Participant" 9 1.68 "Participant Contributions Account" 9 1.69 "Participant-Directed Assets" 9 1.70 "Participant Voluntary Nondeductible Contributions" 9 1.71 "Participant Voluntary Nondeductible Contributions Account" 9 1.72 "Participating Affiliate" 10 1.73 "Period of Severance 10 1.74 "Plan" 10 1.75 "Plan Year" 10 1.76 "Prototype Plan" 10 1.77 "Qualified Joint and Survivor Annuity" 11 1.78 "Qualified Matching Contributions" 11 1.79 "Qualified Matching Contributions Account" 11 1.80 "Qualified Nonelective Contributions" 11 1.81 "Qualified Nonelective Contributions Account" 11 1.82 "Qualified Plan" 11 1.83 "Qualifying Employer Securities" 11 1.84 "Rollover Contribution" 11 1.85 "Rollover Contributions Account" 11 1.86 "Self-Employed Individual" 11 l.87 "Social Security Retirement Age" 12 1.88 "Sponsor" 12 1.89 "Spouse" 12 1.90 "Surviving Spouse" 12 1.91 "Taxable Wage Base" 12 1.92 "Transferred Account" 12 1.93 "Trust" 12 1.94 "Trust Fund" 12 1.95 "Trustee" 12 1.96 "Valuation Date" 12 1.97 "Vesting Service" 12 1.98 "Years of Service" 12


ARTICLE II PARTICIPATION


2.1 Admission as a Participant 13 2.2 Rollover Membership and Trust to Trust Transfer 13 2.3 Crediting of Service for Eligibility Purposes 14 2.4 Termination of Participation 14 2.5 Limitation for Owner-Employee 14 2.6 Corrections with Regard to Participation 15 2.7 Provision of Information 15


TABLE OF CONTENTS


ARTICLE III CONTRIBUTIONS AND ACCOUNT ALLOCATIONS


3.1 Employer Contributions and Allocations 15 3.2 Participant Voluntary Nondeductible Contributions 16 3.3 Rollover Contributions and Trust to Trust Transfers 16 3.4 Section 401(k) - Contributions and Account Allocations 17 3.5 Matching 401(k) Contributions 20 3.6 Thrift Contributions 23 3.7 Treatment of Forfeitures 23 3.8 Establishing of Accounts 23 3.9 Limitation on Amount of Allocations 24 3.10 Return of Employer Contributions Under Special Circumstances 29


ARTICLE IV VESTING


4.1 Determination of Vesting 30 4.2 Rules for Crediting Vesting Service 30 4.3 Employer Accounts Forfeitures 30 4.4 Top-Heavy Provisions 31


ARTICLE V AMOUNT AND DISTRIBUTION OF
BENEFITS, WITHDRAWALS AND LOANS


5.1 Distribution Upon Termination of Employment 33 5.2 Amount of Benefits Upon a Fully Vested Separation 33 5.3 Amount of Benefits Upon a Partially Vested Separation 33 5.4 Amount of Benefits Upon a Nonvested Separation 34 5.5 Amount of Benefits Upon a Separation Due to Disability 34 5.6 Distribution and Restoration 34 5.7 Withdrawals During Employment 35 5.8 Loans 35 5.9 Hardship Distributions 36 5.10 Limitation on Commencement of Benefits 37 5.11 Distribution Requirements 38


ARTICLE VI FORMS OF PAYMENT OF RETIREMENT BENEFITS


6.1 Methods of Distribution 42 6.2 Election of Optional Forms 44 6.3 Change in Form of Benefit Payments 45 6.4 Direct Rollovers 45


ARTICLE VII DEATH BENEFITS


7.1 Payment of Account Balances 46 7.2 Beneficiaries 46 7.3 Life Insurance 48


ARTICLE VIII FIDUCIARIES


8.1 Named Fiduciaries ...