As filed with the Securities and Exchange Commission on September 9, 1996
Registration No. 333-__________
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------------------
FORM S-8
Registration Statement
Under
The Securities Act of 1933
----------------------------------------
GRAND PREMIER FINANCIAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-4077455
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
486 West Liberty Street
Wauconda, Illinois 60084-2489
(Address of principal executive offices, including zip code)
PREMIER FINANCIAL SERVICES, INC.
EMPLOYEE SAVINGS AND STOCK PLAN AND TRUST
(Full title of the plan)
David L. Murray
Senior Executive Vice President
Grand Premier Financial, Inc.
486 West Liberty Street
Wauconda, Illinois 60084-2489
(Name and address of agent for service)
(847) 487-1818
(Telephone number, including area code, of agent for service)
With a copy to:
Gary L. Mowder Thomas F. Karaba
Schiff Hardin & Waite Crowley Barrett & Karaba, Ltd.
7200 Sears Tower 20 South Clark Street, Suite 2310
Chicago, Illinois 60606 Chicago, Illinois 60603
(312) 258-5514 (312) 726-2468
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION> Proposed maximum
Proposed maximum aggregate Amount of
Amount to be offering price offering registration
Title of Securities to be Registered registered (1) per share (2) price (2) fee (2)
- ----------------------------------------- --------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share, 250,000 $11.69 $2,922,500 $1,007.76
including associated Preferred Stock
Purchase Rights
Interests in the Plan (3) (3) (3) (3)
</TABLE>
(1) No maximum number of shares are issuable under the Plan.
(2) Estimated on the basis of $11.69 per share, the average of the high
and low sales prices as quoted on The Nasdaq Stock Market's National
Market on September 5, 1996, pursuant to Rule 457(h) and 457(c).
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Plan described herein
for which no separate fee is required.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by Grand
Premier Financial, Inc. (the "Registrant") or by the Premier Financial
Services, Inc. Employee Savings and Stock Plan and Trust (the "Plan")
are incorporated herein by reference:
(a) The final prospectus filed pursuant to Rule 424(b)(3) and
included in the Registration Statement on Form S-4 of the
Registrant, File No. 333-03327, effective July 12, 1996;
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1996;
(c) The Registrant's Current Report on Form 8-K, dated August
22, 1996;
(d) The Plan's Annual Report on Form 11-K for the fiscal year
ended December 31, 1995; and
(e) The description of the Registrant's Common Stock, $0.01 per
share (the "Common Stock") and the Preferred Stock Purchase
Rights contained in the final prospectus filed pursuant to
Rule 424(b)(3) and included in the Registrant's Registration
Statement on Form S-4, File No. 333-03327, effective July
12, 1996.
All documents subsequently filed by the Registrant and/or
the Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-
effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining
unsold, shall be deemed incorporated by reference herein and to be a
part hereof from the date of filing of such documents.
Any statement contained herein or in a document incorporated
by reference or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this registration
statement to the extent that such statement is modified or superseded
by any other subsequently filed document which is incorporated or is
deemed to be incorporated by reference herein. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the General Corporation Law of the State of Delaware
(the "Delaware Law"), directors and officers as well as other
employees and individuals may be indemnified against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with specified actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation (a "Derivative
Action")) if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the company,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar
standard of care is applicable in the case of a Derivative Action,
except that indemnification only extends to expenses (including
attorney's fees) incurred in connection with the defense or settlement
of such an action, and the Delaware Law requires court approval before
there can be any indemnification where the person seeking
indemnification has been found liable to the company.
Article 12 of the Amended and Restated Certificate of
Incorporation of the Registrant provides that the Registrant shall
indemnify each person who is or was a director or officer of the
Registrant or serves as a director or officer of another enterprise at
the request of the Registrant, in accordance with, and to the fullest
extent authorized, by the Delaware Law.
Article 6 of the Restated By-laws of the Registrant
("Article 6") provides that to the extent to which it is empowered
under the Delaware Law or any other applicable law, the Registrant
shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative by reason of the fact that such person is or was a
director or officer of the Registrant or is or was serving at the
request of the Registrant as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise,
against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding.
Article 6 further provides that expenses incurred by an
officer or director in defending a civil or criminal action, suit or
proceeding shall be paid by the Registrant in advance of the final
disposition of such action, suit or proceeding, upon receipt of an
undertaking by or on behalf of the director or officer to repay such
amount if it shall be ultimately determined that he is not entitled to
be indemnified under the Delaware Law. The indemnification and
advancement of expenses provided by Article 6 shall continue as to a
person who has ceased to be a director or officer and shall inure to
<PAGE>
the benefit of the heirs, executors and administrators of such a
person.
The Registrant has arranged for directors and officers'
liability insurance which, subject to certain policy limits,
deductible amounts and exclusions, insures directors and officers of
the Registrant for liabilities incurred as a result of acts committed
in their capacity as directors and officers or claims made against
them by reason of their status as directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
A. Exhibits:
The exhibits filed herewith or incorporated by
reference herein are set forth in the Exhibit Index
filed as part of this registration statement. No
opinion of counsel is being filed since none of the
shares of Common Stock to be offered and sold under the
Plan will be newly issued shares. See also Item 8B,
below.
B. Undertakings Pursuant to Item 8(b)
The undersigned registrant has submitted the Plan,
including all amendments thereto as of the date hereof,
to the Internal Revenue Service (the "IRS") and will
make all changes required by the IRS in order to
qualify the Plan under Section 401 of the Internal
Revenue Code of 1986, as amended.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in the
registration statement;
(iii) To include any material information
with respect to the plan of distribution not
<PAGE>
previously disclosed in the registration statement
or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering
thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Wauconda, State of Illinois, on this 6th
day of September, 1996.
GRAND PREMIER FINANCIAL, INC.
(Registrant)
By: /s/Richard L. Geach
--------------------------------
Richard L. Geach
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below appoints Richard
L. Geach and Robert W. Hinman, or either of them, as such person's
true and lawful attorneys to execute in the name of each such person,
and to file, any amendments to this registration statement that either
of such attorneys may deem necessary or desirable to enable the
Registrant to comply with the Securities Act of 1933, as amended, and
any rules, regulations, and requirements of the Securities and
Exchange Commission with respect thereto, in connection with the
registration of the shares of Common Stock (including the associated
Preferred Stock Purchase Rights) and interests in the Plan that are
subject to this registration statement, which amendments may make such
changes in such registration statement as either of the above-named
attorneys deems appropriate, and to comply with the undertakings of
the Registrant made in connection with this registration statement;
and each of the undersigned hereby ratifies all that either of said
attorneys will do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/Richard L. Geach Chief Executive August 29, 1996
- ------------------------- Officer and Director
Richard L. Geach (Principal Executive Officer)
<PAGE>
/s/David L. Murray Senior Executive Vice August 29, 1996
- ------------------------- President and Chief Financial
David L. Murray Officer and Director
(Principal Financial and
Accounting Officer)
/s/Jean M. Barry Director August 29, 1996
- -------------------------
Jean M. Barry
/s/Donald E. Bitz Director August 29, 1996
- -------------------------
Donald E. Bitz
/s/Harry J. Bystricky Director August 29, 1996
- -------------------------
Harry J. Bystricky
/s/Frank J. Callero Director August 29, 1996
- -------------------------
Frank J. Callero
/s/Alan J. Emerick Director August 29, 1996
- -------------------------
Alan J. Emerick
/s/Brenton J. Emerick Director August 29, 1996
- -------------------------
Brenton J. Emerick
/s/James Esposito Director August 29, 1996
- -------------------------
James Esposito
/s/R. Gerald Fox Director August 29, 1996
- -------------------------
R. Gerald Fox
/s/Robert W. Hinman Director August 29, 1996
- -------------------------
Robert W. Hinman
/s/Edward G. Maris Director August 29, 1996
- -------------------------
Edward G. Maris
/s/Howard A. McKee Director August 29, 1996
- -------------------------
Howard A. McKee
/s/H. Barry Musgrove Director August 29, 1996
- -------------------------
H. Barry Musgrove
<PAGE>
/s/Joseph C. Piland Director August 29, 1996
- -------------------------
Joseph C. Piland
/s/Stephen J. Schostok Director August 29, 1996
- -------------------------
Stephen J. Schostok
</TABLE>
THE PLAN. Pursuant to the requirements of the Securities
Act of 1933, the Plan administrator has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Freeport, State of Illinois, on this
6th day of September, 1996.
PREMIER FINANCIAL SERVICES, INC.
EMPLOYEE SAVINGS AND STOCK PLAN
AND TRUST
PREMIER TRUST SERVICES, INC.,
as Trustee
By:/s/ Kenneth A. Urban
-------------------------------
Kenneth A. Urban
President
<PAGE>
EXHIBIT INDEX
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION NUMBERED PAGE
4.1 Premier Financial Services, Inc. 10
Employee Savings and Stock Plan and
Trust, as amended and restated as of
July 1, 1993, and subsequently amended
by the First Amendment thereto, dated
July 11, 1994, the Second Amendment
thereto, dated December 21, 1994, the
Third Amendment thereto, dated December
21, 1995 and the Fourth Amendment
thereto, dated December 21, 1995.
23.1 Consent of KPMG Peat Marwick LLP. 84
23.2 Consent of Hutton Nelson & McDonald LLP 85
24 Powers of Attorney (contained on the
signature pages hereto)
Exhibit 4.1
PREMIER FINANCIAL SERVICES, INC.
EMPLOYEE SAVINGS AND STOCK PLAN AND TRUST
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I - Purpose Intent and Effective Date . . . . . . . . . . 15
1.01 Purpose . . . . . . . . . . . . . . . . . . . . . 15
1.02 Intent . . . . . . . . . . . . . . . . . . . . . . 15
1.03 Effective Date . . . . . . . . . . . . . . . . . . 15
ARTICLE II - Definitions and Construction . . . . . . . . . . . . 15
2.01 Definitions . . . . . . . . . . . . . . . . . . . 15
Accounts . . . . . . . . . . . . . . . . . . . . . 16
Affiliate . . . . . . . . . . . . . . . . . . . . 16
Annual Valuation Date . . . . . . . . . . . . . . 16
Beneficiary . . . . . . . . . . . . . . . . . . . 16
Board . . . . . . . . . . . . . . . . . . . . . . 16
Code . . . . . . . . . . . . . . . . . . . . . . . 16
Committee . . . . . . . . . . . . . . . . . . . . 16
Company . . . . . . . . . . . . . . . . . . . . . 16
Company Stock . . . . . . . . . . . . . . . . . . 16
Company Stock Fund . . . . . . . . . . . . . . . . 16
Compensation . . . . . . . . . . . . . . . . . . . 16
Eligible Rollover Distribution . . . . . . . . . . 17
Eligibility Year of Service . . . . . . . . . . . 17
Employee . . . . . . . . . . . . . . . . . . . . . 17
Employer . . . . . . . . . . . . . . . . . . . . . 18
Employment . . . . . . . . . . . . . . . . . . . . 18
ERISA . . . . . . . . . . . . . . . . . . . . . . 18
ESOP Account . . . . . . . . . . . . . . . . . . . 18
ESOP Contribution . . . . . . . . . . . . . . . . 18
ESOP Savings and Matching Contributions . . . . . 18
Exempt Loan . . . . . . . . . . . . . . . . . . . 18
Extended Break in Service . . . . . . . . . . . . 18
Forfeiture . . . . . . . . . . . . . . . . . . . . 18
Former ESOP . . . . . . . . . . . . . . . . . . . 18
Former Profit-Sharing Plan . . . . . . . . . . . . 19
Fund . . . . . . . . . . . . . . . . . . . . . . . 19
Hour of Service . . . . . . . . . . . . . . . . . 19
Investment Fund . . . . . . . . . . . . . . . . . 19
Investment Manager . . . . . . . . . . . . . . . . 19
Loan Suspense Account . . . . . . . . . . . . . . 20
Matching Contribution . . . . . . . . . . . . . . 20
Net Gain or Net Loss . . . . . . . . . . . . . . . 20
Parental Leave . . . . . . . . . . . . . . . . . . 20
One-Year Break in Service . . . . . . . . . . . . 20
Normal Retirement Date . . . . . . . . . . . . . . 20
Participant . . . . . . . . . . . . . . . . . . . 20
Permanent Disability or Permanently Disabled . . . 21
Plan . . . . . . . . . . . . . . . . . . . . . . . 21
Plan Administrator . . . . . . . . . . . . . . . . 21
Plan Year . . . . . . . . . . . . . . . . . . . . 21
Profit Sharing Account . . . . . . . . . . . . . . 21
Plan Sharing Contribution . . . . . . . . . . . . 21
-11-
<PAGE>
Retirement, Retired or Retires . . . . . . . . . . 21
Rollover Account . . . . . . . . . . . . . . . . . 21
Rollover Contribution . . . . . . . . . . . . . . 21
Salary Savings Account . . . . . . . . . . . . . . 22
Salary Savings Contribution . . . . . . . . . . . 22
Trust . . . . . . . . . . . . . . . . . . . . . . 22
Trustee . . . . . . . . . . . . . . . . . . . . . 22
Valuation . . . . . . . . . . . . . . . . . . . . 22
Valuation Date . . . . . . . . . . . . . . . . . . 22
Voluntary Contribution . . . . . . . . . . . . . . 22
Voluntary Contribution Account . . . . . . . . . . 22
2.02 Construction . . . . . . . . . . . . . . . . . . . 22
ARTICLE III - Eligibility . . . . . . . . . . . . . . . . . . . . 23
3.01 Participation . . . . . . . . . . . . . . . . . . 23
3.02 Enrollment . . . . . . . . . . . . . . . . . . . . 23
3.03 Duration . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE IV - Contributions . . . . . . . . . . . . . . . . . . . 24
4.01 Employer Contributions . . . . . . . . . . . . . . 24
4.02 Salary Savings Contributions . . . . . . . . . . . 24
4.03 Voluntary Contributions . . . . . . . . . . . . . 24
4.04 Rollover Contributions . . . . . . . . . . . . . . 25
4.05 Condition on Employer Contributions . . . . . . . 25
4.06 Time of Contributions . . . . . . . . . . . . . . 25
4.07 Form of Contributions . . . . . . . . . . . . . . 26
ARTICLE V - Accounts . . . . . . . . . . . . . . . . . . . . . . 26
5.01 Accounts of Participants . . . . . . . . . . . . . 26
5.02 Allocations to Accounts . . . . . . . . . . . . . 27
5.03 Determination of Net Gain or Net Loss . . . . . . 27
5.04 Allocation of Net Gain or Net Loss . . . . . . . . 27
5.05 Allocation of Contributions . . . . . . . . . . . 27
5.06 Loan Suspense Account . . . . . . . . . . . . . . 28
5.07 Allocation of Company Stock Released from the Loan
Suspense Account . . . . . . . . . . . . . . . . . 29
5.08 Participant Statements . . . . . . . . . . . . . . 29
5.09 Valuation by the Trustee Conclusive . . . . . . . 29
5.10 Errors in Valuation . . . . . . . . . . . . . . . 29
ARTICLE VI - Company Stock . . . . . . . . . . . . . . . . . . . 30
6.01 Investment in Company Stock . . . . . . . . . . . 30
6.02 Voting Company Stock . . . . . . . . . . . . . . . 30
6.03 Contingent Put Option to Sell Company Stock . . . 30
6.04 Exempt Loans . . . . . . . . . . . . . . . . . . . 32
-12-
<PAGE>
ARTICLE VII - Distributions . . . . . . . . . . . . . . . . . . . 33
7.01 Distributions upon Termination of Employment . . . 33
7.02 Termination by Death. Retirement or Disability . . 33
7.03 Termination by Resignation or Dismissal . . . . . 33
7.04 Treatment of Forfeitures . . . . . . . . . . . . . 34
7.05 Re-Employment of Participants Returning Before an
Extended Break in Service . . . . . . . . . . . . 34
7.06 Manner of Distribution . . . . . . . . . . . . . . 35
7.07 Timing of Distribution . . . . . . . . . . . . . . 35
7.08 Mode of Distribution . . . . . . . . . . . . . . . 37
7.09 Distributions to Qualified Participants . . . . . 37
7.10 In-Service Withdrawals . . . . . . . . . . . . . . 38
7.11 Dividend Pass Through . . . . . . . . . . . . . . 38
7.12 Direct Rollover Option . . . . . . . . . . . . . . 38
7.13 Designation of Beneficiary . . . . . . . . . . . . 39
7.14 Distributions Pursuant a Domestic Relations Order 40
ARTICLE VIII - Loans . . . . . . . . . . . . . . . . . . . . . . 41
8.01 Loan Program . . . . . . . . . . . . . . . . . . . 41
8.02 Amounts of Loans . . . . . . . . . . . . . . . . . 41
8.03 Effect on Account Balances . . . . . . . . . . . . 41
ARTICLE IX - Limits on Contributions . . . . . . . . . . . . . . 41
9.01 Special Definitions . . . . . . . . . . . . . . . 41
9.02 General Limitations on Annual Additions. . . . . . 46
9.03 Combined Limitation on Annual Additions. . . . . . 46
9.04 Excess Annual Additions . . . . . . . . . . . . . 47
9.05 Limitation on Elective Deferrals . . . . . . . . . 48
9.06 Limit on Voluntary Contributions and Employer
Matching Contributions . . . . . . . . . . . . . . 49
9.07 Limitation on Multiple Use . . . . . . . . . . . . 50
9.08 Aggregation of Plans . . . . . . . . . . . . . . . 50
ARTICLE X - Required Top-Heavy Plan Provisions . . . . . . . . . 51
10.01 Special Rules Where Plan Is Top-Heavy . . . . 51
10.02 Special Definitions . . . . . . . . . . . . . 51
10.03 Minimum Allocation in Top-Heavy Plan Years . 54
ARTICLE XI - The Trust and Trustee . . . . . . . . . . . . . . . 55
11.01 The Trust . . . . . . . . . . . . . . . . . . 55
11.02 The Trustee . . . . . . . . . . . . . . . . . 55
11.03 The Fund . . . . . . . . . . . . . . . . . . 55
11.04 Investment Funds . . . . . . . . . . . . . . 55
11.05 Participant Investments . . . . . . . . . . . 56
11.06 Powers of Trustee . . . . . . . . . . . . . . 57
11.07 Compensation and Expenses . . . . . . . . . . 59
11.08 Accounts . . . . . . . . . . . . . . . . . . 59
11.09 Duty of Person Dealing With Trustee . . . . . 59
11.10 Resignation and Removal of the Trustee . . . 59
-13-
<PAGE>
ARTICLE XII - Plan Administration . . . . . . . . . . . . . . . . 60
12.01 Allocation of Responsibility Among
Fiduciaries . . . . . . . . . . . . . . . . . 60
12.02 Fiduciary Duties . . . . . . . . . . . . . . 60
12.03 The Committee . . . . . . . . . . . . . . . . 61
12.04 Committee Action . . . . . . . . . . . . . . 61
12.05 Administrative Powers . . . . . . . . . . . . 61
12.06 Investment Direction and Investment Manager . 62
12.07 Records and Reports . . . . . . . . . . . . . 63
12.08 Information to be Provided . . . . . . . . . 63
12.09 Annual Reports . . . . . . . . . . . . . . . 63
ARTICLE XIII - Amendment, Merger and Termination . . . . . . . . 63
13.01 Amendment . . . . . . . . . . . . . . . . . . 63
13.02 Merger . . . . . . . . . . . . . . . . . . . 64
13.03 Termination . . . . . . . . . . . . . . . . . 64
13.04 Partial Termination . . . . . . . . . . . . . 65
ARTICLE XIV - Miscellaneous . . . . . . . . . . . . . . . . . . . 65
14.01 Interest of Participants . . . . . . . . . . 65
14.02 Title to Assets . . . . . . . . . . . . . . . 65
14.03 Not a Contract of Employment . . . . . . . . 65
14.04 Spendthrift Clause . . . . . . . . . . . . . 65
14.05 Addresses . . . . . . . . . . . . . . . . . . 66
14.06 Information on Participants . . . . . . . . . 66
14.07 Regularly Kept Records Are Binding . . . . . 66
14.08 Claims . . . . . . . . . . . . . . . . . . . 66
14.09 Indemnification . . . . . . . . . . . . . . . 67
14.10 Payments to Minors. Etc. . . . . . . . . . . 67
14.11 Unclaimed Payments . . . . . . . . . . . . . 67
14.12 Reversions . . . . . . . . . . . . . . . . . 68
14.13 Necessary Parties . . . . . . . . . . . . . . 68
14.14 Company Action . . . . . . . . . . . . . . . 68
14.15 Company as Agent for Employers . . . . . . . 69
14.16 Plan Expenses . . . . . . . . . . . . . . . . 69
14.17 Agent for Service of Process . . . . . . . . 69
14.18 Illinois Law to Govern . . . . . . . . . . . 69
-14-
<PAGE>
PREMIER FINANCIAL SERVICES, INC.
