<PAGE>
0507251.01.DOC
As filed with the Securities and Exchange Commission on October 16, 1998
Registration No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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UMB FINANCIAL CORPORATION
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(Exact name of Registrant as specified in its charter)
Missouri 43-0903811
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
1010 Grand Avenue
Kansas City, Missouri 64106
(816)860-7000
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(Address, including zip code, and telephone
number, including area code, of Registrant's
principal executive offices)
UMB PROFIT SHARING AND 401(K) SAVINGS PLAN
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(Full title of the plan)
Dennis R. Rilinger, Esq.
UMB Financial Corporation
1010 Grand Avenue
Kansas City, Missouri 64106
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(Name and address of agent for service)
(816) 860-7000
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(Telephone number, including area code, of agent for service)
COPY TO:
Victoria R. Westerhaus, Esq.
Shook, Hardy & Bacon L.L.P.
1010 Grand Boulevard, 5th Floor
Kansas City, Missouri 64106
(816)474-6550
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CALCULATION OF REGISTRATION FEE
Title of
Securities Amount Proposed maximum Proposed maximum Amount of
to be to be Offering Price aggregate Registration
Registered Registered per Unit Offering Price Fee
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Plan Interests (1) N/A N/A (2)
related to the UMB
Profit Sharing and
401(k) Savings Plan
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(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement covers an indeterminable amount
of interests to be offered or sold pursuant to the UMB Profit Sharing and 401(k)
Savings Plan described herein.
(2) Pursuant to Rule 457(h)(3), no registration fee is required to be paid.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEMS 1 AND 2. PLAN INFORMATION AND REGISTRANT INFORMATION AND EMPLOYEE PLAN
ANNUAL INFORMATION. This Registration Statement relates to the registration of
an indeterminate number of participation interests in the Plan. Pursuant to Rule
428(b)(1) under the Securities Act, the documents containing the information
specified in Part I of Form S-8 has been or will be sent or given to each
participant in the Plan. These documents and the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of Part II hereof,
taken together, constitute the Section 10(a) Prospectus.
The Company agrees to provide the participants in the Plan, without charge, upon
written or oral request, all of the documents incorporated by reference in Item
3 of Part II below and any other documents required to be delivered to
participants in the Plan pursuant to Rule 428(b) under the Securities Act. Such
request should be delivered to UMB Bank, n.a., Attn: Mark P. Herman, Senior Vice
President and Employee Benefits Council, 1010 Grand Boulevard, Kansas City, MO
64106, (816)860-7971.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference herein:
(a)(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, filed with the Commission on March 27, 1998;
(2) The Company's Annual Report on Form 11-K for the Plan for the year ended
December 31, 1997, filed concurrently with this document;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
1998, filed with the Commission on May 12, 1998;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended June 30,
1998, filed with the Commission on August 14, 1998;
(d) The Company's current report on Form 8-K, filed with the Commission on
September 16, 1998; and
(e) The description of the Company's Common Stock contained in Amendment No. 1
on Form 8 to its General Form for Registration of Securities on Form 10, dated
March 5, 1993 (File No. 0-4887, filed under Section 12 of the Exchange Act).
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") 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
in the Registration Statement and to be part thereof from the date of filing of
such documents. Any statement contained in the documents incorporated, or deemed
to be incorporated, by reference herein or therein shall be deemed to be
modified or superseded for purposes of this Registration Statement and the
prospectus which is a part hereof (the "Prospectus") to the extent that a
statement contained herein or therein or in any other subsequently filed
document which also is, or is deemed to be, incorporated by reference herein or
therein modifies or supersedes such statement. 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 and the Prospectus.
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
In accordance with Section 355 of the General and Business Corporation Law of
the State of Missouri, Article IX, Section 4 of the Company's Bylaws provides as
follows:
Section 4. Indemnification of Directors and Officers.
1. 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 (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a director,
officer or employee of the Corporation, or is or was serving at the request of
the Corporation as a director, officer or employee of another corporation,
partnership, joint venture, trust or other enterprise (which shall be deemed to
include any employee benefit plan of the Corporation or any other corporation)
may be indemnified against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement (which shall include any excise taxes
assessed against a person with respect to an employee benefit plan) actually and
reasonably incurred by him in connection with such action, suit or proceeding so
long as the results of an investigation of the matter as described in Section 4
includes a finding that he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation or the
participants or beneficiaries of any employee benefit plan, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful, provided, however, that in an action by or in the right of
the Corporation no indemnification shall be made in respect of any judgments,
fines and amounts paid in settlement and provided further that in such an action
there shall be no indemnification for any claim, issue or matter as to which
such person shall have been adjudged to be liable for negligence or misconduct
in the performance of his duty to the Corporation unless and only to the extent
that a court of competent jurisdiction so orders.
<PAGE>
2. The termination of any action, suit, or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interest of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
3. Any person who has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Section 1 above, shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
4. Except as provided in Section 3, indemnification of anyone under Section 1,
unless ordered by a court, shall be made by the Corporation only as authorized
in each case upon a determination that it is proper because the director,
officer or employee has met the applicable standard of conduct set forth. Such a
determination shall be made by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to the action, suit or
proceeding, or if such a quorum is not obtainable, or even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or by the shareholders.
5. Notwithstanding anything herein to the contrary, no director, officer or
employee shall be indemnified against any expenses, penalties or other payments
incurred in an administrative proceeding or action instituted by an appropriate
bank regulatory agency which proceeding or action results in a final order
assessing civil money penalties or requiring affirmative action by an individual
or individuals in the form of payments to the bank.
6. If authorized by the Board of Directors, the Corporation may advance the
costs and expenses incurred in defending a civil or criminal action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director,
officer or employee to repay such amount if it is ultimately determined that he
is not entitled to indemnification.
7. The Corporation may purchase and maintain insurance on behalf of any person
who is or was a director, officer or employee of the Corporation or is or was
serving at the request of the Corporation as a director, officer or employee of
another corporation, partnership, joint venture, trust or other enterprise
against any liability for which it may indemnify such people under the terms of
this Article.
<PAGE>
8. The indemnification provided for directors, officers or employees of the
Corporation shall not be deemed exclusive of any other rights to which those
officers, directors or employees may be entitled under any by-law, agreement,
vote of shareholders or disinterested directors or otherwise, both as to actions
in his or her official capacity and as to actions in another capacity while
holding such office, and shall continue as to any person who has ceased to be a
director, officer or employee of the Corporation and shall inure to the benefit
of his or her heirs, executors and administrators.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 The Company's Articles of Incorporation.
4.2 The Company's Bylaws.
4.3 Description of Company's Common Stock in Amendment No. 1 on Form 8 to its
General Form for Registration of Securities on Form 10, dated March 5, 1993
(File No. 0-4887).
4.4 UMB Profit Sharing and 401(k) Savings Plan, filed concurrently with this
document.
5.1 Opinion of Shook, Hardy & Bacon L.L.P.
23.1 Consent of Shook, Hardy & Bacon L.L.P.(contained in exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP.
24. Powers of Attorney (contained on signature pages hereto).
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
<PAGE>
(i) To include any prospectus required by Section 10(a)(3) of the Securities
Act;
(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;
and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(i)(1) and (a)(i)(2) are inapplicable if
the information to be included thereunder is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act,
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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
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 Commission such indemnification is
against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, UMB Financial Corporation
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 Kansas City, State of Missouri, on October 16, 1998.
UMB FINANCIAL CORPORATION
/s/ R. Crosby Kemper
R. Crosby Kemper,
Chairman of the Board and
Chief Executive Officer
/s/ Timothy M. Connealy
Timothy M. Connealy,
Chief Financial Officer
Date: October 16, 1998
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints R. Crosby Kemper, his true and lawful attorney-in-fact
and agent, with full power of substitution and re-substitution, for him in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
said attorney-in-fact and agent or his substitute or substitutes may lawfully 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 below by the following persons in the capacities and
on the dates indicated.
/s/ Paul D. Barlett, Jr. Director /s/ C.N. Hoffman III Director
Paul D. Barlett, Jr. C.N. Hoffman III
/s/ Thomas E. Beal Director /s/ Alexander C. Kemper Director
Thomas E. Beal Alexander C. Kemper
/s/ H. Alan Bell Director /s/Daniel N. League, Jr. Director
H. Alan Bell Daniel N. League, Jr.
<PAGE>
/s/ David R. Bradley, Jr. Director /s/Thomas D. Sanders Director
David R Bradley, Jr. Thomas D. Sanders
/s/ Howard R. Fricke Director /s/ William J. McKenna Director
Howard R. Fricke William J. McKenna
/s/ Newton A. Campbell Director /s/ Roy E. Mayes Director
Newton A. Campbell Roy E. Mayes
/s/ William Terry Fuldner Director /s/ John H. Mize, Jr. Director
William Terry Fuldner John H. Mize, Jr.
/s/ Jack T. Gentry Director /s/ Mary Lynn Oliver Director
Jack T. Gentry Mary Lynn Oliver
/s/ Peter J. Genovese Director /s/ W.L. Orschlen Director
Peter J. Genovese W.L. Orschlen
/s/ Robert W. Plaster Director /s/ Herman R. Sutherland Director
Robert W. Plaster Herman R. Sutherland
/s/ Alan W. Rolley Director /s/ E. Jack Webster, Jr. Director
Alan W. Rolley E. Jack Webster, Jr.
/s/ Joseph F. Ruysser Director /s/ John E. Williams Director
Joseph F. Ruysser John E. Williams
Date: October 16, 1998
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other person who administers the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Kansas City, State of
Missouri, on October 16, 1998.
UMB PROFIT SHARING AND 401(k) SAVINGS PLAN
/s/ James W. Rawlings
James W. Rawlings,
Chairman of the Administrative
Committee for the Plan
<PAGE>
UMB FINANCIAL CORPORATION
FORM S-8
EXHIBIT INDEX
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Sequential
No. Description Page Number
- --- --------- -----------
4.1 The Company's Articles of Incorporation. 13
4.2 The Company's Bylaws. 24
4.3* Description of Company's Common Stock in Amendment
No. 1 on Form 8 to its General Form for Registration of
Securities on Form 10, dated March 5, 1993 (File No. 0-4887).
4.4 UMB Profit Sharing and 401(k) Savings Plan,
filed concurrently with this document. 43
5.1 Opinion of Shook, Hardy & Bacon L.L.P. 113
23.1 Consent of Shook, Hardy & Bacon L.L.P.
(contained in exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP. 115
24. Powers of Attorney (contained on signature pages hereto).
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* Previously Filed
<PAGE>
EXHIBIT 4.1
CERTIFICATE
I, David D. Miller, hereby certify that the attached
copies of Articles of Incorporation of Citibanc Shares of
Missouri, Inc. dated June 12, 1967, the first amendment to the
Articles of Incorporation dated March 5, 1968, the second
amendment to the Articles of Incorporation dated October 22,
1969, the third amendment to the Articles of Incorporation
dated April 21, 1971, the fourth amendment to the Articles of
Incorporation dated August 24, 1971, the fifth amendment to
the Articles of Incorporation dated April 27, 1973, the sixth
amendment to the Articles of Incorporation dated April 19,
1979, the seventh amendment to the Articles of Incorporation
dated April 19, 1981, the eighth amendment to the Articles of
Incorporation dated April 22, 1982, the ninth amendment to the
Articles of Incorporation dated April 25, 1984, the tenth
amendment to the Articles of Incorporation dated May 4, 1992,
and the eleventh amendment to the Articles of Incorporation
dated April 21, 1994, the twelfth amendment to the Articles of
Incorporation dated July 12, 1995, and the thirteenth
amendment to the Articles of Incorporation dated April 16,
1996, represent a true and complete copy of the Articles of
Incorporation of UMB Financial Corporation and of each and
every Amendment to those Articles of Incorporation as of April
22, 1996.
______________________________
David D. Miller, Corporate Secretary
SEAL
<PAGE>
ARTICLES OF INCORPORATION
OF
UMB FINANCIAL CORPORATION, INC.
The undersigned natural persons of the age of
twenty-one years or more, for the purpose of forming a
corporation under The General and Business Corporation Law of
Missouri, adopt the following Articles of Incorporation:
ARTICLE I
The name of the corporation is "UMB Financial
Corporation."
ARTICLE II
The address of the corporation's initial registered
office in the State of Missouri is: 928 Grand Avenue, Kansas
City, Missouri, and the name of its initial registered agent
at such address is: Charles G. Young, Jr.
ARTICLE III
The aggregate number of shares which the corporation
shall have the authority to issue is thirty-four million
(34,000,000). Thirty-three million (33,000,000) of such
shares shall be common stock with a par value of one dollar
($1.00) per share, and such common stock shall have no
preferences, qualifications, limitations, restrictions or
special relative or convertible rights. The remaining one
million (1,000,000) shares shall be preferred stock with a par
value of one cent ($0.01) per share.
The Board of Directors is authorized, subject to
limitations prescribed by law and the provisions of this
Article III, to provide for the issuance of the shares of
preferred stock in series, and by compliance with the
applicable law of Missouri, to establish from time to time the
number of shares to be included in each such series, and to
fix the designations, powers, preferences and rights of the
shares of each such series and the qualifications, limitations
or restrictions thereof. The authority of the Board of
Directors with respect to each series shall include, but not
be limited to, determination of the following:
(a) The number of shares to constitute such series (which
number may at any time, or from time to time, be
increased or decreased by the Board of Directors,
notwithstanding that shares of the series may be
outstanding at the time of such increase or decrease,
unless the Board of Directors shall have otherwise
provided in creating such series) and the distinctive
designation thereof;
(b) The dividend rate on the shares of such series,
whether or not dividends on the shares of such series
shall be cumulative, and the date or dates, if any,
from which dividends thereon shall be cumulative;
(c) Whether or not the shares of such series shall be
redeemable, and, if redeemable, the date or dates
upon or after which they shall be redeemable, the
amount per share payable thereon in the case of the
redemption (which amount shall be, in the case of
each share, not less than its preference upon
involuntary liquidation, plus an amount equal to all
dividends thereon accrued and unpaid, whether or not
earned or declared and which amount may vary at
different redemption dates or
otherwise as permitted by law) and whether such
series may be redeemed for cash, property or rights,
including securities of the corporation or another
corporation;
(d) The right, if any, of holders of such series to
convert the same into, or exchange the same for,
common stock or other securities, and the terms and
conditions of such conversion or exchange, as well as
any provisions for adjustment of the conversion rate
in such events as the Board of Directors shall
determine;
(e) Whether the holders of shares of such series shall
have voting power, in addition to the voting powers
provided by law, and if such additional voting power
is established, to fix the extent thereof;
<PAGE>
(f) Whether such series shall have a sinking fund for the
redemption or repurchase of shares of that series,
and, if so, the terms and amount of such sinking fund;
(g) The rights of the shares of such series in the event
of voluntary or involuntary liquidation, dissolution
or winding up of the corporation, and the relative
rights of priority, if any, of payment of shares of
that series; and
(h) Any other rights and privileges and any
qualifications, limitations or restrictions of such
rights and privileges of such series; provided,
however, that the designations, powers, preferences
and rights, and the qualifications, limitations or
restrictions thereof, so fixed by the Board of
Directors shall not conflict with these Articles of
Incorporation or with the resolution or resolutions
adopted by the Board of Directors, as hereinabove
provided, providing for the issue of any series of
preferred stock for which there are then shares
outstanding.
All shares of preferred stock of the same series
shall be identical in all respects, except that shares of any
one series issued at different times may differ as to dates,
if any, from which dividends thereon may accumulate. All
shares of preferred stock of all series shall be of equal rank
and shall be identical in all respects, except that, to the
extent not otherwise limited in this Article III, any series
may differ from any other series with respect to any one or
more of the designations, relative rights, preferences and
limitations (including, without limitation, the designations,
relative rights, preferences and limitations described or
referred to in subparagraphs (a.) to (h.) inclusive above)
which may be fixed by the Board of Directors pursuant to this
Article III.
Dividends on the outstanding preferred stock shall be
declared and paid or set apart for payment before any
dividends shall be declared and paid or set apart for payment
on the common stock with respect to the same dividend period.
Dividends on any shares of preferred stock shall be cumulative
only if and to the extent established by the Board of
Directors.
All shares of preferred stock of all series shall be
of equal rank, preference and priority as to dividends
irrespective of whether the rates of dividends to which the
same shall be entitled shall be the same and when the stated
dividends are not paid in full, the shares of all series of
the preferred stock shall share ratably in the payment thereof
in accordance with the sums which would be payable on such
shares if all dividends were paid in full provided, however,
that any two or more series of the preferred stock may differ
from each other as to the existence and extent of the right to
cumulative dividends, as previously provided herein.
Except as otherwise specifically provided by law or
as established by the Board of Directors, preferred stock
shall not have any right to vote for the election of directors
or for any other purpose, but if so provided, the Board of
Directors may give each holder of preferred stock more or less
than one vote for each share of stock held of record by such
holder at the time entitled to voting rights.
In the event of any liquidation, dissolution or
winding up of the corporation, whether voluntary or
involuntary, each series of preferred stock shall have
preference and priority over the common stock for payment of
the amount to which such series of preferred stock shall be
entitled in accordance with the provisions thereof and each
holder of preferred stock shall be entitled to be paid in full
such holder's share of such amount, or have a sum sufficient
for the payment in full set aside. If, upon liquidation,
dissolution or winding up of the corporation, the assets of
the corporation or proceeds thereof, distributable among the
holders of the shares of all series of the preferred stock
shall be insufficient to pay in full the preferential amount
aforesaid, then such assets, or the proceeds thereof, shall be
distributed among such holders ratably in accordance with the
respective amounts which would be payable if all amounts
payable thereon were paid in full. After the payment to the
holders of preferred stock of all such amounts to which they
are entitled, as above provided, the remaining assets and
funds of the corporation shall be divided and paid to the
holders of common stock.
<PAGE>
In the event that the preferred stock of any one or
more series shall be made redeemable, the corporation, at the
option of the Board of Directors, may redeem, at the time or
times as established by the Board of Directors with respect to
any such series, all or any part of any such series of
preferred stock outstanding upon notice duly given as
hereinafter specified, by paying for each share the then
applicable redemption price plus an amount equal to accrued
and unpaid dividends to the date fixed for redemption. A
notice specifying the shares to be redeemed, and the time and
place of redemption (and, if less than the total outstanding
shares are to be redeemed, specifying the certificate numbers
and number of shares to be redeemed) shall be mailed,
addressed to the holders of record of the preferred stock to
be redeemed at their respective addresses as the same shall
appear upon the books of the corporation, not less than thirty
(30) days nor more than ninety (90) days previous to the date
fixed for redemption. If less than the whole amount of any
outstanding series of preferred stock is to be redeemed, the
shares of such series to be redeemed shall be selected by lot
or pro rata in any manner determined by resolution of the
Board of Directors to be fair and proper. From and after the
date fixed in any such notice as the date of redemption
(unless default shall be made by the corporation in providing
monies at the time and place of redemption for payment of the
redemption price) all dividends upon the preferred stock so
called for redemption shall cease to accrue. With respect to
any shares of preferred stock so called for redemption, if,
before the redemption date, the corporation shall deposit with
a bank or trust company in the United States, having a capital
and surplus of at least $10,000,000, funds necessary for such
redemption, in trust, to be applied to the redemption of the
shares of preferred stock so called for redemption, then from
and after the date of such deposit, all rights of the holders
of such shares of preferred stock so called for redemption
shall cease, except the right to receive, on and after the
date of such deposit, the redemption price upon surrender of
the certificates representing such shares of preferred stock
so called for redemption, duly endorsed for transfer, if
required, and except as might otherwise be provided by the
Board of Directors with respect to any such shares of
preferred stock so called for redemption. Any interest
accrued on such funds shall be paid to the corporation from
time to time. Any funds so deposited and unclaimed at the end
of six (6) years from such redemption date shall be released
or repaid to the corporation, after which the holders of such
shares of preferred stock so called for redemption shall look
only to the corporation for payment of the redemption price.
Notwithstanding the foregoing, no redemption of any shares of
any series of preferred stock shall be made by the corporation
(1) which as of the date of mailing of the notice of such
redemption would, if such date were the date fixed for
redemption, reduce the net assets of the corporation remaining
after such redemption below the aggregate amount payable upon
voluntary or involuntary liquidation, dissolution or winding
up to the holders of shares having rights senior or equal to
the preferred stock in the assets of the corporation upon
liquidation, dissolution or winding up; or (2) unless all
cumulative dividends for the current and all prior dividend
periods have been declared and paid or declared and set apart
for payment on all shares of the corporation having a right to
cumulative dividends.
Shares of any series of preferred stock which have
been redeemed, retired or purchased by the corporation
(whether through the operation of a sinking or purchase fund
or otherwise) or which, if convertible or exchangeable, have
been converted into or exchanged for shares of stock of the
corporation of any other class or series shall thereafter have
the status of authorized but unissued shares of preferred
stock of the corporation, and may thereafter be reissued as
part of the same series or may be reclassified and reissued by
the Board of Directors in the same manner as any other
authorized and unissued shares of preferred stock.
<PAGE>
ARTICLE IV
The number and class of shares to be issued before
the corporation shall commence business is fifty (50) shares
of common stock with a par value of Twelve Dollars and Fifty
Cents ($12.50) per share. The consideration to be paid
therefor and the capital with which the corporation shall
commence business is Six Hundred Twenty-Five Dollars
($625.00). The corporation will not commence business until
consideration of the value of at least Six Hundred Twenty-Five
Dollars ($625.00) has been received for the issuance of shares.
ARTICLE V
The name and place of residence of each incorporator
is as follows:
R. Crosby Kemper, Jr.
1014 Greenway Terrace
Kansas City, Missouri
Charles G. Young, Jr
221 West 48th Street
Kansas City, Missouri
V. B. Kassebaum
1215 West 59th Street
Kansas City, Missouri
ARTICLE VI
The number of directors constituting the first Board
of Directors of the corporation was nine (9) and the number
constituting the Board at the time of the effectiveness of the
Amendment is seventeen (17). Hereinafter, the number of
directors shall be fixed by, or in the manner provided in, the
By-Laws of the corporation. Any change in the number of
directors shall be reported to the Secretary of State within
thirty (30) calendar days of such change. Directors need not
be shareholders unless the By-Laws require them to be
shareholders.
ARTICLE VII
The duration of the corporation is perpetual.