EMPLOYEE SAVINGS AND STOCK PLAN AND TRUST
ARTICLE I
Purpose Intent and Effective Date
1.01 Purpose. The Company has established and maintains this
Premier Financial Services, Inc. Employee Savings and Stock Plan and
Trust, the successor by merger to the Premier Financial Services, Inc.
Employees Profit-Sharing Plan and Trust and the Premier Financial
Services, Inc. Employee Stock Ownership Plan and Trust, to provide its
eligible Employees with a tax deferred savings program and to enable
its eligible Employees to acquire an equity ownership in the Company.
1.02 Intent. The Company intends this Plan, as amended from time
to time, to be a qualified profit-sharing and stock bonus plan under
Section 401(a) of the Code in full compliance with ERISA, with the
portion of the Plan comprising ESOP Contributions and ESOP Savings and
Matching Contributions being a leveraged employee stock ownership plan
under Section 4975(e)(7) of the Code, and the feature of the Plan
comprising Salary savings Contributions being a qualified cash and
deferred arrangement under Section 401(k) of the Code; and intends the
Trust created hereunder to be exempt from taxation under Section
501(a) of the Code. The Company intends to continue to maintain this
Plan for the above purposes indefinitely, subject always, however, to
the rights reserved in the Company to amend and terminate the Plan as
set forth below.
1.03 Effective Date. Except as otherwise expressly provided
herein, the terms of this Plan as herein merged, amended and restated
are effective as of July 1, 1993 for Participants whose Employment
terminates on or after that date. The benefits, if any, of
Participants whose Employment terminated before July 1, 1993, shall be
as determined under the terms of the Former ESOP or the Former Profit-
Sharing Plan or both as in effect at the time of such termination.
ARTICLE II
Definitions and Construction
2.01 Definitions. The following terms, when used in the Plan and
initially capitalized as shown below, shall have the following
respective meanings, unless expressly otherwise provided:
<PAGE>
"Accounts" mean all accounts maintained for a Participant
hereunder.
"Affiliate" means the Company and: (i) any other member of a
controlled group of corporations of which the Company is a member, as
determined under Sections 414(b) and 1563(a) of the Code (without
regard to Sections 1563(a)(4) and (e)(3)(c) of the Code); (ii) any
unincorporated trade or business that is under common control with the
Company, as determined under Section 414(c) of the Code; (iii) any
organization (whether or not incorporated) which is a member of an
affiliated service group that includes the Company, as determined
under Section 414(m) of the Code; and (iv) any other entity required
to be aggregated with the Company by regulations under Section 414(o)
of the Code. For purposes of applying this definition and Section
1563(a) and 414(b) and (c) of the Code to Sections 9.02 and 9.03 of
this Plan, the phrase "more than 50 percent" shall be substituted for
the phrase "at least 80 percent" at each place it appears in Section
1563(a)(1) of the Code. For purposes of this definition, an Affiliate
shall be considered an Affiliate only for the time during which it
satisfies the above conditions for being an Affiliate.
"Annual Valuation Date" means the last day of the Plan Year.
"Beneficiary" means the person or persons who become entitled to
receive benefits under this Plan by reason of the death of a
Participant.
"Board" means the Board of Directors of the Company as from time
to time constituted.
"Code" means the Internal Revenue Code of 1986 as from time to
time amended. References to any Section of the Code herein shall
include any successor provisions thereto.
"Committee" means the Committee appointed to administer the Plan
pursuant to Section 12.03.
"Company" means PREMIER FINANCIAL SERVICES, INC., a Delaware
corporation.
"Company Stock" means common stock of the Company.
"Company Stock Fund" means that part of the Fund invested in
Company Stock as provided in Section 11.04
"Compensation" means the total wages or salary, overtime,
commissions, bonuses, and any other taxable remuneration reportable on
Internal Revenue Service form W-2 paid to an Employee during the Plan
Year while a Participant in the Plan, including any amount deferred by
a Participant under the terms of a Salary Savings Agreement, but
disregarding, for Plan Years beginning on or after January 1, 1989, to
the extent required by Section 401(a)(17) of the Code, Compensation at
-16-
<PAGE>
an annual rate in excess of $200,000 (as periodically adjusted
pursuant to Section 401(a)(17) of the Code).
"Eligible Rollover Distribution" means any distribution from this
Plan (or, where applicable, any other plan qualified under Section
401(a) of the Code) of all or any portion of the balance to the credit
of the distributee, except that an Eligible Rollover Distribution does
not include:
(i) any distribution that is one of a series of
substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the
distributee or the joint lives (or joint life expectancy) of the
distributee and the distributee's designated beneficiary, or for
a specified period of ten years or more;
(ii) any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code;
(iii) the portion of any distribution that is not
includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to Company
Stock or other employer securities);
(iv) the return to a Participant of contributions and income
or similar corrective distribution under Article IX of this Plan
or otherwise described in regulations under Sections 401(k),
401(g), 401(m) or 415 of the Code;
(v) dividends on Company Stock paid and distributed
currently under Section 7.11 of this Plan or other currently
distributed dividends on employer securities as described in
Section 404(k) of the Code:
(vi) a charge against a Participant's Accounts under Section
8.02 of this Plan respecting a loan in default or other deemed
distribution under Sections 72 and 402 of the Code arising from
default on a loan; and
(vii) similar items as designated in regulations or
other rulings, notices or guidance under Section 401(a)(31) of
the Code.
"Eligibility Year of Service" of an Employee means a twelve (12)
month period, beginning with the date the Employee first performed an
Hour of Service or any annual anniversary thereof, during which he or
she completes at least one thousand (1,000) Hours of Service.
"Employee" means any individual in Employment, but shall not include
any "leased employee" within the meaning of Section 414(n) of the Code
(who is regarded as an employee for purposes of applying the minimum
coverage requirements of the Code) except for purposes of crediting
-17-
<PAGE>
Hours of Service if such individual otherwise becomes an actual
common-law Employee of an Employer.
"Employer" means the Company and any other Affiliate that, with
the approval of the Company, adopts the Plan by action of its board of
directors.
"Employment" unless otherwise stated, means service in a common
law employee-employer relationship with the Company or any Affiliate.
"Entry Date" means January 1 and July 1 of any year.
"ERISA" means the Employee Retirement Income Security Act of 1974
as from time to time amended. References to any Section of ERISA
herein shall include any successor provisions thereto.
"ESOP Account" means the record of a Participant's interest in
the Fund attributable to ESOP Contributions from time to time,
increased by Net Gains and decreased by Net Losses and by
distributions therefrom, all in accordance with the provisions of this
Plan.
"ESOP Contribution" means any discretionary Employer contribution
determined by the Board pursuant to Section 4.01.
"ESOP Savings and Matching Contributions" means that portion, if
any, of Salary Savings Contributions and Matching Contributions that
is applied pursuant to Section 5.05 to the repayment of an Exempt
Loan.
"Exempt Loan" means a loan to the Trust, to enable the Trust to
acquire Company Stock, that is made or guaranteed by the Company or an
Affiliate or by another person that is a "disqualified person" with
respect to the Plan under Section 4975(e)(2) of the Code, and that is
intended to meet the exemption requirements of Section 4975(d)(3) of
the Code and regulations thereunder.
"Extended Break in Service" of an Employee means a period of at
least a One-Year Break in Service ending on or before December 31,
1984, or a period of at least five consecutive One-Year Breaks in
Service for such Employee ending after December 31, 1984.
"Forfeiture" means that part or all of a Participant's Profit
Sharing Account or ESOP Account that is not distributable to the
Participant or his or her Beneficiary by reason of Section 7.03
hereof.
"Former ESOP" means the Premier Financial Services, Inc. Employee
Savings and Stock Plan and Trust as in effect on or before June 30,
1993.
-18-
<PAGE>
"Former Profit-Sharing Plan" means the Premier Financial
Services, Inc. Employee Profit-Sharing Plan and Trust as in effect on
or before June 30, 1993.
"Fund" means the trust fund held and maintained for purposes of
the Plan under the terms of the Trust established hereunder.
"Hour of Service" means each hour for which an Employee is
directly or indirectly paid or entitled to payment from the Company or
an Affiliate:
(i) for the performance of duties; or
(ii) on account of a period of time for which no duties were
performed (whether or not the employment relationship has
terminated) such as vacation, holidays, illness, incapacity
(including disability), layoff, jury duty, military duty or leave
of absence), provided, however, that (A) no more than 501 Hours
of Service shall be credited under this clause on account of any
single period during which the Employee performs no duties and
(B) no Hours of Service shall be credited under this clause where
the payment is made under a plan maintained solely for the
purpose of complying with applicable workmen's compensation or
disability laws or where the payment solely reimburses the
Employee for medical or medical-related expenses incurred by him
or her; and
(iii) by reason of back pay (irrespective of mitigation of
damages) awarded to the Employee or agreed to by the Employer or
Affiliate, provided however, that no duplicate credit for the
same Hours of Service shall be given under both clauses (i) and
(ii) and this clause (iii).
Hours of Service under clause (i) shall be credited to the Plan Year
(or Eligibility Year of Service) during which the duties were
performed, and Hours of Service under clauses (ii) and (iii) shall be
credited to the Plan Year (or Eligibility Year of Service) in which
occurred the period during which no duties were performed in
accordance with the rules of Department of Labor regulation 29 C.F.R.
Sect. 2530.200b-2(b), which is incorporated herein by this reference.
"Investment Fund" means any of:
(i) the Company Stock Fund, and
(ii) any other Investment Fund maintained by the Trustee
pursuant to Section 11.04 for purposes of this Plan.
"Investment Manager" means any person or organization designated
as such by the Committee pursuant to Section 12.06:
-19-
<PAGE>
(i) who has the power to manage, acquire or dispose of any
asset in the Fund;
(ii) who is (1) registered as an investment adviser under
the Investment Advisers Act of 1940, (2) a bank, as defined in
that Act, or (3) an insurance company qualified to perform asset
management services under the laws of more than one state; and
(iii) who has acknowledged in writing that he, she or it is
a fiduciary with respect to the Plan.
"Loan Suspense Account" means the account for unallocated Company
Stock acquired with the proceeds of an Exempt Loan as provided in
Section 5.06.
"Matching Contribution" means an additional Employer contribution
made with respect to Salary savings Contributions pursuant to Section
4.01.
"Net Gain" or "Net Loss" means the increase or decrease in the
value of the Fund, or of any component Investment Fund, determined in
accordance with Section 5.03 hereof.
"Parental Leave" means the absence of an Employee from service
with the Company or an Affiliate if such absence commences on or after
January 1, 1985:
(a) by reason of the pregnancy of the Employee;
(b) by reason of the birth of a child of the Employee;
(c) by reason of the placement of a child with the Employee
in connection with the adoption of such child by such employee;
or
(d) for purposes of caring for such child for a period
beginning immediately following such birth or placement;
provided that the Employee establishes to the satisfaction of the
Committee the length of such absence and that such absence was for one
of the reasons listed above.
"One-Year Break in Service" of an Employee means Plan Year in
which he or she does not complete more than 500 Hours of Service.
"Normal Retirement Date" means a Participant's 65th birthday.
"Participant" means an Employee who meets the requirements of
Article III for participation in the Plan and a former Employee who is
entitled to benefits hereunder.
-20-
<PAGE>
"Permanent Disability" or "Permanently Disabled" means a physical
or mental condition which prevents a Participant from performing his
or her normal duties for the Employer and which further prevents such
Participant from performing any other similar duties for the Employer
for which the Participant is qualified by education, training or
experience. A Participant shall be deemed Permanently Disabled for
purposes of the Plan if such Participant qualifies for disability
benefits from Social Security or under the terms of any other formal
written long-term disability program maintained by the Employer.
"Plan" means the PREMIER FINANCIAL SERVICES, INC. EMPLOYEE
SAVINGS AND STOCK PLAN AND TRUST, as herein set forth and as from time
to time amended, and includes, for periods before July 1, 1993, the
Former ESOP and the Former Profit-Sharing Plan.
"Plan Administrator" means the Committee described in Section
12.03.
"Plan Year" means the fiscal year of the Plan which until changed
shall be the calendar year.
"Profit Sharing Account" means the record of a Participant's
interest in the Fund attributable to Profit Sharing Contributions from
time to time, increased by Net Gains and decreased by Net Losses and
by distributions therefrom, all in accordance with the provisions of
this Plan.
"Plan Sharing Contribution" means a discretionary Employer
contribution determined by the Board pursuant to Section 4.01.
"Retirement," Retired" or "Retires" when used with reference to a
Participant, means the termination of such Participant's Employment
(for any reason other than death) on or after his or her Normal
Retirement Date.
"Rollover Account" means the record of the value of an Employee's
interest in the Fund resulting from such Employee's Rollover
Contribution pursuant to Section 4.04, increased by Net Gains and
decreased by Net Losses and by distributions therefrom, all in
accordance with the provisions of this Plan.
"Rollover Contribution" means a transfer to this Plan of part or
all of the amount (or property) distributed to an Employee in an
Eligible Rollover Distribution (or in a distribution before 1993
excluded from the distributee's gross income by Section 402(a)(5) of
the Code as then in effect) from another employee benefit plan
qualified under Section 401(a) of the Code (the "other plan") if the
part or all of the distribution is transferred to this Plan:
(i) in a direct rollover from the other plan under Section
401(a)(31) of the Code and provisions of the other plan
corresponding to Section 7.12 of this Plan, or
-21-
<PAGE>
(ii) by the Employee within sixty (60) days after its
receipt by the Employee from the other plan, or
(iii) from an individual retirement account (as defined in
Section 408 of the Code) ("IRA") that is a conduit IRA if, but
only if, such qualified plan distribution had previously been
deposited as a valid rollover contribution and as the only
contribution into such conduit IRA and is transferred to this
Plan either in an Eligible Rollover Distribution from such
conduit IRA or by the Employee within sixty (60) days after the
Employee's receipt of his or her distribution from the conduit
IRA and includes the earnings thereon.
"Salary Savings Account" means the record of a Participant's
interest in the Fund attributable to Salary Savings Contributions of
the Participant and associated Matching Contributions of the Employer,
increased by Net Gains and decreased by Net Losses and by
distributions therefrom, all in accordance with the provisions of this
Plan.
"Salary Savings Contribution" means a contribution made under the
terms of a Participant's Salary Savings Agreement pursuant to Section
4.02.
"Trust" means the PREMIER FINANCIAL SERVICES, INC. EMPLOYEE
SAVINGS AND STOCK TRUST, as set forth in Article XI hereof.
"Trustee" means PREMIER TRUST SERVICES, INC. or such banking
association, corporation, other entity, individual or group of
individuals appointed as successor Trustee pursuant to Section 11.10.
"Valuation" means the determination of the value of the assets of
the Fund, or of any component Investment Fund, in the manner provided
in Section 5.03 hereof, as of the Annual Valuation Date for each Plan
Year, or as of any other date on which the Trustee, in its sole
discretion, deems it desirable to make such Valuation.
"Valuation Date" means any date, including an Annual Valuation
Date, as of which a Valuation of the Fund or of any or all component
Investment Funds is made or is to be made.
"Voluntary Contribution" means a Participant's after-tax
contribution made pursuant to Section 4.03.
"Voluntary Contribution Account" means the record of a
Participant's interest in the Fund attributable to the Voluntary
Contributions from time to time, increased by Net Gains and decreased
by Net Losses and by distributions therefrom, all in accordance with
the provisions of this Plan.
2.02 Construction. The masculine pronoun whenever used herein
shall be construed so as to include the feminine and the neuter, and
-22-
<PAGE>
the singular shall be deemed to include the plural whenever the
context so requires.
ARTICLE III
Eligibility
3.01 Participation. Each Employee of an Employer who was a
Participant in the Former ESOP or the Former Profit-Sharing Plan on
June 30, 1993. shall continue as Participant in this Plan as merged,
amended and restated from and after July 1, 1993, subject to the
provisions of this Plan. Each other Employee of an Employer shall
become a Participant in the Plan on the first Entry Date on or after
he or she meets the following requirements:
(a) he or she has attained age twenty-one (21);
(b) he or she is not covered under the terms of a
collective bargaining agreement under which retirement benefits
have been subject of good faith bargaining, unless such agreement
provides for his or her participation in the Plan; and
(c) to participate in ESOP Contributions or Profit Sharing
Contributions under this Plan, he or she has completed one
Eligibility Year of Service,
provided he or she is an Employee of an Employer on such Entry Date;
or If he or she is not an Employee of an Employer on such Entry Date,
on the first date thereafter that he or she is an Employee of an
Employer.
3.02 Enrollment. The Committee shall notify eligible Employees
of their impending eligibility to participate in the Salary Savings
Contributions and Matching Contributions under the Plan at least 30
days before the applicable Entry Date. As part of the notification the
Committee shall provide each eligible Employee with a form of Salary
Savings Agreement, form of designation of Beneficiary, form for making
initial investment designations, and summary plan description.
Participants must complete and return such forms to the Committee in
the time and manner allowed by the Committee in order to obtain the
rights and benefits under this Plan to which such forms relate.
3.03 Duration. An Employee who becomes a Participant shall
continue to be a Participant until his or her Employment with all
Employers terminates. Upon such termination of Employment, he or she
thereupon shall cease to be a Participant (except with respect to
benefits which were accrued and vested prior to such termination)
unless and until he or she thereafter returns to active Employment as
an Employee of an Employer. A former Participant who is re-employed by
an Employer (and continues to meet the requirement of Section 3.01(b))
shall again become a Participant immediately upon such re-Employment.
-23-
<PAGE>
ARTICLE IV
Contributions
4.01 Employer Contributions. Each Employer shall contribute
amounts withheld by it from Participants' Compensation as Salary
Savings Contributions under Section 4.02. Each Employer shall also
make for each Plan Year a Matching Contribution of 10% of the Salary
Savings Contributions made for such plan Year by Participants employed
by it and not withdrawn before the date the Employer makes such
Matching Contribution. In addition, the Employers shall make an ESOP
Contribution or a Profit-Sharing Contribution or both for a Plan Year
in such amount, if any, as shall be determined annually in the sole
discretion or the Board.
4.02 Salary Savings Contributions. A Participant may enter into
a Salary Savings Agreement with the Employer authorizing the Employer
to withhold a portion of such Participant's Compensation and to
deposit such amount as a Salary Savings Contribution to the Plan. Any
such Salary Savings Contribution shall be credited to the
Participant's Salary Savings Account. A Participant may amend his or
her Salary Savings Agreement to increase or decrease his or her Salary
Savings Contributions or terminate the Salary Savings agreement upon
five days written notice to his or her Employer. If a Participant
terminates his or her Salary Savings Agreement, the Participant shall
not be permitted to put a new Salary Savings Agreement into effect
until the first pay period in the next Plan Year. If a Participant
has not authorized the Employer to withhold at the maximum rate and
desires to increase the total withheld for a Plan Year, such
Participant may authorize the Employer to withhold a supplemental
amount up to 100% of his or her Compensation for one or more pay
periods subject to the foregoing limit. In no event may the sum of the
amounts withheld under the Salary Savings Agreement in any calendar
year exceed $7,000 (as such amount may be adjusted from time to time
pursuant to Section 402(g)(5) of the Code). Notwithstanding the
Salary Savings Agreement of any Highly Compensated Employee, the
Committee, to the extent it determines is necessary or desirable to
meet the requirements of Section 9.05, may in its discretion reduce
the level of Salary Savings Contributions by, or terminate the Salary
Savings Agreement of, any Highly Compensated Employee, or
recharacterize such Salary Savings Contributions as Voluntary
Contributions, or return excess Salary Savings Contributions to such
Highly Compensated Employee as provided in Section 9.05.
4.03 Voluntary Contributions. A Participant may make Voluntary
Contributions to the Plan out of after-tax compensation by so
characterizing or recharacterizing all or part of his or her Salary
Savings Contributions otherwise made pursuant to Section 4.02. The
Committee may recharacterize the Salary Savings Contributions of any
Highly Compensated Employee to the extent; it determines is necessary
or desirable to meet the requirements of Section 9.05. Any such
characterization or re-characterization made voluntarily by a
-24-
<PAGE>
Participant shall, and any such re-characterization imposed by the
Committee shall if practicable, be made not later than two and one-
half months after the end of the Plan Year in which the original
Salary Savings Contributions were made; and shall in all events be
made by the end of the Plan Year following the Plan Year in which the
original Salary Savings Contributions were made. Notwithstanding the
voluntary characterization or recharacterization made by a Participant
who; is a Highly Compensated Employee, the Committee, to the extent it
determines; is necessary or desirable to meet the requirements of
Section 9.05, may in its discretion reduce the level of Voluntary
Contributions by, or terminate the Voluntary Contributions election
of, any Highly Compensated Employee, or return such Voluntary
Contributions to such Highly Compensated Employee as provided in
Section 9.05. In no event shall the Voluntary Contributions by a
Participant to all qualified plans of any Affiliate for all years of
participation exceed ten percent (10%) of the Participant's aggregate
Compensation for all years since becoming a Participant. Except as
provided by this Section 4.03, Voluntary Contributions may not be made
under this Plan on or after July 1, 1993; but any Voluntary
Contributions previously made under the Former Profit-Sharing Plan or
Former ESOP shall (together with any Voluntary Contributions
thereafter made under this Section 4.03) be credited to and held in
the Participant's Voluntary Contributions Account maintained pursuant
to the provisions of this Plan.
4.04 Rollover Contributions. An Employee who meets the
requirements of Sections 3.01(a) and (b) above (but whether or not an
Entry Date has yet occurred) may make Rollover Contributions to the
Plan. Each Employee's Rollover Contribution shall be immediately
allocated to his or her Rollover Account. The balance in a Rollover
Account shall be nonforfeitable. Prior to accepting such Rollover
Contribution the Committee may in accordance with its procedures for
Rollover Contributions require such evidence or assurance as it deems
desirable from the Participant, or from the administrator of the other
plan involved, that such contribution results from an Eligible
Rollover Distribution and qualifies as a Rollover Contribution.
However, the acceptance of any Rollover Contribution by the Trustee
shall not in any manner guarantee the effect under any tax laws of
such deposit.
4.05 Condition on Employer Contributions. Unless an Employer's
or the Board's; instrument making or authorizing a particular
contribution expressly provides to the contrary, all Employer
contributions to this Plan are hereby expressly conditioned on the
deductibility of such contributions for federal income tax purposes
under Section 404 of the Code, and notwithstanding any provision of
the Plan to the contrary shall not exceed the maximum amount so
deductible.
4.06 Time of Contributions. The Employer shall pay Salary
Savings Contributions and Voluntary Contributions made by or on behalf
of a Participant to the Trustee as soon as practicable, and in any
-25-
<PAGE>
event within 90 days after the date such amounts would have been paid
as Compensation to the Participant if the Participant had not elected
to have such Salary Savings Contributions or Voluntary Contributions
made on his or her behalf. The Employer shall pay Matching
Contributions, ESOP Contributions and Profit-Sharing Contributions to
the Trustee by the due date for filing the Employer's federal income
tax return for the taxable year to which they relate. For purposes of
allocations required under this Plan, all contributions shall be
considered a part of the Fund as of the Plan Year to which they
relate.
4.07 Form of Contributions. Rollover Contributions may be made
in cash, or in such property as may have been distributed in the
Eligible Rollover Distribution to the extent such property is
acceptable to the Trustee in its discretion to receive for purposes of
this Plan, or in a combination thereof. ESOP Contributions may in the
discretion of the Board be made in Company Stock (whether authorized
and previously unissued or previously issued and reacquired), or in
cash, or in a combination thereof; except that the ESOP contribution
shall be made in cash to the extent of the portion of the ESOP
Contribution required under Section 5.05 of the Plan to enable the
Trustee to make payment of debt service on any Exempt Loan. All other
contributions shall be made in cash. All property received by the
Trustee as a contribution to the Fund shall be received at its fair
market value on the date of receipt.
ARTICLE V
Accounts
5.01 Accounts of Participants. The Committee shall maintain, or
cause the Trustee or Investment Manager to maintain, bookkeeping
Accounts for each Participant showing respectively each Participant's
interest in the Fund, if any, attributable to:
(i) Salary Savings and Matching Contributions,
(ii) ESOP Contributions,
(iii) Profit-Sharing Contributions,
(iv) Voluntary Contributions, and
(v) Rollover Contributions.
and the Net Gain or Net Loss attributable thereto. Except as provided
in Section 9.05 (relating to excess Matching Contributions and excess
Voluntary Contributions), Section 8.01 (relating to Plan loans in
default), and Section 14.11 (relating to unclaimed payments), the
Salary Savings Account, Voluntary Contribution Account, and Rollover
Account of a Participant shall be fully vested and nonforfeitable.
The ESOP Account and Profit-Sharing Account of a Participant shall
become vested and nonforfeitable in accordance with Section 7.03. The
Committee shall maintain, or cause the Trustee or Investment Manager
to maintain, subaccounts within each such Account reflecting the
investment of each such Account in the Investment Funds maintained
-26-
<PAGE>
under Section 11.04, and to reflect the portion (if any) of a
Participant's Salary Savings Account that is attributable to ESOP
Savings and Matching Contributions. In the event the Trustee acquires
Company Stock with the proceeds of an Exempt Loan, such Company Stock
and earnings thereon shall be added to and maintained in a Loan
Suspense Account until released as provided in Section 5.06. The
Trustee shall separately account for contributions made to meet the
obligations of the Trust under the Exempt Loan, earnings on such
contributions, and earnings on the Loan Suspense Account. The
Committee or Trustee may maintain, or cause the Investment Manager to
maintain, such other accounts and subaccounts as the Committee or
Trustee deems necessary or desirable or as the Committee may direct.
5.02 Allocations to Accounts. As of each Valuation Date there
shall be allocated to each Account its proportionate share since the
last Valuation Date of the Net Gain or Net Loss of the Investment
Funds in which it has been invested.
5.03 Determination of Net Gain or Net Loss. For the purpose of
determining the Net Gain or Net Loss of an Investment Fund as of any
Valuation Date for the period since the next preceding Valuation Date,
as soon as may be conveniently done, but in no event more than ninety
(90) days after the date of such Valuation Date, the Trustee shall
cause a Valuation to be made of the assets of such Investment Fund as
of such Valuation Date based on the then fair market values as of such
Valuation Date. The Net Gain or Net Loss of the Investment Fund for
such period shall be the amount by which the total net value of all
such assets determined as of such Valuation Date, reduced by any
transfers thereto after the last Valuation Date and by any
contributions to be allocated thereto as of the next or current Annual
Valuation Date, shall exceed or fall short of the total of all
Accounts invested in such Investment Fund on the last Valuation Date,
reduced by the total of any transfers or distributions therefrom and
increased by any transfers or contributions thereto since that last
Valuation Date.
5.04 Allocation of Net Gain or Net Loss. The Net Gain or Net
Loss of each Investment Fund shall be allocated among the Accounts of
all Participants invested therein in the same ratio that the balance
in each such Account, reduced by transfers or distributions therefrom
since that last Valuation Date and increased by one-half (or such
other portion as the Trustee may determine and apply in a uniform and
nondiscriminatory manner to give appropriate effect, to the extent
administratively feasible, to the length of time such contributions
have been held in the Fund) of the contributions and transfers
actually made thereto since such last Valuation Date, bears to the
total amount of all balances, as so adjusted, of all such Accounts.
5.05 Allocation of Contributions. So long as any Exempt Loan is
outstanding, ESOP Contributions shall be applied to the payment of
debt service on such Exempt Loan (or Loans) to the extent required
(after taking into consideration dividends paid on Company Stock held
-27-
<PAGE>
in the Suspense Account pursuant to Section 7.11 and any other funds
available to the Trustee for that purpose) or permitted (without
prepayment penalty) under the payment schedule of such Exempt Loan (or
Loans). If such ESOP Contributions are insufficient to enable the
Trustee to make payments required under the payment schedule of such
Exempt Loan (or Loans), there shall then be applied to the payment of
required debt service on such Exempt Loan (or Loans), in order until
exhausted:
(i) Matching Contributions, and then
(ii) Salary Savings Contributions.
Stock released from the Suspense Account as a result of such Exempt
Loan repayment shall be allocated to Accounts in accordance with
Section 5.07. Salary Savings Contributions and associated Matching
Contributions (other than ESOP Savings and Matching Contributions)
shall be allocated directly to the Salary Savings Accounts of
Participants making the Salary Savings Contributions. Voluntary
Contributions and Rollover Contributions shall be allocated directly
to the respective Accounts of Participants making such contributions.
Profit Sharing Contributions, ESOP Contributions not applied to the
payment on an Exempt Loan, and Forfeitures becoming available for
reallocation under Section 7.04 shall be allocated to the Accounts of
Participants employed by an Employer on the last day of the Plan Year
who have completed at least 1,000 Hours of Service during such Plan
Year, and to the Accounts of Participants who have terminated
Employment during the Plan Year as a result of death, Permanent
Disability or after attaining of Normal Retirement Age regardless of
the number of hours worked, in proportion to each eligible
Participant's Compensation earned during the Plan Year while a
Participant in the Plan.
5.06 Loan Suspense Account. In the event the Trustee purchases
Company Stock with the proceeds of an Exempt Loan, such Company Stock
will be held initially in a Loan Suspense Account. For each Plan Year
during the term of the Exempt Loan, Company Stock released from the
Loan Suspense Account shall equal the Company Stock (including stock
dividends in Company Stock thereon) held in the Loan Suspense Account
immediately before such release multiplied by a fraction, the
numerator of which is the amount of principal paid on the Exempt Loan
for the current year, and the denominator of which is the sum of the
numerator plus the amount of principal to be paid for all future
years; provided, however, that if the Exempt Loan provides for annual
payments of principal and interest at a cumulative rate that is less
rapid at any time than level annual payments of such amounts for ten
years, or provides for interest to be included in any payment that
would not be deemed interest under standard loan amortization tables,
or by reason of renewal, extension or refinancing has an expected
total (past and future) term exceeding ten years, the release fraction
for any Plan Year will be determined on the basis of combined
principal and interest payments (applying, in the case of a variable
-28-
<PAGE>
interest rate, the rate applicable as of the end of the Plan Year) in
accordance with regulations under Section 4975(d)(3) and (e)(7) of the
Code.
5.07 Allocation of Company Stock Released from the Loan Suspense
Account. Company Stock released from the Loan Suspense Account under
Section 5.06 shall first be allocated to Participants who have made
Salary Savings Contributions with respect to a Plan Year to the extent
such contributions and associated Employer Matching Contributions are
ESOP Savings and Matching Contributions until the market value of the
shares so allocated is equal to such Participant's ESOP Savings and
Matching Contributions. The balance of shares released with respect
to such Plan Year shall be allocated to Participants employed by the
Employer on the last day of the Plan Year who have completed at least
1,000 Hours of Service during such Plan Year and to Participants who
have terminated employment during the Plan Year as a result of death,
Disability or attainment of Normal Retirement Age regardless of the
number of hours worked, in proportion to each eligible Participant's
Compensation earned during the Plan Year while a Participant in the
Plan.
5.08 Participant Statements. Upon completing the allocations
described above, the Committee shall prepare a statement for each
Participant showing the additions to and subtractions from his or her
account since the last Valuation Date and the fair market value of his
or her Accounts as of the current Valuation Date.
5.09 Valuation by the Trustee Conclusive. In all matters, the
determination of the net value of the assets of the Fund made by the
Trustee shall be conclusive; provided, however, that the valuation of
any Company Stock held in the Fund that is first acquired by the Trust
on or after January 1, 1987 and is not at the relevant time readily
tradeable on an established securities market shall, for purposes of
all activities of the Plan, determined by an independent appraiser
meeting the requirements of Section 401(a)(28)(c) of the Code.
5.10 Errors in Valuation. Upon the discovery of any error or
miscalculation in the valuation of an Account, the Trustee shall
correct the same insofar as, in the Trustee's discretion, the
correction is feasible, and any gain or loss resulting therefrom shall
be treated as income or expense to be credited or charged to the Fund
in the year in which such correction is made, and any correction so
made shall not otherwise change the value of any other Participant's
Account as such value was determined at the time such error or
miscalculation was made.
-29-
<PAGE>
ARTICLE VI
Company Stock
6.01 Investment in Company Stock. ESOP Contributions and ESOP
Savings and Matching Contributions as determined under Section 5.05,
all earnings on the Loan Suspense Account, and any other cash received
by the Trust in the Company Stock Fund, other than cash borrowed
specifically for the purchase of Company Stock by the Trust, will
first be used to the extent required or permitted (without prepayment
penalty) to pay debt service on any Exempt Loan or other outstanding
obligations of the Trust. The Trustee shall use any excess to buy
Company Stock available either from holders of outstanding stock or
newly issued stock from the Company. However, such purchases of
Company Stock will only be made at a price, or at prices, which in the
judgment of the Trustees, or when required by Section 5.09 of an
independent appraiser, do not exceed the fair market value for such
shares of Company Stock. So long as no current obligations of the
Trust are outstanding and unpaid and in the event the Trustee shall
for any reason determine that Company Stock is not available for
purchase, or shall determine to hold cash in the Company Stock Fund of
the Trust pending the making of loans, transfers or cash distributions
or paying the expenses of the administering the Plan and the Trust,
the Trustee may invest such funds within the Company Stock Fund in
savings accounts, bank certificates of deposit, securities, bonds, or
other investments deemed by the Trustee to be desirable for the Trust,
or such funds may be held temporarily in cash.
6.02 Voting Company Stock. All Company Stock in the Loan
Suspense Account shall be voted by the Trustee in such manner (which
may be an abstention) as it in its sole discretion deems to be in the
best interests of Participants and their Beneficiaries. The vote of
Company Stock allocated to the Accounts of Participants on the record
date for such vote shall be passed through to the Participant (or
Beneficiary) to whose Account the Company Stock is allocated. To this
end, in the event the Trustee is notified by proxy solicitation or
otherwise of any matter to be brought before a meeting of stockholders
of the Company, the Trustee shall advise, or cause the Company to
advise, each Participant (or Beneficiary) in writing of such matter
and request instructions from each such Participant (or Beneficiary)
on how the Company Stock allocated to his or her Company Stock Account
is to be voted. Such instructions may include an instruction to
abstain. All voting Company Stock as to which instructions have been
requested and received shall be voted in accordance with such
instructions. voting Company Stock as to which no instructions have
been received shall not be voted.
6.03 Contingent Put Option to Sell Company Stock. If at any time
Company Stock is neither listed on a national securities exchange
registered under Section 6 of the Securities Exchange Act of 1934
("Listed"), nor quoted on a system sponsored by a national securities
association registered under Section 15A(b) of the Securities Exchange
-30-
<PAGE>
Act of 1934 ("Quoted"), each Participant or his or her Beneficiary, or
his or her legal representatives, heirs or legatees in case of the
death of such Participant or Beneficiary (hereinafter called "Selling
Stockholder"), shall have the option (hereinafter called the "Put
Option") to require the Company to buy the shares of Company Stock
distributed to him or her from the Trust on the terms and conditions
set forth in this Section 6.03:
(a) Term. The initial term during which the Put Option may
be exercised shall begin on the date such shares of Company Stock
are distributed and end on the 60th day thereafter. If the Put
Option is not exercised within that initial term, the Put Option
may again be exercised during a second term which shall begin on
the date the distributee receives notice of the revaluation
prescribed by subsection (b) below and end on the 60th day
thereafter. If the Put Option is not exercised during that second
term, it shall wholly and completely terminate.
(b) Revaluation. Following the valuation of the Company
Stock on the Annual Valuation Date as of the last day of the Plan
Year in which the initial term prescribed by subsection (a)
expired, the Trustees shall notify each distributee who received
Company Stock in such distribution but did not exercise the Put
Option during the initial term of the value of Company Stock as
determined on such Annual Valuation Date.
(c) Purchase Price. The purchase price for the Company
Stock shall be its value determined pursuant to Section 5.09 as
of the last Valuation Date preceding the exercise of the Put
Option.
(d) Manner of Exercise. The Selling Stockholder shall
exercise the Put Option by giving notice (i) in writing, and (ii)
mailed by prepaid registered or certified mail to the Company and
shall contain (A) the name of the Selling Stockholder exercising
the Put Option and his or her address, and (B) the number of
shares being offered for sale.
(e) Repurchase by Trust or Company. Immediately upon
receipt of such notice of exercise, the Company shall advise the
Trustee of such notice and the Trustee may purchase all or a
portion of the Company Stock. In the event that not all of the
shares offered are accepted by the Trustee, the balance of the
shares shall be sold to the Company.
(f) Payment. The purchase price will be paid by delivering
to the Selling Stockholder a promissory note of the purchaser
providing for payment in substantially equal annual installments
over a period of five (5) years with adequate security and
interest at a reasonable rate, provided, however, that the
purchaser may prepay such note at any time without penalty.
-31-
<PAGE>
(g) Place and Time of Closing. The sale of Company Stock
shall be closed at the office of the purchaser at a time during
ordinary business hours fixed by the Selling Stockholder not more
than thirty (30) days after the date on which the notice of
exercise is served.
(h) Delivery of Stock and Closing Documents. Upon the
closing of a sale the Selling Stockholder shall deliver to the
purchaser in exchange for payment by the purchaser the
certificates of stock being sold, endorsed for transfer, and
bearing any necessary documentary stamps and such assignments,
certificates of authority, tax releases, consents to transfer,
instruments and evidence of the title of the Selling Stockholder
as may be reasonably required by counsel for the purchaser.
The Put Option provided by this Section 6.03 shall lapse in the event
such Company stock becomes Listed or Quoted; provided, however, that
the Put Option shall not lapse so long as the Company Stock may
continue to be subject to any restriction under any Federal or state
securities law, any regulation thereunder, or any other agreement,
which would make such Company Stock not as freely tradeable as stock
not subject to such restriction.
6.04 Exempt Loans. The Trustee may, but need not, enter into an
Exempt Loan. Any Exempt Loan to the Trust shall be subject to the
following conditions:
(i) the rate of interest charged to the Trust must be
reasonable;
(ii) any collateral pledged to the creditor by the Trust
shall consist only of Company Stock purchased with the proceeds
of such Exempt Loan (or with the proceeds of a prior Exempt Loan
repaid with the proceeds of such current Exempt Loan) and
earnings thereon, if any;
(iii) the creditor shall have no recourse against the Trust
except as to such pledged Company Stock held in the Loan Suspense
Account and to earnings thereon, if any;
(iv) repayment of the Exempt Loan may be made only from
Employer contributions (including ESOP Contributions and ESOP
Savings and Matching Contributions) made to enable the Trustee to
repay the Exempt Loan, earnings on Company Stock acquired with
the proceeds of the Loan and held in the Loan Suspense Account,
and from other dividends on Company Stock to the extent permitted
by ERISA or the Code;
(v) in the event of default upon an Exempt Loan, the value
of Plan assets transferred in satisfaction of the Exempt Loan
shall not exceed the amount of default; and if the lender is a
disqualified person (within the meaning of Section 4975(e)(2) of
-32-
<PAGE>
the Code) the Exempt Loan must provide for a transfer of Plan
assets upon default only upon and to the extent of the failure of
the Plan to meet the repayment schedule of the Exempt Loan;
(vi) except as provided by Section 6.03 or as otherwise
required by applicable law, no security acquired with the
proceeds of an Exempt Loan may be subject to a put, call or other
option, or buy-sell or similar arrangement, while held by and
when distributed from the Exempt Loan has been repaid or Plan,
whether or not the Plan Is then a leveraged employee stock
ownership plan; and
(vii) upon the payment of any portion of the balance due on
the Exempt Loan, Company Stock originally pledged as collateral
for such portion shall be released from the Loan Suspense Account
in accordance with Section 5.06.