ARTICLE VIII
The corporation is formed for the following purposes:
(a) To purchase, subscribe for or otherwise acquire and
own, hold as an investment or otherwise, use, sell,
assign, deal in, transfer, mortgage, pledge, exchange
or otherwise dispose of, alone or in syndicates or
otherwise in conjunction with others, shares of
capital stock, bonds, debentures, notes, evidences of
indebtedness and other securities, contracts or
obligations of any corporation, association,
partnership, entity, or governmental, municipal or
public authority, domestic or foreign, and to pay
therefor in whole or in part, in cash or by
exchanging therefor shares of the capital stock,
bonds, debentures, notes or other obligations of this
corporation or any other corporation, and while the
owner or holder of any such property to receive,
collect and dispose of the interest, dividends and
income arising from such property, and to possess and
exercise in respect thereof all the rights, powers
and privileges of ownership, including all voting
powers of any securities so owned:
(b) To carry on and conduct either directly or through
subsidiaries any lawful business or businesses, and
to do all things necessary or proper for the conduct
of any businesses in which the corporation may be
engaged;
(c) To make, manufacture, process, organize, finance,
manage, operate, purchase, sell, own, hold, store,
exchange, rent, lease, service, repair, handle or
deal in and within any manner, property of any and
every description and class which is now or may
become the subject of trade or commerce;
<PAGE>
(d) To cause to be formed, to promote, and to aid in the
formation of any corporation or association, domestic
or foreign, and to cause or participate in the
merger, consolidation, reorganization, liquidation or
dissolution of any corporation or association,
domestic or foreign, in which, or in the business or
welfare of which, the corporation shall have directly
or indirectly any interest;
(e) To operate, manage, supervise, and control all or any
part of the business and property of any corporation,
association, firm, entity, individual or undertaking,
domestic or foreign, or to take any part therein, and
to appoint and remunerate any directors, accountants,
other experts, agents, employees and persons;
(f) To acquire by purchase, lease or otherwise, to
construct, assemble, own, hold, lease, rent, remodel,
improve, reconstruct, mortgage, encumber, operate,
manage, deal in and dispose of machinery, equipment,
appliances, fixtures, buildings, offices, factories,
store rooms, warehouses, plants, garages, apartments
and houses, with all improvements, machines, fixtures
and equipment appurtenant or convenient thereto, or
which may be useful or desirable in the conduct of
any business or businesses in which the corporation
is or may be engaged;
(g) To own, acquire, buy, sell, deal in, lease, rent,
remodel, improve, reconstruct, mortgage and otherwise
encumber real estate, whether improved or unimproved,
and any interest of any kind whatsoever therein, and
to own, hold, deal in and dispose of such property,
whether real, personal or mixed;
(h) To acquire the good will, business, rights and
property of any person, firm, association or
corporation, and to pay for the same in cash,
property, stocks, notes or otherwise; to hold and
enjoy or in any manner to dispose of the whole or any
part of the property, assets and rights so acquired;
to conduct in any lawful manner the whole or any part
of any business so acquired, and to exercise all
powers necessary or convenient in and about the
conduct and management of any business or businesses
in which the corporation is now or may hereafter be
engaged;
(i) To sell, lease, convey, or otherwise dispose of,
mortgage, pledge or otherwise encumber all or any
part of its property and assets;
(j) To acquire, deal in, purchase, own, hold, lease rent,
mortgage, develop, mine, produce, acquire, exploit,
encumber and dispose of lumber, natural resources,
minerals and mineral rights or royalty interests of
any kind;
(k) To acquire, own, deal in, hold, enjoy, use and
dispose of patents and patent rights, trademarks and
trade names, distinctive marks, copyrights, licenses,
inventions, improvements, processes, franchises,
permits and other evidences of lawful authority or
agency;
(l) To borrow money for any of the purposes of the
corporation and to draw, make, accept, endorse,
discount, execute, issue, sell, pledge or otherwise
dispose of promissory notes, drafts, bills of
exchange, warrants, bonds, debentures and other
negotiable or non-negotiable, transferable or
non-transferable instruments and evidences of
indebtedness, and to secure the payment thereof and
the interest thereon by mortgage, assignment in
trust, pledge, conveyance, or other encumbrance of
the whole or any part of the property of the
corporation at the time owned or thereafter acquired;
(m) To purchase, acquire, hold, sell, transfer and redeem
or otherwise deal in shares of its own capital stock,
whenever and to the fullest extent permitted by law;
(n) To lend money, and to acquire, take or hold as
security, if desired, real and personal property,
bonds, debentures, notes or any other evidences of
interest or indebtedness or any other security for
the payment of funds so loaned; to promote or to aid
in any manner, financially or otherwise, any
corporation or association of which any stocks,
bonds, or other evidences of indebtedness or
securities are held directly or indirectly by this
corporation; and for this purpose to guarantee the
contracts, dividends, stocks, bonds, notes and other
obligations of such other corporation or association,
and to do any other acts or things designed to
protect, preserve, improve or enhance the value of
such stocks, bonds, or other evidences of
indebtedness of securities;
(o) To have and to exercise all powers necessary or
incident to carrying out its corporate purposes, to
exercise all other powers permitted by law, and to
possess and enjoy all rights and powers which now or
at any time hereafter may be granted to or exercised
by a corporation of this character;
(p) Nothing in these Articles of Incorporation shall
authorize this corporation to engage in any business
which would cause the corporation to be, or become,
an investment company as that term is defined in the
Investment Company Act of 1940, or shall authorize
the corporation to hold itself out as such an
investment company.
ARTICLE IX
No holder of stock of the corporation of any class
shall be entitled as a matter of right to subscribe for or
purchase any part of any new or additional issue of stock, or
securities convertible into stock, of any class whatsoever,
whether now or hereafter authorized, and all such additional
shares of stock or other securities convertible into stock may
be issued and disposed of by the Board of Directors to such
person or persons and on such terms and for such consideration
(so far as may be permitted by law) as the Board of Directors,
in their absolute discretion, may deem advisable.
ARTICLE X
The By-Laws of the corporation may from time to time
be altered, amended, suspended or repealed, or new By-Laws may
be adopted, in any of the following ways: (i) by the
affirmative vote, at any annual or special meeting of the
shareholders, of the holders of at least two-thirds of the
outstanding shares of stock of the corporation entitled to
vote thereon, or (ii) by resolution adopted by a majority of
the full Board of Directors at a meeting thereof, or (iii) by
unanimous written consent of all the Directors in lieu of a
meeting; provided, however, that the power of the Directors to
alter, amend, suspend or repeal the By-Laws or any portion
thereof may be denied as to any By-Laws or portion thereof
enacted by the shareholders if at the time of such enactment
the shareholders shall so expressly provide.
ARTICLE XI
The corporation reserves the right to alter, amend or
repeal any provision contained in its Articles of
Incorporation in the manner now or hereafter prescribed by the
statutes of Missouri, and all rights and powers conferred
herein are granted subject to this reservation; and, in
particular, the corporation reserves the right and privilege
to amend its Articles of Incorporation from time to time so as
to authorize other or additional classes of shares (including
preferential shares), to increase or decrease the number of
shares of any class now or hereafter authorized, to establish,
limit or deny to shareholders of any class the right to
purchase or subscribe for any shares of stock of the
corporation of any class, whether now or hereafter authorized
or whether issued for cash, property or services or as a
dividend or otherwise, or to purchase or subscribe for any
obligations, bonds, notes, debentures, or securities or stock
convertible into shares of stock of the corporation or
carrying or evidencing any right to purchase shares of stock
of any class, and to vary the preferences, priorities, special
powers, qualifications, limitations, restrictions and the
special or relative rights or other characteristics in respect
of the shares of each class, and to accept and avail itself
of, or subject itself to, the provisions of any statutes of
Missouri hereafter enacted pertaining to general and business
corporations, to exercise all the rights, powers and
privileges conferred upon corporations organized thereunder or
accepting the provisions thereof and to assume the obligations
and duties imposed therein, upon the affirmative vote of the
holders of a majority of the shares of stock entitled to vote
thereon, or, in the event the laws of Missouri require a
separate vote by classes of shares, upon the affirmative vote
of the holders of a majority of the shares of each class whose
separate vote is required thereon; provided, however, that
none of the provisions of the ARTICLE XI or ARTICLE III or
ARTICLE X may be amended or repealed nor may any provision be
added to these Articles of Incorporation that would be
inconsistent with any provision of this ARTICLE XI or ARTICLE
III or ARTICLE X hereof or by the By-Laws of the corporation,
unless such amendment, repeal or additional provision shall be
approved by the affirmative vote, at any annual or special
meeting of the shareholders, of the holders of at least
two-thirds of the outstanding shares of the corporation
entitled to vote thereon.
IN WITNESS WHEREOF, these Articles of Incorporation
have been signed this _____ day of_______________, 19___.
______________________________
______________________________
______________________________
STATE OF MISSOURI )
)
COUNTY OF JACKSON)
I, ____________________, a Notary Public, do hereby
certify that on this ____ day of ________________, 19___,
personally appeared before me ____________________,
____________________ and _____________________ who being by me
first duly sworn, declared that they are the persons who
signed the foregoing document as incorporators, and that the
statements therein contained are true.
______________________________
Notary Public
My commission expires:
___________________
<PAGE>
EXHIBIT 4.2
UMB FINANCIAL CORPORATION
BY-LAWS
(As amended through July 30, 1996)
ARTICLE I
Location of Offices
Section 1. Principal Office. The principal office of the
Corporation shall be located in Kansas City, Jackson County,
Missouri, or at such other place as may be designated from
time to time by the Board of Directors.
Section 2. Other Offices. The Corporation may have offices
at such other place or places, either within or without the
State of Missouri, as the Board of Directors may from time to
time designate.
ARTICLE II
Meetings of Stockholders
Section 1. Annual Meeting. The annual meeting of the
stockholders shall be held at the principal office of the
Corporation, or at such other place as shall be designated in
the notice thereof, beginning at 11:00 a.m. or such other hour
as shall be designated in such notice, on the Thursday
following the third Wednesday in April in each year, or if
that be a legal holiday on the next succeeding day not a legal
holiday, for the purpose of electing a Board of Directors and
transacting such other business as may come before the meeting.
Section 2. Special Meetings. Special meetings of the
stockholders may be called at any time by the Chairman of the
Board, or in the case of the absence or disability of the
Chairman of the Board, by the Vice-Chairman of the Board, or
the President, or at any time upon the written request of a
majority of the Board of Directors, or upon the written
request of the holders of not less than one-fifth of the
outstanding stock of the Corporation entitled to vote at such
meeting. Each call for a special meeting of the stockholders
shall state the time, the day, the place and the purpose or
purposes of such meeting, and shall be in writing, signed by
the persons making the same, and delivered to the Secretary.
No business shall be transacted at a special meeting other
than such as is included in the purposes stated in the call.
Section 3. Notice of Meetings. Written or printed notice of
each meeting of the stockholders stating the hour and day
when, and the place where, such meeting is to be held shall be
served as hereinafter provided on each stockholder entitled to
vote thereat not less than ten (10) days or no more than fifty
(50) days before such meeting, except that further notice
shall be given of particular matters if required by law. In
the case of the annual meetings the notice shall state that
the purposes thereof are the election of a Board of Directors
and the transaction of such other business as may come before
the meeting. In the case of a special meeting such notice
shall state the purpose or purposes for which the meeting is
called. Service of such notice shall be made either
personally or by depositing the same in a sealed envelope
addressed to the stockholder at his address as it appears upon
the records of the Corporation, and deposited in a United
States Post Office, with the postage thereon prepaid. If such
notice is served by mailing the same, it shall be deemed to
have been given at the time when the same shall be thus
mailed. If any stockholder shall not have an address
appearing upon the books of the Corporation, such notice may
be given by mailing the same as heretofore provided, addressed
to such stockholder at the General Post Office in Kansas City,
Missouri. Service of such notice shall be made by the
Secretary, but in case the Secretary shall refuse or neglect
to serve such notice upon each stockholder as herein provided,
then such service may be made by any officer or director of
the Corporation. In addition, such published notice shall be
given as required by law.
Section 4. Waiver of Notice. Any stockholder may waive
notice of any meeting of the stockholders, by a writing signed
by him, or by his duly authorized attorney, either before or
after the time of such meeting. A copy of such waiver shall
be entered in the minutes, and shall be deemed to be the
notice required by law or by these By-Laws. Any stockholder
present in person, or represented by proxy, at any meeting of
the stockholders shall be deemed to have thereby waived notice
of such meeting except where such attendance is for the
express purpose of objecting to the transaction of any
business because the meeting is not lawfully called or
convened.
<PAGE>
Section 5. Actions Without a Meeting. Any action which is
required to be taken, or may be taken, at a meeting of
stockholders may be taken without a meeting if consents in
writing, setting forth the action so taken, shall be signed by
all of the stockholders entitled to vote with respect to the
subject matter thereof. Such consents shall have the same
force and effect as a unanimous vote of the stockholders at a
meeting duly held, and may be stated as such in any
certificate or document filed under the provisions of Chapter
351 of the Revised Statutes of Missouri, 1959, as amended.
The Secretary shall file such consents in the minute book of
the Corporation.
Section 6. List of Stockholders. At least ten (10) days
before each meeting of stockholders the Secretary shall cause
to be prepared a complete list of the names and addresses of
all stockholders entitled to vote at such meeting, arranged in
alphabetical order, with the number of shares held by each,
and such list shall be produced and kept at the registered
Missouri office and shall be subject to inspection by any
stockholder during regular business hours. Such list shall
also be produced and kept open at the meeting and shall be
subject to inspection by any stockholder during the meeting.
Section 7. Quorum. At any meeting of the stockholders, a
majority of the outstanding capital stock entitled to vote at
such meeting, being represented in person or by proxy, shall
constitute a quorum for all purposes, including the election
of directors, except where it is otherwise provided by law.
Section 8. Organization. The Chairman of the Board, and in
his absence, the Vice-Chairman of the Board or the President,
shall preside at each meeting of the shareholders and shall
act as Chairman thereof. The Secretary shall act as secretary
of all meetings of the stockholders.
Section 9. Voting. At each meeting of the stockholders, each
stockholder shall be entitled to vote in person, or by proxy
made in accordance with the provisions of the By-Laws of the
Corporation, held by some person or persons present at such
meeting, upon all matters presented at the meeting. With the
exception of the election of directors, each stockholder shall
have one vote for each share of stock standing in his name on
the books of the Corporation on the record date determined as
provided in Section 6 of Article VII of the By-Laws. In the
election of directors each stockholder shall have the right to
cast as many votes in the aggregate as shall equal the number
of shares held by him multiplied by the number of directors to
be elected at such election, and said votes may be cast for
one director or distributed among two or more candidates. All
questions, except any question the manner of deciding which is
specially regulated by law, shall be determined by a majority
of the outstanding shares of capital stock represented at each
meeting. If voting shall be by ballot for the election of
directors or other questions, the Chairman of such meeting of
the stockholders may appoint not less than two (2) persons,
who are not directors or candidates for the election as a
director, to act as Inspectors of Election and to receive and
canvass the votes cast at such meeting and certify the results
to the Chairman. Each such Inspector, before entering upon
the discharge of his duties, shall take and subscribe the
following oath: "I do solemnly swear, that I will execute the
duties of an Inspector of the election now to be held, with
strict impartiality and according to the best of my ability."
The Inspectors of Election shall take care of the polls and
after the balloting shall make and file a written certificate
of the result of the votes cast at the meeting.
Section 10. Adjournment. If, at any meeting of the
stockholders, a quorum shall fail to attend at the time and
place for which such meeting was called, or if the business of
such meeting shall not be completed, the stockholders present
in person or represented by proxy may, by a majority vote,
adjourn the meeting from day to day, or from time to time, not
exceeding ninety (90) days from such adjournment, without
further notice, until a quorum shall attend or the business
thereof shall be completed. Such adjournment and the reasons
therefor shall be recorded in the minutes. At any such
adjournment meeting, any business may be transacted which
might have been transacted at the meeting as originally called.
Section 11. Proxies. Every proxy must be in writing, signed
by the stockholder himself, or by his duly authorized
attorney, or by his legal representative, and must be filed
with the Secretary of the Corporation at or before the roll
call of the meeting at which the same is to be used, and
unless so signed and filed it cannot be used at such meeting.
Any proxy may be revoked at the pleasure of the person
executing it, by a writing similarly signed and filed, unless
such person shall have specified therein that it is
irrevocable. No proxy shall be valid after the expiration of
eleven (11) months from its date, unless the person executing
it shall have specified therein the length of time for which
such proxy is to continue in force. In the event that such
instrument in writing shall designate two or more persons to
act as proxies, a majority of such persons present at the
meeting, or, if only one shall be present, then that one,
shall have and may exercise all of the powers conferred by
such written instrument upon all of the persons so designated,
unless the instrument shall otherwise provide.
<PAGE>
ARTICLE III
Directors
Section 1. Qualifications. The corporate powers, business
and property of the Corporation shall be exercised, conducted
and controlled by the Board of Directors. It shall not be
necessary for a director to be a stockholder.
Section 2. Directors - Number; Classes. Unless the Articles
of Incorporation shall require a different number, the number
of directors to constitute the Board of Directors shall be
twenty-eight (28). Commencing with the annual meeting of
shareholders in 1979, the Board of Directors shall be divided
into three classes, Class I, Class II, and Class III, as
nearly equal in number as possible. At the annual meeting of
shareholders in 1979, directors of the first class (Class I)
shall be elected to hold office for a term expiring at the
next succeeding annual meeting of shareholders, directors of
the second class (Class II) shall be elected to hold office
for a term expiring at the second succeeding annual meeting of
shareholders, and directors of the third class (Class III)
shall be elected to hold office for a term expiring at the
third succeeding annual meeting of shareholders. At each
annual meeting of shareholders, subsequent to the annual
meeting of shareholders in 1979, the successors to the class
of directors whose term shall then expire shall be elected to
hold office for a term expiring at the third succeeding annual
meeting. Any increase or decrease in the authorized number of
directors shall be apportioned among the classes so as to make
all classes as nearly equal in number as possible. No
decrease in the authorized number of directors shall shorten
the term of any incumbent director. If it shall happen at any
time that the election of directors shall not be held on the
day designated by the By-Laws of the Corporation, such
election may be held on any other day at a special meeting of
the shareholders called and held for that purpose.
Section 3. Election of Directors; Terms; Removals;
Vacancies. If at any meeting of shareholders, due to a vacancy
or vacancies, or otherwise, directors of more than one class
are to be elected, each class of directors to be elected at
the meeting shall be elected in a separate election. Each
director shall hold office for the term for which he is
elected in accordance with these By-Laws, and until his
successor is elected and qualified or until his earlier death,
resignation or removal. The entire Board or any one or more
directors may be removed with or without cause if (1) at a
meeting specially called for the purpose of removing
directors, the holders of at least two-thirds of the
outstanding shares of stock then entitled to vote in elections
of directors shall vote for such removal, and (2) as to any
director, the number of shares voted against removal would not
be sufficient to elect him if then cumulatively voted in an
election of the entire Board of Directors, or, if there be
classes of directors, at an election of the class of directors
of which he is a part. If the office of any director is
vacant by reason of death, resignation, removal or increase in
the number of authorized directors due to amendment of the
By-Laws, a majority of the other directors, though less than a
quorum, may fill the vacancy until a successor shall have been
duly elected at a shareholders meeting, which election shall
be not later than the next regularly scheduled annual meeting
of the shareholders. Any successor so elected at a
shareholders meeting shall be elected for a term which shall
expire on the same date as the term of his predecessor would
have expired.
Section 4. Annual Meeting. The annual meeting of the
directors for the purpose of electing officers and transacting
such other business as may come before the meeting shall be
held on the same day as the annual meeting of the
stockholders, following the final adjournment of the annual
meeting of stockholders on that day. In the event the annual
meeting of stockholders is continued, recessed or adjourned
from day to day, or from time to time, then in such event the
annual meeting of the directors shall be held immediately
following the final adjournment of the annual meeting of
stockholders. If for any reason such annual meeting of the
directors is not or cannot be held as herein prescribed, the
officers may be elected at any meeting of the directors
thereafter held.
Section 5. Regular Meetings Other Than Annual Meetings.
Regular meetings of the directors may be held at such time and
place as shall be determined from time to time by resolution
of the Board of Directors. After the time and place of such
regular meeting shall have been so determined, no notice of
such regular meeting need be given.
Section 6. Special Meetings. Special meetings of the Board
of Directors for any purpose or purposes shall be called by
the Secretary of the Corporation at the written request of the
Chairman of the Board, the Vice-Chairman of the Board, the
President or at the written request of a majority of the
directors. Such request shall state the purpose or purposes
of the proposed meeting.
Section 7. Notice of Meetings. No notice shall be required
to be given of any regular meeting of the Board of Directors.
Notice of any change in the place of holding any regular
meeting, or of any adjournment of a regular meeting to
reconvene at a different place, shall be given by mail or
telegraph not less than forty-eight (48) hours before such
meeting, to all directors who were absent at the time such
action was taken. The Secretary of the Corporation shall give
notice of all special meetings of the directors by delivering
to each director in person not later than the day prior to the
meeting, or as to any such director not so personally notified
by mailing to him, a written or printed notice of such
meeting, postage prepaid, or by telegraph or by messenger
delivery to each such director, at his last known address, so
that in the ordinary course of the method of delivery it would
reach such director at least on the day prior to the meeting.
The business transacted at all special meetings of directors
shall be confined to the subjects stated in the notice and to
matters germane thereto, unless all directors of the
Corporation are present at such meeting and consent to the
transaction of other business. Whenever any notice is
required to be given to any director under any provisions of
the By-Laws, a waiver thereof in writing, signed by the person
entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. Such
waiver may be by telegram, confirmed in writing within five
(5) days thereafter.
Section 8. Actions Without a Meeting. If all the directors,
severally or collectively, consent in writing to any action to
be taken by the directors, such consents shall have the same
force and effect of a unanimous vote of the directors at a
meeting duly held, and may be stated as such in any
certificate or document filed under the provisions of Chapter
351 of the Revised Statutes of Missouri, 1959, as amended.
The Secretary shall file such consents in the minute book of
the Corporation.
Section 9. Quorum. A majority of the Board of Directors of
the Corporation, at a meeting duly assembled, shall be
necessary to constitute a quorum for the transaction of
business, and the act of a majority of the directors present
at a meeting at which a quorum is present shall be the act of
the Board of Directors, except where otherwise provided by law
or by the By-Laws of the Corporation.
<PAGE>
Section 10. Adjournment. If at any meeting of the Board of
Directors a quorum shall fail to attend, a majority of the
directors present at the time and place appointed for such
meeting may adjourn the meeting from time to time to any date
until the next regular meeting, without notice other than
verbal announcement at the meeting and adjournments thereof,
until a quorum shall attend. Likewise, any meeting of
directors at which a quorum is present may also be adjourned,
in like manner and on like notice, for such time or upon such
call as may be determined by vote of a majority of the
directors there present. At any adjournment of any such
meeting at which a quorum shall be present, any business may
be transacted which might have been transacted at the meeting
as originally called.
Section 11. Organization. The Chairman of the Board, and in
his absence the Vice-Chairman of the Board or the President,
and in the absence of all of them, a Chairman pro tem, chosen
by the directors present, shall preside at each meeting of the
directors and shall act as Chairman thereof. The Secretary or
an Assistant Secretary, and in the absence of the Secretary or
any Assistant Secretary, a Secretary pro tem, chosen by the
directors present, shall act as Secretary of all meetings of
the directors.
Section 12. Rules and Regulations. The Board of Directors
shall supervise all officers and agents and see that their
duties are properly performed. The Board of Directors may
adopt such rules and regulations for the conduct of their
meetings, the guidance of the officers and the management of
the affairs of the Corporation as they deem proper, not
inconsistent with law or the By-Laws of the Corporation, and
may, from time to time, determine the order of business at
their meetings.
Section 13. Minutes and Statements. The Board of Directors
shall cause to be kept a complete record of their meetings and
acts, and of the proceedings of the stockholders.
Section 14. Powers of the Board. In addition to the power
and authority conferred upon them by law, the Board of
Directors may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by law
prohibited or limited, and which are not required or directed
to be exercised or done by the stockholders.
Section 15. Compensation of Directors. The compensation to
be paid the directors of this Corporation for services at all
regular or special meetings of the Board of Directors shall be
determined from time to time by the Board of Directors;
provided, that no such compensation shall be paid to any
director who shall at the time be receiving a salary from this
Corporation or any of its subsidiaries as an officer thereof.
ARTICLE IV
Committees
Section 1. Executive Committee. The Board of Directors may,
by resolution passed by a majority of the total number of
directors, designate an Executive Committee to consist of the
Chairman of the Board, the President, and such number of other
Directors, Advisory Directors and Executive Officers as they
shall determine. The members of the Executive Committee shall
hold their office as such until the membership is changed by
the Board of Directors. In making such new appointments the
Board of Directors shall designate the Directors, Advisory
Directors or Executive Officers said appointees are to succeed
and the time they are respectively to serve on said
Committee. The Executive Committee shall have and may
exercise all powers of the Board of Directors. A majority of
the members of the Executive Committee shall determine its
action and shall fix the time and place of its meetings unless
the Board of Directors shall otherwise provide. When regular
meetings have been established no notice shall be required
thereof and any and all business may be transacted thereat.
Notices of special meetings shall be given in the same manner
as is provided for special meetings of the Board of
Directors. Unless otherwise indicated in the notice thereof
any and all business may be transacted at a special meeting.
A majority of the Executive Committee shall constitute a
quorum. The Executive Committee shall keep regular minutes of
its proceedings and shall report the same at the next
succeeding meeting of the Board of Directors.
Section 2. Other Committees. The Board of Directors may,
from time to time, designate such other committees as the
Board may deem advisable, and may select or designate the
manner of selecting any such committee, which committee may
consist in whole or in part of officers of this Corporation,
whether or not they be directors thereof, or directors of any
subsidiary of this corporation. Each such committee shall
have and may exercise such powers as the Board of Directors
shall provide by its resolution.
Section 3. Compensation of Committee Members. The Board of
Directors shall determine the compensation to be paid to each
member of any committee appointed by it for service on such
committee, provided that no such compensation shall be paid to
any committee member who shall at the time be receiving a
salary from the Corporation or any of its subsidiaries as an
officer thereof.
<PAGE>
ARTICLE V
Officers
Section 1. Executive Officers. The executive officers of the
Corporation shall be a Chairman of the Board, a President, one
or more Vice-Chairmen of the Board, one or more Vice
Presidents, a Secretary, a Treasurer and such other executive
officers as shall be designated by the Board of Directors, all
of whom shall be chosen by the Board of Directors. The
Chairman of the Board and the President shall be chosen from
among the directors; any person may hold two or more offices,
except the offices of Chairman of the Board and Secretary, or
President and Secretary.
Section 2. Subordinate Officers. The Board of Directors, the
Chairman of the Board, the Vice-Chairman of the Board, or the
President may appoint such subordinate officers and such
assistant officers as the Board of Directors, the Chairman of
the Board, the Vice-Chairman of the Board, or the President
may deem necessary or advisable.