ARTICLE VII
Distributions
7.01 Distributions upon Termination of Employment. Each
Participant whose Employment is terminated shall be entitled to a
distribution of (i) all of his or her Rollover Account; (ii) all of
his or her Salary Savings Account, (iii) all of his or her Voluntary
Contribution Account and (iv) that portion (which may be all) of his
or her ESOP Account and Profit Sharing Account determined in
accordance with Section 7.02 and 7.03 hereof. Account balances will be
valued for this purpose as of the last Valuation Date preceding actual
distribution (reduced by any earlier distributions since the last
Valuation Date) and will be payable in accordance with the provisions
of this Article.
7.02 Termination by Death. Retirement or Disability. If a
Participant's Employment terminates on or after his or her Normal
Retirement Date, or by reason of his or her Permanent Disability or
death, the Participant (or his or her Beneficiary, as the case may be)
shall be entitled to a distribution of the entire balance in his or
her ESOP Account and Profit Sharing Account.
7.03 Termination by Resignation or Dismissal. If a Participant's
Employment terminates before his or her Normal Retirement Date for a
reason other than his or her Permanent Disability or death, such
Participant shall be entitled to a distribution of the applicable
percentage of his or her ESOP Account and Profit Sharing Account based
upon his or her completed Years of Service (whether or not
consecutive) on the date his or her Employment terminates:
-33-
<PAGE>
Completed Years Vested Percentage
of Service of Accrued Benefit
Less than five 0%
Five or more 100%
provided, however, that the Vested Percentage in his or her Profit
Sharing Account of a Participant with three or more completed years of
Vesting Service as of December 31, 1990 shall, after the Participant
completes four years of Vesting Service, be not less than 40%; and the
Vested Percentage in his or her ESOP Account of a Participant with
three or more completed years of Vesting Service as of June 30, 1993,
shall be not less than 100%.
7.04 Treatment of Forfeitures. That part of such Participant's
ESOP Account and Profit Sharing Account which is not distributable as
provided in Section 7.03 hereof shall be a Forfeiture as of the date
such termination of Employment occurs and shall be held in a separate
Forfeiture Account that shall not share in Net Gain and Net Loss. If
a Participant who has incurred a Forfeiture is re-employed by the
Company or an Affiliate before incurring an Extended Break in Service
and repays to the Plan (without interest) before incurring a
subsequent Extended Break in service the amount (if any) distributed
to him or her upon such prior termination of Employment, such
Forfeiture shall be reinstated to his or her Employer Contribution
Account. If a Participant who has incurred a Forfeiture is not so re-
employed before incurring an Extended Break in Service, such
Forfeiture shall be permanent and the Forfeiture Account relating to
such Participant shall be reallocated as a part of the Employer
contributions as set forth in Section 5.05 for the Plan Year in which
such Forfeiture became permanent.
7.05 Re-Employment of Participants Returning Before an Extended
Break in Service. In the case of a partially vested Participant whose
Employment is terminated and who received a distribution from the Plan
but who is re-employed by the Company or an Affiliate prior to
incurring an Extended Break in Service, the amount of such
Participant's then current Profit Sharing and ESOP Contribution
Account balance which is nonforfeitable shall thereafter be computed
as follows:
Step 1. Add the amount of any distribution from his or her
Employer Contribution Account made to such Participant as a result of
his or her termination of Employment to the then current balance in
his or her Account.
Step 2. Multiply such Step 1 sum by the applicable
nonforfeitable percentage as set forth in Section 6.03.
Step 3. Subtract the amount of the prior distribution from such
Step 2 product.
-34-
<PAGE>
7.06. Manner of Distribution. Any amounts to which a
Participant whose Employment terminates is entitled hereunder shall be
distributed to him or her in one or more lump sums representing the
full amount distributable at the time of such distribution, unless:
(i) on the date of a Participant's termination of
Employment the amount distributable from his or her Accounts
exceeds $3,500, and
(ii) the Participant elects, with the consent of his or her
spouse in the manner (but subject to the exceptions) specified in
Section 7.10 if the Participant is married, by written notice to
the Committee in a form acceptable to the Committee before the
date on which distribution would otherwise be made under Section
7.07, to receive distribution of his or her Profit-Sharing
Account in the form of installments;
in which event distribution of his or her Profit-Sharing Account shall
be made in substantially equal installments payable not less often
than annually over a period not exceeding the joint life expectancy of
the Participant and his or her designated Beneficiary.
If distribution Is made in installments, the minimum distribution
to be made each year will be an amount equal to the quotient obtained
by dividing the distributable balance of the Participant's Profit-
Sharing Account at the beginning of the Plan Year in which payments
begin by the period selected. Life expectancies for this purpose shall
be computed by the use of the return multiples contained in Section
1.72-9 of the Treasury Regulations. For purposes of this computation,
the life expectancy of a Participant, and of the Participant's spouse
if he or she is the Participant's Beneficiary, shall be recalculated
annually. However, the life expectancy of a non-spouse Beneficiary
shall not be recalculated. If the Participant's spouse is not the
designated Beneficiary, the method of distribution selected must
assume that at least 50% of the present value of the amount available
for distribution is paid within the life expectancy of the
Participant.
7.07 Timing of Distribution. Distribution will be made or begin
as soon as practicable after the first Valuation Date following the
later of (i) the date the Participant's Employment terminates, or (ii)
the date the Committee receives from the Participant a written request
for immediate distribution in form and substance satisfactory to the
Committee; unless one or both of such requirements is eliminated and
the distribution date is specified by one of the following rules:
(a) Death. If a Participant has died, whether during his
or her employment or after his or her employment has terminated,
no written request for immediate distribution shall be required
and distribution shall be made as soon as practicable after the
Valuation Date that next follows the Participant's death.
-35-
<PAGE>
(b) Age 65. If a Participant has attained age 65, whether
during his or her Employment or after his or her Employment has
terminated, no written request for immediate distribution shall
be required and distribution shall be made as soon as practicable
after the Valuation Date that next follows the later of the date
the Participant attained age 65 or the date the Participant's
Employment terminates.
(c) $3,500. If upon a Participant's termination of
Employment the amount distributable does not exceed (and has
never exceeded) $3,500, no written request for immediate
distribution shall be required and distribution shall be made as
soon as practicable after the Valuation Date that next follows
the Participant's termination of Employment.
(d) Age 70-1/2. If a Participant who attains age 70 on or
after July 1, 1987, or who is a 5% owner of any Affiliate, has
not terminated Employment before the last Valuation Date in the
calendar year in which he or she attains age 70-1/2, then neither
a written request for immediate distribution nor termination of
Employment shall be required. In such event distribution shall
be made in all events by April 1 of the calendar year following
the calendar year in which he or she attained age 70-1/2, based
on the balance of the Participant's Accounts as of the last
Valuation Date in the calendar year in which he or she attained
age 70-1/2. Amounts credited to such Participant's Accounts in
any later calendar year by reason of continuing Employment and
participation in the Plan shall similarly be distributed by April
1 of the following calendar year, based upon the balance of the
Participant's Accounts as of the last Valuation Date in the
preceding calendar year.
(e) Par Investment Funds. If, upon a Participant's
termination of Employment, his or her Accounts are invested
exclusively in either or both of the Company Stock Fund and the
money market fund, the Participant (or his or her Beneficiary if
the Participant has died) may elect, by written request in form
and substance satisfactory to the Committee, to receive an
immediate distribution of his or her Accounts valued as of the
last Valuation Date before the Committee receives his or her
request (without adjustment for later interest, gains or losses);
and distribution shall be made as soon as practicable thereafter.
Distribution of benefits shall not be delayed without a Participant's
consent (which, however, shall be deemed given by the Participant's
failure to submit a written request for immediate distribution
pursuant to this Section 7.07) beyond 60 days after the end of the
Plan Year in which occurs the latest of the date the Participant
attains age 65, the date the Participant's employment terminates, or
the tenth anniversary of the date the Participant became a Participant
in this Plan. Distributions under this Plan shall be made in
accordance with the provisions of Section 401(a)(9) of the Code and
-36-
<PAGE>
regulations thereunder, including the incidental death benefit
requirements of those regulations.
7.08 Mode of Distribution. Distributions of Accounts to the
extent invested in the Company Stock Fund immediately before
distribution shall be in full shares of Company Stock and negotiable
check or other cash equivalent in lieu of fractional shares, and
distribution of the balance of a Participant's Accounts shall be
payable by negotiable check or other cash equivalent; provided,
however, that if:
(i) a Qualified Participant (as defined in Section 7.09)
has requested distribution pursuant to Section 7.09 and the
Qualified Participant has requested distribution in the form of
cash; or
(ii) the Company Stock is not publicly traded, and the
Participant has requested distribution in the form of cash; or
(iii) the charter or bylaws of the issuer of such Company
Stock restrict the ownership of substantially all outstanding
stock of such issuer to Employees or to a trust described in
Section 401(a) of the Code;
all (but not less than all) of his or her distribution shall be made
in the form of negotiable check or other cash equivalent. To obtain
cash for any such distribution the Trustee shall dispose of the
Company Stock in the Participant's Accounts for cash in such manner
(which may be a sale ratably to the Accounts of all other Participants
or a sale to the Company or other Employer) as the Trustee in its sole
discretion shall determine. In the event of any such purchase or sale
among Participants' Accounts, the price shall be the most recent value
of such Company Stock determined pursuant to Section 5.09. In the
event of any such purchase or sale between the Trustee and the
Company, the price shall be the more favorable to the Trustee of (i)
the most recent value of such Company Stock determined pursuant to
Section 5.09, or (ii) the fair market value of such Company Stock on
the date of such purchase or sale. Nothing in this Section 7.08 shall
be construed to require the Company or any Employer to purchase or
sell Company Stock without its consent at the demand of the Trustee.
7.09 Distributions to Qualified Participants. A Qualified
Participant (defined below) may, within 90 days after the close of
each Plan Year in his or her Qualified Election Period (defined
below), direct by written election in form and substance satisfactory
to the Committee that the Subject Portion (defined below) be
distributed to him or her in cash within the 90 day period after such
election is filed with the Committee. For purposes of this Section:
(a) "Qualified Participant" means a Participant who has
attained age 55 and has completed 10 years of participation in
this Plan.
-37-
<PAGE>
(b) "Qualified Election Period" means the six Plan Year
period beginning with the later of the Plan Year during which a
Participant first becomes a Qualified Participant or the first
Plan Year beginning after December 31, 1986.
(c) "Subject Portion" of a Qualified Participant's Accounts
for any Plan Year means 25% of the balance in the Qualified
Participant's Accounts as of the last day of the preceding Plan
Year, to the extent such Accounts are invested in Company Stock
acquired on or after January 1, 1987 (and to the extent such
amount exceeds the amount to which a prior election under this
Section applied); provided, however, that for the last Plan Year
with respect to which a Qualified Participant is entitled to a
distribution under this Section, 50% shall be substituted for 25%
above.
7.10 In-Service Withdrawals. A Participant may withdraw all or
any part of the fair market value of his or her Voluntary
Contributions Account or Rollover Account upon written request to the
Committee. After attaining age 59-1/2 any Participant may withdraw
all or any part of his or her Salary Savings Account, ESOP Account or
Profit-Sharing Account without separation from service. Any such
distributions shall be made in accordance with Section 7.08 hereof and
shall not be eligible for redeposit to the Fund. A withdrawal under
this Section shall not prohibit such Participant from sharing in any
future Employer contributions he or she would otherwise be eligible to
share in.
7.11 Dividend Pass Through. Cash dividends paid on shares of
Company Stock allocated to the ESOP Accounts of Participants shall be
distributed to Participants not later than 90 days following the close
of the Plan Year. Cash dividends paid on shares of Company Stock held
in the Suspense Account shall first be used to repay any Exempt Loan
incurred to purchase the Company Stock on which such dividends were
paid and any remaining cash dividends shall be allocated to
Participants in proportion to their account balance attributable to
ESOP Contributions and shall be distributed to such Participants not
later than 90 days following the close of the Plan Year. Cash
dividends on all other Company Stock shall be held in the relevant
Account and reinvested pursuant to Section 6.01.
7.12 Direct Rollover Option: Notwithstanding any other provision
of this Plan to the contrary that would otherwise limit a
distributee's elections under this Section 7.12, a distributee may
elect, in writing. at a time and in the manner prescribed by the
Committee, to have any portion of an Eligible Rollover Distribution
paid directly to an eligible retirement plan, specified by the
distributee, which will accept such rollover, in a direct rollover.
For purposes of the direct rollover option:
(a) an "eligible retirement plan" is an individual
retirement account described in Section 408(a) of the Code, an
-38-
<PAGE>
individual retirement annuity described in Section 408(b) of the
Code, an annuity plan described in Section 403(a) of the Code, or
a qualified trust described in Section 401(a) of the Code, that
accepts the distributee's Eligible Rollover Distribution;
however, in the case of an Eligible Rollover Distribution to the
surviving spouse, an eligible retirement plan is only an
individual retirement account or an individual retirement
annuity;
(b) A "distributee" is any Participant; and a Participant's
Beneficiary who is his or her a surviving spouse, and the
Participant's spouse or former spouse who is the alternate payee
under a qualified domestic relations order, as defined in Section
414(p) of the Code, are distributees with respect to the interest
of the spouse or former spouse; and
(c) a "direct rollover" is a payment by the Plan to the
eligible retirement plan specified by the distributee.
7.13 Designation of Beneficiary. If, prior to receiving all the
distributions to which he or she is entitled, a Participant dies, the
remainder thereof shall be paid to such person, persons or
organizations, and in such proportions as may be designated by an
instrument in writing, and in a form acceptable to the Committee,
executed by such Participant and filed with the Committee during his
or her lifetime. The Participant (with the consent of his or her
spouse. where applicable) may revoke or modify such designation from
time to time by filing a new designation of Beneficiary in like
manner). No such designation of a Beneficiary shall be effective in
the case of a Participant who is survived by his or her spouse unless:
(a) the Participant's sole primary designated Beneficiary
is the Participant's surviving spouse, or
(b) the Participant's designation of another individual or
individuals as Beneficiary or Beneficiaries has been consented to
in writing by the Participant's surviving spouse, and such
consent acknowledges the effect of the designation and is
notarized, or
(c) the Participant establishes to the satisfaction of the
Committee that such consent cannot be obtained because his or her
spouse cannot be located, or because of such other acceptable
circumstances as the Secretary of the Treasury may by regulations
prescribe.
The consent of a spouse given respecting another Beneficiary shall
apply only if that spouse is the surviving spouse, but shall be
irrevocable unless and until the Participant revokes a modifies his or
her designation of Beneficiary. If no such designation is effective,
or if no designated Beneficiary is then living, then the remaining
distributions shall be paid to the Participant's spouse, or, if the
-39-
<PAGE>
Participant has no surviving spouse, to the estate of such
Participant.
7.14 Distributions Pursuant a Domestic Relations Order.
Distribution shall be made from the Plan to an alternate payee
pursuant to a domestic relations order if, but only if, the Plan
Administrator determines the order to be a "qualified domestic
relations order" as such term is defined under Section 206(d) of ERISA
and Section 414(p) of the Code. Upon receipt of a domestic relations
order, the Plan Administrator shall promptly notify any Participant
and alternative payee named in a domestic relations order of the
receipt of such order and the procedures of this Section 7.14 for
determining the qualified status of domestic relations orders. An
alternate payee shall be permitted to designate a representative to
receive copies of notices that are sent to the alternate payee with
respect to a domestic relations order. Within a reasonable period
alter receipt of a domestic relations order, the Plan Administrator
shall determine whether such order is a qualified domestic relations
order as such term is defined under Section 206(d) of ERISA and
Section 414(p) of the Code. In making such a determination, the Plan
Administrator may consult outside counsel and may request additional
information from the Participant and alternate payee with regard to
the subject domestic relations order. Under no circumstances shall an
order be determined to be a qualified domestic relations order if it
calls for payments to be made to an alternate payee before the
earliest date for such payments specified in ERISA as the Code.
During any period in which benefits appearing to be subject to a
domestic relations order are or become payable to a Participant while
the issue of whether the order constitutes a qualified domestic
relations order is being determined, the Plan Administrator shall
segregate the amounts which would have been payable to the alternate
payee during such period in the manner specified by Section 206(d) of
ERISA and Section 414(p) of the Code.
If the Plan Administrator is able to make a preliminary
determination that a domestic relations order is a qualified domestic
relations order, it shall notify any Participant and alternate payee
named in the domestic relations order of its preliminary decision that
such order constitutes a qualified domestic relations order and shall
require such Participant and alternate payee to confirm in writing the
Plan Administrator's interpretation of the impact of the domestic
relations order on the Plan and distributions under the Plan. Upon
receipt of such executed confirmation by the Plan Administrator, the
Plan Administrator's preliminary determination shall become final, and
the Plan shall make distributions to any alternate payee named in a
qualified domestic relations order pursuant to the terms of such order
and in the manner specified by Section 206(d) of ERISA and Section
414(p) of the Code. If the Plan Administrator determines that a
domestic relations order Is not a qualified domestic relations order,
it shall notify any Participant and alternate payee named in the
domestic relations order of such decision.
-40-
<PAGE>
ARTICLE VIII
Loans
8.01 Loan Program. A Participant may borrow against the vested
balance of his or her Salary Savings Account under the Plan in
accordance with a loan program maintained under procedures (the "Loan
Procedures") adopted by the Committee, which the Committee may amend
or modify in its discretion from time to time, subject to the specific
terms of this Article VIII and any other applicable provisions of this
Plan. The Loan Procedures may provide for application forms, permitted
purposes for a loan, repayment procedures, interest, security, the
occurrence and consequences of a default, and such other terms and
procedures as the Committee deems desirable. Nothing in Sections 5.01,
7.01, 13.03 or 13.04 of the Plan (relating to vesting), or in Section
14.04 of the Plan (relating to alienation of benefits) shall preclude
such Loan Procedures from requiring the pledge of a Participant's
Accounts as security for a loan, providing for the foreclosure of such
security interest upon default under a Loan, or providing for the
discharge of such loan by payment out of a Participant's Accounts upon
default or otherwise.
8.02 Amounts of Loans. The aggregate amount of all loans from
the Fund and any other qualified employer plans (as defined in Section
72(p)(4) of the Code) maintained by the Company or any Affiliate to a
Participant shall in no event exceed the least of:
(a) $50,000 reduced by the excess (if any) of (i) the
highest outstanding balance of loans from such plans to such
Participant during the one (1) year period ending on the day
before the date on which such loan is made, over (ii) the
outstanding balance of loans from the plan on the date on which
the loan was made; or
(b) fifty percent (50%) of the balance of the Participant's
Salary Savings Account.
8.03 Effect on Account Balances. Any funds loaned to a
Participant shall be investment of the Investment Fund to which such
loan is attributed with principal and interest paid by a Participant
on his or her loan credited to such Investment Fund in the same manner
as for any other investment.
ARTICLE IX
Limits on Contributions
9.01 Special Definitions. For purposes of this Article IX (and
Article X), the following terms shall have the following respective
meanings:
-41-
<PAGE>
(a) "Aggregate Compensation" means the entire wages,
salary, and other amounts actually paid by all Affiliates to an
Employee for the relevant period for personal services actually
rendered in the course of employment; including, but not limited
to, commissions paid salesmen, compensation for services on the
basis of a percentage of profits, and bonuses; provided, however,
that Aggregate Compensation does not include:
(i) Affiliate contributions to or distributions from
this Plan or any other pension, profit sharing, thrift or
other plan of deferred compensation (other than amounts the
Employee received and included in his or her gross income
under the Code pursuant to an unfunded nonqualified plan not
entitled to any special tax benefits);
(ii) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified or incentive
stock option;
(iii) Amounts realized from the exercise of a
nonqualified stock option and income arising at any time
other than the time of transfer attributable to the transfer
of property in connection with the performance of services;
and
(iv) Other amounts which receive special tax benefits.
Solely for the purposes of determining whether an Employee
of an Affiliate is a Highly Compensated Employee, for determining
an eligible Employee's Average Deferral Percentage and Average
Contribution Percentage, and for determining the amount
contributed on behalf of a key Employee in computing top heavy
minimum benefits under Section 10.03 such Employee's Aggregate
Compensation shall be increased by such employee's Salary Savings
Contributions and all other before-tax contributions made on
behalf of such Employee pursuant to any qualified cash or
deferred arrangement which is part of any other defined
contribution plan maintained by an Affiliate, and by amounts
deferred by such Employee under any cafeteria plan maintained by
an Affiliate which are excludable from such Employee's taxable
income under Section 125 of the Code for such Plan Year.
An Employee's Aggregate Compensation in excess of $200,000
(as adjusted from time to time for cost of living increases
pursuant to Section 401(a)(17) of the Code) shall be disregarded
to the extent required by Section 401(a)(17) of the Code. For
purposes of applying this $200,000 limitation, the Aggregate
Compensation of a Participant who is a 5% owner of an Affiliate
or a member of the group consisting of the 10 Highly Compensated
Employees paid the greatest compensation (as defined under
Section 414(q)(7) of the Code) during the Plan Year shall be
combined with the Aggregate Compensation (if any) for such period
-42-
<PAGE>
of the Participant's spouse and all lineal descendants of such
Participant who have not attained at least age 19 before the
close of the Plan Year.
(b) "Annual Addition" means the sum, for any Participant,
of:
(i) the Employer contributions under this Plan and
Affiliate contributions under any other defined contribution
plans on behalf of a Participant for the Limitation Year;
(ii) Forfeitures allocated to a Participant under any
defined contribution plans maintained by Affiliates for the
Limitation Year;
(iii) the Participant's after-tax contributions to any
defined contribution plans maintained by Affiliates for the
Limitation Year;
(iv) any amounts allocated to an individual medical
account, as defined in Section 415 of the Code, that is part
of a defined benefit plan maintained by an Affiliate; and
(V) any amounts attributable to post-retirement
medical benefits allocated to the separate account of a Key
Employee under a welfare benefit fund, as defined in Section
419(e) of the Code, maintained by an Affiliate;
For purposes of this Plan, Annual Additions under (i) above shall
be determined, in the event Employer contributions are made hereunder
to enable the Trustee to repay an Exempt Loan, as if such
contributions were directly allocated to a Participant's Account in
cash and not on the basis of the value of the stock released from the
Suspense Account and actually allocated to his or her Account.
Notwithstanding (i) and (ii) above, in any Limitation Year in
which no more than one-third of Employer contributions are allocated
to Highly Compensated Employees, Annual Additions shall not include
Contributions or ESOP Savings and Matching Contributions applied to
the repayment of interest on an Exempt Loan, deductible for the
Limitation Year under Section 404(a)(9) of the Code, and charged
against the Participant's Account.
Annual Additions shall be determined for any Participant by
treating as one plan all defined contributions plans maintained by any
Affiliate in which he or she participates.
(c) "Annual Benefit" means the annual benefit payable to a
Participant in the form of a straight life annuity (figured as if such
straight life annuity commenced on the date he or she attains age 55
if such benefit actually commences prior to such time) which is the
actuarial equivalent of the Affiliate-contributed benefit payable on
-43-
<PAGE>
account of such Participant's participation in any qualified defined
benefit pension plan maintained by the Company or any Affiliate,
(considered as one plan), excluding, however:
(i) the value of qualified joint and survivor annuity
provided by such plan(s) to the extent that such value
exceeds the sum of (A) the value of straight life annuity
beginning on the same date and (B) the value of any post-
retirement death benefits which would be payable even if the
annuity were not in the form of a qualified joint and
survivor annuity;
(ii) the amount of any benefits attributable to
rollover contributions (as defined in Sections 402(a)(5),
403(a)(4), 408(d)(3) and 409(b)(3) and 409(b)(3)(C) of the
Code); and
(iii) any ancillary benefits (such as pre-retirement
death and disability benefits and post-retirement medical
benefits).
(d) "Average Contribution Percentage" for a specified group of
Eligible Employees for a given Plan Year means the average of the
ratios, calculated separately for each Eligible Employee in such group
and after the application of Sections 9.02, 9.03 and 9.05, of (i) the
sum of Employer Matching Contributions and Voluntary Contributions,
and, to the extent designated by the Committee and permitted pursuant
to regulations under Section 401 (m)(3) of the Code, Salary Savings
Contributions, if any, attributable to such Eligible Employee for such
Plan Year, to (ii) the Eligible Employee's Aggregate Compensation for
such Plan Year.
(e) "Average Deferral Percentage" for a specified group of
Eligible Employees for a given Plan Year means the average of the
ratios, calculated separately for each Eligible Employee in such group
and after application of Sections 9.02 and 9.03, of (i) the sum of the
Salary Reduction Contributions, if any, attributable to such Eligible
Employee for the Plan Year, to (ii) the Eligible Employee's Aggregate
Compensation for such Plan Year.
(f) "Eligible Employee" or "Eligible Highly Compensated
Employee" means an Employee or a Highly Compensated Employee who is
eligible to make Salary Savings Contributions or Voluntary
Contributions under the Plan for all or a portion of the Plan Year.
(g) "Highly Compensated Employee," when used in reference to an
Employee for the current Plan Year, means an Employee who, during the
preceding Plan Year:
(i) was a 5% owner of any Affiliate, determined after
applying the attribution rules of Section 318 of the Code;
-44-
<PAGE>
(ii) received Aggregate Compensation from all
Affiliates in excess of $75,000 (as periodically adjusted
pursuant to Section 414(q)(l) of the Code);
(iii) received Aggregate Compensation from all
Affiliates in excess of $50,000 (as periodically adjusted
pursuant to Section 414(q)(l) of the Code) and was a member
of the group consisting of the highest paid 20% of all
employees of all Affiliates when ranked on the basis of
Aggregate Compensation, determined after disregarding
Employees who have not completed at least 6 months of
service with an Affiliate, who normally complete less than
17-1/2 hours of service per week or 6 months of service with
all Affiliates per Plan Year, who have not attained at least
age 21, who are included in a unit of employees covered by a
collective bargaining agreement (except to the extent
provided in regulations) or who are nonresident aliens and
receive no earned income (within the meaning of Section
911(d)(2) of the Code) from any Affiliate which constitutes
income from sources within the United States (within the
meaning of Section 861(a)(3) of the Code); or
(iv) was among the 50 highest paid officers of all
Affiliates when ranked on the basis of annual Aggregate
Compensation and having annual Aggregate Compensation (while
an officer) of more than $45,000 (as periodically adjusted
pursuant to Section 415(d) of the Code); provided, however,
that no more than 10% of all Employees of all Affiliates
shall be treated as Highly Compensated Employees pursuant to
this subsection (iv).
An Employee will also be treated as a Highly Compensated
Employee if during the current Plan Year, such Employee is either
(A) described in subsection (i) above, or (B) described in
subsection (ii), (iii) or (iv) above and is a member of the group
consisting of the 100 Employees paid the greatest Aggregate
Compensation during such Plan Year.
A former Employee who was a Highly Compensated Employee when he
or she separated from service with all Affiliates or at any time after
attaining age 55 shall be treated as a Highly Compensated Employee
hereunder to the extent required by Section 414(q)(9) of the Code.
Moreover, to the extent required under Section 414(q)(6) of the Code,
if any individual is the spouse, lineal ascendant or descendant, or
the spouse of any lineal ascendant or descendant, of either a 5% owner
of any Affiliate or a member of the group consisting of the 10 Highly
Compensated Employees paid the greatest Compensation during the
Limitation Year, then (1) such individual shall not be considered a
separate Employee and (2) any Compensation paid to such individual
shall be treated as if it were paid to such 5% owner or Highly
Compensated Employee.
-45-
<PAGE>
(h) "Limitation Year" means the calendar year.
(i) "Projected Annual Benefit" of a Participant means the
Annual Benefit determined under the terms of such plan(s) on the
assumption that such Participant continues employment until his
or her normal retirement age under such plan(s) (or the
Participant's current age, if later), that his or her covered
compensation under such plan(s) continues at the same rate as in
effect in the Limitation Year under consideration until the date
he or she reaches such age, and that other relevant factors used
to determine benefits under such plan(s) remain constant as of
the current year for all future years.
9.02 General Limitation on Annual Additions. Notwithstanding
anything in this Plan to the contrary, the Annual Additions allocated
to any one Participant's Accounts in any one Limitation Year shall not
exceed the lesser of:
(i) $30,000, or, if greater, one quarter of the dollar
limitation in effect under Section 415(b)(1)(A) of the Code on
annual benefits under defined benefit plans (as such amount may
be adjusted annually by the Commissioner of Internal Revenue as
of January 1 of each calendar year for limitation years ending
with or within that calendar year), or
(ii) 25% of such Participant's Aggregate Compensation from
all Affiliates for such Limitation Year;
The limit on Annual Additions shall be applied for any Participant by
treating as one plan all tax qualified defined contribution plans
maintained by any Affiliate in which he or she participates. In the
event a Participant participates in more than one tax qualified
defined contribution plan of an Affiliate, Annual Additions to such
other plan shall be reduced to the full extent required to comply with
the foregoing limitation before any Annual Additions under this Plan
are reduced.
9.03 Combined Limitation on Annual Additions. If a Participant
also participated at any time in any tax qualified defined benefit
pension plan or plans maintained by an Affiliate, then before first
giving any effect to any reduction in benefits under such defined
benefit plan(s) to comply with Section 415 of the Code, the Annual
Additions under this Plan shall be reduced so that the sum of the
defined benefit fraction and the defined contribution fraction do not
exceed 1.0. For purposes of this Section 9.03:
(a) The "defined contribution fraction" for any Limitation
Year means a fraction, the numerator of which is the sum of the
Annual Additions for such Participant for the current Limitation
Year and all prior Limitation Years, and the denominator of which
is the sum of the lesser of the following amounts determined for
-46-
<PAGE>
such Limitation Year and each prior Limitation Year of service
with an Affiliate:
(i) the product of 1.25 multiplied by the dollar
limitation in effect for such year under Section
415(c)(1)(A) of the Code (determined without regard to
subsection (c)(6)), or
(ii) the product of 1.4 multiplied by the amount which
may be taken into account under Section 415(c)(1)(B) of the
Code with respect to such Participant for such year.
(b) The "defined benefit fraction" for any Limitation Year
means a fraction, the numerator of which is the Projected Annual
Benefit of the Participant under the defined benefit plan(s)
(determined as of the close of the Limitation Year under the
terms of the defined benefit plan(s)) and the denominator of
which is the lesser of:
(i) the product of 1.25 multiplied by the dollar
limitation in effect under Section 415(b)(1)(A) of the Code
for such Limitation Year (determined under the terms of the
defined benefit plan(s)), or
(ii) the product of 1.4 multiplied by the amount which
may be taken into account under Section 415(b)(1)(B) of the
Code with respect to such Participant for such Limitation
Year.
With respect to any Limitation Year any part of which is also a Top-
Heavy Plan Year when either (A) the defined benefit plan(s) do not
satisfy the minimum benefit requirements of Section
416(h)(2)(A)(ii)(I) of the Code for such Top-Heavy Limitation Year, or
(B) the Limitation Year would remain a Top-Heavy Limitation year if
90% were substituted for 60% in the definition thereof, a multiplier
of 1.0 shall be substituted for each multiplier of 1.25 in subsections
(a)(i) and (b)(i) above. For purposes of this Section 9.03, the Annual
Addition for any Limitation Year beginning before January 1, 1987
shall not be recomputed to treat all Voluntary Contributions as an
Annual Addition. If the Plan satisfied the applicable requirements of
Section 415 of the Code as in effect for all Limitation Years
beginning before January 1, 1987, an amount shall be subtracted from
the numerated of the "defined contribution fraction" (not exceeding
such numerator) as prescribed by the Secretary of the Treasury so that
the sum of the defined benefit plan fraction and defined contribution
plan fraction computed under this Section 9.03 and Section 415(e)(1)
of the Code does not exceed 1.0 for such Limitation Year.
9.04 Excess Annual Additions. If any Participant's Annual
Additions would otherwise exceed the limitation of Section 9.02 or
9.03, then Voluntary Contributions under Section 4.03 for such Plan
Year shall be returned to the Participant to the extent necessary to
-47-
<PAGE>
eliminate such excess, and any excess remaining after all such
Participant's Voluntary Contributions for such Plan Year shall then be
used to reduce Employer contributions (with such reduction applied in
order until exhausted to (i) Profit-Sharing Contributions; (ii) ESOP
Contributions; (iii) Matching Contributions; and (iv) Salary Savings
Contributions) for the next Limitation Year (and succeeding Limitation
Years, if necessary) for the Participant if that Participant is
covered by the Plan as of the end of the next or succeeding Limitation
Year. If the Participant is not covered by the Plan as of the end of
such next or succeeding Limitation Year, such excess amounts shall be
held unallocated in a suspense account for such Limitation Year and
allocated to the corresponding Accounts of the other Participants for
such Limitation Year in the same manner as Profit-Sharing
Contributions and ESOP Contributions under Section 5.05 until the
Annual Addition to the Accounts of each Participant reaches such
maximum limitation. Any amounts which may not be allocated to the
Accounts of Participants at such time because the Annual Addition to
the Accounts of each such Participant has reached the limitation of
Section 9.02 or 9.03 shall be held in a suspense account within the
Fund and, when permissible under such limitations, allocated, on a
first-in-first-out basis, in succeeding Limitation Years to the
Accounts of Participants in the manner specified above. If any
Participant does not receive the full amount otherwise allocable to
his or her Accounts for a Limitation Year because of the restrictions
of Section 9.02 and 9.03, no other amount may be allocated for such
Participant under any other defined contribution plan maintained by an
Affiliate.
9.05 Limitation on Elective Deferrals. Notwithstanding anything
to the contrary in the Plan or contained in any Salary Savings
Agreement made pursuant to Section 3.02 or 4.02, all Participant
Salary Savings Contribution elections made with respect to any Plan
Year shall be valid only to the extent that. after first applying any
reduction required by Sections 9.02 and 9.03. the Average Deferral
Percentage for such Plan Year of the group of Eligible Highly
Compensated Employees shall bear a relationship to the Average
Deferral Percentage for such Plan Year of the group of all other
Eligible Employees that satisfies either of the following tests:
(i) the Average Deferral Percentage of the group of
Eligible Highly Compensated Employees is not more than the
Average Deferral Percentage of the group of all other Eligible
Employees multiplied by 1.25; or
(ii) the Average Deferral Percentage of the group of
Eligible Highly Compensated Employees is not more than the
Average Deferral Percentage of the group of all other Eligible
Employees multiplied by 2.0 and the excess of the Average
Deferral Percentage of the group of Eligible Highly Compensated
Employees over that of the group of all other Eligible Employees
is not more than two percentage points.
-48-
<PAGE>
If neither of those tests is satisfied for a Plan Year, then
Salary Savings Contribution elections for such Plan Year by
Participants who are Highly Compensated Employees shall be reduced, to
the extent necessary to satisfy one of those tests, in descending
order of each such Highly Compensated Employee's individual ratio
contributing to such Average Deferral Percentage (i.e., the amount
described in Section 9.01(e)(i) divided by the amount described in
Section 9.01(e)(ii) with respect to each such Highly Compensated
Employee) beginning with the highest such percentage. Reductions shall
first be applied to the portion, if any, of a Highly Compensated
Employee's Salary Savings Contribution for the Plan Year with respect
to which no Employer Matching Contributions were made before being
applied to the remaining Salary Savings Contributions of such Highly
Compensated Employee. Salary Savings Contributions reduced under this
Section 9.04 (adjusted for earnings. gains and losses allocable
thereto) shall be returned to each affected Highly Compensated
Employee within two and one-half months following the close of such
Plan Year. Any Employer Matching Contributions attributable to Salary
Savings Contributions returned pursuant to this Section shall be paid
to the affected Highly Compensated Employee at the same time as such
Salary Savings Contributions are returned. Salary Savings Agreements
made by all Participants who are not Highly Compensated Employees
shall remain be valid and Salary Savings Contributions and Employer
Matching Contributions for such Participants hereunder shall not be
changed.
9.06 Limit on Voluntary Contributions and Employer Matching
Contributions. Notwithstanding anything to the contrary in the Plan
or contained in any Participant election made pursuant to Section
4.03, all Participant Voluntary Contribution elections made with
respect to any Plan Year shall be valid only to the extent that, after
first applying any reduction required by Sections 9.02, 9.03 and 9.05,
the Average Contribution Percentage for such Plan Year of the group of
Eligible Highly Compensated Employees shall bear a relationship to the
Average Contribution Percentage for such Plan Year of the group of all
other Eligible Employees that satisfies either one of the tests set
forth in Section 9.05, with the term "Average Contribution Percentage"
substituted for the term "Average Deferral Percentage" wherever such
latter term appears Section 9.05. If neither of those tests is
satisfied for a Plan Year, then Voluntary Contribution elections for
such Plan Year by Participants who are Highly Compensated Employees
shall be valid only to the extent permitted by either of those tests
and the Voluntary Contributions and Employer Matching Contributions of
Highly Compensated Employees shall be reduced, together with any
Employer contributions attributable thereto, to the extent necessary,
in descending order of each such Highly Compensated Employee's ratio
contributing to the Average Contribution Percentage (i.e., the amount
described in Section 9.01(d)(i) divided by the amount described in
Section 9.01(d)(ii) with respect to such Highly Compensated Employee)
beginning with the highest such percentage. A Highly Compensated
Employee's Voluntary Contributions shall be reduced to the extent
necessary before any required reduction in Employer Matching
-49-
<PAGE>
Contributions made on his or her behalf. Employee Voluntary
Contributions thereby reduced (adjusted for earnings, gains and losses
allocable thereto) shall be returned to each affected Highly
Compensated Employee within two and one-half months after the close of
such Plan Year. Employer Matching Contributions thereby reduced shall
be a forfeited. Employee Voluntary Contribution elections made by all
Participants who are not Highly Compensated Employees shall be valid,
and Employer contributions and all other contributions for such
Participants hereunder shall not be changed.
9.07 Limitation on Multiple Use. Notwithstanding anything to the
contrary in the Plan the sum of the Actual Deferral Percentage for the
group of eligible Highly Compensated Employees for a Plan Year and the
Actual Contribution Percentage for the group of Eligible Highly
Compensated Employees for the Plan Year may not exceed the sum of:
(i) 125% of the greater of (A) the Actual Deferral
Percentage for the group of Eligible Employees who are not Highly
Compensated Employees for the Plan Year, or (B) the Actual
Contribution Percentage for the group of Eligible Employees for
the Plan Year, and
(ii) two percentage points plus the lesser of (A) the Actual
Deferral Percentage for the group of Eligible Employees who are
not Highly Compensated Employees for the Plan Year, or (B) the
Actual Contribution Percentage for the group of Eligible
Employees who are not Highly Compensated Employees for the Plan
Year. In no event, however, shall the amount determined under
this subparagraph (ii) exceed 200% of the lesser of (ii)(A) or
(ii)(B) above.
If the sum of the Actual Deferral Percentage and the Actual
Contribution Percentage for the group of eligible Highly Contribution
Employees for a Plan Year exceeds such aggregate limit for the Plan
Year, then the Actual Contribution Percentage for the group of
Eligible Highly Compensated Employees for the Plan Year shall be
reduced to the extent necessary in the manner described in Section
9.06 above. The test in this Section 9.07 may be modified to the
extent permitted by regulations under Section 401(m)(9) of the Code.
9.08 Aggregation of Plans. The limitations of Sections 9.05 and
9.06 shall be applied separately to (i) ESOP Savings and Matching
Contributions, and (ii) the remaining Salary Savings Contributions and
Matching Contributions, to the extent required by regulations under
Section 401(k) and 401(m) of the Code. The Committee may direct that
any plan maintained by an Affiliate, qualifying under Section 401(a)
of the Code, and providing for salary savings contributions, voluntary
employee contributions or matching contributions, be aggregated with
this Plan for purposes of Sections 9.05 and 9.06; provided that the
plans meet the requirements of Sections 401(a)(4) and 410(b) of the
Code and (after applying any reduction required by Section 9.05 or
9.06 or comparable provisions of the aggregated plans) satisfy the
-50-
<PAGE>
tests of Section 9.05 and 9.06 on an aggregate basis; and further
provided that only a plan (or portion thereof) that is an employee
stock ownership plan within the meaning of Section 4975(e)(7) of the
Code shall be aggregated with this Plan in applying Sections 9.05 or
9.06 to ESOP Savings and Matching Contributions and such plan (or
portion thereof) shall not be aggregated in applying Sections 9.05 or
9.06 to remaining Salary Savings Contributions and Matching
Contributions to the extent such aggregation is forbidden by Sections
401(k) and 401(m) of the Code. In the event that any plan maintained
by an Affiliate must be aggregated with this Plan for purposes of
enabling such plan to meet the requirements of Section 401(a)(4) or
410 of the Code, salary deferral contributions, voluntary employee
contributions and matching contributions under such other plan or
plans, if any, shall be aggregated with Salary Savings Contributions,
Voluntary Contributions and Matching Contributions under this Plan in
applying the tests of Sections 9.05 and 9.06. Notwithstanding the
absence of any such aggregation, if an Eligible Highly Compensated
Employee is in fact eligible to make salary reduction contributions,
voluntary employee contributions or to receive employer matching
contributions under any other plan maintained by an Affiliate, such
contributions shall be aggregated with Salary Reduction Contributions.