Section 3. Tenure of Office and Removal. The tenure of
office of each of the executive officers of the Corporation,
subject to prior removal, shall be until the close of the next
annual meeting of the stockholders following his election, and
until the election of his successor. Any executive officer
may be removed at any time prior to the expiration of his term
by affirmative vote of the majority of the directors. The
Board of Directors, the Chairman of the Board, the
Vice-Chairman of the Board, or the President may remove any
subordinate officer or assistant officer at any time. If the
office of any officer of the Corporation becomes vacant by
reason of death, resignation, retirement, disqualification or
removal from office, or inability to act, the Board of
Directors may, in every such case, choose a successor for such
officer who shall hold office for such term as may be
prescribed by the Board of Directors, but no longer than the
unexpired portion of the term of the officer or agent whose
place is vacant, and until his successor shall have been duly
elected and qualified.
Section 4. Compensation. The Board of Directors may from
time to time in its discretion fix or alter the compensation
of any executive officer and the Board of Directors or the
officer who appointed any subordinate or assistant officer may
from time to time in its or his discretion fix or alter the
compensation of any subordinate or assistant officer.
Section 5. Duties of the Officers. The Chairman of the
Board, the Vice-Chairman of the Board, the President and the
Vice-Presidents shall perform such duties as may from time to
time be directed by the Board of Directors and have such
powers as may from time to time be conferred upon them by the
Board of Directors, except to the extent otherwise provided by
law.
The Secretary shall attend all meetings of the stockholders of
the Corporation, and the Board of Directors and standing
committees. He shall act as the clerk or secretary thereof
and shall record all of the proceedings of such meetings in
minute books kept for that purpose. He shall keep in safe
custody the corporate seal of the Corporation and is
authorized to affix the same to all instruments requiring the
Corporation's seal. He shall have charge of the corporate
records and, except to the extent authority may be conferred
upon any transfer agent or registrar duly appointed by the
Board of Directors, he shall maintain the Corporation's books,
registers stock certificate and stock transfer books and stock
ledgers, and such other books, records and papers as the Board
of Directors may from time to time entrust to him. He shall
give or cause to be given proper notice of all meetings of
stockholders and directors as required by law and the By-Laws,
and shall perform such other duties as may from time to time
be prescribed by the Board of Directors.
The Treasurer shall have the custody of the corporate funds
and securities of the Corporation and shall keep full and
accurate account of the receipts and disbursements in books
belonging to the Corporation, and shall deposit all moneys and
other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the
Board of Directors. He shall disburse the funds of the
Corporation in the manner and for the purpose ordered by the
Board of Directors, and shall render to the Board of
Directors, whenever they may require it, an account of all of
his transactions as Treasurer and of the financial condition
of the Corporation. And he shall perform such other duties as
the Board of Directors may from time to time prescribe.
Any subordinate officers and assistant officers appointed by
the Board of Directors, the Chairman of the Board, the
Vice-Chairman of the Board, or the President shall perform such
duties as may from time to time be directed by the Board of
Directors or the officer who appointed them and any such
subordinate officer of assistant officer shall have such
powers as may from time to time be conferred upon them by the
Board of Directors or the officer who appointed them, except
to the extent otherwise provided by law.
Section 6. Officers' Bonds. The Board of Directors may
require any officer or officers to furnish the Corporation a
bond in such sum and in form and with security satisfactory to
the Board of Directors for the faithful performance of the
duties of their offices and the restoration to the Corporation
in case of death, resignation or removal from office of such
officer or officers, of all books, papers, vouchers, money and
other property of whatever kind in their possession, belonging
to the Corporation.
<PAGE>
ARTICLE VI
Agents and Attorneys
The Chairman of the Board, the Vice-Chairman of the Board and
the President or any one of them, may appoint such agents,
attorneys and attorneys-in-fact of the Corporation as any one
of them may deem proper, and any one of them may, by written
power of attorney, authorize such agents, attorneys, or
attorneys-in-fact, to represent the Corporation and for it and
in its name, place and stead, and for its use and benefit to
transact any and all business, to the extent authorized, which
said Corporation is authorized to transact or do by its
Articles of Incorporation, and in its name, place and stead,
and as its corporate act and deed, to sign, acknowledge and
execute any and all contracts and instruments, in writing,
necessary or convenient in the transaction of such business as
fully to all intents and purposes as said Corporation might or
could do if it acted by and through its regularly elected and
qualified officers.
<PAGE>
ARTICLE VII
Certificate of Stock and Transfers
Section 1. Forms and Execution of Certificates. Each
stockholder of the Corporation whose stock has been paid for
in full shall be entitled to have a certificate or
certificates, certifying the number of shares of stock of the
Corporation owned by him. The certificates of stock shall be
in such form as the Board of Directors shall determine. Each
certificate shall be signed by the Chairman or the President,
and the Secretary or an Assistant Secretary, having affixed to
it the seal of the Corporation, which seal may be facsimile,
engraved or printed, and express on its face its number, date
of issuance, the number of shares for which and the person to
whom it is issued. If the Corporation has a registrar, a
transfer agent or a transfer clerk who actually signs such
certificates, the signatures of any of the officers above
mentioned may be facsimile, engraved or printed. In case any
such officer who has signed or whose facsimile signature has
been placed upon any such certificate shall have ceased to be
such officer before such certificate is issued, such
certificate may nevertheless be issued by the Corporation with
the same effect as if such officer were an officer at the date
of its issue.
Section 2. Transfer of Stock. Shares of stock, after
certificates thereof have been issued, shall be transferable
only on the stock transfer books of the Corporation which
shall be in the possession of the Secretary or of a transfer
agent or clerk for the Corporation. No transfer shall be
valid against the Corporation until the same is so entered
upon its books and the old certificate is surrendered for
cancellation.
Section 3. Old Certificate to be Canceled. No new
certificate shall be issued for previously issued certificates
until the former certificate or certificates for the shares
represented thereby shall have been surrendered to and
canceled by the Secretary, by writing across the face thereof
the word "Canceled" with the date of cancellation; in case any
certificate shall be claimed to be lost or destroyed, no new
or duplicate certificate shall be issued for the shares
represented thereby and no new certificate shall be issued
upon a transfer of such shares, except pursuant to a judgment
of a court of competent jurisdiction, duly given and made in
accordance with the laws of the State of Missouri, or upon a
corporate surety bond or other indemnity in form and amount
satisfactory to the Corporation being furnished to the
Corporation.
Section 4. Treasury Stock. All issued and outstanding stock
of the Corporation that may be purchased or otherwise required
by the Corporation shall be treasury stock, and shall be
subject to disposal by action of the Board of Directors. Such
stock shall neither vote nor participate in dividends while
held by the Corporation.
Section 5. Registered Stockholders. The Corporation shall be
entitled to treat the registered holder of any share or shares
of stock whose name appears on its books as the owner or
holder thereof as the absolute owner of all legal and
equitable interest therein for all purposes and (except as may
be otherwise provided by law) shall not be bound to recognize
any equitable or other claim to or interest in such shares of
stock on the part of any other person, regardless of whether
or not it shall have actual or implied notice of such claim or
interest.
Section 6. Closing of Stock Transfer Books - Fixing Record
Date. The Board of Directors shall have power to close the
stock transfer books of the Corporation for a period not
exceeding fifty (50) days preceding the date of any meeting of
stockholders, or the date for payment of any dividend, or the
date for the allotment of rights, or the date when any change,
conversion or exchange of capital stock shall go into effect;
provided, however, that in lieu of closing the stock transfer
books as aforesaid, the Board of Directors may fix in advance
a date, not exceeding fifty (50) days preceding the date of
any meeting of stockholders, or the date for the payment of
any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital
stock shall go into effect, as a record date for the
determination of the stockholders entitled to notice of, and
to vote at, any such meeting, and any adjournment thereof, or
entitled to receive payment of any such dividend, or to any
such allotment of rights, or to exercise the rights in respect
of any such change, conversion or exchange of capital stock,
and in such case such stockholders and only such stockholders
as shall be stockholders of record on the date so fixed shall
be entitled to notice of, and to vote at, such meeting, and
any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any
transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid. If the Board of
Directors shall not have closed the transfer books or set a
record date for the determination of its stockholders entitled
to vote as herein provided, the date on which notice of the
meeting is mailed or the date such dividend is declared or
other right announced, as the case may be, shall be the record
date for such determination of stockholders so entitled to
participate.
<PAGE>
ARTICLE VIII
Seal
The Corporation shall have a corporate seal which shall have
inscribed around the circumference thereof "UMB Financial
Corporation - Missouri", and elsewhere thereon shall bear the
words "Corporate Seal". The corporate seal may be affixed by
impression or may be facsimile, engraved or printed.
ARTICLE IX
Miscellaneous Provisions
Section 1. Fiscal Year. The fiscal year of the Corporation
shall be as determined from time to time by the Board of
Directors. Absent action by the Board of Directors, the
fiscal year of the Corporation shall begin on the first day of
January in each calendar year and shall terminate on the last
day of December of the same calendar year.
Section 2. Failure or Refusal to Give Notice Upon Request.
If the Secretary, upon written request by the proper party or
parties as permitted and provided in these By-Laws, shall fail
or refuse to give any notice which he is required to give in
accordance with the provisions hereof, the party or parties
entitled to require that such notice be given may sign and
issue a notice of the character and in the manner herein
provided and setting forth in such notice the fact of such
failure or refusal on the part of the Secretary to give the
notice as requested; and such notice so signed and issued
shall have the same force and effect as though signed and
issued by the Secretary of the Corporation.
Section 3. Checks, Drafts, etc. All checks and drafts on the
Corporation's bank accounts and all bills of exchange and
promissory notes, and all acceptances, obligations and other
instruments for the payment of money, shall be signed by such
officer or officers or agent or agents as shall be thereunto
duly authorized from time to time by the Board of Directors;
provided, that the Board of Directors may authorize the use of
facsimile signatures of such officers and upon such terms and
subject to such conditions as the Board of Directors may
determine.
Section 4. Indemnification of Directors and Officers.
1. 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 (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a
director, officer or employee of the Corporation, or is or was
serving at the request of the Corporation as a director,
officer or employee of another corporation, partnership, joint
venture, trust or other enterprise (which shall be deemed to
include any employee benefit plan of the Corporation or any
other corporation) may be indemnified against expenses
(including attorneys' fees), judgments, fines and amounts paid
in settlement (which shall include any excise taxes assessed
against a person with respect to an employee benefit plan)
actually and reasonably incurred by him in connection with
such action, suit or proceeding so long as the results of an
investigation of the matter as described in Section 4 includes
a finding that he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of the Corporation or the participants or
beneficiaries of any employee benefit plan, and, with respect
to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful, provided, however, that
in an action by or in the right of the Corporation no
indemnification shall be made in respect of any judgments,
fines and amounts paid in settlement and provided further that
in such an action there shall be no indemnification for any
claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the
performance of his duty to the Corporation unless and only to
the extent that a court of competent jurisdiction so orders.
2. The termination of any action, suit, or proceeding by
judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in
a manner which he reasonably believed to be in or not opposed
to the best interest of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
3. Any person who has been successful on the merits or
otherwise in defense of any action, suit or proceeding
referred to in Section 1 above, shall be indemnified against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
4. Except as provided in Section 3, indemnification of anyone
under Section 1, unless ordered by a court, shall be made by
the Corporation only as authorized in each case upon a
determination that it is proper because the director, officer
or employee has met the applicable standard of conduct set
forth. Such a determination shall be made by the Board of
Directors by a majority vote of a quorum consisting of
directors who were not parties to the action, suit or
proceeding, or if such a quorum is not obtainable, or even if
obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or by the
shareholders.
5. Notwithstanding anything herein to the contrary, no
director, officer or employee shall be indemnified against any
expenses, penalties or other payments incurred in an
administrative proceeding or action instituted by an
appropriate bank regulatory agency which proceeding or action
results in a final order assessing civil money penalties or
requiring affirmative action by an individual or individuals
in the form of payments to the bank.
6. If authorized by the Board of Directors, the Corporation
may advance the costs and expenses incurred in defending a
civil or criminal action, suit or proceeding upon receipt of
an undertaking by or on behalf of the director, officer or
employee to repay such amount if it is ultimately determined
that he is not entitled to indemnification.
7. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer or
employee of the Corporation or is or was serving at the
request of the Corporation as a director, officer or employee
of another corporation, partnership, joint venture, trust or
other enterprise against any liability for which it may
indemnify such people under the terms of this Article.
<PAGE>
8. The indemnification provided for directors, officers or
employees of the Corporation shall not be deemed exclusive of
any other rights to which those officers, directors or
employees may be entitled under any by-law, agreement, vote of
shareholders or disinterested directors or otherwise, both as
to actions in his or her official capacity and as to actions
in another capacity while holding such office, and shall
continue as to any person who has ceased to be a director,
officer or employee of the Corporation and shall inure to the
benefit of his or her heirs, executors and administrators.
Section 5. Amendments to By-Laws. The Board of Directors
shall have the power to make, alter, amend or repeal the
By-Laws of this Corporation from time to time.
<PAGE>
I, David D. Miller, Corporate Secretary of UMB Financial
Corporation, hereby certify that the foregoing is a true and
complete copy of the Company's By-Laws as amended through
January 19, 1995 and that there have been no amendments since
that date
______________________________
David D. Miller, Corporate Secretary
______________________
Date
<PAGE>
CERTIFICATION
ARTICLE IX, SECTION 4
OF THE BYLAWS OF UMB FINANCIAL CORPORATION
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 4. Indemnification of Directors and Officers.
1. 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 (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a
director, officer or employee of the Corporation, or is or was
serving at the request of the Corporation as a director,
officer or employee of another corporation, partnership, joint
venture, trust or other enterprise (which shall be deemed to
include any employee benefit plan of the Corporation or any
other corporation) may be indemnified against expenses
(including attorneys' fees), judgments, fines and amounts paid
in settlement (which shall include any excise taxes assessed
against a person with respect to an employee benefit plan)
actually and reasonably incurred by him in connection with
such action, suit or proceeding so long as the results of an
investigation of the matter as described in Section 4 includes
a finding that he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of the Corporation or the participants or
beneficiaries of any employee benefit plan, and, with respect
to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful, provided, however, that
in an action by or in the right of the Corporation no
indemnification shall be made in respect of any judgments,
fines and amounts paid in settlement and provided further that
in such an action there shall be no indemnification for any
claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the
performance of his duty to the Corporation unless and only to
the extent that a court of competent jurisdiction so orders.
2. The termination of any action, suit, or proceeding by
judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in
a manner which he reasonably believed to be in or not opposed
to the best interest of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
3. Any person who has been successful on the merits or
otherwise in defense of any action, suit or proceeding
referred to in Section 1 above, shall be indemnified against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
4. Except as provided in Section 3, indemnification of anyone
under Section 1, unless ordered by a court, shall be made by
the Corporation only as authorized in each case upon a
determination that it is proper because the director, officer
or employee has met the applicable standard of conduct set
forth. Such a determination shall be made by the Board of
Directors by a majority vote of a quorum consisting of
directors who were not parties to the action, suit or
proceeding, or if such a quorum is not obtainable, or even if
obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or by the
shareholders.
5. Notwithstanding anything herein to the contrary, no
director, officer or employee shall be indemnified against any
expenses, penalties or other payments incurred in an
administrative proceeding or action instituted by an
appropriate bank regulatory agency which proceeding or action
results in a final order assessing civil money penalties or
requiring affirmative action by an individual or individuals
in the form of payments to the bank.
6. If authorized by the Board of Directors, the Corporation
may advance the costs and expenses incurred in defending a
civil or criminal action, suit or proceeding upon receipt of
an undertaking by or on behalf of the director, officer or
employee to repay such amount if it is ultimately determined
that he is not entitled to indemnification.
7. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer or
employee of the Corporation or is or was serving at the
request of the Corporation as a director, officer or employee
of another corporation, partnership, joint venture, trust or
other enterprise against any liability for which it may
indemnify such people under the terms of this Article.
8. The indemnification provided for directors, officers or
employees of the Corporation shall not be deemed exclusive of
any other rights to which those officers, directors or
employees may be entitled under any by-law, agreement, vote of
shareholders or disinterested directors or otherwise, both as
to actions in his or her official capacity and as to actions
in another capacity while holding such office, and shall
continue as to any person who has ceased to be a director,
officer or employee of the Corporation and shall inure to the
benefit of his or her heirs, executors and administrators.
I, David D. Miller, Corporate Secretary of UMB Financial
Corporation, hereby certify that the foregoing is an excerpt
from the Company's Bylaws as of the date shown below.
______________________________
David D. Miller, Corporate Secretary
____________________
Date
<PAGE>
EXHIBIT 4.4
UNITED MISSOURI PROFIT SHARING AND SAVINGS PLAN
ARTICLE ONE
NAME, PURPOSE AND DEFINITIONS
A. Name. The name of the Plan shall be UMB Profit
Sharing and 401(k) Savings Plan.
B. Purpose. The purpose of this Plan is to provide
for the sharing of a portion of the Employers' annual profits with Employees
who are participants hereunder; further, to provide a means whereby the
Employers may make periodic and recurring contributions to a profit sharing
trust, qualified under section 401 of the Internal Revenue Code, for the
exclusive benefit of such participants, with distributions to be made out of
the trust to such participants at the time of their retirement, or of their
earlier separation from the service of the Employers, all as hereinafter set
out.
C. Definitions.
1. "Active Participant" means in general an Employee who has qualified for
participation and is participating in the Plan in accordance with Article Two;
and as of an Annual Valuation Date for purposes of sharing in the allocation of
Employer contributions the term means an Active Participant who remains an
Employee on such Annual Valuation Date and who has within the Plan Year in which
such Annual Valuation Date occurs completed at least 1,000 Hours of Service.
2. "Affiliate" means any subsidiary of UMB and any subsidiary of an Affiliate.
For this purpose "subsidiary" means a corporation 50% or more of the voting
stock which is owned by UMB or by one or more Affiliates or by any combination
thereof.
3. "Anniversary Date" means an anniversary of the effective date of the Plan.
4. "Code" means the Internal Revenue Code of 1986, as amended from time to time.
<PAGE>
5. "Compensation" shall mean a Participant's wages, salaries and other amounts
received for services actually rendered in the course of employment with the
employer and shall include all overtime payments, production and accuracy
bonuses to proof machine operators, amounts redirected pursuant to a cafeteria
plan under Section 125 of the code, amounts deferred pursuant to a salary
deferral agreement in accordance with Section 401(k) of the Code, and with
respect to any participant who, in accordance with the terms of the
participant's employment arrangement customarily receives a substantial portion
of the participant's earnings in the form of a special bonuses or commissions,
all such special bonuses or commissions; but shall not include:
(a) Incentive payments, merit payments, bonuses, commissions or other
extraordinary earnings except as expressly hereinabove provided;
(b) Employer contributions to this plan or any other compensation which is
includible in the Employee's gross income for the taxable year in which
contributed or Employer contributions under a simplified employee pension plan
to the extent such contributions are deductible by the Employee or any other
contributions from a plan of deferred compensation, except as expressly
hereinabove provided;
(c) Amounts realized from the exercise of a non-qualified stock option, or when
restricted stock (or property) held by the Employee either becomes freely
transferable or is no longer subject to a substantial risk of forfeiture;
(d) Amounts realized from the sale, exchange or other disposition of stock
acquired under a qualified stock option; and
(e) Other amounts which received special tax benefits.
In addition to other applicable limitations which may be set forth in this plan
and notwithstanding any other contrary provisions of the plan, compensation
taken into account under the Plan shall not exceed $200,000, adjusted for
changes in the cost of living as provided in section 415(d) of the Internal
Revenue Code, for the purpose of calculating a plan participant's accrued
benefit (including the right to any optional benefit provided under the plan)
for any plan year commencing after December 31, 1988. However, the accrued
benefit determined in accordance with this provision shall not be less than the
accrued benefit determined on the first day of the plan year beginning in 1989
without regard to this provision.
Notwithstanding the preceding sentence, the accrued benefit of a plan
participant who is a highly compensated employee, within the meaning of section
414(q) of the Code, is reduced to the extent a benefit has accrued with respect
to compensation in excess of $200,000 during the 1989 plan year before the later
of the adoption or effective date of this provision.
<PAGE>
For purposes of applying the limitations of Article Five, Compensation for a
Plan Year is the Compensation actually paid or includible in gross income during
such year.
In addition to any 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 under this 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 Internal Revenue 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.
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.
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
plan year beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is $150,000.
6. "Disability Retirement Date" means the date as of which the participant, on
the basis of medical or other competent evidence, is found to be incapable, by
reason of any apparently permanent mental or physical impairment, of performing
his regular duties with his Employer, provided that such impairment was not
caused by an intentional self-inflected injury or self-induced sickness, or by
engagement in an unlawful act.
7. "Early Retirement Date" means the date of attainment of age fifty-five and
completion of twenty or more years of service in the employ of one or more of
the Employers.
<PAGE>
A. "Elective Deferrals" means any Employer contribution made to the Plan at the
election of the Participant in lieu of cash compensation and shall include
contributions made pursuant to a salary deferral agreement under Article Four A
entered into between the Employer and Participant or other deferral mechanism.
With respect to any taxable year, a Participant's Elective Deferrals shall be
the sum of all Employer contributions made on behalf of such Participant
pursuant to an election to defer under any qualified cash or deferred
arrangement as described under in Section 401(k) of the Code, any simplified
employee pension cash or deferred arrangement as described in Section
402(h)(1)(B) of the Code, any eligible compensation plan under Section 457 of
the Code, any Plan as described under Section 501(c)(18) of the Code, and any
Employer contributions made on behalf of a Participant for the purchase of an
annuity contract under Section 403(b) of the Code pursuant to a salary deferral
agreement.
8. "Employee" means any person employed by any of the Employers. Officers and
directors who are Employees of the Employers shall be eligible to participate in
this Plan on the same basis as other Employees.
9. "Employer" and "Employers" means UMB and each and all of the Participating
Affiliates. The phrase Aservice in the employ of the Employers", "Employment by
the Employers", "compensation by the Employers" and similar phrases, whether the
singular "Employer" or the plural "Employers" is used, shall be deemed to refer
to the employment or Compensation, as the case may be, by any one or more of the
Employers, so that a transfer or successive transfers of employment from one
Employer to another (without a break in continuous service with one or more of
the Employers) shall not result in a termination of participation or
interruption of service of a Participant or Employee for purposes of this Plan.
10. "Entry Date" means January 1 and July 1 of each year.
11. "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
12. "First Date of Employment" means the first date on which an Employee
completes an Hour of Service. If a person who has not met the service
requirements for participation ceases to be an Employee and incurs a One-Year
Break in Service during an eligibility computation period, then his First Date
of Employment shall be the first day after he again becomes an Employee for
which he has an Hour of Service. An eligibility computation period is a period
of twelve consecutive months commencing on the Employee's First Date of
Employment or any anniversary thereof.
<PAGE>
13. "Highly Compensated Employee" means "highly compensated active employees"
and Ahighly compensated former employees."
A "highly compensated active employee" includes any Employee who performs
service for the Employer during the determination year and who, during the
look-back year: (a) received compensation from the Employer in excess of $75,000
(as adjusted pursuant to Section 415(d) of the code); (b) received compensation
from the Employer in excess of $50,000 (as adjusted pursuant to Section 415(d)
of the Code) and was a member of the top-paid group for such year; or (c) was an
officer of the Employer and received compensation during such year that is
greater than 50 percent of the dollar limitation in effect under Section
415(b)(1)(A) of the Code. The term "highly compensated employee" also includes:
(1) Employees who are both described in the preceding sentence if the term
"determination year" is substituted for the term "look-back year" and the
Employee is one of the 100 Employees who received the most compensation from the
Employer during the determination year; and (2) Employees who are 5 percent
owners at any time during the look-back year or determination year.
If no officer has satisfied the compensation requirement of (c) above during
either a determination year or look-back year, the highest paid officer for such
year shall be treated as a highly compensation employee.
For this purpose, the determination year shall be the Plan Year. The look-back
year shall be the 12-month period immediately preceding the determination year.
A "highly compensated former employee" for a determination year includes any
Employee who separated from service (or was deemed to have separated) prior to
the determination year, and was a highly compensated active employee for either
the separation year or any determination year ending on or after the Employee's
55th birthday.