Voluntary Contributions and Employer Matching Contributions under this
Plan in determining such Highly Compensated Employee's Average
Contribution Percentage and Average Deferral Percentage for purposes
of this Plan. In the event of any permissive or mandatory aggregation
of plans under this Section 9.08. contributions under this Plan shall
not be reduced and returned or otherwise applied under Sections 9.05
and 9.06 of this Plan until full effect has been given to the
comparable provisions for reduction, return or other application of
contributions in all other aggregated plans. Contributions of certain
Highly Compensated Employees and their family relatives will be
aggregated and treated as having been made by one individual to the
extent provided in Sections 9.01(a) and 9.01(g).
ARTICLE X
Required Top-Heavy Plan Provisions
10.01 Special Rules Where Plan Is Top-Heavy. Notwithstanding
any other provision of this Plan to the contrary, this Article X shall
apply in any Top-Heavy Plan Year.
10.02 Special Definitions. For purposes of this Article X
(and Article IX), the following terms shall have the following
respective meanings:
(a) "Accrued Benefit" when used in reference to the
interest of an Employee, former Employee or Beneficiary under any
defined benefit Aggregated Plan maintained by an Affiliate means
the actuarial equivalent of such individual's benefit commencing
at normal retirement age, and when used in reference to the
interest of an Employee, former Employee or Beneficiary under
-51-
<PAGE>
this Plan or any other defined contribution Aggregated Plan
maintained by an Affiliate, means the balance in the accounts
maintained for such individual, increased by amounts distributed
during the five-year period ending on the Determination Date;
provided, however, that:
(i) Any distribution which is still counted towards
computing such individual's account balance or annual
benefit commencing at normal retirement age for the purpose
of determining whether the most recent Plan Year is a Top-
Heavy Plan Year shall not be treated as a distribution;
(ii) Amounts attributable to any tax deductible
employee contribution shall not be taken into account;
(iii) Amounts attributable to any rollover
contribution accepted after December 31, 1983 shall not be taken
into account by the accepting plan if such rollover contribution
is initiated by the employee and is between plans which are not
maintained by Affiliates;
(iv) Any rollover contribution which is not initiated
by the employee or which is made between plans maintained by
Affiliates shall not be treated as a distribution by the
transferring plan; and
(v) An individual's Accrued Benefits under all defined
benefit Aggregated Plans (treated as one plan) shall be
determined under a uniform actuarial method (or the
fractional rule of Section 411(b)(1)(C) if there is no such
uniform method) and identical actuarial assumptions as
specified in such plans (or the fractional rule of Section
411(b)(1)(C) if there is no such uniform method) and
identical actuarial assumptions as specified in such plans,
considering non-proportional subsidies but ignoring
proportional subsidies; and
(vi) An individual's Accrued Benefit under a defined
contribution Aggregated Plans shall be adjusted to reflect
contributions made, required to be made, or allocated under
such plan after such Accrued Benefit is determined and
before the date specified pursuant to regulations under
Section 416 of the Code.
(b) "Aggregated Plan" means:
(i) any other qualified plan maintained by an
Affiliate in which any Key Employee participates;
(ii) any other qualified plan of an Affiliate which
enables a plan in which a Key Employee participates to meet
-52-
<PAGE>
the requirements of Section 401(a)(4) or Section 410 of the
Code; and
(iii) any other qualified plan of an Affiliate
designated by the Company as an "aggregated plan" and which
satisfies the requirements of Section 401(a)(4) or Section
410 of the Code, when considered together with the group of
plans described in (i) and (ii) above.
(c) "Determination Date" means, for this Plan for the first
Plan Year, the last day of such Plan Year; and for this Plan for
any succeeding Plan Year, the last day of the preceding Plan
Year.
(d) "Key Employee" means an Employee or former Employee
who, at any time during a Plan Year or any of the four preceding
Plan Years, is (or was):
(i) among the 50 highest paid officers of all
Affiliates when ranked on the basis of Aggregate
Compensation having annual Aggregate Compensation (while an
officer) of more than $45,000 (as adjusted for cost of
living increases pursuant to Section 415(d) of the Code);
provided, however, that no more than 10% of all Employees of
all Affiliates shall be treated as Key Employees under this
subsection (i);
(ii) one of the 10 Employees who own both more than
1/2% in value and the largest percentage ownership interests
in value of any Affiliate and who has annual Aggregate
Compensation from all Affiliates of more than $30,000 (as
adjusted from time to time for cost of living increases
pursuant to Section 415(d) of the Code);
(iii) an owner of more than 5% of an Affiliate; or
(iv) an owner of more than 1 % of any Affiliate who
has annual Aggregate Compensation from an Affiliate of more
than $150,000. Ownership for purposes of subsections (ii),
(iii) and (iv) above shall be determined after application
of the attribution rules of Section 318 of the Code. For
purposes of this definition, the Beneficiary of a Key
Employee shall be treated as a Key Employee.
(e) "Top-Heavy Plan Year" means any Plan Year for which the
present value of cumulative accrued benefits under this Plan and
any Aggregated Plan for Key Employees exceeds 60% of the
cumulative accrued benefits under this Plan and all Aggregated
Plans for all Employees.
(f) "Top-Heavy Ratio" means a fraction computed as of each
Determination Date in accordance with Section 416 of the Code,
-53-
<PAGE>
the numerator of which is the sum for all Key Employees of
account balances under this Plan and any other defined
contribution plan maintained by an Affiliate plus the present
value of Accrued Benefits for all Key Employees under any defined
benefit plans maintained by an Affiliate, and the denominator of
which is the sum of such account balances plus such Accrued
Benefits for all Participants. Both the numerator and
denominator of the Top-Heavy Ratio shall be adjusted for any
distribution of an account balance or an Accrued Benefit within
the five-year period ending on the Determination Date and any
contributions due but unpaid as of the Determination Date. The
account balances and accrued benefits of a Participant who has
not performed services for an Affiliate within the five-year
period ending on the Determination Date, or who is not a Key
Employee but who was a Key Employee in a prior year, will be
disregarded. For purposes of computing the Top-Heavy Ratio, the
value of account balances and the present value of accrued
benefits will be determined as of the most recent Valuation Date
that falls within or ends with the twelve-month period ending on
the Determination Date. When aggregating plans, the value of
account balances and accrued benefits will be calculated with
reference to the Determination Dates under such plans that fall
within the same calendar year.
10.03 Minimum Allocation in Top-Heavy Plan Years. The
Employer shall make a minimum contribution in any Top-Heavy Plan year
to be allocated on behalf of each Participant (without regard to
whether such Participant is an active Participant) who is not a Key
Employee and who is an Employee on the last day of such Top-Heavy Plan
Year, and who does not in such Top-Heavy Plan Year receive the minimum
benefit required by Section 416(c)(1) of the Code under any defined
benefit plan(s) maintained by an Affiliate, so that each such
Participant receives an allocation of Employer contributions equal to
at least 4% of such Participant's Aggregate Compensation for the Plan
Year; provided, however, that:
(i) If the Participant is also a participant in a
defined benefit plan or plans maintained by an Affiliate
(without receiving such minimum benefit under such plan(s))
the minimum contribution shall be 7-1/2% rather than 4% of
such Participant's Aggregate Compensation; and
(ii) The minimum contribution required under this Plan
shall be reduced by the amount, if any, allocated to the
account of such Participant under any other defined
contribution Aggregated Plan (before applying any comparable
minimum contribution rule in such other plan); and
(iii) In no event, however, shall the minimum
contribution exceed the percentage of Compensation
(including in Compensation for such purpose any amounts a
Key Employee elects to defer under any arrangement qualified
-54-
<PAGE>
under Section 401(k) of the Code) at which Employer
contributions are made (or required to be made) under the
Plan for the Key Employee for whom such percentage is the
highest.
The minimum allocation applies even though under other Plan provisions
the Participant would not otherwise be entitled to receive an
allocation, or would have received a lesser allocation for the year
because the Participant fails to make mandatory contributions to the
Plan, the Participant's Compensation is less than a stated amount, or
the Participant fails to complete 1,000 Hours of Service during the
Plan Year.
ARTICLE XI
The Trust and Trustee
11.01 The Trust. A Trust, known as the PREMIER FINANCIAL
SERVICES, INC. EMPLOYEE SAVINGS AND STOCK TRUST is hereby established
for the purposes of the Plan and the assets thereof shall be held,
invested and disposed of by the Trustee acting in accordance with this
Article XI and other applicable provisions of the Plan.
11.02 The Trustee. PREMIER TRUST SERVICES, INC. is hereby
continued as Trustee of the Trust and hereby agrees to accept the
terms of the Trust as herein amended and restated and to perform the
duties created hereunder.
11.03 The Fund. The Fund shall be held by the Trustee in
trust and dealt with in accordance with the provisions of the Plan and
Trust hereby established. All contributions received by the Trustee
under the Plan shall be credited to and thereafter held as a part of
the Fund. The Trustee shall not be under any duty to require payment
of any contributions to the Fund, or to see that any payment made to
it is computed in accordance with the provisions of the Plan, or
otherwise be responsible for the adequacy of the Fund to meet and
discharge any liabilities under the Plan. The Fund shall be used and
applied only in accordance with the Plan and Trust and no part of the
principal or income of the Fund shall be used for or diverted to
purposes other than for the exclusive benefit of Participants and
their Beneficiaries and for the payment of expenses and taxes in
accordance with the provisions of the Plan, and the Employers shall
have no right, title or interest in the Fund or any part thereof and
none of the contributions made thereto shall revert to the Employers,
except as expressly permitted under Section 15.12.
11.04 Investment Funds. The Trustee shall maintain, or cause
an Investment Manager to maintain, the following Investment Funds:
(i) a Company Stock Fund, which shall be invested in
Company stock to the extent shares are available for purchase;
and
-55-
<PAGE>
(ii) such other Investment Funds as the Trustee deems
necessary or advisable.
11.05 Participant Investments. Except as provided in Section
7.09, all ESOP Contributions and ESOP Savings and Matching
Contributions shall be invested in the Company Stock Fund.
Participants shall be given the option to direct the investment of all
other contributions into any one or more of the Investment Funds.
Such Investment Funds shall be under the full control and management
of the Committee and the Trustee or Investment Manager. In this
connection, a Participant's right to direct the investment of any
contribution shall apply only to selection of the desired Investment
fund. The following rules shall apply to the administration of such
Investment Funds:
(a) The Committee shall advise any initial Participant of
his or her investment options at least 30 days before his or her
Entry Date. Such Participant must notify the Committee in writing
on the appropriate form of his or her investment choice 15 days
before the Entry Date or the Committee will direct all
investments to the Investment Fund that is a money market fund
(or that most nearly bears the investment characteristics of a
money market fund if no Investment Fund is a money market fund.).
(b) At least 60 days before the end of each Plan Year, the
Committee shall furnish each Participant a form on which such
Participant may direct the investment of any new contributions
(other than ESOP Contributions and ESOP Savings and Matching
Contributions, if any) or redirect the investment of his or her
existing Account balances (other than his or her ESOP Account and
that part (if any) of his or her Salary Savings Account
attributable to ESOP Savings and Matching Contributions).
(c) In each case, the Participant shall have the right to
designate or move 50% or 100% of the new contributions or 50% or
100% of his or her existing aggregate Account balance (other than
as provided in (b) above) among the available investment funds.
To the extent the Committee in its discretion deems
administratively feasible and provides for on the form described
in (b) above, it may afford Participants the right to direct the
investment of new contributions or existing Account balances in
other percentages, or in percentages applied separately to
particular Accounts or groups of Accounts.
(d) If a Participant fails to file a new form by December
1, the Committee shall follow the election made on the most
recent form on file with respect to the investment of new
contributions.
(e) Annual changes of investment elections under this
Section 11.05 shall take effect on January 1 of each year, or on
such business day as near thereto as the Committee deems
-56-
<PAGE>
practicable. To the extent the Committee in its discretion deems
administratively feasible and provides for on a form distributed
to Participants in a manner similar to that prescribed in (b)
above, it may afford Participants the right to direct the
investment of either new contributions or existing Account
balances or both effective July 1,1993 (or as near thereto as
practicable) upon the effective date of this amendment and
restatement, or upon the establishment or termination of an
Investment Fund, or at regular periodic intervals more frequently
than annually.
(f) The restrictions of this Section 11.05 on Participant
direction of investment of ESOP Contributions and ESOP Savings
and Matching Contributions (and Account balances attributable
thereto) out of the Company Stock Fund shall not apply to the
Subject Portion of such Accounts of a Qualified Participant
during his or her Qualified Election Period to the extent such
amounts are distributable pursuant to Section 7.09.
11.06 Powers of Trustee. So long as his, her or its action
is consistent with ERISA and Section 401 of the Code and amendments to
ERISA and the Code, the Trustee is authorized and empowered, but not
by way of limitation:
(a) To invest and reinvest the principal and income of the
Fund and keep the Fund invested, without distinction between
principal and income, in such stocks, bonds, notes or other
securities or in such other property real or personal (and may
invest the entire Fund in securities of the Company or any
Affiliate pursuant to Section 6.01), or in any fund created and
administered for the collective investment of money or property
of employee benefit trusts then qualified under Sections 401(a)
and 501(a) of the Code (in which case the provisions of the
documents governing such collective investment fund shall govern
any investment therein, and are hereby made a part of this Trust)
as the Trustee may deem proper without being limited by any
statute or rule of law regarding investments by trustees other
than ERISA. The Trust may be invested, maintained and reinvested
in any such property even though the Trustee, in its individual
or any other capacity, shall have invested, or may thereafter
invest, its own or other funds in the same or similar property
the interest, principal or other avails of which may be payable
at different rates or times or may have different ranks or
priorities. The Trustee, in his, her or its discretion, may keep
such portion of the Fund in cash or cash balances in a banking
institution (which may but need not be the Trustee if the Trustee
is a banking institution) or in a savings and loan association as
the Trustee may from time to time deem to be in the best
interests of the Fund.
(b) To sell, exchange, convey, transfer or otherwise
dispose of any property held by him or her by private contract or
-57-
<PAGE>
at public auction, and no persons dealing with the Trustee shall
be bound to see to the application of the purchase money or to
inquire into the validity, expediency or propriety of any such
sale or other disposition.
(c) To borrow money for the benefit of the Fund and to
secure such loan by a pledge or mortgage of all or part of the
Fund, and to renew loans at any time.
(d) To vote upon any stocks, bonds or other securities
(subject to Section 6.02 in the case of Company Stock); to give
general or special proxies or powers of attorney with or without
powers of substitution; to exercise any conversion privileges,
subscription rights or other options and to make any payments
incidental thereto; to consent to or otherwise participate in
corporate reorganizations or other changes affecting corporate
securities, to delegate discretionary powers and to pay any
assessments or charges in connection therewith; and generally to
exercise any of the powers of any owner with respect to stocks,
bonds, securities, insurance contracts or other property held in
the Fund.
(e) To make, execute, acknowledge and deliver any and all
documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to carry out the
powers herein granted.
(f) To register any investment held in the Fund in his, her
or its own name or in the name of a nominee and to hold any
investment in bearer form, but the books and records of the
Trustee shall, at all times, show that all such investments are
part of the Fund.
(g) To employ such agents, custodians, brokers, assistants,
actuaries, and counsel as the Trustee may deem necessary for the
proper administration of the Trust, unless such persons are
provided by the Company, and to be fully protected in action upon
the advice of said counsel, who may, but need not be, counsel for
the Company. The Trustee shall, at no time, be obliged to
institute, or become a party to, any legal action unless
indemnified to his, her or its satisfaction for any fees, costs
and expenses to be incurred in connection therewith.
(h) To pay from the Fund all reasonable and necessary
expenses, including, but not by way of limitation, taxes of any
kind, fees for agents, attorneys, or other counsel, incurred in
connection with the collection, administration, management,
investment, protection and distribution of the Fund to the extent
that they are not paid by the Company; and
-58-
<PAGE>
(i) To do all acts whether or not expressly authorized,
which he or she may deem necessary or proper for the protection
of the property held hereunder.
11.07 Compensation and Expenses. A corporate Trustee shall
be entitled to compensation for services hereunder as agreed between
the Company and the Trustee and the Company shall reimburse the
Trustee for any and all necessary expenses incurred in the
administration of the Plan. The Company may provide the Trustee with
clerical, bookkeeping and stenographic help and facilities that may be
necessary to enable the Trustee to perform his, her or its functions
hereunder and may appoint consultants, accountants, or other
assistants, to perform any nondiscretionary function of the Trustee
under the supervision and direction of the Trustee.
11.08 Accounts. The Trustee shall keep accurate and detailed
accounts of all investments, receipts, disbursements and other
transactions hereunder, and all accounts, books and records relating
thereto shall be open to inspection and audit at all reasonable times
by any persons designated by the Company. As of the close of each
calendar year, or as of the close of such other fiscal period as the
Company may, from time to time, designate, or as of the date of the
removal or resignation of the Trustee, as provided in Section 11.10
hereof, the Trustee shall file with the Company a written account
setting forth all investments, receipts, disbursements and other
transactions effected by the Trustee during the period from the date
of the last such account.
11.09 Duty of Person Dealing With Trustee. No person dealing
with the Trustee shall be under any obligation to inquire into the
validity or propriety of any action by the Trustee, the application of
any property delivered to him or her or the exercise by him or her of
any of the powers conferred upon him or her by this agreement. The
execution by the Trustee of any instrument, document or paper in
connection with the exercise of any of the powers enumerated herein
shall, of itself, be conclusive evidence to all persons of the
authority of the Trustee to execute the same and to exercise all
powers incident thereto.
11.10 Resignation and Removal of the Trustee. The Company
may remove the Trustee at any time upon thirty (30) days' notice in
writing to the Trustee. The Trustee may resign at any time upon
thirty (30) days' notice in writing to the Company. Such notice of
removal or resignation may be waived by the party entitled thereto
provided a successor Trustee shall have been appointed and accepted
his, her or its appointment in writing. Upon such removal or
resignation of the Trustee, the Company shall appoint a successor
Trustee, who shall have the same powers and duties as those conferred
upon the Trustee hereunder.
-59-
<PAGE>
ARTICLE XII
Plan Administration
12.01 Allocation of Responsibility Among Fiduciaries. The
Company, other Participating Employers, the Trustee, the members of
the Committee shall have only those specific powers, duties,
responsibilities and obligations as are specifically given them under
this Plan and the Trust. In general, the Company through the Board
and each Employer through its board of directors (or through its Board
of behalf of Employers other than the Company pursuant to Section
14.15) shall have the sole responsibility for making Employer
contributions to the Fund in accordance with Article IV hereof. The
Company through the Board shall have the sole responsibility to amend
or terminate the Plan, in whole or in part, in accordance with Article
XIII hereof, and sole responsibility to appoint and remove the Trustee
and the members of the Committee. The Committee shall be responsible
for the administration of the Plan as provided herein. The Trustee
shall be responsible for the administration of the Trust and the
custody and management of the assets held under the Trust. Each of
the Company, the members of the Committee, and the Trustee, shall be a
fiduciary ("Fiduciary") of the Plan to, but only to, the extent he,
she or it (i) exercises any discretionary authority or discretionary
control respecting the management of the Plan or exercises any
authority or control respecting management of its assets, or (ii)
renders investment advice for a fee or other compensation, direct or
indirect, with respect to the Fund or has any authority or
responsibility to do so, or (iii) has any discretionary authority or
discretionary responsibility in the administration of the Plan. Each
Fiduciary may rely upon any direction, information or action of
another Fiduciary as being proper under the Plan, and it is not
required under the Plan to inquire into the propriety of any such
direction, information or action. It is intended under this Plan that
each Fiduciary shall be responsible for the proper exercise of its own
powers, duties, responsibilities and obligations under this Plan and
shall not be responsible for any act or failure to act of another
Fiduciary. No Fiduciary guarantees the Fund in any manner against
investment loss or depreciation in asset value.