<PAGE>
If an Employee is, during a determination year or look-back year, a family
member of either a five percent owner who is an active of former Employee or a
Highly Compensated Employee who is one of the 10 most Highly Compensated
Employees ranked on the basis of compensation paid by the Employer during such
year, then the family member and the five percent owner of top-10 Highly
compensated Employee shall be aggregated. In such case, the family member and
five percent owner or top-10 Highly Compensated Employee shall be treated as a
single Employee receiving compensation and Plan contributions or benefits equal
to the sum of such compensation and contributions or benefits of the family
member and five percent owner or top-10 Highly Compensated Employee. For
purposes of this Section, family member includes the spouse, lineal ascendants
and descendants of the Employee or former Employee and spouses of such lineal
ascendants and descendants.
The determination of who is a Highly Compensated Employee, including the
determinations of the number and identity of Employees in the top-paid group,
the top 100 Employees, the number of Employees treated as officers and the
compensation that is considered, will be made in accordance with Section 414(g)
of the code and the regulations thereunder.
All Employees who are not Highly Compensated Employees shall be "Nonhighly
Compensated Employees."
14. "Hour of Service" means an Hour of Service as defined in subparts (a), (b)
and (c) below.
(a) An Hour of Service is each hour for which an Employee is directly or
indirectly paid or entitled to payment by the Employer for the performance of
duties during the applicable computation period. These hours shall be credited
to the Employee for the computation period or periods in which the duties were
performed.
(b) An Hour of Service is each hour for which back pay, irrespective of
mitigation of damages, has been either awarded or agreed to by the Employer.
These hours shall be credited to the Employee for the computation period or
periods to which the award or agreement pertains rather than the computation
period in which the award, agreement or payment is made. Hours shall not be
credited under both subparts.
(c) An Hour of Service is, in addition to Hours of Service as defined in
subparts (a) and (b) above, each hour for which an Employee is directly or
indirectly paid, or entitled to payment, by the Employer for reasons (such as
vacation, sickness or disability) other than for the performance of duties
during the applicable computation period. For purposes of this subpart (c),
irrespective of whether these hours have accrued in other computation periods,
these hours shall be counted in the computation period in which either payment
is actually made or amounts payable to the Employee come due. For purposes of
this Part, Hours of Service shall be determined by dividing the payments
received or due for reasons other than the performance of duties by the lesser
of (i) the Employee's most recent hourly rate of Compensation for performance of
duties or (ii) the Employee's average hourly rate of Compensation for the
performance of duties for the most recent computation period in which the
Employee completed more than 500 Hours of Service.
15. "Normal Retirement Date" means the date of attainment of age sixty-five.
16. "One-Year Break in Service" means a Plan Year during which the Employee has
not completed more than 500 Hours of Service. Notwithstanding the preceding
sentence, an Employee shall incur no One-Year Break in Service in such a period
if his failure to complete more than 500 Hours of Service during the Plan Year
occurred because of an Employer-approved leave of absence or due to any of the
causes described below:
(a) pregnancy of the Employee;
(b) the birth of a child of the Employee;
(c) the placement of a child with the adoption of such child by such individual;
or
(d) the care of such child for a period beginning immediately following such
birth or placement, provided however, the total number of hours treated as Hours
of Service for all causes enumerated under clauses (a) through (d) above shall
not exceed 501, and provided further, that such hours shall be treated as Hours
of Service only in the Plan Year in which the absence from service begins, if
such treatment prevents the Employee from incurring a One-Year Break in Service
in such Plan Year. In any other case such hours shall be treated as Hours of
Service (but only to the extent required to prevent a One-Year Break in Service)
in the immediately following Plan Year. The Administrative Committee may
establish procedures for use by an Employee to furnish timely information to
establish that the absence as a valid maternity or paternity leave and the
number of days of this absence. If such procedures are established, no credit
will be given for Hours of Service in connection with a maternity or paternity
leave unless those procedures are followed.
16A. "Participant" shall mean an Employee who is eligible to participate, and is
participating in the Plan.
17. "Participating Affiliate" means an Affiliate; provided however, that except
as otherwise herein expressly provided, an existing corporation which is
acquired by UMB shall not be considered a Participating Affiliate for any
purpose of the plan prior to the date on which it becomes an Affiliate and that
a newly incorporated Affiliate shall not be considered a Participating Affiliate
for any purposes of the Plan prior to the earlier of (i) the date on which it
commenced business or (ii) the date in which it first paid or accrued
Compensation to one or more officers or employees.
18. "Plan" means the Plan named in this Article, originally established
effective January 1, 1961, as the same has been an may hereafter be amended from
time to time.
<PAGE>
9. "Plan Year" means the calendar year, and "Year" means a Plan Year unless
otherwise clearly indicated. The term "Plan Year" shall also have the meaning
"Limitation Year" when applied to limitations relating to the allocation of
"Annual Additions" as expressed in Article Five of the Plan, and wherever else
such application may be required to satisfy any requirement of the Code.
20. "UMB" means UMB Financial Corporation, a Missouri corporation.
21. "Valuation Date" means the last business day of each month in each Plan
Year, and "Annual Valuation Date" means the last business day of each Plan Year.
22. "Year of Service" means a period of twelve consecutive months during which
the Employee has completed at least 1,000 Hours of Service. For purposes of
Article Two, regarding eligibility, the twelve month period shall begin on the
Employee's First Date of Employment or any anniversary thereof. For purposes of
Article Nine, regarding benefits and forfeitures, the twelve month period shall
be the calendar year.
ARTICLE TWO
EFFECTIVE DATE OF PLAN ELIGIBILITY AND PARTICIPATION
A. The Plan was originally effective from January 1, 1961, and the Plan in the
form amended and restated herein shall be effective, except as otherwise
expressly herein provided, as of January 1, 1989.
B. Each Employee who was a participant on December 31, 1988, shall continue to
participate as of January 1, 1989, if he was an Employee on that date.
C. Each Employee who was not a Participant on December 31, 1988 shall be
eligible for participation under this Plan as of the first Entry Date concurrent
with or next following the date the Employee completes one Year of Service, but
only if the Employee is an Employee on that Entry Date. However, for purposes of
eligibility for making Elective Deferrals under Article Four A, an Employee
shall be eligible for participation under this Plan, for the purposes of making
Elective Deferrals only, as of the first Entry Date concurrent or next following
the date the Employee commences employment with the Employer provided that the
Employee is employed on the Entry Date and is regularly scheduled to perform 20
or more hours of service for the Employer per week.
<PAGE>
D. A former participant shall again become a participant immediately upon his
return to the employ of the Employer if such former participant had a
nonforfeitable right to all or a portion of the Class 1 units credited to his
account at the time of his termination.
E. A reemployed former participant who did not have a nonforfeitable right to
any portion of the Class 1 units credited to his account at the time of his
termination shall be considered a new Employee, for eligibility purposes, if the
number of consecutive One-Year Breaks in Service equals or exceeds the aggregate
number of Years of Service before such Break. If such former participant's Years
of Service before his termination exceed the number of consecutive One-Year
Breaks in Service after such termination, such reemployed individual shall
resume participation immediately upon his reemployment.
F. An Employee of a Participating Affiliate which became an Affiliate on or
after January 1, 1983, shall be credited with service performed for the Employer
during any period of time before the Employer became a Participating Affiliate,
but only for the following purposes, and to the following extent:
1. For the determination of eligibility for participation hereunder in
accordance with Part C of this Article Two;
2. For satisfaction of the twenty Years of Service requirement for Early
Retirement.
3. For the determination of Years of Service for vesting of Class 6 units, such
service shall not be taken into account in the determination of Years of Service
for vesting of Class 1 units, nor for any other purpose not specified in this
Article Two.
ARTICLE THREE
AMOUNT OF PROFITS TO BE SHARED
A. Profit Sharing Formula. Each Plan Year, the total amount of annual profits to
be shared by the Employers with participants shall be an amount determined as
follows:
1. If Consolidated Net Income for the year (as herein defined) equals or is less
than eight percent of Shareholders' Equity (as herein defined), there shall be
no obligation to share profits for such year. If Consolidated Net Income exceeds
eight percent of Shareholders' Equity, then determine the lesser of:
(a) The maximum amount which in the year could be paid or contributed hereunder
out of profits without reducing Consolidated Net Income (after such payment of
contribution) below eight percent of Shareholders' Equity; and
<PAGE>
(b) Eight percent of Consolidated Net Income.
plus any amount that may be determined by the Board of Directors of UMB pursuant
to any goal achievement program established by the Board of Directors of UMB.
2. Subject to the provisions of Paragraph 3 of this Section A and also to
adjustment as may be required by the provisions of Section C of this Article,
the amount determined above shall be the amount of profits to be allocated to
the participant under this Plan and the ESOP of UMB as hereinafter provided.
3. Notwithstanding the profit share determination formula set forth above, the
Board of Directors of UMB may in its discretion, by action taken by it or on its
behalf by its Executive Committee, determine that the amount to be allocated to
the Plan Participants for the year shall be an amount less or greater than the
amount calculated as provided above in this Article. The total amount of annual
profits to be shared by the Employers with Participants shall be apportioned
between the Plan and the ESOP of UMB in the ratio determined by the Board of
Directors of UMB; provided, however, that the amount contributed to this Plan
with respect to any plan year shall be no less than one-fifth (1/5) and no more
than four-fifths (4/5) of the total amount so determined unless the Board of
Directors of UMB in its discretion determines that different maximum or minimum
fractions be utilized including the minimum fraction of zero.
B. Formal Definitions. For the purpose of applying the formula set out in the
foregoing Part A of this Article, with respect to a particular Plan Year, the
following terms are defined as herein provided:
1. "Shareholders' Equity" means the sum of (a) Shareholders' Equity of United
Missouri (including capital stock, surplus and retained earnings but excluding
treasury stock at cost) and (b) one-half of the amount of the reserve for loan
losses, all as shown by its consolidated statement of condition as of the end of
the preceding Plan year, adjusted, however, to give effect to the inclusion of a
Participating Affiliate which became an Affiliate after the end of such
preceding year and on or before January 31 of the current Plan Year.
<PAGE>
2. "Consolidated Net Income" means the net income of United Missouri and its
Participating Affiliates (but including also with respect to a particular Plan
year the net income of any other Affiliate acquired at any time in such year by
the application or investment of cash or by an exchange of stock involving
treasury stock of the acquiring company, with appropriate adjustments where
applicable), determined on a consolidated basis as of the end of the current
Plan Year, but before provision for profit sharing with respect to the current
Plan Year.
C. Computation of Formula Amount. The amount resulting from the application of
the formula set out in this Article shall be computed each year by the
Comptroller (or other officer performing similar functions) of United Missouri.
Such computation for a Plan Year shall be made as soon as reasonably possible in
the succeeding year, on the basis of information then available and reasonable
estimates may be used as to the amount of any items not then exactly determined.
The computation thus made shall be final, except that in applying the formula
with respect to a particular Plan year the amount computed shall be adjusted to
give effect to the net of any error or errors made with respect to the preceding
year which affected the amount of profit sharing allocated for such preceding
year, whether such error or errors resulted from the use of estimates or
otherwise.
D. Elective Deferrals and Matching Contributions. Any contribution amount
determined under this Article shall be in addition to any contributions
determined under Article Four A regarding elective deferrals or Article Six
regarding matching contributions.
ARTICLE FOUR
ALLOCATIONS OF PROFIT AMONG PARTICIPANTS
Promptly after the total amount of Employers' profits to be shared for any Plan
Year is determined in accordance with Article Three the percentage thereof
apportioned to this Plan shall be allocated by the method provided in this
Article Four among:
1. The Active Participants who remain in the employ of the Employers at the end
of such Plan Year and who are entitled to share therein as defined in Article
Two; and
<PAGE>
2. Former participants who within such Plan Year have terminated service with
the Employers by reason of retirement, death or disability in accordance with
Article Nine. The allocation shall be made on the basis of the amount of
Compensation paid each such Active Participant or Former Participant by his or
her Employer or Employers during the Plan Year with respect to which the
allocation is to be made; provided, however, that for the purposes of this
Article Four, in the event any Participant commences participation (or resumes
participation) on any date other than January 1st, compensation in his or her
case, shall be limited to that Compensation paid during the Plan year from and
after the date his or her participation commences. Additionally, should any
Active Participant or Former Participant receive an allocation of a contribution
made by an Affiliate to one or more qualified plans maintained by that Affiliate
and not by United Missouri Bancshares, Inc. for any period for which the Active
Participant or Former Participant is also a Participant in this Plan,
Compensation for purposes of this Plan shall not include any Compensation which
was taken into account and used as a basis for allocating the contribution made
by an Affiliate to one or more qualified retirement plans maintained by an
Affiliate and not by United Missouri Bancshares, Inc. The previous sentence
shall not apply if the contribution made by an Affiliate was required by the
Plan document governing the qualified plan maintained by the Affiliate and not
by United Missouri Bancshares, Inc. and was not made at the discretion of the
Affiliate.
ARTICLE FOUR A
PAYMENT OF ELECTIVE DEFERRAL CONTRIBUTIONS
TO PROFIT SHARING TRUST
A. Payments. For each Plan Year, the Employer shall contribute cash in an amount
equal to the total amount of contributions agreed to be made to the Plan at the
election of Participants, in lieu of cash compensation, pursuant to salary
deferral agreements between the Employer and Participants. These contributions
shall be referred to as Elective Deferrals. For a given Plan Year, the Employer
shall deposit Elective Deferrals to the trust promptly and, in any event, no
later than the time prescribed by law for filing its federal income tax return
for the year (including extensions) and no adjustments affecting the amount of
its consolidated net income made subsequent thereto, resulting from an audit of
its income tax return or otherwise, shall require a change in the amount of such
contributions for such year. Notwithstanding the foregoing, the deductibility of
such contributions or any portion thereof shall be determined by the Code and
regulations in force at the time applicable to the Employer's return.
Elective Deferrals shall at all times be fully vested and nonforfeitable.
Elective Deferrals and income allocable thereto shall not be distributed to the
Participant or the Participant's beneficiary or beneficiaries in accordance with
the Participant's or beneficiary's or beneficiaries' election prior to the
Participant's separation from service, death or disability except in the
following circumstances:
1. Termination of the Plan without the establishment of another defined
contribution plan.
<PAGE>
2. The disposition by the Employer to an unrelated corporation of substantially
all of the assets (within the meaning of Section 403(d)(2) of the Code) used in
a trade or business of the Employer if the Employer continues to maintain this
Plan after the disposition, but only with respect to Employees who continue
employer with the corporation acquiring such assets.
3. The disposition by the Employer to an unrelated entity of such Employer's
interest in a subsidiary (within the meaning of Section 409(d)(3) of the Code)
if the Employer continues to maintain this Plan, but only with respect to
Employees who continue employment with such subsidiary.
4. Upon the Participant's obtaining age 59 1/2.
5. In the event of hardship, subject to the limitations set forth in Article
Twelve, Section A, Paragraph 3.
B. Participant Salary Deferral Agreements. A Participant may enter into a
written salary deferral agreement with the Employer, which agreement will then
have application to all future payroll periods beginning after the January 1 or
July 1 concurrent with or following the date of the agreement, until revoked or
modified in accordance with the provisions of this section. The terms of any
such salary deferral agreement shall provide that the Participant agrees to
accept a reduction in salary equal to any stated amount or percentage of the
Participant's Compensation per payroll period. Each salary deferral agreement
shall be further subject to the following provisions:
(1) As of any Entry Date, a Participant may amend the Participant's salary
deferral agreement by notifying the employer in writing of such amendment. Such
amendment shall be effective as of the first day of the first payroll period
following the Entry Date.
(2) Participant may revoke the Participant's salary deferral agreement by
notifying the Employer in writing of such revocation. The revocation will be
effective as of the first day of the first payroll period following receipt by
the Employer of the revocation.
(3) The Employer may amend or revoke its salary deferral agreement with any
Participant at any time if the Employer determines that such revocation or
amendment is necessary to ensure that a Participant's Annual Additions for any
Plan Year will not exceed the limitations of Article Five or to ensure that the
discrimination tests of Code Section 401(k) are met for such Plan Year.
<PAGE>
(4) A salary deferral agreement will be revoked automatically upon a
Participant's withdrawal of amounts from his Class 9 units in the event of
hardship prior to termination of employment, pursuant to the provisions of
Article Twelve. In the event of subsequent salary deferral agreement with the
Employer prior to the date which is twelve months after the receipt by the
Participant of the hardship withdrawal.
(5) A salary deferral agreement will be revoked automatically upon termination
of employment of the Participant entering into such agreement, or upon the loss
of the Participant's eligibility to participate in the Plan. The revocation will
be effective as of the first day of the first payroll period following the
revocation.
(6) Except as provided above, a salary deferral agreement, once made, may not be
amended by the Participant or the Employer.
(7) The Participant's total Elective Deferrals paid to this Trust pursuant to
the Participant's written salary deferral agreement for any Plan Year shall not
exceed 10% of the Participant's Compensation.
(8) If the salary deferral agreement specifies a percentage of compensation
deferred, the percentage may not be less than 1%. If the salary deferral
agreement specifies a dollar amount deferred, the dollar amount may not be less
than $5.00.
(9) A salary deferral agreement may not be made retroactively.
<PAGE>
C. No Participant shall be permitted to have Elective Deferrals made under this
Plan, or any other qualified plan maintained by the Employer, during any taxable
year of the Participant, in excess of the dollar limitation contained in Section
402(g) of the Code in effect at the beginning of such taxable year. In the event
a Participant receives a hardship distribution from his Class 9 units, such
Participant shall not be permitted to have Elective Deferrals made under this
Plan, or under any other qualified plan maintained by the Employer, during the
taxable year immediately following the taxable year of the hardship distribution
in excess of the dollar limitation contained in Section 402(g) of the Code in
effect at the beginning of such taxable year less the amount of such
Participant's Elective Deferrals for the taxable year of the hardship
distribution.
D. In the event that a Participant's Elective Deferrals for a Participant's
taxable year exceed the dollar limitations under Section 402(g) of the Code,
such excess shall be referred to as "Excess Elective Deferrals."
A Participant may assign to this Plan any Excess Elective Deferrals made during
a taxable year by notifying the Plan Administrator on or before March 1 of the
following tax year of the amount of the Excess Elective Deferrals to be assigned
to this Plan.
Notwithstanding any other provision of this Plan, Excess Elective Deferrals,
plus any income or minus any loss allocable thereto, shall be distributed no
later than April 15 to any Participant to whose account Excess Elective
Deferrals were assigned for the preceding year and who claims Excess Elective
Deferrals for such taxable year.
Determination of income or loss: Excess Elective Deferrals shall be adjusted for
any income or loss applicable to Class 9 units for the Plan Year multiplied by a
fraction, the numerator of which is the Participant's Excess Elective Deferrals
for the year and the denominator is the Participant's account balance
attributable to Elective Deferrals without regard to any income or loss
occurring during such taxable year or such other method as the Trustee deems
reasonable.
E. The Actual Deferral Percentage (hereinafter "ADP") for Participants who are
Highly Compensated Employees for each Plan Year and the ADP for Participants who
are not Highly Compensated Employees for the same Plan Year must satisfy one of
the following tests:
(a) The ADP for Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the ADP for Participants who are not Highly Compensated
Employees for the same Plan Year multiplied by 1.25; or
(b) The ADP for Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the ADP for Participants who are not Highly Compensated
Employees for the same Plan Year multiplied by 2.0, provided that the ADP for
Participants who are Highly Compensated Employees does not exceed the ADP for
Participants who are not Highly Compensated Employees by more than two
percentage points.
<PAGE>
F. "Actual Deferral Percentage" (ADP) shall mean, for a specified group of
Participants for a Plan Year, the average of the ratios (calculated separately
for each Participant in such group) of the amount of Employer contributions
actually paid over to the trust on behalf of such Participant for the Plan Year
to the Participant's compensation for such Plan Year. The Employer may limit the
period taken into account to that portion of the Plan Year in which the Employee
was an eligible Employee, provided that this limit must be applied uniformly to
all eligible Employees under the plan for a particular Plan Year. Employer
contributions on behalf of any Participant shall include any Elective Deferrals
made pursuant to the Participant's deferral election, including Excess Elective
Deferrals. For purposes of computing Actual Deferral Percentages, an Employee
who would be a Participant but for the failure to make Elective Deferrals shall
be treated as a Participant on whose behalf no Elective Deferrals are made.
G. The ADP for any Participant who is a Highly Compensated Employee for the Plan
Year and who is eligible to have Elective Deferrals allocated to his or her
accounts under two or more arrangements described in Section 401(k) of the Code
that are maintained by the Employer shall be determined as if such Elective
Deferrals were made under a single arrangement. If a Highly Compensated Employee
participates in two or more cash or deferred arrangements that have different
Plan Years, all cash or deferred arrangements ending with or within the same
calendar year shall be treated as a single arrangement.
H. In the event that this Plan satisfies the requirements of Section 401(k),
401(a)(4) or 410(b) of the Code only if aggregated with one or more other plans
or if one or more other plans satisfy the requirements of such sections of the
Code only if the aggregated with this Plan, then this Article shall be applied
by determining the ADP of Employees as if all such plans were a single plan.
Plans may be aggregated in order to satisfy Section 401(k) of the Code only if
they have the same Plan Year.
I. For purposes of determining the ADP of a Participant who is a 5-percent owner
or one of the ten most highly paid Highly Compensated Employees, the Elective
Deferrals and Compensation of such Participant shall include the Elective
Deferrals and Compensation for the Plan Year of Family Members (as defined in
Section 414(q)(6) of the Code. Family Members, with respect to such Highly
Compensated Employees, shall be disregarded as separate employees in determining
the ADP for both Participants who are not Highly Compensated Employees and for
Participants who are Highly Compensated Employees.
J. For purposes of determining the ADP test, Elective Deferrals shall be taken
into account for a Plan Year only if such contributions are allocated to the
Participant as of a date within such Plan Year and are paid over to the Trust no
later than the last day of the twelve-month period immediately following such
Plan Year.
<PAGE>
K. The Employer shall maintain records sufficient to demonstrate satisfaction of
the ADP test.
L. The Employer shall perform the ADP test for the Plan Year and at such other
times as it shall select. Any interim testing shall be made for monitoring
purposes only, and shall be based on a Participant's rate of Compensation in
effect at the time of the test, and corrections required to be made in order to
reduce the amount in excess of the maximum permissible deferral percentage shall
be made from Compensation to be earned for the remainder of the Plan Year.
M. The determination and treatment of the ADP amounts of any Participant shall
satisfy such other requirements as may be prescribed by the Secretary of the
Treasury.
N. In the event that the ADP for Participants who are Highly Compensated
Employees for the Plan Year exceeds the maximum ADP permitted under this
section, then the excess of the aggregate amount of Employer contributions
actually taken into account in computing the ADP of the Highly Compensated
Employees for such Plan Year over the maximum amount of such contributions
permitted by the ADP test (determined by reducing contributions made on behalf
of the Highly Compensated Employees in order of the ADP's beginning with the
highest of such percentages) shall be referred to as "Excess Contributions."
O. Notwithstanding any other provisions of this Plan, Excess Contributions, plus
any income or minus any loss allocable thereto, shall be distributed no later
than the last day of each Plan Year to Participants to whose accounts such
Excess Contributions were allocated for the preceding year. If such excess
amounts are distributed more than 2-1/2 months after the last day of the Plan
Year in which such excess amounts arose, a ten percent excise tax will be
imposed on the Employer maintaining the Plan with respect to such amounts. Such
distributions shall be made to Highly Compensated Employees on the basis of the
respective portions of the Excess Contributions attributable to Participants who
are subject to the family member aggregation rules of Section 414(q)(6) of the
Code in the manner prescribed by the regulations.
P. Excess Contributions shall be treated as Annual Additions under the Plan.
<PAGE>
Q. Excess Contributions shall be adjusted for any income or loss up to the end
of the Plan Year. The income or loss allocable to Excess Contributions is income
or loss allocable to the Participant's Class 9 units for the Plan Year
multiplied by a fraction, the numerator of which is such Participant's Excess
Contributions for the Plan Year and the denominator is the Participant's Excess
Contribution for the Plan Year and Elective Deferrals without regard to any
income or loss occurring during such Plan Year or such other method that the
Trustee deems appropriate.
R. Excess Contributions shall be distributed from the Participant's Class 9
Units.
ARTICLE FIVE
PAYMENT OF PROFIT SHARES - EMPLOYER CONTRIBUTIONS
TO PROFIT SHARING TRUST
A. Payments. Promptly after the amounts of the individual profit shares of
Active Participants and former participants for a Plan Year have been
determined, each Employer, with respect to all of such participants in its
employ, shall contribute the amount of such profit shares to the profit sharing
trust; provided, however, that, with respect to any such participant who during
the Plan Year was employed by more than one of the Employers, each Employer by
which such participant was so employed shall contribute its proportionate share
of such participant's profit share in the same ratio for each Employer as such
participant's basic Compensation received from such Employer in such year bears
to his aggregate basic Compensation from all of his Employers in such year. If
any Employer is prevented from making a payment or contribution, which it would
otherwise make hereunder, by reason of having no current or accumulated earnings
or profits or because such earnings or profits are less than the payments or
contributions which it would otherwise have made, then so much thereof which
such Employer is so prevented from making shall be made, for the benefit of the
participants of such Employer, by one or more of the other Employers, to the
extent of current or accumulated earnings or profits of such other Employers.
Nothing in this Article Five shall prevent the Employers from making advance
payments, upon account, of profit shares for any Plan Year, or from making in
advance any part of their estimated total contributions to the profit sharing
trust for such year, and the Employers intend to do so.
B. Limitations on Allocations. The amount of Annual Additions which may be
allocated under this Plan on a participant's behalf for a Plan Year shall not
exceed the Maximum Permissible Amount or any other maximum limitation contained
in this Plan.
C. Excess Amounts. If there is an Excess Amount with respect to a Participant
for a Plan Year, such Excess Amount shall be disposed of as follows:
1. Any non-deductible voluntary Employee contributions, to the extent they would
reduce the Excess Amount, will be returned to the Participant.
<PAGE>
2. If after application of paragraph 1 an Excess Amount still exists, any
Elective Deferrals made pursuant to Section 4A, to the extent the Elective
Deferral would reduce the Excess Amount, shall be distributed to the
Participant.
3. If after the application of paragraph 2 an Excess Amount still exists, the
Excess Amount shall be allocated and reallocated to other Participants in the
Plan.
4. If the allocation and reallocation of the Excess Amount in accordance with
paragraph 3 causes the limitations of Code Section 415 to be exceeded with
respect to each Participant for the Limitation Year, then the remaining Excess
Amount shall be held unallocated in a suspense account.
5. If a suspense account is in existence at any time during a Limitation Year
pursuant to this section, it will not participate in the allocation of the
Trust's investment gains and losses. If a suspense account is in existence at
any time during a particular Limitation Year, all amounts in the suspense
account must be allocated and reallocated to Participants' accounts before any
Employer contributions or any Employee contributions may be made to the plan for
that Limitation Year. Excess Amounts may not be distributed to Participants or
Former Participants other than under paragraphs 1 and 2 above.
D. Corrective Adjustments. As soon as is administratively feasible after the end
of the Plan Year, the Maximum Permissible Amount for the Plan Year will be
determined on the basis of the participant's compensation for the Plan Year. If
a participant's Annual Additions under this Plan and all such other Defined
Contribution Plans result in an Excess Amount, such Excess Amount shall be
deemed to consist of the amounts last allocated.
1. If an Excess Amount was allocated to a participant on an allocation date of
this Plan which coincides with an allocation date of another plan the Excess
Amount attributed to this Plan will be the product of:
(a) the total Excess Amount as of such date, times
(b) the ratio of (i) the amount allocated to the participant as of such date
under this Plan, divided by (ii) the total amount allocated as of such date
under all qualified Defined Contribution Plans.
2. If an Excess Amount is allocated to a participant on an allocation date not
coinciding with this Plan, the entire Excess Amount shall be attributable to the
Plan whose Plan Year last ended.
<PAGE>
E. Defined Benefit Plans. If the Employer maintains, or at any time maintained,
a qualified Defined Benefit Plan covering any participant in this Plan, the sum
of the participant's Defined Benefit Plan fraction and Defined Contribution Plan
fraction will not exceed 1.0 in any Plan Year. The Annual Additions which may be
credited to the participant's account under this Plan for any Plan Year will be
limited in accordance with the provisions of the Plan and section 415 of the
Code.
F. Definitions.
1. "Annual Additions" means the sum of the following amounts allocated on behalf
of a participant for a Plan Year:
(a) all Employer contributions
(b) all Employee contributions (excluding rollover contributions, if any), and
(c) all forfeitures.
2. "Excess Amount" means the excess of the participant's Annual Additions for
the Plan Year over the Maximum Permissible Amount.
3. "Maximum Permissible Amount" means for a Plan Year, the Maximum Permissible
Amount with respect to any participant, which shall be the lesser of (1) $30,000
(or such larger amount as may be prescribed by the Secretary of the Treasury or
his delegate), or (2) twenty-five percent of the participant's Compensation for
the Plan Year.
4. The words "Defined Benefit Fraction" shall mean, for any Plan Year, a
fraction
(a) the numerator of which is the projected annual benefit of the participant,
that is, the annual benefit to which he would be entitled under the terms of the
defined benefit plan on the assumptions that he continues employment until his
normal retirement date as determined under the terms of the Defined Benefit
Plan, that his Compensation continues at the same rate as in effect in the Plan
Year under consideration until his normal retirement date and that all other
relevant factors used to determine benefits under such Defined Benefit Plan
remain constant as of the current Plan Year for future Plan Years, under all
Defined Benefit Plans maintained by the Employer, determined as of the close of
the Plan Year and
(b) the denominator of which is the lesser of
<PAGE>
(i) one and one-fourth (1.25) (one [1.0], in the case of a Key Employee* in
either a Top-Heavy Plan* failing to provide the minimum benefit required under
section 415(h)(2)(A) of the Internal Revenue Code [or its successor] or a Super
Top-Heavy Plan) times the projected annual benefit of such participant under the
defined benefit plans determined as of the close of the Plan Year as if the
defined benefit plans provided the maximum benefits allowable under section
415(b)(1)(A) of the Internal Revenue Code after taking into account all
applicable modifications of that dollar limit found in the Code, and
(ii) one and four-tenths (1.4) times the projected annual benefit of such
participant under the defined benefit plans determined as of the close of the
Plan Year as if the defined benefit plans provided benefits in the amount of the
maximum percentage-of-Compensation limit allowable under section 415(b)(1)(B) of
the Internal Revenue Code after taking into account all applicable modifications
of that percentage-of-Compensation limit found in the Code.
*See Article Twenty-One below.
5. The words "Defined Contribution Plan" shall mean a Retirement Plan which
provides for an individual account for each participant and for benefits based
solely on the amount contributed to the participant's account and any income,
expenses, gains and losses, and any forfeitures of accounts of other
participants which may be allocated to such participant's accounts.
6. The words "Defined Benefit Plan" shall mean any Retirement Plan which is not
a Defined Contribution Plan.
7. The words "Defined Contribution Fraction" shall mean, for any Plan Year, a
fraction
(a) the numerator of which is the sum of Annual Additions to the participant's
account for all years under all Defined Contribution Plans maintained by the
Employer in that Plan Year, and
(b) the denominator of which is the sum for the Plan Year and all prior years of
the lesser of:
<PAGE>
(i) one and one-fourth (1.25), or in the case of a Key Employee in either a
Top-Heavy Plan failing to provide the minimum benefit required under section
415(h)(2)(A) of the Internal Revenue Code (or its successor) or a super
Top-Heavy Plan, one (1), times the maximum amount of Annual Additions to such
participant's account under the Defined Contribution Plans which could have bene
made in accordance with the limitations set forth in section 415(b)(1)(A) of the
Internal Revenue Code after taking into account all applicable modifications of
that dollar limit found in the Code, and
(ii) one and four-tenths (1.4) times the maximum Annual Additions to such
participant's account under Defined Contribution Plans which could have bene
made in accordance with the percentage-of-Compensation limitation set forth in
section 415(b)(1)(B) of the Internal Revenue Code after taking into account all
applicable modifications of that percentage-of-Compensation limit found in the
Code.
The Plan Administrator may elect that the denominator of the Defined
Contribution Plan Fraction for any participant for Plan Years before January 1,
1983, be an amount equal to the product of:
(a) the maximum amount of Annual Additions to such participant's account under
the Defined Contribution Plans which could have been made under the limitations
set forth in section 415(c) of the Internal Revenue Code for those years, and
(b) the Transition Fraction.
For Plan Years beginning before 1976, the aggregate amount taken into account
under subpart (i) above shall be deemed not to exceed the aggregate amount taken
into account under subpart (ii) above.
8. The words "Retirement Plan" shall mean (i) any profit sharing, pension or
stock bonus plan described in section 401(a) and 501(a) of the Internal Revenue
Code, (ii) any annuity plan or annuity contract described in section 403(a) or
403(b) of the Internal Revenue Code, (iii) any qualified bond purchase plan
described in section 405(a) of the Internal Revenue Code, and (iv) any
individual retirement account, individual retirement annuity or retirement bond
described in section 408(a), 408(b) or 409 of the Internal Revenue Code.
9. The words "Transition Fraction" shall mean the fraction whose numerator is
the lesser of:
<PAGE>
(a) $51,875, or
(b) one and four-tenths (1.4) multiplied by twenty-five percent of the annual
Compensation of the participant for the Plan Year ending in 1981, and whose
denominator is the lessor of:
(i) $41,500, or
(ii) twenty-five percent of the annual Compensation of the participant for the
Plan Year ending in 1981.
ARTICLE SIX
MATCHING AND PARTICIPANT VOLUNTARY CONTRIBUTIONS TO
PROFIT SHARING TRUST
A. No participant shall be required to make any contribution whatever to the
profit sharing trust. For plan years beginning prior to January 1, 1991, subject
to the provisions of Part B of Article Five and Part D of Article Six, however,
any eligible participant may each year voluntarily contribute on an after-tax
basis to the trust an amount which, when added to the amount, if any, of his
voluntary contributions to this Plan and all other qualified plans of the
Employer, does not exceed 10% of his Compensation while a participant. Such
voluntary contributions may be made by payroll deduction or by other methods and
at intervals in accordance with rules established by the Administrative
Committee. For plan years beginning in 1991 and thereafter, no voluntary
contributions are permitted.
B. All such voluntary contributions shall be paid over to the profit sharing
trust as soon as may be conveniently done and shall be thereafter represented as
Class 3 units as in this Plan provided. Such units shall at all times be 100%
vested and nonforfeitable.
C. Contributions by participants made pursuant to the provisions of this Article
are not intended to be deductible by participants under section 219(a) of the
Internal Revenue Code nor any other provision thereof.
Cal. For each Plan Year, the Employer shall contribute as a matching
contribution an amount equal to a percentage of the elective deferrals made by
the Employer on behalf of each eligible Participant, but not to exceed a
percentage of the Participant's compensation for the Plan Year. Both percentage
figures shall be determined from year to year by the Board of Directors of UMB
in its discretion.
<PAGE>
Ca2. The allocation of the matching contribution shall be made to Participants
who have made elective deferrals to the Plan during the Plan Year and did not
accrue a benefit in the United Missouri Revised Retirement Plan for the Plan
Year and are either (a) employed by the Employer at the end of the Plan Year or
(b) not employed by the Employer at the end of the Plan Year by reason of
retirement, death or disability in accordance with Article Five. All matching
contributions shall be allocated as Class 8 units.
D. Limitations on Matching and Voluntary Contribution Effective January 1, 1987:
1. The Average Contribution Percentage (hereinafter "ACP") for Participants who
are Highly Compensated Employees for each Plan Year and the ACP for Participants
who are not Highly Compensated Employees for the same Plan Year must satisfy one
of the following tests:
(a) The ACP for Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the ACP for Participants who are not Highly Compensated
Employees for the same Plan Year multiplied by 1.25; or
(b) The ACP for Participants who are Highly Compensated Employees for the Plan
Year shall not exceed the ACP for Participants who are not Highly Compensated
Employees for the same Plan Year multiplied by two (2), provided that the ACP
for Participants who are Highly compensated Employees does not exceed the ACP
for Participants who are not Highly Compensated Employees by more than two (2)
percentage points.
2. "Average Contribution Percentage" shall mean the average of the Contribution
Percentages of the Eligible Participants in a group.
3. "Contribution Percentage" shall mean the ratio (expressed as a percentage) of
the Participant's Contribution Percentage Amounts to the Participant's
compensation for the Plan Year (whether or not the employee was a Participant
for the entire Plan Year).
<PAGE>
4. "Contribution Percentage Amounts" shall mean the sum of the Voluntary
Contributions and Matching Contributions made under the Plan on behalf of the
Participant for the Plan Year. Such Contribution Percentage Amounts may also
include all or a part of the Elective Deferrals under this Plan and any other
plan of the Employer, as provided in regulations under the Code, to the extent
such Elective Deferrals are needed to meet the ACP test set forth in
Subparagraph 1(a) & (b), subject to such other requirements as may be prescribed
by the Secretary of Treasury. Elective Deferrals may only be utilized in the
Contribution Percentage Amounts so long as the ADP test is met before the
Elective Deferrals are used in the ACP test and continues to be met following
the exclusion of those Elective Deferrals are used in the ACP test and continues
to be met following the exclusion of those Elective Deferrals that are used to
meet the ACP test.
5. "Eligible Participant" shall mean any Employee who is eligible to make a
Voluntary Contribution or to receive a Matching Contribution (including
forfeitures).
6. "Voluntary Contribution" shall mean any contribution made to the Plan by or
on behalf of a Participant that is included in the Participant's gross income in
the year in which made and that is maintained under a separate account to which
earnings and losses are allocated.
7. "Matching Contribution" shall mean an Employer contribution made to this or
any other defined contribution plan on behalf of a Participant on account of a
Participant's Elective Deferral, under a plan maintained by the Employer.
8. Multiple Use: If one or more Highly Compensated Employees participate in both
a Cash or Deferred Arrangement and a plan subject to the ACP test maintained by
the Employer and the sum of the ADP and ACP of those Highly Compensated
Employees subject to either or both tests exceeds the Aggregate Limit, then the
ACP of those Highly Compensated Employees who also participate in a Cash or
Deferred Arrangement will be reduced (beginning with such Highly Compensated
Employee who is the highest) so that the limit is not exceeded. The amount by
which each Highly Compensated Employee's Contribution Percentage Amounts is
reduced shall be treated as an Excess Aggregate Contribution. The ADP and ACP of
the Highly Compensated Employees are determined after any corrections required
to meet the ADP and ACP tests. Multiple use does not occur if the ADP of the
Highly Compensated Employees does not exceed 1.25 multiplied by the ADP of the
Participants who are not Highly Compensated Employees or if the ACP of the
Highly Compensated Employees does not exceed 1.25 multiplied by the ACP of the
Participants who are not Highly Compensated Employees. This section shall not
apply to Plan Years beginning before January 1, 1989.
<PAGE>
9. "Aggregate Limit" shall mean the sum of (a) 125 percent of the greater of the
ADP of the Participants who are not Highly Compensated Employees under the Plan
subject to Code Section 401(m) for the Plan Year beginning with or within the
Plan Year of the Cash or Deferred Arrangement and (b) the lesser of 200% or two
plus the lesser of such ADP or ACP.
10. The Contribution Percentage for any Participant who is a Highly Compensated
Employee and who is eligible to have Contribution Percentage Amounts allocated
to his or her account under two or more plans described in Section 401(a) of the
Code, or arrangements described in Section 401(k) of the Code that are
maintained by the Employer, shall be determined as if the total of such
Contribution Percentage Amounts was made under each plan. If a Highly
Compensated Employee participates in two or more cash or deferred arrangements
that have different plan years, all cash or deferred arrangements ending with or
within the same calendar year shall be treated as a single arrangement.
11. In the event that this Plan satisfies the requirements of Sections 401(m),
401(a)(4) or 410(b) of the Code only if aggregated with one or more other plans,
or if one or more other plans satisfy the requirements of such sections of the
Code only if aggregated with this plan, then this section shall be applied by
determining the Contribution Percentage of Employees as if all such plans were a
single plan. For Plan Years beginning after December 31, 1989, plans may be
aggregated in order to satisfy Section 401(m) of the Code only if they have the
same Plan Year.
12. For purposes of determining the Contribution Percentage of a Participant who
is five-percent owner or one of the ten most highly paid Highly Compensated
Employees, the Contribution Percentage Amounts and compensation of such
Participant shall include the Contribution Percentage Amounts and compensation
for the Plan Year of Family Members (as defined in Section 414(q)(6) of the
Code). Family Members, with respect to Highly Compensated Employees, shall be
disregarded as separate employees in determining the Contribution Percentage
both for Participants who are not Highly Compensated Employees and for
Participants who are Highly Compensated Employees.
13. For purposes of determining the ACP test, Voluntary Contribution shall be
taken into account for a Plan Year only if such contributions are allocated to
the Participant as of a date within such Plan Year, and Matching Contributions
will be taken into account for a Plan Year only if such contributions are
allocated to the Participant as of a date within such Plan Year and are paid
over to the Trust no later than the last day of the twelve-month period
beginning on the day after the close of such Plan Year.
14. The Employer shall maintain records sufficient to demonstrate satisfaction
of the ACP test.
<PAGE>
15. The determination and treatment of the Contribution Percentage of any
Participant shall satisfy such other requirements as may be prescribed by the
Secretary of the Treasury.
16. The Employer shall perform the ACP test for the Plan Year after the close of
such Plan Year and at such other times, if any, as the Plan Administrator shall
select. Any interim testing shall be made for monitoring purposes only and shall
be based on a Participant's rate of compensation in effect at the time of the
test. corrections required to be made in order to reduce the amount in excess of
the maximum permissible Contribution Percentage shall be made from compensation
to be earned for the remainder of the Plan Year.
17. In the event that the ACP for Participants who are Highly Compensated
Employees for the Plan Year exceeds the maximum ACP permitted, then the excess
of the aggregate Contribution Percentage Amounts taken into account in computing
the numerator of the contribution Percentage actually made on behalf of the
Highly Compensated Employees for such Plan Year over the maximum Contribution
Percentage Amounts permitted by the ACP test (determined by reducing
contributions made on behalf of Highly Compensated Employees in order of their
Contribution Percentages beginning with the highest of such percentages) shall
be referred to as "Excess Aggregate Contributions" shall be determined after
first determining Excess Elective Deferrals and then determining Excess
Contributions.
18. Notwithstanding any other provision of this Plan, Excess Aggregate
Contributions, plus any income and minus any loss allocable thereto, shall be:
(a) forfeited, in the case of those Excess Aggregate Contributions allocated to
the Matching Accounts of those Participants who were less than 100% vested in
the Matching Accounts as of the end of the Plan Year in which such Excess
Aggregate Contributions were allocated. Such features shall be allocated for the
Plan Year in which such Excess Aggregate Contributions were allocated, after all
other forfeitures who are not Highly Compensated Employees and who made Elective
Deferrals for such Plan Year in the ratio which each such Participant's
Compensation for the Plan Year bears to total Compensation of all such
Participants for such Plan Year, or
<PAGE>
(b) in the case of all other Excess Aggregate Contributions, distributed no
later than the last day of each Plan Year to Participants to whose accounts such
Excess Aggregate Contributions shall be allocated to Participants who are
subject to the family member rules of Section 414(q)(6) of the Code in the
manner prescribed by the regulations. If such Excess Aggregate Contributions are
distributed more than 2-1/2 months after the last day of the Plan Year in which
such excess amounts arose, a ten (10) percent excise tax will be imposed on the
Employer maintaining the Plan with respect to those amounts. Excess Aggregate
Contributions shall be treated as Annual Additions under the Plan.
19. Determination of Income or Loss. Excess Aggregate Contributions shall be
adjusted for any income or loss. The income or loss allocable to Excess
Aggregate Contributions is the sum of: (a) income or loss allocable to the
Participant's Voluntary Contribution Account for the Plan Year multiplied by a
fraction, the numerator of which such Participant's Excess Aggregate
Contributions for the year and the denominator is the Participant's account
balance(s) attributable to Contribution Percentage Amounts without regret to any
income or loss occurring during such Plan Year.
20. Accounting for Excess Aggregate Contributions. Excess Aggregate
Contributions shall be forfeited, if forfeitable, or distributed from the
Participant's Class 8 units.
E. At any time but not more frequently than once each year, a participant may
elect to withdraw an amount up to the total value of all Class 3 units then
credited to his account and a number of such units, equal in value to the amount
withdrawn, shall thereupon be canceled. A participant who is married at the time
of making the withdrawal election must furnish to the Administrative Committee
the written consent of his or her spouse. Such consent must be signed by the
spouse and the spouse's signature witnessed by a notary public or plan official.
F. Elections to make voluntary contributions, shall be in writing, signed by the
participant and on such forms as the Committee shall provide. Upon termination
of employment, the amount represented by the Class 3 units then credited to the
participant's account shall be distributed in accordance with the provisions of
Article Eleven.
14. Article Six, Section G is deleted.
<PAGE>
ARTICLE SIX A
TRANSFERS FROM ESOP OF UMB FOR DIVERSIFICATION
Diversification transfers from ESOP of UMB. Anything to the contrary herein not
withstanding, the Trustee shall accept from the Trustee of the trust forming a
part of the ESOP of UMB (a qualified employee stock ownership plan) transfers of
such portions of the account balances of those participants in such plan as may
result from diversification elections made, from time to time, by such
participants in accordance with Section 408(a)(28) of the Internal Revenue Code.
Sums to be transferred to this Plan shall be accepted only if made in the form
of cash or its equivalents. Transfers shall be accepted only as of a valuation
date. The Trustee of the transferring trust shall provide to the Trustee of this
Plan, together with the transferred funds, a listing identifying each
Participant with respect to whom the transfer is made, and the amount of the
transferred funds to be credited to each Participant's account. The listing
shall include sufficient information of the various investment funds described
in Part A of Article Seven hereof necessary to carry out the Participant's
directions of the Participants whose interests in the ESOP are being
transferred. All units shall be credited to the accounts of the Participants who
interests they represent and shall thereafter be administered in all respects as
other credits to the account of the respective Participants.
ARTICLE SEVEN
SEPARATE INVESTMENT FUNDS - PARTICIPANTS'
RIGHTS OF ELECTION AND CONVERSION OF INVESTMENTS
A. Investment Funds. For the purpose of providing a diversity of investment
objectives, the trust created and maintained as a part of this Plan shall be
divided into separate Funds as hereinafter described, and general references
herein to the "trust" or "profit sharing trust" shall be understood to refer to
all of these Funds, singly or together as the context indicates. The Funds are
designated, and their respective investment policies are defined as follows:
Fund A - Balanced Equity-Debt Fund. To be invested in a diversified portfolio
consisting of approximately fifty percent in common stocks, preferred stocks,
convertible securities or other equity instruments, and approximately fifty
percent in notes, bonds, debentures, mortgages or other debt securities; and for
such purposes may be, but shall not be required to be, invested in whole or in
part in a combination of the Pooled Equity and Pooled Debt Funds operated by the
Trustee.
Fund B - Money Market Fund. To be invested in short-term debt securities
commonly classified as money-market instruments; and for such purpose may be,
but shall not be required to be, invested in whole or in part in the Pooled
Income Fund operated by the Trustee.
Fund C - Equity Fund. To be invested in a diversified portfolio of equity
securities as above-described and real estate; and for such purpose may be, but
shall not be required to be, invested in whole or in part in the Pooled Equity
Fund operated by the Trustee.
<PAGE>
Fund D - Debt Fund. To be invested in a diversified portfolio of debt securities
as above-described; and for such purpose may be, but shall not be required to
be, invested in whole or in part in the Pooled Debt Fund operated by the
Trustee.
Fund E - Heartland Fund. To be invested in a diversified portfolio of common
stock, preferred stocks, convertible securities ore other equity instruments of
smaller capitalization companies located in the eight-state Midwest area; and
for such purpose may be, but shall not be required to be, invested in whole or
in part in the UMB Heartland Fund, Inc., a no-load mutual fund for which the
Trustee serves as investment advisor.
Fund F - World-Wide Fund. To be invested in a diversified portfolio of common
stock, preferred stocks, convertible securities or other equity instruments of
larger capitalization U.S. and international stocks of established companies.
The fund will be invested no more than 25% in U.S. stocks or more than 20% in
any single foreign company; and for such purpose may be, but shall not be
required to be, invested in whole or in part in the UMB World-Wide Fund, Inc., a
no-load mutual fund for which the Trustee serves as investment advisor.
B. Allocation of Contributions to the Separate Funds. Upon commencement of
participation hereunder, each participant may, by filing an appropriate writing
with the Administrative Committee on or prior to the date of the initial
allocation of funds to his or her credit under this Plan, select one, two,
three, four, five or six of the Funds for the investment of all monies allocated
to his or her account. Any percentage of the monies allocated to the account may
be allocated to any Fund except for Fund E and Fund F, which may not exceed 25%
of the Participant's account to be allocated, respectively, so long as the sum
of all percentages equals 100% and each percentage is a whole number.