12.02 Fiduciary Duties. All Fiduciaries shall discharge
their duties as Fiduciaries solely in the interest of the Participants
and Beneficiaries and for the exclusive purpose of providing benefits
to Participants and their Beneficiaries and defraying reasonable
expenses of administering the Plan. They shall discharge such duties
with the care, skill, prudence and diligence under the circumstances
then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise
of a like character and with like aims. They shall not maintain the
indicia of ownership of any assets of the Plan outside the
jurisdiction of the district courts of the United States. The
Fiduciaries shall not do any action prohibited under or in violation
-60-
<PAGE>
of Part 4 of Title I of ERISA, or which would subject any person or
the Company to imposition of a tax under Section 4975 of the Code.
12.03 The Committee. The Plan will be administered by a
Committee composed of at least 3 persons who are officers, directors,
or employees of an Affiliate. Each member of the Committee shall be
appointed by the Company and shall thereafter serve until death,
resignation, or removal by the Company or until he or she ceases to be
an officer, director, or employee of an Affiliate. Any member of the
Committee may resign at any time upon at least 15 days notice in
writing to the Company. The Company may remove any member of the
Committee at any time upon giving 15 days notice in writing to such
member. Upon such resignation, or removal, or upon the death of a
member of the Committee, or his or her ceasing to be an officer,
director, or employee of an Affiliate, the Company may, and if the
membership of the Committee would otherwise be less than 3 shall,
promptly appoint a successor member who shall have the same powers and
duties as those conferred upon his or her predecessor. The Committee
shall elect one of its members as chairman, and any document required
to be filed with, or any notice required to be given to, the Plan or
the Committee will be properly filed or given if mailed or delivered,
to the chairman.
12.04 Committee Action. The Committee shall act with or
without a meeting by the vote or concurrence of a majority of its
members; provided, however, that no member of the Committee who is a
Participant in the Plan shall take part in any action having
particular reference to his or her own benefits hereunder. All written
directions by the Committee may be made over the signatures of a
majority of its members and all persons shall be protected in relying
on such written directions.
12.05 Administrative Powers. The Committee shall have the
administrative powers and duties specified in this instrument, which
shall include but not be limited to the following powers and duties:
(a) Determinations of Fact. To determine all questions
relating to the administration of the Plan, including the power
to determine whether a Participant has resigned or has been
dismissed or is Retired or is married or Permanently Disabled or
dead, the date of any such resignation, dismissal, Retirement,
Permanent Disability or death, or as to the age or identity of a
Participant or Beneficiary or whether a Beneficiary is living or
dead, and to resolve all other questions of fact relating to the
rights or eligibility of Employees and Participants and their
Beneficiaries, and the amounts of their respective interests; and
its determinations shall be final and binding on all persons
whomsoever;
(b) Construction of the Plan. To construe and interpret
the Plan and resolve in its discretion any ambiguities in the
-61-
<PAGE>
application of the Plan; and its determinations shall be final
and binding on all persons whomsoever;
(c) Direction. To direct the Trustee with respect to
payment from the Fund;
(d) Procedures and Forms. To establish uniform and
nondiscriminatory procedures and requirements, consistent with
the terms and purposes of this Plan, for the time and manner of
making Salary Savings Contributions (including the form of Salary
Savings Agreement), Voluntary Contributions, and Rollover
Contributions, the making of investment elections by Participants
and directing transfers to and from the various Investment Funds,
the payment of distributions to Participants and Beneficiaries,
the designation of Beneficiaries, and like matters;
(e) Rules. To adopt such rules and regulations as the
Committee may deem reasonably necessary for the proper and
efficient administration of the Plan and consistent with its
purposes;
(f) Enforcement. To enforce the Plan in accordance with
its terms and with the Committee's own procedures, rules and
regulations and to settle and discharge disputes arising
thereunder;
(e) Records. To maintain the account records of all
Participants;
(f) Enforcement. To administer the loan program
established by Article VIII; and
(i) Additional Powers. To do all other acts in the Plan
Administrator's opinion necessary or desirable for the proper and
advantageous administration of the Plan.
12.06 Investment Direction and Investment Manager. The
Committee, by written notice to the Trustee, may assume the right to
direct the Trustee with respect to the investment of all or of any
designated portion of the Fund or may by written notice to the Trustee
advise the Trustee of the appointment of an Investment Manager to
manage all or any designated portion of the Fund. Any Investment
Manager shall be appointed by the Committee and shall serve pursuant
to written Agreement with the Committee at the pleasure of the
Committee. Any notice to the Trustee shall remain in force until
revoked or amended by further written notice to the Trustee. To the
extent the Committee assumes or appoints an Investment Manager to
assume such responsibilities, the Committee or the Investment Manager
shall give instructions to the Trustees for the purchase, sale,
exchange or other acquisition or disposition of securities, or an
Investment Manager may directly make any such purchase, sale, exchange
-62-
<PAGE>
or other acquisition or disposition of securities, on behalf of and
for the Account of the Fund. The Trustee shall follow the instructions
of the Committee or the Investment Manager and shall be under no
obligation to make any investment review or to consider the propriety
of holding or selling any securities or property of the Fund subject
to the management of the Committee or an Investment Manager. The
Trustee shall not be liable or responsible for any loss resulting to
the Fund by reason of its following such instructions of the Committee
or the Investment Manager or by reason of its failure to take any
action with respect to any investment which was acquired pursuant to
any such instructions in the absence of further instructions of the
Committee or the Investment Manager.
12.07 Records and Reports. The Committee shall have the
responsibility to meet the reporting and disclosure requirements with
respect to the Plan, including filing the annual reports with the
Internal Revenue Service. The Committee shall exercise such authority
and responsibility as it deems appropriate in order to comply with
ERISA and governmental regulations issued thereunder relating to
records of Participants' service and Accounts.
12.08 Information to be Provided. The Committee shall
furnish and make available to Participants and Beneficiaries and to
the Secretary of Labor or his or her delegate, and to the Secretary of
the Treasury or his or her delegate such plan descriptions, summaries,
reports, registration statements, notifications and other documents as
may be required by ERISA and the Code and regulations thereunder.
12.09 Annual Reports. The Committee shall prepare, or cause
to be prepared, an annual report for each Plan Year containing such
financial statements, actuarial reports and other information in such
form and for such delivery and availability at such times and in such
manner as may be required by ERISA and the Code and regulations
thereunder, and the Committee shall retain such records for such
periods as may be required by such laws and regulations.
ARTICLE XIII
Amendment, Merger and Termination
13.01 Amendment. The Company reserves the right, at any time
or times to amend this Plan and the Trust established hereunder to any
extent and in any manner that it may deem advisable and all
Participants and persons claiming any interest hereunder shall be
bound thereby; provided, however, that no amendment may be adopted the
effect of which would be:
(i) to divest any Participant or Beneficiary of his or her
then vested interest in the Fund, the vested interest of a
Participant who is still an Employee being the benefit to which
-63-
<PAGE>
he or she would have been entitled had he or she then resigned;
or
(ii) except as permitted by regulations under Section
411(d) of the Code, to eliminate or reduce, with respect to the
aggregate Account balances of any Participant or Beneficiary as
of the later of the date such amendment is adopted or effective,
any early retirement subsidy that continues after retirement, or
an optional form of benefit; or
(iii) except as provided by Section 14.12, to cause any
part of the Fund or its income to be used for, or diverted to,
any purpose other than the exclusive benefit of Participants or
their Beneficiaries;
(iv) to materially increase the duties and responsibilities
of the Trustee without its consent;
Notwithstanding the foregoing provisions of this Section, however,
this Plan may be amended in any manner whatsoever, with prospective or
retroactive effect, for the purpose of qualifying it under Section 401
of the Code or complying with any provision of ERISA.
13.02 Merger. The Company may direct a merger or combination
of this Plan with, or a transfer of part or all of its assets and
liabilities to, any other plan or trust qualified under Section 401(a)
of the Code ("other plan"). In the event of any such merger,
consolidation or assets or liabilities, each Participant in the Plan
whose interests were so merged, consolidated or transferred into,
with, or to the other plan must be entitled to receive a benefit
immediately thereafter (if the other plan then terminated) which would
be equal to or greater than the benefit he or she would have been
entitled to receive immediately theretofore (if the Plan had then
terminated).
13.03 Termination. Anything to the contrary herein
notwithstanding, this Plan and the Trust established hereunder may be
terminated (in whole or in part) by the Company by a duly adopted
resolution of the Board or further contributions hereunder may be
discontinued by any Employer by a duly adopted resolution of its board
of directors. In the event of termination (whether in whole or in
part) and notwithstanding anything herein to the contrary, the
interests of all affected Participants shall be fully vested and no
part of any such Participant's Accounts shall thereafter be forfeited
for any reason whatsoever except as provided in Section 8.01 and
14.11. Upon such termination or discontinuance, the assets of the
Fund shall be held and administered by the Trustee for the benefit of
the Participants in the same manner and with the same powers, rights.
duties and privileges herein prescribed, until the Fund has been fully
distributed pursuant to the provisions of Article VII hereof,
provided, however, that subject to Section 411(a)(11) of the Code, in
the case of a termination of the Plan (in whole or in part), the Board
-64-
<PAGE>
may direct the Trustee to make distribution of the Accounts as soon as
practicable in accordance with the provisions of Article VII hereof to
each affected Participant as if he or she were Retiring on the date of
such termination.
13.04 Partial Termination. In the event of any partial
termination of the Plan under Section 13.03 an appropriate portion of
the assets of the Fund attributable to the Participants and
Beneficiaries subject to such partial termination shall be segregated,
held and administered by the Trustee for the benefit of such
Participants and Beneficiaries as provided in Section 13.03; and the
interests (including the ESOP Accounts and Profit Sharing Accounts of
each affected Participant) shall, notwithstanding Section 7.03,
thereafter be fully vested and nonforfeitable except as provided in
Sections 8.01 and 14.11.
ARTICLE XIV
Miscellaneous
14.01 Interest of Participants. No Participant or
Beneficiary shall have any right to, or interest in, any part of the
Fund, except as expressly provided in this Plan. Any person claiming
benefits under this Plan will look solely to the Fund for payment.
14.02 Title to Assets. No Participant or Beneficiary shall
have any title or claim in or to any specific assets in the Fund but
shall have only a proportionate interest in the Fund as a whole.
14.03 Not a Contract of Employment. This Plan shall not be
deemed to be a contract of Employment between the Company or any
Affiliate and any Employee. Nothing contained herein shall be deemed
to give to any Employee the right to be retained in Employment or to
interfere with the right of the Company or Affiliate to discharge any
Employee at any time. Nothing contained herein shall be deemed to
give the Company or Affiliate the right to require any Employee to
remain employed, or to interfere with the Employee's right to
terminate his or her Employment at any time.
14.04 Spendthrift Clause. Except as otherwise provided in
Sections 7.14, 8.01 and 14.10, amounts payable under this Plan to a
Participant or Beneficiary shall be paid only to him or her and upon
his or her personal receipt. No benefit payable under the provisions
hereof shall be assigned or alienated or be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge. Any attempt to so anticipate, alienate, sell,
transfer, assign, pledge, encumber or charge shall be void, nor shall
the Fund be in any manner liable for or subject to the debts,
contracts, liabilities, engagements or torts of the persons entitled
to any benefit payment.
-65-
<PAGE>
14.05 Addresses. Each person entitled to benefits hereunder
shall file with the Committee from time to time in writing his or her
complete mailing address and change of mailing address. Any check
representing payment hereunder and any communication addressed to a
Participant or to any other person at his or her last address so filed
(or if no such address has been filed, then at his or her last address
indicated on the records of the Company or any Affiliate) shall be
deemed to have been received by such person for all purposes of the
Plan, and neither the Committee, Trustee nor the Company or any
Affiliate shall be obliged to search for or ascertain the location of
any such persons.
14.06 Information on Participants. Participants shall
furnish promptly to the Committee such information as the Committee
reasonably considers necessary or desirable for the purpose of
administering the Plan. If such information is not submitted, or
shows that such information previously has been misstated on the
records of the Plan, the Committee will make such corrections and
adjustments in accordance with the available facts as it considers
appropriate.
14.07 Regularly Kept Records Are Binding. The regularly kept
records of the Company or Affiliate shall be conclusive and binding
upon all persons with respect to the nature and length of Employment,
the type and amount of compensation paid and the manner of payment
thereof, the type and length of absence from work and all other
matters contained therein relating to employees.
14.08 Claims. Any claim for benefits not received or
received in an improper amount shall be made in writing to the
Committee. The Committee shall consider such claim and shall either
approve it or deny it within 90 days, unless within 90 days the
Committee determines that special circumstances require an extension
of time in processing the claim and so notifies the claimant in
writing of such extension, the special circumstances justifying the
extension, and the date by which the Committee expects to render a
final decision. In no event shall extension exceed a further period
of 90 days. Each denial shall be in writing, setting forth the
specific reasons for such denial and be written in a manner calculated
to be understood by the Participant or Beneficiary. Within 60 days
after the receipt from the Committee of any written denial of a claim
for benefits, or within 60 days from the end of the period (after any
applicable extension) for initial consideration of claims if no
decision has been rendered by that date (which shall be deemed a
denial of such claim), a Participant (or Beneficiary) whose claim is
denied (or deemed denied) may request, by written application to the
Committee, a review by the Committee of the decision denying the
payment of benefits. In connection with such review, such Participant
(or Beneficiary) shall be entitled to review any and all documents
pertinent to the claim or its denial and shall also be entitled to
submit issues and comments in writing. The decision of the Committee
upon such review shall be made promptly and not later than 60 days
-66-
<PAGE>
after the receipt of such request for review, unless special
circumstances require an extension of time for processing, in which
case a decision shall be rendered as soon as possible, but no later
than 120 days after the Committee's receipt of a request for review.
The decision on review shall be written in a manner calculated to be
understood by the Participant (or Beneficiary), shall include specific
reasons for the decision and specific references to the pertinent Plan
provisions on which the decision is based, and shall be final.
14.09 Indemnification. Except as otherwise provided in
ERISA, the Company, any Affiliate, their directors, officers,
employees and agents, the Trustee, the members of the Committee or any
of them, shall not incur any personal liability for the breach of any
responsibility, obligation, or duty in connection with any act done or
omitted to be done in good faith in the management and administration
of the Plan and Trust established hereunder and the investment and
handling of the Fund and shall be indemnified and held harmless by the
Employers from and against any such personal liability including all
expenses reasonably incurred in its or their defense in case the
Employers fail to provide such defense.
14.10 Payments to Minors. Etc. In the event any portion of
the Fund becomes distributable under the terms hereof to a minor or
other person under a legal disability, the Committee, in its sole
discretion, may direct that such distribution shall be made in any one
or more of the following ways:
(a) directly to said minor or other person;
(b) to the legal guardian or conservator of said minor or
other person; or
(c) to the spouse, parent, brother, sister, child or other
relative of said minor or other person for the use of said minor
or other person.
The Committee shall not be required to see to the application of any
distributions so made to any of said persons, but the receipt therefor
shall be a full discharge of the liability of the Trustee and the Fund
to such minor or other person.
14.11 Unclaimed Payments. If any check or other instrument
in payment of a benefit hereunder, which was mailed by regular United
States mail to the address of the payee furnished the Committee or
Trustee by the payee or the Company or an Affiliate is returned
unclaimed, the Trustee shall notify the Committee and shall
discontinue further payments to such payee until the Committee or
Trustee receives further information and instructions from such payee
or the Company or an Affiliate. Such discontinuance shall not be
treated as a forfeiture of any unclaimed or future payment, provided,
however, that where the Committee or Trustee is unable to locate a
payee and an amount has been distributable and unclaimed for three (3)
-67-
<PAGE>
years following the date distribution was to be made or commenced, or
upon the termination of the Plan if earlier, the entire distribution
payable to such payee shall be forfeited and used to pay current or
reasonably anticipated expenses of the Plan or the Trust; or if there
are no such current or anticipated expenses, treated as a Profit
Sharing Contribution and allocated as set forth in Section 5.05
hereof. Any amounts so treated shall again become payable to such
payee as an administrative expense of the Plan upon his or her filing
a written claim for benefits under the Plan with the Committee
containing his or her complete mailing address and such evidence that
he or she is entitled to such benefits as the Committee may require.
14.12 Reversions. In no event shall any of the assets of the
Fund revert to the Employers except the sum, if any, remaining in the
Fund after all liabilities under the Plan to Participants and
Beneficiaries have been fully satisfied and discharged; provided,
however, that there shall be returned to the Employers:
(i) contributions made by a mistake of fact, within one (1)
year after the payment of such contributions;
(ii) contributions conditioned upon their deductibility
under Section 404 of the Code to the extent the deduction is
disallowed, within one (1) year after the disallowance of the
deduction; and
(iii) any amounts remaining in the suspense account for
excess annual additions maintained under Section 9.04 upon
termination of the Plan, as soon as practicable after all
liabilities of the Plan to Participants and their Beneficiaries
have been satisfied.
The amount of any contribution that may be returned to any Employer
pursuant to subparagraph (i) above shall be reduced by any portion
thereof previously distributed from the Fund and by any losses of the
Fund allocable thereto, and in no event shall the return of such
contribution cause the balance of any Participant's Accounts to be
less than the amount of the such balance had the contribution not been
made.
14.13 Necessary Parties. Necessary parties to any
accounting, litigation or other proceedings shall include only the
Trustee, Committee and the Company, and the settlement or judgment in
any such cases in which the Company is duly served or cited shall be
binding upon all members of the Plan, Participants and their
Beneficiaries and estates and all persons claiming by, through or
under them.
14.14 Company Action. Any action this Plan requires or
permits the Company to take shall be duly and properly taken if done
by written resolution of the Board; or, except where otherwise
expressly provided in this Plan, in writing by an individual
-68-
<PAGE>
authorized generally by the by-laws of the Company or specifically by
such written resolution of the Board to take actions of such kind
respecting this Plan.
14.15 Company as Agent for Employers. In the event an
Affiliate other than the Company becomes an Employer hereunder by
adopting this Plan with the consent of the Company for the benefit of
its eligible employees, such Employer irrevocably appoints the Company
as its agent to do all acts and things respecting the Plan on its
behalf; to the end that the Trustee, Committee, Participants and
Beneficiaries and all other persons may deal with the Company
respecting this Plan as if it were the only Employer under this Plan.
14.16 Plan Expenses. All taxes of any kind upon or in
respect of the Fund or its income, including income taxes upon
Participants or Beneficiaries respecting distributions from the Fund
and required by the Code or any other federal, state or local revenue
law to be withheld at the source, but excepting only any federal
excise taxes respecting the Plan or its operation that the Code
specifically imposes on the Company or other persons and not on the
Fund, shall be paid by the Trustee from the Fund. All other expenses
incurred in the management or administration of the Plan and the Trust
may, in the discretion of the Company, be paid by the Company, but if
for any reason not paid by the Company shall be paid by the Trustee
from the Fund unless the Company has affirmatively directed the
Trustee in writing not to pay such expenses; in which event the
Company shall indemnify the Trustee and the Fund from and against such
expenses and all other costs and charges (including attorneys fees and
costs of collection imposed on the Trustees or the Fund) respecting
such expenses.
14.17 Agent for Service of Process. The agent for service of
process under the Plan shall be the Secretary of the Company.
14.18 Illinois Law to Govern. This Plan and the Trust
established hereunder shall be administered, construed and regulated
and its validity and effect and the rights hereunder of all parties
interested shall at all times be determined in accordance with the
laws of the State of Illinois subject, however, to applicable
provisions of ERISA and the Code.
-69-
<PAGE>
IN WITNESS WHEREOF, the Company has amended and restated the Plan
and the Trust established herein and the Trustee hereby accepts the
terms of the Trust and agrees to perform the duties created herein.
PREMIER FINANCIAL SERVICES, INC.
Date: June 25, 1993 By: /s/ David L. Murray
-------------------------------
Executive Vice President
PREMIER TRUST SERVICES, INC., as
Trustee
By: /s/ Paul W. Lindwall
------------------------------
Trustee
-70-
<PAGE>
FIRST AMENDMENT OF THE
PREMIER FINANCIAL SERVICES, INC.