Similarly, a Participant may as of any Valuation Date, direct the conversion of
all of the units allocated to his or her account in each of the Funds, or such
portion thereof as it shall be necessary to convert, so that, after such
conversion, his or her entire interest in the Plan shall be invested either all
in one, two, three, four, five or six Funds, so long as the sum of all
percentages equals 100% each percentage is a whole number, and no more than 25%
of the Participant's account are allocated to Fund E or Fund F respectively. The
Participant desiring any such conversion shall evidence his or her election by
filing the election in writing with the Administrative Committee at least one
day before the Valuation Date as of which the conversion is to be made.
<PAGE>
ARTICLE EIGHT
DIVISION OF FUNDS INTO UNITS - INDIVIDUAL ACCOUNTS
TO BE MAINTAINED FOR PARTICIPANTS
A. General Plan. For the purpose of determining and accounting for the
proportionate interests of participants in the profit sharing trust whether or
not such interests are vested, each Investment Fund shall be divided into units
and all of such units in any one Fund shall be of equal value. The
Administrative Committee (or its agent, which may be the Trustee) shall maintain
an account for each participant showing the number of units in each Fund
credited to his account. Such division into, and creation or cancellation of,
units shall be made as of the applicable Valuation Date at which contributions
or forfeitures are to be allocated or as of which benefit amounts are to be
calculated, all as hereinafter provided.
B. Classification of Units. Units in the Funds shall be classified as follows:
1. Original Classification of Units.
(a) Units created to represent each participant's profit share in each year, and
units created to represent forfeitures, shall be designated Class 1 units.
(b) Units created to represent amounts transferred from the United Missouri
Revised Retirement Plan pursuant to the provisions of Article Twenty, Section B,
shall be Class 2 units.
(c) Units created to represent the voluntary contributions of participants shall
be designated Class 3 units.
(d) Units created to represent the interest of Participants upon transfer of
fully vested account balances from a plan previously maintained by an Employer
before the Employer became a Participating Employer shall be designated Class 5
units.
(e) Units created to represent the interests of participants upon transfer of
account balances which are not necessarily fully vested, and which transfer is
incidental to the merger of a prior plan with and into this Plan shall be
designated Class 6 units.
<PAGE>
(f) Units created to represent amounts transferred, rolled over, or directly
rolled over from Individual Retirement Accounts, Individual Retirement
Annuities, or other qualified retirement plans, pursuant to Article Twenty,
except amounts described in Paragraph 1(g) below, or from the ESOP of United
Missouri Bancshares, Inc. pursuant to the provisions of Section G of Article Six
shall be designated Class 7 units.
(g) Units created to represent matching contributions made by the Employer
pursuant to Article 6, and earnings on those matching contributions, shall be
designated Class 8 units.
(h) Units created to represent the Elective Deferrals of Participant made
pursuant to Article 4A and earnings on those Elective Deferrals and the interest
of Participants upon transfer (but not rollover or direct rollover) of account
balances credited to the Participant pursuant to an elective deferral under a
cash or deferred arrangement (Section 401(k)) and earnings on the elective
deferrals, and which transfer may be incidental to a merger of a prior plan into
this Plan, or the transfer from the qualified retirement plan of the
Participant's prior employer shall be designated Class 9 units.
19. Article Eight, Section B, Paragraph 2 is deleted.
C. Monthly Valuations of Funds. As of the last business day in each month,
except December, during the continuance of this Plan, the Administrative
Committee shall, with respect to each Fund:
1. Determine the unit value on said date of existing units of the Fund by
determining the value of the Fund on that date and dividing said value by the
number of then existing units of the Fund, and the value of the Fund on the last
business day of any month shall mean the fair market value of all of its assets
on that date, including the dollar amount of Employer contributions already
allocated as of the end of the preceding Plan Year but not yet received, less
(a) the dollar amount of all Employer contributions to the Fund for the current
year, if any, theretofore received by the Fund, and (b) the dollar amount of
contributions of participants received by the Fund for the month ending on said
date, and (c) any expenses of the Fund theretofore incurred, and unpaid on said
date, and (d) liabilities, if any, of the Fund in respect of unpaid benefit
payments under the Plan whether then due or to become due in the future; it
being intended by this method to allocate to existing units of the Fund all of
the earnings of, and all of the appreciation or depreciation (realized or
unrealized ) upon the assets of, the Fund during the month;
2. Cancel all of the units of the Fund which are required to be canceled;
<PAGE>
3. Create additional units of the Fund, at the unit value determined pursuant to
subpart 1 above, with the amount of participants' contributions to the Fund for
such month, allocating such additional units among participants who made such
contributions, and credit the account of each such participant with the number
of units thus allocated to him.
D. Annual Valuations of Funds. As of the end of each Plan Year during the
continuance of this Plan, and following the receipt of all of the Employers'
contributions for the year, the Administrative Committee shall, with respect to
each Fund:
1. Determine the unit value at the end of such year of existing units in the
Fund by determining the value of the Fund on that date, and dividing said value
by the number of then existing units of the Fund. The value of the Fund at the
end of the year shall mean the fair market value of all sets on that date less
(a) the dollar amount of all Employer contributions to the Fund for the year
then ended, if any, theretofore received by the Fund and (b) the dollar amount
of contributions of participants received by the Fund during the month then
ended and (c) any expenses of the Fund theretofore incurred and unpaid at such
year end and (d) liabilities, if any, of the Fund in respect of unpaid benefit
payments under the Plan, whether then due or to become due in the future;
2. Determine the particular group of Active Participants and former participants
who pursuant to the provisions of Article Four are entitled to share in the
contributions of the Employers for such year; and allocate among such Active
Participants and former participants the dollar amount of forfeited credits
allocable thereto at the end of such year under the provisions of Article Nine,
in the same proportion as to each such member of the group as his profit share
for such year bears to the total profit shares for such year of all the Active
Participants and former participants in such group; and also determine the
portion thereof to be credited to the particular Fund;
3. Create and allocate additional units of the Fund at the unit value determined
pursuant to subpart 1 above, with respect to each Active Participant and former
participant entitled to share in Employer contributions for such year, by
applying for each such participant the sum of the portion of his profit share
and the portion of his share of the forfeited credits determined under subpart 2
above to be credited to the particular Fund;
<PAGE>
4. Create and allocate additional units of the Fund at the unit value above
determined with respect to each participant making a voluntary participant's
contribution for the month of December in such year, by applying for each such
participant the amount of his contribution so made;
5. Cancel all units of the Fund as required by reason of any distribution of
whatsoever nature.
E. Unit Values - Fractional Units. The value of a unit in any of the Funds
maintained under the Plan shall never, at the end of any Plan Year, be equal to
or more than $2.00. If, at the end of any calendar year of the Plan, the unit
value in any particular Fund would be $2.00 or more, then such unit value shall
be halved and the number of existing units in the particular Fund shall be
doubled before any further calculations are made.
Fractional units shall be permitted and calculations shall be carried to the
nearest tenth of one unit, ignoring smaller fractions, provided, however, that
if and when in the judgment of the Administrative Committee, or if the Trustee
is maintaining the participants' records, then if and when in the sole and
unrestricted judgment of the Trustee, it shall become necessary or desirable to
eliminate fractional units in order to facilitate administration of the Plan, or
to make administration compatible with any automated record keeping system
employed by the Trustee, fractional units may, as of any Valuation Date selected
by the Trustee, be converted to whole units by rounding all existing fractional
units to the nearest whole unit. In such event, all units created subsequent to
such Valuation Date shall be rounded to the nearest whole unit, and fractions of
less than one-half shall be disregarded.
F. Alternative Reporting. The accounts of Participants may be maintained, and
valuations and adjustments made, on the basis of account balances if the Trustee
deems such method desirable; provided however, that such method does not result
in any variation in the benefits otherwise to be provided Participants
hereunder.
ARTICLE NINE
KINDS AND BASIS OF BENEFITS
The provisions of Article Ten shall take precedence over any conflicting
provision of this Article Nine.
A. Benefits at Retirement, Disability or Death. If the employment by the
Employer of any participant terminates on or after his normal, early or
disability retirement date, or if the participant dies while in the employ of
the Employer, there shall be payable to the participant in the case of a
retirement or disability benefit, or to his Beneficiary or Beneficiaries in the
case of a death benefit, at the time or times and in one or more of the methods
provided in Article Eleven, the sum of the following:
<PAGE>
1. The value of all the units in any and all of the Funds hereunder then
credited to his account (including the amount of any contribution, other than
Employer contributions for the current Plan Year, received but not yet converted
to units); and
2. The value of all units to be credited as of the end of the relevant Plan Year
to his account by reason of his sharing in Employer contributions for the
current Plan Year in which his retirement, disability retirement or death
occurs. For purposes of this Article Nine unit values shall be determined as of
the Valuation Date next preceding the date of payment of amounts attributable to
the units canceled for purposes of making distribution.
B. Benefits at Termination of Employment, Other than by Retirement, Disability
or Death. If the employment of any participant by the Employers hereunder shall
terminate for any cause or reason other than such participant's retirement,
disability or death, there shall be distributable to him as hereinafter provided
in Article Eleven the sum of the amounts determined as follows:
1. One hundred percent (100%) of the value of all of the Class 2, Class 3, Class
5, Class 7 and Class 9 units of any and all of the Funds hereunder then credited
to the Participant's account, if any, and
2. The applicable percentage of the value of Class 1 and Class 8 units then
credited or to be credited to the Participant's account, the percentage
depending upon the number of the Participant's Years of Service for vesting
completed prior to the Participant's termination date, determined under the
following vesting schedule:
Years of Vested Percentage of Forfeited Percentage
Service Class 1 & Class 8 of Class 1 & Class 8
For Vesting Units Units
___________ ____________________ ____________________
Less than 5 0% 100%
5 or more 100% 0%
and;
3. The applicable percentage of the value of Class 6 units then credited to his
account, such percentage depending upon the number of Years of Service for
vesting (as set further in Article Two, Paragraph F3) completed to his
termination date, and the vesting schedule of the prior plan, except that in no
situation shall the vested percentage be less than the vested percentage
maintained at the time of the establishment of the Class 6 unit.
<PAGE>
C. Forfeitures
1. With respect to a Participant who terminates and is not 100% vested in the
Participant's Class 1 units, Class 6 units, or Class 8 units, the amount equal
to the difference between the total value of such units, and the amount to which
the Participant is entitled from such units under the vesting schedule shall be
forfeited.
All forfeitures occurring during the Plan Year shall be held in an account
designated "Forfeiture Account".
In the case of a Participant having no non-forfeitable interest in the
Participant's Class 1, Class 6, or class 8 units, the respective units shall be
canceled and forfeited immediately upon the Participant's termination of
service, subject however, to the restoration provisions of Paragraph 5 of
Section C of this Article Eight. In the case of a Participant having a partially
vested interest in a Participant's Class 1, Class 6, or Class 8 units, the
balance of the respective units to which the Participant is not entitled shall
be canceled and forfeited immediately upon the commencement of distribution of
such vested interest, subject to the restoration provisions of Paragraph 4 of
this section. As of the last day of such Plan Year during which (or with respect
to which) such forfeitures occur, all such forfeitures (less the amount required
to restore previously canceled Class 1, Class 6, or Class 8 units of reemployed
Participants pursuant to the restoration provisions of Paragraph 6 of this
Section) shall be reallocated among all active Participants and former
Participants and former Participants entitled to share therein in the manner and
proportion set out in Paragraph 2 of Section D of Article 8.
2. In the event a former Participant who on termination was entitled to less
than 100% of the value of his Class 1, Class 6 or Class 8 units as determined in
accordance with the provisions of Part B of this Article Nine, received a
distribution of the termination benefit and thereafter resumes service in the
employ of an Employer, such former Participant shall have an absolute right to
make repayment to the Trustee of the entire amount previously distributed to the
Participant, provided that such repayment is made in full or on prior to the
date the Participant incurs five consecutive One Year Breaks in Service
following the date of distribution.
<PAGE>
3. Anything to the contrary notwithstanding, if a former Participant upon
termination of participation is not entitled to a nonforfeitable percentage of
his Class 1, Class 6 or Class 8 units and shall later resume employment in the
service of the Employer, Years of Service prior to a One-Year Break in Service
shall not be taken into account in determining the Years of Service for Vesting
if the number of consecutive such Breaks in Service equals or exceeds the
aggregate number of Years of Service prior to such Break in Service or Breaks in
Service.
4. If, pursuant to the provisions of Article Ten, a Participant receives a
distribution which is less than the value of all Class 1, Class 6 or Class 8
units credited to his account and thereafter resumes employment with the
Employer, his Class 1, Class 6 or Class 8 units, to the extent of their value on
the date of distribution, shall be restored if the Participant makes, within the
time therein specified, the repayment described in subpart 2 of this Part C.
5. If a Participant upon termination of service has no nonforfeitable interest
in his Class 1, Class 6 or Class 8 units and resumes employment with an Employer
on or before the date he incurs five consecutive One-Year Breaks in Service
following his termination of service, the value of his Class 1, Class 6 or Class
8 units, determined as of the date of such termination of service, shall be
restored.
6. To the extent necessary to restore any amount to the credit of a Participant
whose employment has resumed following a service termination, under the
provisions of this Part C, such amount shall first be obtained from forfeitures
pending reallocation, but if such source is insufficient, next from current
investment gain taken ratably (based on total values as of the relevant date)
from each of the Investment Funds, but if such source is still insufficient,
finally such amount shall be obtained from contributions of the Employer
(without regard to profits).
D. Years of Service for Vesting. In computing a Participant's Years of Service
for Vesting, all of his Years of Service with the Employers shall be taken into
account, except as otherwise provided in this Part D.
1. In the case of a Participant who has five or more consecutive One-Year Breaks
in Service, the Participant's pre-break service will count in vesting his Class
1, Class 6 or Class 8 units only if either:
(a) Such Participant has any nonforfeitable interest in his Class 1, Class 6 or
Class 8 units at the time of separation from service, or
(b) upon returning to service the number of consecutive one-year Breaks in
Service is less than the number of Years of Service.
<PAGE>
2. In the case of any Participant who has incurred a One-Year Break in Service,
Years of Service before such break will not be taken into account for the
purpose of vesting until the Participant has completed a Year of Service after
such break in service.
3. In the case of a Participant who has five or more consecutive One-Year Breaks
in Service all service after such breaks in service will be disregarded for the
purpose of vesting his Class 1, Class 6 or Class 8 units that accrued before
such breaks in service. Such Participant's pre-break service will count in
vesting the post-break Class 1, Class 6 or Class 8 units only if either:
(a) such Participant has any nonforfeitable interest in his Class 1, Class 6 or
Class 8 units at the time of separation from service, or
(b) upon returning to service the number of consecutive one-year Breaks in
Service is less than the number of Years of Service.
4. Separate accounts will be maintained for the Participant's pre-break and
post-break Class 1, Class 6 or Class 8 units. Both accounts will share in the
earnings and losses of the respective investment fund(s) in which such units are
invested.
E. Overlap Rule. If an Employee satisfies the One-Year of Service requirement
for participation, but does not have 1,000 Hours of Service in either the
calendar year in which that year of service begins or in the calendar year in
which that Year of Service ends, he shall nonetheless receive One-Year of
Service for vesting for the calendar year in which that year of service ends.
F. This Plan specifically permits distribution to an alternate payee under a
Qualified Domestic Relations Order at any time irrespective of whether the
Participant has obtained his earliest retirement age (as defined under Code
Section 414(p)) under the Plan. A distribution to an alternate payee prior to
the participant's attainment of earliest retirement age is available only if:
(1) The order specifies distribution at that time or permits an agreement
between the plan and the alternate payee to authorize an earlier distribution
and (2) the alternate payee consents to any distribution occurring prior to the
participant's attainment of earliest retirement age.
Nothing in this section shall permit a participant to a right to receive
distribution at a time otherwise not permitted under the Plan nor shall it
permit the alternate payee to receive a form of payment not permitted under the
Plan.
<PAGE>
ARTICLE TEN
JOINT AND SURVIVOR ANNUITY REQUIREMENTS
A. The provisions of this Article shall take precedence over any conflicting
provision in this Plan. The provisions of this Article shall apply to any
participant who is credited with at least one Hour of Service with the Employer
on or after August 23, 1984, and such other participants as provided in Part F
of this Article.
B. Payment of any benefit amount under this Plan shall not be required to be
made in the form of a Qualified Joint and Survivor Annuity in any case unless
the participant entitled thereto is qualified to retire under the Plan. In that
case, however, unless an optional form of benefit (other than a death benefit)
is selected pursuant to a Qualified Election within the 90-day period ending on
the date benefit payments would otherwise commence, a married participant's
vested account balance will be paid in the form of a Qualified Joint and
Survivor Annuity, and an unmarried participant's vested account balance will be
paid in the form of a life annuity, provided, however, that if the vested
account balance does not exceed $3,500, the benefit will be paid in a lump sum.
C. Unless an optional form of benefit has been selected within the Election
Period pursuant to a Qualified Election, if a participant dies before benefits
have commenced, then fifty percent of the participant's vested account balance
shall be applied for the benefit of the Surviving Spouse and the balance shall
be distributed to the beneficiary or beneficiaries in accordance with the
provisions of Part B of Article Thirteen. The Surviving Spouse may elect to have
such annuity (or equivalent benefit where applicable) distributed immediately.
If the amount of such benefit exceeds $3,500, it shall be applied toward the
purchase of an annuity for the life of the Surviving Spouse; otherwise, the
benefit will be paid in a lump sum.
D. Definitions of terms used in this Article:
1. Election Period: The period which begins on the first day of the Plan Year in
which the participant attains age 35 and ends on the date of the participant's
death. If a participant separates from service prior to the first day of the
Plan Year in which age 35 is attained, with respect to the account balance as of
the date of separation, the election shall begin on the date of separation.
<PAGE>
2. Qualified Election: A waiver of a Qualified Joint and Survivor Annuity or a
qualified preretirement survivor annuity. The waiver must be in writing and must
be consented to by the participant's Spouse. The Spouse's consent to a waiver
must be witnessed by a Plan representative or notary public and must be limited
to a benefit for a specific alternate beneficiary. Notwithstanding this consent
requirement, if the participant establishes to the satisfaction of a Plan
representative that such written consent may not be obtained because there is no
Spouse or the Spouse cannot be located, a waiver will be deemed a Qualified
Election. Any consent necessary under this provision will not be valid with
respect to any other Spouse. Additionally, a revocation of a prior waiver may be
made by a participant without the consent of the Spouse at any time before the
commencement of benefits. The number of revocations shall not be limited. Any
new waiver or change of beneficiary will require a new spousal consent.
3. Qualified Joint and Survivor Annuity: An annuity for the life of the
participant with a survivor annuity for the life of the Spouse which is not less
than fifty percent and not more than 100 percent of the amount of the annuity
which is payable during the joint lives of the participant and the Spouse and
which is the amount of benefit which can be purchased with the participant's
vested account balance.
4. Spouse (Surviving Spouse): The Spouse or Surviving Spouse of the participant,
provided that a former Spouse will be treated as the Spouse or Surviving Spouse
to the extent provided under a qualified domestic relations order as described
in section 414(p) of the Internal Revenue Code.
E. Notice Requirements.
1. In the case of a Qualified Joint and Survivor Annuity as described in Part D
of this Article the Committee shall, if at any time the Plan does not fully
subsidize the cost of the survivor annuities, provide each participant within a
reasonable period prior to the commencement of benefits a written explanation
of:
(a) The terms and conditions of a Qualified Joint and Survivor Annuity;
(b) The participant's right to make, and the effect of, an election to waive the
Qualified Joint and Survivor Annuity form of benefit;
(c) The rights of a participant's Spouse; and
(d) The right to make, and the effect of, a revocation of a previous election to
waive the Qualified Joint and Survivor Annuity.
<PAGE>
2. In the case of a qualified preretirement survivor annuity as described in
Part C of this article, the Committee shall provide each participant within the
period beginning on the first day of the Plan Year in which the participant
attains age 32 and ending with the close of the Plan Year in which the
participant attains age 35, a written explanation of the qualified preretirement
survivor annuity in such terms and in such manner as would be comparable to the
explanation provided for meeting the requirements of subsection (a), applicable
to a Qualified Joint and Survivor Annuity.
If a participant enters the Plan after the first day of the Plan Year in which
the participant attained age 32, the Committee shall provide such explanation no
later than the close of the third Plan Year succeeding the entry of the
participant in the Plan.
F. Transitional Rules.
1. Any living participant not receiving benefits on August 23, 1984, who would
otherwise not receive the benefits prescribed by the previous sections of this
Article must be given the opportunity to elect to have the prior sections of
this Article apply if such participant is credited with at least one Hour of
Service under this Plan in a Plan Year beginning on or after January 1, 1976,
and such participant had at least ten Years of Service when he separated from
service.
2. Any living participant not receiving benefits on August 23, 1984, who was
credited with at least one Hour of Service under this Plan on or after September
2, 1974, and who is not otherwise credited with any service in a Plan Year
beginning on or after January 1, 1976, must be given the opportunity to have his
benefits paid in accordance with numbered paragraph 4 below:
3. The respective opportunities to elect (as described in numbered paragraph 1
and 2 above) must be afforded to the appropriate participants during the period
commencing on August 23, 1984, and ending on the date benefits would otherwise
commence to said participants.
4. Any participant who has elected pursuant to numbered paragraph 2 above and
any participant who does not elect under numbered paragraph 1 above or who meets
the requirements of such paragraph except that such participant does not have at
least ten Years of Service when he separates from service, shall have his
benefits distributed in accordance with all of the following requirements if
benefits would have been payable in the form of a life annuity:
<PAGE>
(a) Automatic joint and survivor annuity. If benefits in the form of a life
annuity become payable to a married participant who:
(i) begins to receive payments under the Plan on or after Normal Retirement
Date; or
(ii) dies on or after Normal Retirement Date while still working for the
Employer; or
(iii) begins to receive payments on or after the qualified Early Retirement
Date; or
(iv) separates from service on or after attaining Normal Retirement Date (or the
qualified early retirement age) and after satisfying the eligibility
requirements for the payment of benefits under the Plan and thereafter dies
before beginning to receive such benefits; then such benefits will be received
under this Plan in the form of a Qualified Joint and Survivor Annuity, unless
the participant has elected otherwise during the Election Period. The Election
Period must begin at least 6 months before the participant attains qualified
early retirement age and end not more than 90 days before the commencement of
benefits. Any election hereunder will be in writing and may be changed by the
participant at any time.
(b) Election of early survivor annuity. A participant who is employed after
attaining the qualified early retirement age will be given the opportunity to
elect, during the Election Period, to have a survivor annuity payable on death.
If the participant elects the survivor annuity, payments under such annuity must
not be less than the payments which would have been made to the Spouse under the
Qualified Joint and Survivor Annuity if the participant had retired on the date
before is death. Any election under this provision will be in writing and may be
changed by the participant at any time. The Election Period begins on the later
of:
(i) The 90th day before the participant attains the qualified early retirement
age, or
(ii) The date on which participation begins; and ends on the date the
participant terminate employment.
(c) For purposes of this subpart 4:
<PAGE>
(i) Qualified early retirement age is the latest of:
(aa) The earliest date, under the Plan, on which the participant may elect to
receive retirement benefits,
(bb) The first day of the 120th month beginning before the participant reached
Normal Retirement Date, or
(cc) The date the participant begins participation.
(ii) Qualified Joint & Survivor Annuity is an annuity for the life of the
participant with a survivor annuity for the life of the spouse as described in
numbered paragraph 3 of Part D of this Article.
ARTICLE ELEVEN
PAYMENT OF BENEFITS
A. Administrative Committee to Determine Benefits. Except as otherwise provided
in Article Ten, "Joint and Survivor Annuity Requirements", the requirements of
this Article shall apply to the distribution of any accrued benefit or portion
thereof. The Administrative Committee, in accordance with the rules set forth in
this Article, shall make all determinations as to what persons are entitled to
receive benefits under the provisions of this Plan, and as to the kind, amount,
time and method of payment of such benefits, and such determinations of the
Administrative Committee when not in direct conflict with such rules, shall be
final. The Administrative Committee shall direct the Trustee in writing with
respect to the payment of all benefits to be made from the Plan and shall
include in each such direction the name, address and Social Security number of
the benefit payee and such other information as the Trustee may reasonably
require.
B. Direct Transfer of Benefits to Other Qualified Plans. All or a portion of the
accrued benefit of any participant who has terminated service with the Employer
may, upon the written request of such participant and approval thereof by the
Administrative Committee, and the Trustee's receipt of written evidence of the
transferee's willingness to accept such assets in trust, be transferred to the
trustee or custodian of a qualified plan of a successor employer of such
participant.
<PAGE>
C. Payment to Minors or Legal Incompetents. In case any minor or other legally
incompetent person shall become entitled to receive any benefit hereunder,
payment shall be made in such of the following methods as the Plan Administrator
shall direct in writing:
1. directly to such person;
2. to the legal representative of such person; or
3. to a relative of such person or other person having the actual custody of
such minor or other legally incompetent person, for the benefit of the latter.
D. Distribution Methods. Distributions, if not made in lump sum, may only be
made over one of the following periods (or a combination thereof):
1. The life of the Participant.
2. The lives of the Participant and his designated beneficiary.
3. A period certain not extending beyond the life expectancy of the Participant
or
4. A period certain not extending beyond the joint life and last survivor of the
Participant and his designated beneficiary.
To the extent practical, distributions may be made in cash or in kind or partly
in cash or partly in kind. The units of a Participant receiving installments may
be classified Class 4 units if the Administrative Committee so directs.
The portion of any benefit resulting from sharing in the Employer contributions
for the current Plan Year in which the Participant's retirement occurs shall be
paid in full in a lump sum as soon as administratively practicable and in no
event later than April 1 of the following Plan Year, or if payment of the
primary portion of the benefit has been postponed to such following year, then
this final portion may be added thereto and paid as a part of and in the manner
selected for such primary portion.
<PAGE>
In the case of periodic payments, the amount to be distributed each year must be
at least an amount equal to the quotient obtained by dividing the Participant's
entire interest by the life expectancy of the Participant or joint and last
survivor expectancies of the Participant and designated beneficiary. Life
expectancy and joint and last survivor expectancy are computed by the use of the
return multiples contained in section 1.72-9 of the Income Tax Regulations. For
purposes of this computation, a Participant's life expectancy may be
recalculated no more frequently than annually, however, the life expectancy of a
nonspouse beneficiary may not be recalculated. If the Participant's spouse is
not the designated beneficiary, the method of distribution selected must assure
that at least fifty percent of the present value of the amount available for
distribution is paid within the life expectancy of the Participant.
E. Rules Governing Benefit Payments.
1. Benefit payments hereunder shall be paid or commenced to be paid at the time
specified by the Administrative Committee and in accordance with the following
rules:
(a) If the vested portion of the participant's account(s) does not exceed
$3,500, the benefit payment shall be made in a lump sum no later than one
hundred twenty days following the end of the Plan Year during which service
terminates. However, no distribution shall be made pursuant to the preceding
sentence after the first day of the first period for which an amount is received
as an annuity unless the participant and his spouse (or the participant's
Surviving Spouse) consent in writing to such distribution.
(b) If the vested portion of the participant's account(s) exceeds $3,500, the
benefit payment shall be made no later than one hundred twenty days following
the end of the Plan Year during which service terminates, if the participant
entitled thereto (and his Spouse) has in writing evidenced his consent to
payment within such period; otherwise, the benefit payment shall be paid
following, and within sixty days thereof, the close of the Plan Year during
which the latest of the following events occur; provided, however, that the
participant may elect a later distribution under the conditions herein
specified:
(i) attainment of such participant's Normal Retirement Date;
(ii) the tenth anniversary of the date when such participant commenced
participation in the Plan;
(iii) termination of such participant's service with the Employer.
<PAGE>
Anything in this subsection to the contrary notwithstanding, the Committee upon
the written request of the participant or Beneficiary(ies), may elect to cause
payment of any benefit subject to the provisions of this subsection to be made
at an earlier date than specified above, in the event of the earlier death or
Permanent and Total Disability of the participant entitled thereto, or in the
event such participant requests in writing distribution at an earlier date.
2. Required Commencement Date of Distributions. The account balance of a
participant, including a participant whose employment by the Employer has not
terminated, must be distributed or commenced to be distributed, no later than
the fist day of April following the calendar year in which such participant
attains age 70 1/2.
3. Transitional Rule.
(a) Notwithstanding the other requirements of this Article and subject to the
requirements of Article Ten, "Joint and Survivor Annuity Requirements",
distribution on behalf of any participant may be made in accordance with all of
the following requirements (regardless of when such distribution commences):
(i) The distribution by the Trust is one which would not have disqualified such
Trust under section 401(a)(9) of the Code as in effect prior to amendment by the
Deficit Reduction Act of 1984.
(ii) The distribution is in accordance with a method of distribution designated
by the participant whose interest in the Trust is being distributed or, if the
participant is deceased, by a beneficiary of such participant.
(iii) Such designation was in writing, was signed by the participant or the
beneficiary, and was made before January 1, 1984.
(iv) The participant had accrued a benefit under the Plan as of December 31,
1983.
(v) The method of distribution designated by the participant or the beneficiary
specifies the time at which distribution will commence, the period over which
distributions will be made, and in the case of any distribution upon the
participant's death, the beneficiaries of the participant listed in order or
priority.
(b) A distribution upon death will not be covered by this transitional rule
unless the information in the designation contains the required information
described above with respect to the distributions to be made upon the death of
the participant.
<PAGE>
(c) For any distribution which commences before January 31, 1984, but continues
after December 31, 1983, the participant, or the beneficiary, to whom such
distribution is being made, will be presumed to have designated the method of
distribution under which the distribution is being made if the method of
distribution was specified in writing and the distribution satisfies the
requirements in subsections (i) and (v) above.
(d) If a designation is revoked any subsequent distribution must satisfy the
requirements of Code section 401(a)(9) as amended. Any changes in the
designation will be considered to be a revocation of the designation. However,
the more substitution or addition of another beneficiary (one not named in the
designation) under the designation will not be considered to be a revocation of
the designation, so long as such substitution or addition does not alter the
period over which distributions are to be made under the designation, directly
or indirectly (for example, by altering the relevant measuring life).
F. Distributions after Death of Participant. Subject to the provisions of
Article Ten, upon the death of a participant, the following distribution
provisions shall take effect:
1. If the participant dies after distribution of his interest has commenced, the
remaining portion of such interest will continue to be distributed at least as
rapidly as under the method of distribution being used prior to the
participant's death.
2. If the participant dies before distribution of his interest commences, the
participant's entire interest will be distributed no later than five years after
the participant's death except to the extent that an election is made to receive
distributions in accordance with (a) or (b) below:
(a) if any portion of the participant's interest is payable to a designated
Beneficiary, distributions may be made in substantially equal installments over
the life expectancy of the designated Beneficiary commencing no later than one
year after the participant's death;
<PAGE>
(b) if the designated Beneficiary is the participant's surviving spouse, the
date distributions are required to begin in accordance with (a) above shall not
be earlier than the date on which the participant would have attained age 70
1/2, and, if the spouse dies before payments begin, subsequent distributions
shall be made as if the spouse had been the participant.
3. For purposes of subsection (2) above, payments will be calculated by use of
the return multiples specified in section 1.72-9 of the regulations. Life
expectancy of a surviving spouse may be recalculated annually. In the case of
any other designed Beneficiary, life expectancy will be calculated at the time
payment first commences and payments for any 12-consecutive month period will be
based on such life expectancy minus the number of whole years passed since
distribution first commenced.
4. For purposes of this section, any amount paid to a child of the participant
will be treated as if it had been paid to the surviving spouse if the amount
becomes payable to the surviving spouse when the child reaches the age of
majority.
If more than one Beneficiary shall have been designated, the amount of the
benefit shall be paid to the Beneficiaries so designated in the same respective
proportions as provided in the instrument of designation, otherwise in equal
parts. Irrespective of the foregoing, however, no part of any death benefit
shall be paid to a Beneficiary who is not living at the time payment thereof is
to be made, and, if one or more but less than all of the Beneficiaries so
designated is then deceased, the parts to which the Beneficiaries who are living
are entitled shall be proportionately enlarged accordingly. If none of the
Beneficiaries so designated shall be living at the time payment of the death
benefit is to be made, or if no designation of Beneficiary shall be in effect at
the time of death of the participant on account of which the death benefit
becomes payable, the entire benefit shall be paid to the person(s) of the
following class and in the following order of preference, as determined by the
Administrative Committee:
1. The widow or widower of the decedent; but if none, then to
2. The surviving natural and adoptive children of the decedent, in equal shares
per capita and not per stirpes; but if none, then to
3. The personal representative of the decedent.
<PAGE>
The legal incapacity of any designated living Beneficiary to take that
portion of a death benefit to which he would otherwise be entitled,
shall not be deemed to transfer the right of payment to any portion
thereof to another Beneficiary whose entitlement thereto was made
contingent upon the death of the designated Beneficiary so
incapacitated. In such case the portion of the death benefit which
otherwise would be payable to the incapacitated designee shall be paid
in accordance with the foregoing order of preference.
G. No Benefit Due Until Amount Determined. In case the entire amount of any
benefit provided hereunder shall become payable under the provisions of Article
Nine before such amount can be fully determined, then notwithstanding such other
provisions to the contrary, such benefit shall be payable within thirty (30)
days after the entire amount thereof can be fully determined. No participant
hereunder shall have the right to compel the Trustee to make any payment out of
the Plan Trust except as provided in this Article Eleven.
H. Direct Rollovers. This section applies to distributions made on or after
January 1, 1993. Notwithstanding any provisions to the plan to the contrary that
would otherwise limit a Distributee's election under this Article, a Distributee
may elect, at the time and in the manner prescribed by the Plan Administrator,
to have any portion of an Eligible Rollover Distribution paid directly to an
Eligible Retirement Plan specified by the Distributee in a Direct Rollover.
1. Eligible Rollover Distribution - An Eligible Rollover Distribution is
any distribution of all or any portion of the balance to the credit of the
Distributee except that an Eligible Rollover Distribution does not include any
distribution that is one of a series of substantially equal periodic payments
(not less frequently than annual) made for the life (or life expectancy) of the
Distributee or the joint lives (or joint life expectancies) of the Distributee
and the Distributee's designated beneficiary or for a specified period of ten
years or more; any distribution to the extent such distribution is required
under Section 401(a)(9) of the Code; and the portion of any distribution which
is not includible in gross income (determined without regard to the exclusion
for net unrealized appreciation with respect to employer securities).
2. Eligible Retirement Plan - An Eligible Retirement Plan is an individual
retirement account described in Section 408(a) of the Code, an individual
retirement annuity described in Section 408(b) of the Code, and 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 an individual retirement
account or individual retirement annuity.
<PAGE>
3. Distributee - A Distributee includes an Employee or former Employee. In
addition, the Employee's or former Employee's surviving spouse and the
Employee's or former Employee'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.
4. Direct Rollover - A Direct Rollover is a payment by the plan to the
Eligible Retirement Plan specified by the Distributee.
ARTICLE TWELVE
WITHDRAWALS - LOANS
A. Withdrawals
1. A participant having any Class 3 units or Class 7 units (subject to the
restriction set forth in Article Twenty) credited to his or her account may, by
submitting to the Administrative Committee at any time his or her election so to
do, withdraw any portion or all of the current value of such units. To provide
the funds for any such withdrawal, units shall be canceled as of the valuation
thereof at the end of the month preceding the participant's request, and the
amount so determined shall be payable to the participant promptly and in any
case within sixty days after the date of such request.
2. Any participant having attained the age of 59 2 years may, although
continuing in the employment of the Employer, upon request in writing submitted
to the Administrative committee, effect the withdrawal of the value of his
entire accrued benefit under the plan (but no less than such amount) as of any
Valuation Date. such request must be received by the Committee no later than the
Valuation Date with respect to which the withdrawal is to be made. For purposes
of this provision the term 'accrued benefit" shall have reference to the sum of
all classes of units credited to the account of the participant, to the extent
of his vested interest therein.
A withdrawal made pursuant to the provisions of this subpart shall have no
effect upon the withdrawing participant's eligibility to share in contributions
of the Employer made coincident with or subsequent to the Valuation Date as of
which the withdrawal is made.
<PAGE>
In the event a withdrawing participant shall, as of the date of the
withdrawal, have any loan indebtedness to the plan outstanding, the amount
withdrawn shall first be applied by the Trustee to the extent required to fully
satisfy such indebtedness and the balance of such amount then be distributed to
the participant.
3(a) A Participant having any Class 9 units credited to his or her account
may, by submitting to the Administrative Committee the required information,
withdraw any portion or all of the current value of Class 9 units, except that
amount attributable to earnings on elective deferrals accrued after December 31,
1988, to the extent necessary to satisfy a hardship of the Participant. For
purposes of this section, hardship is defined as an immediate and heavy
financial need of the Participant. Hardship distributions are subject to the
spousal consent requirements contained in Sections 401(a)(11) and 417 of the
Code.
3(b) The following are the only needs considered immediate and heavy:
(1) Expenses for medical care described in Section 213 (d) of the Code
previously incurred by the Participant, the Participant's spouse, or any
dependents of the Participant, or necessary for these persons to obtain medical
care described in Section 213 (d) of the Code.
(2) Costs directly related to the purchase of a principal residence for the
Participant (excluding mortgage payments).
(3) Payments of tuition and related educational fees for the next twelve
months of post-secondary education for the Participant, the Participant's
spouse, children or dependents.
(4) Payments necessary to prevent the eviction of the Participant from the
Participant's principal residence or foreclosure on the mortgage on that
residence.
3(c) The maximum amount that may be withdrawn in the event of a
Participant's hardship is the lesser of (1) the value of the Class 9 units
credited to his or her account less that amount attributable to earnings on
elective deferrals accrued after December 31, 1988, and (2) the amount needed to
satisfy the immediate and heavy financial need of the Participant. The amount
may include any amounts necessary to pay any federal, state or local income
taxes or penalties reasonably anticipated to result from the distribution.
<PAGE>
(d) To obtain a hardship distribution, a Participant must have obtained all
distributions, other than hardship distributions, and all nontaxable (at the
time of the loan) loans currently available under all plans maintained by the
Employer.
(e) Any Participant who obtains a hardship distribution (1) is prohibited
from making any elective deferrals or elective contributions to this or any
other plan maintained by the Employer for twelve months after the receipt of the
hardship distribution; (2) must limit any elective deferral to this or any other
plan maintained by the Employer for the next taxable year to the applicable
limit under Section 402(g) of the Code for that year minus the Participant's
elective contributions for the year of the hardship distribution.
B. Loans.
1. Upon the application of a participant the Administrative committee may,
as investments of Fund A, grant one or more loans to such participant, provided
that no loan shall be made after October 18, 1989 unless all of the following
conditions are satisfied:
(a) The amount loaned must not exceed the greater of (i), 50% of the vested
portion of the borrower's accrued benefit under the Plan (considering units of
all classes) and (ii) $50,000, reduced by the excess, if any, of (1) the highest
outstanding balance of loans of the borrower from the Plan during the one-year
period ending on the day before the date on which the loan is made, over (2) the
outstanding balance of loans of the borrower from the Plan on the date on which
such loan is made. This limitation shall apply to the total outstanding
principal balance of all loans to a participant from all qualified plans of the
Employer.
(b) Loans shall be made available to all participants on a reasonably
equivalent basis.
<PAGE>
(c) Loans shall be adequately secured. This provision shall be satisfied in
the case of Active Participants by a pledge of 50% of the borrower's accrued
benefit under the Plan (at the time the loan is made) to insure repayment of the
loan indebtedness. The pledge of 50% of the borrower's accrued benefit under the
Plan shall attach first to all classes of units maintained on behalf of the
Participant other than Class 9 units. Class 9 units shall be pledged by the
Participant only if the value of all classes of units other than Class 9 are
insufficient to provide adequate security for the loan. Any amount of the
principal or interest on any loan made to an Active Participant which remains
unpaid shall be withheld from any distribution to which the borrower or his
beneficiary(ies) becomes entitled. In the case of loans to Participants not in
the employ of the Employer at the time the loan is made, if the Administrative
Committee authorizes such loans, the Administrative Committee shall determine
the type and amount of additional security required, if any.
(d) No loan shall be made to a married participant unless, before the loan
proceeds are distributed, the Administrative Committee has been furnished in
writing the consent of the borrower's spouse to the loan. Such writing shall
acknowledge the effect of the loan on the borrower's accrued plan benefit and
shall be either witnessed by a member of the Committee or a designate of the
Committee, or acknowledged before a notary public. Such spousal consent shall
thereafter be binding with respect to the consenting spouse or any subsequent
spouse with respect to the loan to which consent is made. A new consent shall be
required if the loan is renegotiated, extended, renewed or otherwise modified.
(e) All loans shall bear a reasonable rate of interest. Unless the
Administrative Committee establishes a different rate of interest at any time or
from time to time, the rate of interest applicable to loans shall be the
publicly announced prime rate of interest for commercial loans charged by the
Commercial Banking Department of UMB Bank, n.a. on the date the loan is made,
except that the rate of interest for loans greater than 5 years shall be the
prime rate of interest plus one.
(f) No loan may be made for a period greater than 5 years, unless the
borrowing participant certifies to the Committee that the proceeds of the loan
will be used exclusively for the acquisition of a dwelling unit to be used
within a reasonable time as the principal residence of the Participant, in which
case the period of the loan shall not exceed twenty years.
(g) All loans made hereunder shall be repaid in substantially equal
amortization, with payments made monthly over the term of the loan. In case of
an active participant the loan shall be repaid by payroll deduction and the
written authorization of the participant to the Employer to withhold such
payments monthly shall be a condition precedent to the granting of the requested
loan.
<PAGE>
(h) No loan shall be made in any principal sum less than $500,000.
(i) Application for loans shall be made on forms approved by the
Administrative Committee, which forms shall be made available by the Human
Resources Department of the Employer, or by any member of the Committee, to any
participant upon request.
(j) No loan may be made to a participant who, at the time of making
application therefor, has no vested interest in his accrued benefit under the
Plan. For purposes of the Truth In Lending Act, application of this provision to
any participant requesting a loan shall not be deemed a rejection of a loan
application.
(k) A loan shall be deemed in default ten days after the date when any two
consecutively scheduled payments of principal and interest become due and are
unpaid. The Administrative Committee shall review all loans in default status at
least once during each calendar quarter and shall to the extent necessary to
satisfy the entire loan indebtedness cause a liquidation to be made of the
accrued benefit of the Participant whose loan is in default at any time
Committee determines the Plan to be in jeopardy of any loss of principal or
interest by reason of the defaulted loan. However, unless the Participant is
otherwise entitled to a distribution under the Plan, the Administrative
Committee shall not cause liquidation of any Class 9 units to satisfy any note
which is in default. Similarly, the Administrative Committee shall cause the
liquidation of any other property securing the loan to be made whenever such
action is deemed necessary to protect the Plan from loss.
ARTICLE THIRTEEN
INALIENABILITY OF BENEFITS - EXCEPTIONS -
DESIGNATION OF BENEFICIARY
A. Subject to the provisions of Article Ten the interest of a participant
hereunder in the Trust, and the right of any person to receive any payment of
any benefit provided hereunder from the Trustee, shall not be subject to
assignment or alienation, or in any manner be transferable or encumberable,
either by voluntary or involuntary act of such participant or other person nor
subject to attachment, execution, garnishment, sequestration or seizure under
any legal, equitable or other process, except that such participant shall have
the right revocably to designate a beneficiary or beneficiaries to receive any
death benefit payable hereunder, in the manner set, forth in this Article.
<PAGE>
The foregoing prohibition shall not, however, restrict the reduction of a
participant's interest by the Trustee for the purpose of satisfying such
participants' indebtedness to the Trust by reason of any loan made pursuant to
the provisions of the Plan. Neither shall such prohibition apply to the
creation, assignment, or recognition of a right to any benefit payable with
respect to a participant pursuant to a domestic relations order, provided that
such order has been determined to be a qualified domestic relations order, as
defined in section 414(p) of the Code.
B. At any time and from time to time, each participant shall have the
unrestricted right to designate one or more individuals as a beneficiary to
receive any death benefit payable hereunder, and may designate a trust or other
legal entity as a beneficiary. He shall also at all times enjoy the unrestricted
right to revoke or amend any such designation. No person, natural or otherwise,
other than an individual widowed by the death of a participant, shall, however,
be entitled to any death benefit by reason of any such designation, regardless
of when made, to the extent that such benefit exceeds fifty percent of the
nonforfeitable accrued benefit of the deceased participant, unless the widowed
individual had, in writing witnessed by a Plan representative or a notary
public, consented to the participant's Qualified Election to waive receipt of
benefits as a qualified preretirement survivor annuity. Each designation of
beneficiary shall be on a form provided by or acceptable to the Administrative
Committee and shall be signed by the participant. No designation shall be valid
unless filed with the Committee during the lifetime of the participant.
C. Any contribution made by the Employer because of a mistake of a fact
shall be returned to the Employer within one year of such contribution. Any
contribution made by the Employer which is conditional upon the Plan's initial
qualification under the Code shall be returned to the Employer within one year
after the date such initial qualification is denied, but only if the application
for the qualification is made by the time prescribed by law for filing the
Employer's tax return for the taxable year in which the Plan is adopted, or such
later date as the Secretary of the Treasury may prescribe. All contributions
made by the Employer are conditioned on the deductibility of such amount under
Section 404 of the Code and shall be returned to the Employer, to the extent of
the amount disallowed, within one year after the disallowance of the deduction.
In the event that a contribution is made to the Plan conditioned upon
qualification of the Plan as amended, such contribution shall be returned to the
Employer upon the determination that the amended Plan fails to qualify under the
Internal Revenue Code provided that:
1. the Plan amendment is submitted to the Internal Revenue Service within
one year from the date the amendment is adopted: and
<PAGE>
2. such contribution is returned to the Employer within one year after the
date the Plan's requalification is denied.
Any amount returned to the Employer under this Section shall not be
increased by any gain allocable to the contribution but shall be decreased by
any loss properly allocable thereto.
ARTICLE FOURTEEN
ADMINISTRATIVE COMMITTEE
A. Appointment and Membership of the Administrative Committee. The Board of
Directors of United Missouri shall appoint a Committee of three or more persons,
at least a majority of whom are participants in the Plan, to be known as the
Administrative Committee. Members of the Administrative Committee shall hold
office at the pleasure of the Board, and shall serve as such until their
respective successors are appointed.
B. Organization of the Administrative Committee. The Administrative
Committee shall appoint a Chairman and Secretary from among its members. The
Administrative Committee, as it may deem necessary for the effective performance
of its duties, may delegate to such agents such powers and duties, whether
ministerial or discretionary, such Committee shall deem expedient or
appropriate. The compensation of such agents shall be fixed by the
Administrative Committee. The proper expenses of the Administrative Committee,
including the Compensation of its agents, shall be paid by the Employers. The
Administrative Committee shall act by majority vote. The members of the
Administrative Committee shall serve without Compensation.
C. Plan Administrator. United Missouri shall be the "Administrator" of the
Plan as defined in section 3(16)(A) of ERISA and shall be responsible for the
performance of all reporting and disclosure obligations under ERISA and all
other obligations required or permitted to be performed by the Plan
Administrator under ERISA. United Missouri shall be designated agent for service
of legal process.
D. Responsibility for Administration of the Plan and Trust. The
Administrative Committee shall be responsible for, and shall be the "named
fiduciary" as defined in Section 402(a) of ERISA, with respect to the
management, operation and administration of the Plan. The Trustee shall be
responsible for, and shall be the "named fiduciary" as defined in Section 402(a)
of ERISA, with respect to the management and investment of the Trust Fund.
<PAGE>
E. Powers of the Administrative Committee. The Administrative Committee
shall have complete control of the administration of this Plan with all powers
necessary to enable it properly to carry out its duties in that respect. Not in
limitation, but in amplification of the foregoing, such Committee shall have
power to construe the Plan and determine all questions that shall arise
hereunder and shall also have all the powers conferred upon it elsewhere herein.
The Administrative Committee shall determine all questions relating to (1) the
eligibility of employees of the Employers to participant hereunder, (2) the
allocation of contributions hereunder among participants, (3) the proportionate
interests of participants, respectively, in the profit sharing trust, (4) the
identity of the persons who are entitled to receive benefits hereunder, and (5)
the kind of benefits payable hereunder to persons entitled to receive benefits.
All payments of benefits hereunder shall be made by the Trustee upon and in
accordance with the written instructions of the Administrative Committee. The
decisions of the Administrative committee upon all matters within the scope of
its authority shall be final.
F. Agents and Allocation of Fiduciary Responsibilities. The Administrative
Committee may:
1. Employ agents to carry out nonfiduciary and fiduciary responsibilities,
other than Trustee responsibilities as defined in section 405(c)(3) of ERISA;
2. Consult with counsel, who may be counsel to the Employer;
3. Appoint an investment manager or managers, as defined in Section 3(38)
of ERISA, to manage (including the power to acquire and dispose of) all or any
part of the assets of the Plan; and
4. Provide for the allocation of fiduciary responsibilities, other than
Trustee responsibilities as defined in section 405(c)(3) of ERISA, among its
members.
The performance of agents and fiduciaries to whom fiduciary
responsibilities have been delegated shall be reviewed periodically. Any person
or group of persons may serve in more than one fiduciary capacity with respect
to the Plan.