EMPLOYEE SAVINGS AND STOCK PLAN AND TRUST
-----------------------------------------
WHEREAS, Premier Financial Services, Inc. (the "Company")
maintains the Premier Financial Services, Inc. Employee Savings and
Stock Plan and Trust (the "Plan"); and
WHEREAS, the Company has reserved the right to amend the Plan,
and now deems it advisable to amend the Plan in certain respects;
NOW, THEREFORE, by virtue of the authority delegated to the
undersigned officer of the Company by Resolution of the Board of
Directors and pursuant to the power reserved to the Company under
Section 13.01 of the Plan, the Plan is hereby amended in the following
respects, effective as of the date specifically indicated herein, and
with respect to each Employee who earns an Hour of Service on or after
the applicable effective date, except where otherwise indicated:
1. The definition of "Compensation" set forth in Section 2.01
of the Plan is amended, effective as of January 1, 1994, to read as
follows:
" "COMPENSATION" means the total wages or salary, overtime,
commissions, bonuses, and any other taxable remuneration
reportable on Internal Revenue Service form W-2 paid to an
Employee during the Plan Year while a Participant in the Plan,
including any amount deferred by a Participant under the terms of
a Salary Savings Agreement, but disregarding, for Plan Years
beginning on or after January 1, 1989 and prior to January 1,
1994, to the extent required by Section 401(a)(17) of the Code,
Compensation at an annual rate in excess of $200,000 (as
periodically adjusted pursuant to Section 401(a)(17) of the
Code).
(a) In addition to other applicable limitations set forth
in the Plan and notwithstanding any other provision of the Plan
to the contrary, for Plan Years beginning on or after January 1,
1994, the annual Compensation of each Employee taken into account
-71-
<PAGE>
under the Plan shall not exceed the OBRA '93 annual Compensation
limit. The OBRA '93 annual Compensation limit is $150,000, as
adjusted by the Commissioner of Internal Revenue for increases in
the cost of living in accordance with Section 401(a)(17)(B) of
the Code. The cost-of-living adjustment in effect for a calendar
year applies to any period, not exceeding 12 months, over which
Compensation is determined (determination period) beginning in
such calendar year. If a determination period consists of fewer
than 12 months, the OBRA '93 annual Compensation limit will be
multiplied by a fraction, the numerator of which is the number of
months in the determination period, and the denominator of which
is 12.
(b) For Plan Years beginning on or after January 1, 1994,
any reference in this Plan to the limitation under Section
401(a)(17) of the Code shall mean the OBRA '93 annual
Compensation limit set forth in this provision.
(c) If Compensation for any prior determination period is
taken into account in determining an Employee's benefits accruing
in the current Plan Year, the Compensation for that prior
determination period is subject to the OBRA '93 annual
Compensation limit in effect for that prior determination period.
For this purpose, for determination periods beginning before the
first day of the first Plan Year beginning on or after January 1,
1994, the OBRA '93 annual Compensation limit is $150,000."
2. The definition of "Hour of Service" set forth in Section
2.01 of the Plan is amended, effective as of August 5, 1993, adding
two final sentences thereto:
"Hour of Service shall also include each hour during which an
Employee is on an approved leave of absence granted by the
Company or an Affiliate on or after August 5, 1993 pursuant to
the Family and Medical Leave Act, if the Employee returns to work
for the Company or an Affiliate at the end of such leave of
absence. Such Hours of Service shall be calculated pursuant to
clause (ii) of this Section."
3. The second sentence of Section 4.01 of the Plan is amended,
effective as of August 1, 1994, by substituting four new sentences to
read as follows:
"Each Employer shall also make for each Plan year a Matching
Contribution with respect to the Salary Savings Contributions
made for such Plan Year by Participants employed by it and not
withdrawn before the date the Employer makes such Matching
Contribution. The amount of Matching Contribution for each Plan
-72-
<PAGE>
Year beginning prior to January 1, 1994 shall be equal to 10% of
the Salary Savings Contributions made for each such Plan Year.
The amount of Matching Contribution made for the Plan Year ending
December 31, 1994 shall be equal to the sum of (a) 10% of 7/12 of
the Salary Savings Contributions made for such Plan Year; and (b)
25% of 5/12 of the Salary Savings Contributions made for such
Plan Year. The amount of Matching Contribution for each Plan
Year beginning on and after January 1, 1995 shall be equal to 25%
of the Salary Savings Contributions made for each such Plan
Year."
4. The second sentence of Section 4.07 up to the semicolon is
amended, effective as of August 1, 1994, to read as follows:
"ESOP Contributions and Matching Contributions may be made in the
discretion of the Board in Company Stock (whether authorized and
previously unissued or previously issued and reacquired), or in
cash, or in a combination thereof;"
5. Section 7.07 of the Plan is amended, effective with respect
to distributions made on and after January 1, 1993 by adding a final
paragraph to read as follows:
"If a distribution is one to which Sections 401(a)(11) and 417 of
the Code do not apply, such distribution may commence less than
30 days after the notice required under section 1.411(a)-11(c) of
the Income Tax Regulation is given, provided that:
(i) the Committee clearly informs the Participant that the
Participant has a right to a period of at least 30 days
after receiving the notice to consider the decision of
whether or not to elect a distribution (and, if
applicable, a particular distribution option), and
(ii) the Participant, after receiving the notice,
affirmatively elects a distribution."
6. The sixth sentence of Section 7.14 of the Plan is amended,
effective as of July 1, 1993, to read as follows:
"Under no circumstances shall an order be determined to be a
qualified domestic relations order if it calls for payments to be
made to an alternate payee before the earliest date for such
payments as specified in ERISA and the Code, provided, however,
that a payment may be made to an alternate payee of the
Participant prior to the date the Participant attains his
earliest retirement age (as defined in Section 206(d) of ERISA
-73-
<PAGE>
and Section 414(p) of the Code) if such payment is made pursuant
to the terms of the qualified domestic relations order."
7. Section 8.02 of the Plan is amended, effective as of July 1,
1993, by deleting the reference to "least" and replacing it with
"lesser" in lieu thereof.
8. The last paragraph of subsection 9.01(a) is amended,
effective as of January 1, 1994, to read as follows:
"An Employee's Aggregate Compensation for any Plan Year
commencing on and after January 1, 1989 and prior to January 1,
1994 in excess of $200,000 (as adjusted from time to time
pursuant to Code Section 401(a)(17)), and an Employee's Aggregate
Compensation for any Plan Year commencing on and after January 1,
1994 in excess of $150,000 (as adjusted from one time pursuant to
Code Section 401(a)(17)) shall be disregarded to the extent
required by Code Section 401(a)(17). For purposes of applying
this limitation, the Aggregate Compensation of a Participant who
is a 5% owner of an Affiliate or a member of the group consisting
of the 10 Highly Compensated Employees paid the greatest
compensation (as defined under Section 414(q)(7) of the Code)
during the Plan Year shall be combined with the Aggregate
Compensation (if any) for such period of the Participant's spouse
and all lineal descendants of such Participant who have not
attained at least age 19 before the close of the Plan Year."
9. Subsection 9.01(c)(ii) of the Plan is amended, effective as
of January 1, 1993, by replacing the reference to "402(a)(5)" with
"402(b)(4)".
10. Section 10.03 is amended, effective as of January 1, 1994,
by adding two final sentences thereto to read as follows:
"In no event shall the Compensation or Aggregate Compensation of
a Participant taken into account under the Plan for purposes of
Article X for any Plan Year commencing on and after January 1,
1989 and prior to January 1, 1994 exceed $200,000, or such
greater amount provided pursuant to Section 401(a)(17) of the
Code. The Compensation of a Participant taken into account for
purposes of Article X for Plan Years commencing on and after
January 1, 1994 shall be limited in accordance with the
provisions of subsections (a) through (c) set forth in the
definition of Compensation in Section 2.01."
-74-
<PAGE>
11. Subsections 12.05(a) and (b) of the Plan are amended,
effective July 1, 1993, by inserting the words "in it sole
discretion," into the beginning of the first sentence thereof.
12. Section 12.05 of the Plan is further amended, effective as
of July 1, 1994, by redesignating subsection (i) as (j) and inserting
a new subsection (i) to read as follows:
"(i) RETENTION OF SERVICES. To retain counsel, employ
agents and provide for such clerical, accounting, actuarial and
consulting services as may be required in carrying out the
provisions of the Plan. The Committee shall be entitled to rely
conclusively upon, and shall be fully protected in any action
taken by it in good faith in relying upon, any opinions or
reports that shall be furnished to it by any such counsel, agents
or other persons."
13. Section 13.01 of the Plan is amended, effective as of July
1, 1993, by adding a final sentence thereto to read as follows:
"Any amendment of the Plan shall be by written instrument adopted
by the Board of Directors, or by such committee to whom the Board
of Directors has expressly delegated the power and authority to
amend the Plan."
IN WITNESS WHEREOF, the Company caused this First Amendment to be
executed by the undersigned duly authorized officer this 11th day of
July, 1994.
PREMIER FINANCIAL SERVICES, INC.
By: /s/ David L. Murray
----------------------------------
Its: Executive Vice President
----------------------------------
-75-
<PAGE>
SECOND AMENDMENT
OF
PREMIER FINANCIAL SERVICES, INC.
EMPLOYEE SAVINGS AND STOCK PLAN AND TRUST
-----------------------------------------
WHEREAS, Premier Financial Services, Inc. (the "Bank")
maintains Premier Financial Services, Inc. Employee Savings and Stock
Plan and Trust (the "Plan"); and
WHEREAS, the Plan previously has been amended and further
amendment of the Plan now is considered desirable;
NOW, THEREFORE, by virtue of the authority granted to the
undersigned officer by Resolution of the Board of Directors of the
Bank, and pursuant to the power reserved to the Bank by Section 13.01
of the Plan, the Plan, as previously amended, be and is hereby further
amended, effective December 31, 1994, in the following particulars:
1. By substituting the following for Section 3.01 of the
Plan:
"3.01 PARTICIPATION. Each Employee of an Employer who
was a Participant in the Plan on December 31, 1994, shall
continue as Participant in the Plan from and after January
1, 1995, subject to the terms and provisions of the Plan.
Each other Employee of an Employer shall become a
Participant in the Plan on January 1, 1995 or the first
Entry Date thereafter on which such Employee meets all of
the following requirements:
(a) the Employee has attained the age twenty-one
(21);
(b) the Employee is not covered under the terms
of a collective bargaining agreement under which
retirement benefits have been subject of good faith
bargaining, unless such agreement provides for the
Employee's participation in the Plan; and
-76-
<PAGE>
(c) the Employee has completed one Eligibility
Year of Service;
provided he or she is an Employee of an Employer on such
Entry Date."
2. By adding the following new sentence to Section 9.05 to
the Plan, as the last sentence thereof:
"Notwithstanding the foregoing, the Employer may elect to
make a qualified nonelective contribution in any Plan Year
in order to satisfy the tests in clause (i) or (ii),
including as such tests may be modified by Section 9.07."
3. By adding the following new Section 9.09 to the Plan
immediately after Section 9.08 thereof:
"9.09 QUALIFIED NONELECTIVE CONTRIBUTIONS. The
Employer may elect to make a qualified nonelective
contribution in any Plan Year. Qualified nonelective
contributions means Employer contributions that are fully
vested at all times and subject to the restrictions on
distribution applicable to Salary Savings Contributions
under Code Section 401(k)(2) and Article VII of the Plan.
Qualified nonelective contributions may be made on behalf of
all Eligible Employees who are not Highly Compensated
Employees, or on behalf of all Eligible Employees, in the
discretion of the Employer. Qualified nonelective con-
tributions shall be allocated according to each Eligible
Employee's Compensation for the Plan Year as a Participant.
The qualified nonelective contributions, if any, credited to
a Participant's accounts for a Plan Year, shall be counted
as Salary Savings Contributions for purposes of calculating
the Average Deferral Percentage under Sections 9.05 and 9.07
of the Plan."
-77-
<PAGE>
IN WITNESS WHEREOF, the Bank has caused this Amendment to be
executed by the undersigned duly authorized officer this 21st day of
December, 1994.
PREMIER FINANCIAL SERVICES, INC.
By: /s/ David L. Murray
----------------------------------
Its: Executive Vice President
----------------------------------
-78-
<PAGE>
THIRD AMENDMENT
OF
PREMIER FINANCIAL SERVICES, INC.
EMPLOYEE SAVINGS AND STOCK PLAN AND TRUST
-----------------------------------------
WHEREAS, Premier Financial Services, Inc. (the "Company")
maintains Premier Financial Services, Inc. Employee Savings and Stock
Plan and Trust (the "Plan"); and
WHEREAS, the Plan previously has been amended and further
amendment of the Plan now is considered desirable;
NOW, THEREFORE, by virtue of the authority granted to the
undersigned officer by Resolution of the Board of Directors of the
Company, and pursuant to the power reserved to the Company by Section
13.01 of the Plan, the Plan, as previously amended, be and is hereby
further amended, effective as of July 1, 1995 by adding the following
new Section 7.15 to the Plan immediately after Section 7.14 thereof:
"7.15 HARDSHIP WITHDRAWALS. The Committee may, in its
sole discretion, upon the request of a Participant at any
time prior to his or her termination of employment, direct
the Trustee to make a lump sum distribution of a portion of
the balance of the Participant's Salary Savings Account, for
the purposes set forth below, subject to the following
rules:
(a) Each request for a distribution must be made by
written application to the Committee supported by such evi-
dence as the Committee may require;
(b) The amount distributed to a Participant in accord-
ance with this Section 7.15 shall not exceed that portion of
the Adjusted Balance of his or her Salary Savings Account
that (i) is not derived from optional contributions under
Section 4.03 and (ii) is not being used as security for a
loan made under Article VIII, determined as of the Valuation
Date coinciding with or immediately following the date a
request is made hereunder, less earnings allocated to the
Participant's Salary Savings Account on or after
December 31, 1988. However, in no event shall the amount
available for distribution pursuant to this Section 7.15 be
-79-
<PAGE>
less than the Adjusted Balance of the Participant's Salary
Savings Account on December 31, 1988, less the amount being
used as security for a loan made under Article VIII,
determined as of the Valuation Date coinciding with or
immediately following the date a request is made hereunder;
(c) The Committee shall direct the Trustee to make a
distribution to a Participant in accordance with this
Section 7.15 only in the event of the Participant's hard-
ship . For purposes of this Section, a hardship shall be
limited to:
(i) Medical expenses described in Code
Section 213(d) previously incurred by the
Participant, the Participant's spouse, or any
dependents of the Participant (as defined in Code
Section 152) or necessary for any of these persons
to obtain medical care described in Code Section
213(d);
(ii) Purchase (excluding mortgage
payments) of a principal residence for the
Participant;
(iii) Payment of tuition and related
educational fees and room and board for the next
twelve months of post-secondary education for the
Participant, his or her spouse, children or
dependents;
(iv) The need to prevent eviction of the
Participant from his or her principal residence or
foreclosure on the mortgage of the Participant's
principal residence; and
(v) Funeral expenses of a family member
of the Participant.
(d) The amount distributed shall not be in excess of
the immediate and heavy financial need of the Participant,
which need shall be deemed to include any amounts reasonably
anticipated by the Participant to be necessary to pay
federal, state or local income taxes and penalties incurred
as a result of the distribution;
(e) The Participant shall first obtain all
distributions, other than those on account of hardship, and
all nontaxable loans available under the Plan and all other
plans maintained by the Company;
(f) The Participant's Salary Savings Contributions and
Voluntary Contributions under the Plan, and elective
-80-
<PAGE>
contributions and employee contributions (as defined in
Treasury Regulation Section 1.401(k)) under all other
deferred compensation plans maintained by the Company, shall
be suspended for twelve (12) months after receipt of the
hardship distribution; and
(g) The Participant may not make Salary Savings
Contributions under the Plan, or elective contributions
under any other plan maintained by the Company, for the
Participant's taxable year immediately following the taxable
year of the hardship distribution in excess of the
applicable limit under Section 402(g) of the Code for such
next taxable year, decreased by the Salary Savings
Contributions to the Plan and elective contributions to such
other plans for the taxable year of the hardship
distribution.
(h) Any distribution made pursuant to this Section
shall be made in a manner which is consistent with and
satisfies the provision of Section 7.08 and the notice and
consent requirements of Code Sections 417 and 411(a)(11).
If a Participant is married at the time of the distribution,
the Participant must provide to the Committee written
evidence of spousal consent to the distribution."
IN WITNESS WHEREOF, the Company has caused this Amendment to
be executed by the undersigned duly authorized officer this 21st day
of December, 1995.
PREMIER FINANCIAL SERVICES, INC.
By: /s/ David L. Murray
----------------------------------
Its: Executive Vice President
----------------------------------
-81-
<PAGE>
FOURTH AMENDMENT
OF
PREMIER FINANCIAL SERVICES, INC.
EMPLOYEE SAVINGS AND STOCK PLAN AND TRUST
-----------------------------------------
WHEREAS, Premier Financial Services, Inc. (the "Company")
maintains the Premier Financial Services, Inc. Employee Savings and
Stock Plan and Trust (the "Plan"); and
WHEREAS, the Plan previously has been amended and further
amendment of the Plan now is considered desirable;
NOW, THEREFORE, by virtue of the authority granted to the
undersigned officer by Resolution of the Board of Directors of the
Company, and pursuant to the power reserved to the Company by Section
13.01 of the Plan, the Plan, as previously amended, be and is hereby
further amended, in the following particulars:
1. By adding the following new paragraph (g) to Section 11.05
of the Plan immediately after paragraph (f) thereof, effective as of
January 1, 1995:
"(g) Salary Savings Contributions, ESOP Contributions
and ESOP Savings and Matching Contributions shall be
allocated to the Investment Fund specified by the
Participant as soon as practicable following the date such
contributions are received by the Trustee, allowing for such
factors as the availability of such Investment Fund as of
the time of the contribution and the availability of shares
of Company Stock for purchase by the Trustee, on behalf of
the Company Stock Fund. Participants' elections to move
their existing aggregate Account balances among the
Investment Funds shall be implemented as soon as practicable
following the date such elections are received by the
Committee, allowing for such factors as the availability of
an Investment Fund and the ability to purchase Company
Stock."
-82-
<PAGE>
2. By adding the following new sentence to Section 11.05 of the
Plan as the last sentence thereof, effective as of November 1, 1995:
"Notwithstanding the provisions of this Section 11.05 and
Section 11.04, the Company Stock Fund shall not be available
as an investment option for Participants, both as to new
contributions and existing aggregate Account balances, until
such time as a Registration Statement is filed with the U.S.
Securities Exchange Commission registering the offer and
sale of additional shares of Company Stock under the Plan. "
* * * * * *
IN WITNESS WHEREOF, the Company has caused this Amendment to
be executed by the undersigned duly authorized officer this 21st day
of December, 1995.
PREMIER FINANCIAL SERVICES, INC.
By: /s/ David L. Murray
----------------------------------
Its: Executive Vice President
----------------------------------
-83-
EXHIBIT 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors
Grand Premier Financial, Inc.:
We consent to incorporation by reference on Form S-8 of Grand
Premier Financial, Inc. of our report dated January 26, 1996,
relating to the consolidated balance sheets of Premier Financial
Services, Inc. and subsidiaries as of December 31, 1995 and 1994,
and the related consolidated statements of earnings, changes in
stockholders equity, and cash flows for each of the years in the
three-year period ended December 31, 1995, which report appears
in the Registration Statement on Form S-4 (333-03327) of Grand
Premier Financial, Inc.
We also consent to incorporation by reference on Form S-8 of
Grand Premier Financial, Inc. of our report dated May 17, 1996
relating to the statements of net assets available for plan
benefits of the Premier Financial Services, Inc. Employee Savings
and Stock Plan and Trust as of December 31, 1995 and 1994, and
the related statements of changes in net assets available for
plan benefits for the years then ended, which report appears on
Form 11-K of the Premier Financial Services, Inc. Employee
Savings and Stock Plan Trust.
KPMG Peat Marwick LLP
Chicago, Illinois
September 4, 1996
-84-
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to incorporation by reference in the Registration
Statement on Form S-8 of Grand Premier Financial, Inc. of our
report dated January 31, 1996, accompanying the consolidated
financial statements of Northern Illinois Financial Corporation
contained in the final prospectus filed pursuant to Rule
424(b)(3) and included in the Registration Statement on Form S-4
of Grand Premier Financial, Inc., File No. 333-03327.
Hutton, Nelson & McDonald LLP
Oakbrook Terrace, Illinois
September 5, 1996
-85-