G. Records of Administrative Committee. All acts and determinations of the
Administrative Committee shall be duly recorded by the Secretary thereof, or
under his supervision, and all such records, together with such other documents
as may be necessary for the administration of this Plan, shall be preserved in
the custody of such Secretary.
<PAGE>
H. Exemption of the Administrative Committee from Liability. The members of
the Administrative Committee, and each of them shall be free from all liability,
joint and several, for their acts, omissions, and conduct, and for the acts,
omissions, and conduct of their duly constituted agents, in the administration
of the Plan; provided, however, that no member of the Administrative committee
shall be relieved from responsibility under Part 4, Subtitle B, Title I of
ERISA. The Employer shall indemnify and save harmless the Administrative
Committee and each of its members from the effects and consequences of their
acts, omissions, and conduct in their official capacity, but the foregoing shall
not operate to relieve any member of the Administrative Committee from liability
for his own misconduct nor to require either Employer to indemnify him against
the effects and consequences thereof.
ARTICLE FIFTEEN
AMENDMENT OF THE PLAN
The Board of Directors of United Missouri may amend this Plan at any time
and from time to time, provided that no such amendment shall (1) vest or revest
in any of the Employers, directly or indirectly, any interest in, or ownership
of the assets thereof or (2) make possible the diversion of any part of the
profit sharing trust to, or the use thereof for, any purpose other than the
exclusive benefit of participants hereunder and their beneficiaries, or (3)
reduce the number of units theretofore credited, or creditable, to the account
of any participant, or (4) change the rights, duties or responsibility of the
Trustee without the consent of the Trustee, or (5) have the effect of reducing
or eliminating any protected benefit described in section 411(d)(6) of the
Internal Revenue Code. Except as provided to the contrary in the preceding
sentence, the Board of Directors of United Missouri may amend the Plan in any
manner that it deems expedient or proper. Written notice of each such amendment
shall be given to the Administrative Committee and to each Employer and
participant hereunder.
ARTICLE SIXTEEN
RIGHT RESERVED TO DISCONTINUE CONTRIBUTIONS
AND TERMINATE PLAN -- EFFECT
<PAGE>
A. Discontinuance of Contributions - Termination of Plan. The Employers
have adopted this Plan with the intention and expectation that from year to year
they will be able and will deem it advisable to make their contributions as
herein provided, but the Employers do not guarantee to make or to continue to
make such contributions, and neither the Trustee nor the participants, nor any
of them, shall have the right to enforce the payment of any contribution
hereunder by any of the Employers. In any event that the Board of Directors of
United Missouri shall decide that it is impossible or inadvisable to continue to
make its contributions as herein provided, United Missouri shall have the power
to terminate its participation in the Plan. If the respective Boards of
directors of all the Employers take similar action, then the Plan shall be fully
terminated. One or more of the Employers may, however, elect to continue the
Plan for the benefit of its or their employees, with such amendments adopted by
such Employer or Employers as it or they may deem appropriate in the
circumstances. In any such case, United Missouri and the other Employers shall
give notice to the Administrative Committee of their respective actions, and the
Committee shall notify the Trustee and the participants accordingly. No further
contribution shall be made under the Plan by any Employer which is terminating
the Plan as to its participants, and with respect to such Employer the
procedures set out in Part B of this Article shall be carried out to the extent
applicable.
B. Distribution Upon Termination of Plan. Upon the termination of the Plan,
if the Employers shall have made any part of their contribution for the year in
which such termination occurs, the Administrative Committee shall:
1. Determine the unit value of units of each of the Funds as of the close
of business on that date when the Plan was terminated, in the manner described
in Article Eight D, and
2. Create, allocate and credit to the accounts of persons who were
participants hereunder on the date when the Plan was terminated, as of such
date, additional units in the applicable funds to represent the part, if any, of
the Employers' contributions hereunder for the year in which termination occurs
which was paid by the Employers prior to the termination of the Plan, in the
manner provided in Article Eight D.
The Administrative Committee shall then direct the Trustee to:
(a) Pay and discharge all taxes and expenses of every kind, and
(b) Pay all benefits then due and payable hereunder, and
(c) Pay any benefits due hereunder, but not yet payable.
After the payments mentioned in the foregoing sentence shall direct the
Trustee to distribute the remaining assets of each fund to the persons who were
participants hereunder and were interested in such fund on the date when the
Plan was terminated, in the proportion, as to each such person, which the
aggregate number of units of the particular fund credited to his account bears
to the total number of all outstanding units of such fund.
<PAGE>
The Administrative Committee shall advise the Trustee as to the identity of
the persons entitled to receive benefits, and of the persons entitled to share
in the final distribution of the remaining assets of the funds and of the amount
of the benefit, or final distribution, to be made to each such person, and the
Trustee shall make distribution accordingly.
3. Upon a termination of the Plan with respect to any group of participants
under circumstances constituting a partial termination of the Plan, and upon
complete discontinuance of contributions to the Plan, the interests of all
participants affected thereby shall thereupon be fully vested and
nonforfeitable. the Administrative Committee shall determine the date of partial
termination and designate the same as such Valuation Date. Any participant whose
participation ceases as a result of a partial termination of the Plan shall be
entitled to a distribution of his benefits in accordance with the provisions
hereof governing the distribution of termination benefit generally.
ARTICLE SEVENTEEN
WITHDRAWAL OF PARTICIPATING AFFILIATE
Any Participating Affiliate may withdraw from the Plan whenever its Board
of Directors shall determine that it is impossible or inadvisable to continue to
make its contributions as herein provided, such withdrawal to be effective as of
the end of the Plan Year in which the Board of Directors makes such
determination and adopts appropriate resolutions evidencing its intention to
withdraw. As of the end of such year, the withdrawing Affiliate shall make its
required contribution, to be allocated in the normal course as if such
withdrawal were not occurring.
The withdrawal of the Affiliate shall not affect the distribution of
benefits to or with respect to participants who were Employees of such
withdrawing Affiliate and who became entitled, during the year of withdrawal or
prior thereto, to receive benefits under any of the provisions of the Plan.
Following the making of year-end adjustments for such year to withdrawal,
the Administrative Committee shall direct the Trustee to make distribution, to
every participant who on the last day of such year was an Employee of the
withdrawing Affiliate and who has not transferred to another Employer and
thereby continued his participation, of the value as of the end of such year of
all the units of the respective Funds credited to such former participant's
account, and shall thereupon cancel such units.
<PAGE>
ARTICLE EIGHTEEN
THE TRUST, THE TRUSTEE AND SUCCESSOR TO EMPLOYER AND TRUSTEE
This Plan will be effectuated by a trust or trusts created by a Declaration
of Trust by the Bank and the adoption thereof by other Employers. Such
Declaration of Trust will conform to the provisions of the Plan and form a part
thereof, so that the rights of all persons under the Plan shall be subject to
the terms and provisions of such Declaration of Trust, as the same may be
amended from time to time. All references herein to the Bank as Trustee shall be
deemed to include as substitute Trustee the successor to the Bank by merger or
consolidation (and any successor thereof) as provided in the Declaration of
Trust as amended. In the event of the merger of the Bank with another national
banking association pursuant to which merger such other bank succeeds to all or
substantially all of the business and assets of the Bank as the surviving bank
of such merger, and becomes the employer of all or substantially all of the
employees of the Bank then such surviving Bank shall be and become the Employer
Bank hereunder if it by virtue of the merger agreement or other instrument
agrees to assume and does assume the obligations of the Bank as one of the
Employers hereunder if it by virtue of the merger agreement or other instrument
agrees to assume and does assume the obligations of the Bank as one of the
Employers hereunder. In such case this Plan shall not be deemed suspended or
terminated but shall continue without interruption; and the participation of any
Employee who transfers employment to the new Employer Bank upon such merger
shall not be deemed terminated or interrupted nor shall such transfer be deemed
a termination of employment or of participation in the Plan. Thereafter, for all
purposes of the Plan the service of any Employee of the new Employer Bank who so
transferred employment at the time of the merger shall include his service
following the merger and also his service with his former Employer hereunder as
credited to him immediately preceding the merger in accordance with the Plan
provisions heretofore defining service.
ARTICLE NINETEEN
CLAIMS PROCEDURE
A. Filing a Claim. No person entitled to a benefit hereunder shall be
required to make application therefor. However, in the event an anticipated
benefit has not been paid in accordance with the expectations of a person
believing himself entitled thereto, a request for a Plan benefit may be filed
with the Secretary of the Administrative Committee or with his designee, on a
form prescribed by the Administrative Committee. Such a request, hereinafter
referred to as a "claim", shall be deemed filed with the executed claim form is
received by the Secretary of the Administrative Committee or by his designee.
<PAGE>
B. Deciding a Claim. The Secretary of the Administrative Committee or in
his absence the Chairman, after consulting, where practicable, with at least two
other members of the Committee, shall decide such a claim within a reasonable
time after it is received. If a claim is wholly or partially denied, the
claimant shall be furnished a written notice setting forth in a manner
calculated to be understood by him:
1. The specific reason or reasons for the denial;
2. A specific reference to pertinent Plan provisions on which the denial is
based;
3. A description of any additional material or information necessary for
the claimant to perfect the claim and an explanation of why such material or
information is necessary; and
4. Appropriate information as to the steps to be taken if the claimant
wishes to appeal his claim, including the period in which the claim must be
filed and the period in which it will be decided.
The notice shall be furnished to the claimant within 90 days after receipt
of the claim by the Secretary of the Administrative Committee or by his
designee, unless special circumstances require an extension of the time for
processing the claim. No extension shall be for more than 90 days after the end
of the initial 90 day period. If an extension of time for processing is
required, written notice of the extension shall be furnished to the claimant
before the end of the initial 90 day period. The extension notice shall indicate
the special circumstances requiring an extension of time and the date by which a
final decision will be rendered. Participants shall be informed in writing of
the time limits set forth in this paragraph.
C. Appealing a Claim. If a claim is denied, the claimant may appeal the
denial to the Administrative Committee upon written application to it. The
claimant may review documents pertinent to the appeal and may submit issues and
comments in writing to the Administrative Committee. No appeal shall be
considered unless it is received by the Administrative Committee within ninety
(90) days after receipt by the claimant of written notification of denial of the
claim. The Administrative Committee shall decide the appeal within sixty (60)
days after it is received. The Administrative Committee's decision shall be in
writing and shall include specific reasons for the decision, written in a manner
calculated to be understood by the claimant, and specific references to the
pertinent Plan provisions upon which the decision is based.
ARTICLE TWENTY
ROLLOVERS AND TRANSFERS FROM IRA'S AND OTHER PLANS
<PAGE>
A. IRA. An Employee who has previously received a distribution from a
qualified retirement plan and who has rolled over (directly or otherwise) all of
a portion of the distribution to an Individual Retirement Account or Individual
Retirement Annuity, (hereinafter collectively referred to as an "IRA") to which
no other funds have been contributed, may roll over all or a portion of the
amount in the IRA to the Trustee of this Plan for the creation of Class 7 units
which shall be credited to the Employee's account.
B. Other Qualified Retirement Plan.
1. Rollover. An Employee who has an interest in a qualified retirement plan
of a former employer may roll over all or a portion of the interest in the
qualified retirement plan to this Plan, so long as the rollover is received by
the Trustee not later than the sixtieth day following the date on which the
Employee received the distribution from the qualified retirement plan of the
former employer. Any amount rolled over shall create Class 7 units which shall
be credited to the Participant's account.
2. Direct Rollover. An Employee who has an interest in a qualified
retirement plan of a former employer may make a Direct Rollover (as defined in
Article Eleven, Section H) to this Plan of all or a portion of the interest in
the qualified retirement plan. Any amount directly rolled over shall create
Class 7 units which will be credited to the Employee's account.
3. Transfer. An Employee who has an interest in a qualified retirement plan
of a former employer may, with the consent of the Trustee, transfer to the
Trustee of this Plan all or a portion of the Participant's interest in the
qualified retirement plan. Any amount transferred to this Plan shall create
units as follows, which will be credited to the Employee's account:
(a) Amounts representing voluntary after-tax contributions and earnings on
those contributions shall create Class 3 units.
(b) Amounts representing employer profit sharing contributions and earnings
on those contributions shall create Class 7 units.
(c) Amounts representing elective deferral contributions to a cash of
deferral arrangement (Section 401(k)) and earnings on those contributions and
employer matching contributions made in conjunction with elective deferral
contributions and earnings on those contributions shall create Class 9 units.
<PAGE>
4. United Missouri Revised Retirement Plan. A Participant who has an
interest in the United Missouri Revised Retirement Plan may transfer to this
Plan upon the termination of the United Missouri Revised Retirement Plan all of
the Participant's interest in the United Missouri Revised Retirement Plan. Any
amount transferred to this plan shall create Class 2 units. Rollover or transfer
contributions of the type and nature described in this Article shall be credited
to the Participant involved as of the regularly scheduled Valuation Date
coincident with or next following receipt of the contribution by the Trustee.
An Employee need not be a Participant to utilize the provisions of this
Article Twenty. However, an Employee becomes a Participant to the extent this
Article Twenty is utilized.
ARTICLE TWENTY-ONE
TOP-HEAVY PROVISIONS
A. Provisions of this Article Controlling. In the event the Plan is or
becomes "Top-heavy" in any Plan Year beginning after December 31, 1983, the
provisions of this Article shall become effective with respect to such Plan Year
and will supersede any conflicting provisions in the Plan.
B. Top-Heavy Definition:
1. Key Employee or former Employee (and the Beneficiaries of such Employee)
who at any time during the determination period was an officer of the Employer
if such individual's annual Compensation exceeds one hundred fifty percent of
the dollar limitation under section 415(c)(1)(A) of the Code, an owner (or
considered an owner under section 318 of the Code) of one of the ten largest
interests in the Employer if such individual's Compensation exceeds one hundred
percent of such dollar limitation, a five percent owner of the Employer, or a
one percent owner of the Employer who has an annual Compensation of more than
$150,000. The determination period is the Plan year containing the Determination
date and the 4 preceding Plan Years. The determination of who is a Key Employee
will be made in accordance with section 416(i)(1) of the Code and the
regulations thereunder.
2. Top-Heavy Plan: For any Plan Year beginning after December 31, 1983,
this Plan is top-heavy if any of the following conditions exists:
(a) If the Top-Heavy Ratio for this Plan exceeds sixty percent and this
Plan is not part of any Required Aggregation Group or Permissive Aggregation
Group of plans.
<PAGE>
(b) If this Plan is part of a Required Aggregation Group of plans but not
part of a Permissive Aggregation Group and the Top-Heavy Ratio for the group of
plans exceeds sixty percent.
(c) If this Plan is part of a Required Aggregation Group and part of a
Permissive Aggregation Group of plans and the Top-Heavy ratio for the Permissive
Aggregation Group exceeds sixty percent.
3. Top-Heavy ratio:
(a) If the Employer maintains one or more defined contribution plans
(including any Simplified Employee Pension Plan) and the Employer has never
maintained any defined benefit plan which during the 5-year period ending on the
Determination Date(s) has or has had accrued benefits, the Top-Heavy Ratio is a
fraction, the numerator of which is the sum of the account balances of all Key
Employees as of the Determination Date (including any part of any account
balance distributed in the 5-year period ending on the Determination Date), and
the denominator of which is the sum of all account balances (including any part
of any account balance distributed in the 5-year period ending on the
Determination Date) of all Participants as of the Determination Date. Both the
numerator and denominator of the Top-Heavy Ratio are adjusted to reflect any
contribution which is due but unpaid as of the Determination Date.
<PAGE>
(b) If the Employer maintains one or more defined contribution plans
(including any Simplified Employee Pension Plan) and the Employer maintains or
has maintained one or more defined benefit plans which during the 5-year period
ending on the Determination Date(s) has or has had any accrued benefits, the
Top-Heavy Ratio for any Required or Permissive Aggregation Group as appropriate
is a fraction, the numerator of which is the sum of account balances under the
aggregated defined contribution plan or plans for all Key Employees, determined
in accordance with (a) above, and the Present Value of accrued benefits under
the aggregated defined plan or plans for all Key Employees as of the
Determination Date(s), and the denominator of which is the sum of the account
balances under the aggregated defined contribution plan or plans for all
Participants, determined in accordance with (a) above, and the Present Value of
accrued benefits under the defined benefit plan or plans for all Participants as
of the Determination Date(s), all determined in accordance with section 416 of
the Code and the regulations thereunder. The accrued benefits under a defined
benefit plan in both the numerator and denominator of the Top-Heavy Ratio are
adjusted for any distribution of an accrued benefit made in the five-year period
ending on the Determination Date.
(c) For purposes of (a) and (b) above 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 12-month period ending on the
Determination Date, except as provided in section 416 of the Code and the
regulations thereunder for the first and second Plan Years of defined benefit
Plan. The account balances and accrued benefits of a Participant (i) who is not
a Key Employee but who was a Key Employee in prior year, or (ii) who has not
received any Compensation from any Employer maintaining the plan at any time
during the 5-year period ending on the Determination Date will be disregarded.
The calculation of the Top-Heavy Ratio, and the extend to which distributions,
rollovers, and transfers are taken into account will be made in accordance with
section 416 of the Code and the regulations thereunder. Deductible Employee
contributions will not be taken into account for purposes of computing the
Top-Heavy Ratio. When aggregating plans the value of account balances and
accrued benefits will be calculated with reference to the Determination Dates
that fall within the same calendar year.
(d) Permissive Aggregation Group: The Required Aggregation Group of plans
plus any other plan or plans of the Employer which, when considered as a group
with the Required Aggregation Group, would continue to satisfy the requirements
of sections 401(a)(4) and 410 of the Code.
(e) Required Aggregation Group: (1) Each qualified plan of the Employer in
which at least one Key Employee participates, and (2) any other qualified plan
of the Employer which enables a plan described in (1) to meet the requirements
of sections 401(a)(4) and 410 of the Code.
(f) Determination Date: The last day of the preceding Plan Year.
(g) Present Value: Present Value shall be based only on the interest and
mortality rates employed with respect to the Employer's defined benefit Plan.
<PAGE>
C. The Employer has designated its defined benefit plan, to-wit, the United
Missouri Revised Retirement Plan, to satisfy the minimum benefits requirements
of Internal Revenue Code section 416(c). However, in the event such designation
shall for any reason be ineffective, the Employer contributions respecting any
Plan Year for which the provisions of this Article are in effect, allocated on
behalf of any Participant who is not a Key Employee, shall be not less than the
lesser of three percent of such Participant's Compensation, or the largest
percentage at which contributions are made (or required to be made) under the
Plan for the Key Employee for whom such percentage is the highest for the Plan
Year. In determining the largest percentage for purposes of the immediately
preceding sentence, Compensation of such Key Employee in excess of $200,000, and
any contribution or benefit relating to the Social Security Act shall be
disregarded. Such minimum allocation, as so determined, shall be made 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 Plan Year because of the Participant's failure to complete 1,000 Hours
of Service. Such minimum allocation, however, need not be made with respect to
any Participation not employed by the employer on the last day of the Plan Year.
To the extent any such minimum allocation required to be made hereunder is
nonforfeitable (as required by Code Section 416(b)) such allocation may not be
forfeited for the causes set forth at Code section 411(a)(3)(B) or 411(a)(3)(D).
D. For any Plan Year with respect to which the Plan is top-heavy, the
following vesting schedule shall apply to all benefits within the meaning of
Code section 411(a)(7) except those attributable to Employee contributions,
including benefits accrued before the effective date of Code section 416 and
benefits accrued before the Plan became top-heavy:
<PAGE>
Completed Years of Service Vesting Percentage
____________________________________________
2 20
3 40
4 60
5 80
6 or more 100
No reduction in vested benefits may occur in the event the Plan's status as
top-heavy changes for any Plan Year.
The provisions of this section do not apply to the account balances of any
Employee who does not have an Hour of Service after the Plan has initially
become top-heavy. Such Employee's account balance attributable to Employer
contributions and forfeitures will be determined without regard to this section.
<PAGE>
Anything herein to the contrary notwithstanding, in any case where the
vesting schedule of the Plan is amended, the nonforfeitable percentage of the
account balance of any person who is a participant on the later of the date the
amendment is adopted or effective (such balance to be determined as of such
date) must be not less than his or her percentage computed under the Plan
without regard to such amendment. Each participant whose nonforfeitable
percentage of his or her account balance is determined under such amended
vesting schedule, and who has completed at least three years of service for
vesting, may make an irrevocable election during the election period to have the
nonforfeitable percentage of his or her accrued benefit determined without
regard to such amendment. For purposes hereof, the election period shall begin
on the date of adoption of the amendment and end on the latest of the following
dates:
(i) The date which is 60 days after the day the plan amendment is adopted,
(ii) The date which is 60 days after the day the plan amendment becomes
effective, or
(iii) The date which is 60 days after the day the participant is issued
written notice of the plan amendment by the Administrative Committee.
ARTICLE TWENTY-TWO
MISCELLANEOUS
Participation under this Plan shall not give any Employee the right to be
retained in the employ of his Employer. All benefits payable under this Plan
shall be paid solely out of the profit sharing trust and no Employer assumes any
liability or responsibility therefor. The headings of sections are inserted for
convenience of reference only and are to be ignored in any construction of the
provisions hereof. In the construction of this Plan, the masculine shall include
the feminine and the singular the plural in all cases where such meanings would
be appropriate. The Administrative Committee shall keep copies of this Plan
available at its office for the inspection of participants, employees, and of
other persons who may in any manner be concerned with the Plan.
In the case of any merger or consolidation with, or transfer of assets or
liabilities to any other plan, each participant in the Plan (if the plan then
terminates) shall receive a benefit immediately after the merger, consolidation,
or transfer which is equal to or greater than the benefit he would have been
entitled to receive immediately before the merger, consolidation or transfer (if
the Plan had then terminated).
<PAGE>
IN WITNESS WHEREOF, United Missouri Bancshares, Inc., has caused this
instrument to be executed by its duly authorized officers and its corporate seal
to be affixed hereto this 5th day of December, 1991.
UNITED MISSOURI BANCSHARES, INC.
By: /s/ Malcolm M. Aslin, President
_______________________________
ATTEST:
/s/ David W. Miller
____________________________
<PAGE>
EXHIBIT 5.1
SHOOK, HARDY & BACON L.L.P.
1010 Grand Boulevard, 5th Floor
Kansas City, Missouri 64106-0607
Telephone: (816) 474-6550
Fax: (816) 842-3190
October 16, 1998
UMB Financial Corporation
1010 Grand Boulevard
Kansas City, MO 64141-6692
Re: UMB Profit Sharing and 401(k) Savings Plan Registration Statement on
Form S-8
Ladies and Gentleman:
We have acted as special counsel to UMB Financial Corporation, a Missouri
corporation (the "Company"), in connection with the registration of
participation interests in the UMB Profit Sharing and 401(k) Savings Plan (the
"Plan"), pursuant to the above-referenced Registration Statement (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), filed on this date by the Company with the Securities and
Exchange Commission (the "Commission").
We have examined copies of (i) the Articles of Incorporation of the
Company, as amended (the "Charter"), (ii) the Bylaws of the Company, (iii) the
Plan, (iv) the Registration Statement, and (v) resolutions adopted by the Board
of Directors of the Company relating to the matters referred to herein
(collectively referred to as the "Documents").
In expressing the opinions set forth below, we have assumed, and so far as
is known to us there are no facts inconsistent therewith, that all Documents
submitted to us as originals and authentic, all documents submitted to us as
certified or photostatic copies conform to the original documents, all
signatures on all such Documents are genuine, all public records received or
relied upon by us or on our behalf are true and complete, and all statements and
information contained in the Documents are true and complete.
Based on the foregoing, it is our opinion that, upon effectiveness of the
Registration Statement, the participation interests in the Plan will be legally
issued, fully paid and nonassessable.
<PAGE>
October 16, 1998 SHOOK, HARDY & BACON L.L.P. Page 2
The foregoing opinion is limited to the laws of the State of Missouri and
of the United States of America, and we do not express any opinion herein
concerning any other law. We assume no obligation to supplement this opinion if
any applicable law changes after the date hereof or if we become aware of any
fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for your benefit, and may not be
relied upon by any other person without our prior written consent. We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of the name of our firm therein.
Very truly yours,
SHOOK, HARDY & BACON L.L.P.
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference to this Registration Statement of
UMB Financial Corporation on Form S-8 of our reports dated January 22, 1998 and
July 2, 1998, appearing in the Annual Report on Form 10-K of UMB Financial
Corporation for the year ended December 31, 1997 and in the Annual Report on
on Form 11-K of UMB Profit Sharing and 401(k)Savings Plan for the year ended
December 31, 1997.
/s/Deloitte & Touche, LLP
October 15, 1998
Kansas City, Missouri
