<PAGE>
As filed with the Securities and Exchange Commission on March 19, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------------
ABN AMRO HOLDING N.V.
(Exact name of registrant as specified in its charter)
The Netherlands
(Jurisdiction of incorporation or organization)
None
(I.R.S. Employer Identification No.)
Foppingadreef 22, 1102 BS Amsterdam Zuid-Oost, The Netherlands
(Address of principal executive offices)
ABN AMRO Group Profit Sharing and Savings Plan and Trust
(Full title of Plan)
M.W.H. Collot d'Escury, Esq. Robert K. Quinn, Esq.
ABN AMRO Bank N.V. ABN AMRO North America, Inc.
Vice President and Senior Legal Group Senior Vice President and
Advisor General Counsel
Foppingadreef 22 135 South LaSalle Street
1102 BS Amsterdam Chicago, IL 60674
The Netherlands (312) 904-2010
(31-20) 629-2307
(Name, address and telephone number, including area code, of agents for service)
---------------------------------------
Copies to: Michael R. Littenberg, Esq.
Schulte Roth & Zabel LLP
900 Third Avenue
New York, NY 10022
(212) 756-2000
---------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of securities to be registered Amount to be Proposed maximum Proposed maximum Amount of
registered offering price per share aggregate offering price registration fee
<S> <C> <C> <C> <C>
Ordinary Shares, par value NLG 1.25 each, 5,000,000(1) $19.81(2) $99,050,000(2) $27,535.90(2)
of ABN AMRO Holding N.V.
</TABLE>
(1) This Registration Statement covers 5,000,000 Ordinary Shares
authorized to be sold under the ABN AMRO Group Profit Sharing and Savings
Plan and Trust (the "Plan"). The Ordinary Shares covered by this
Registration Statement will be evidenced by American Depositary Shares of ABN
AMRO Holding N.V. ("Holding"), which will be evidenced by American
Depositary Receipts of Holding. In addition, pursuant to Rule 416(c) under
the Securities Act of 1933, as amended (the "Securities Act"), this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the Plan.
(2) Pursuant to Rule 457(c) under the Securities Act, the proposed
maximum offering price per share and the registration fee are based on the
reported average of the high and low prices for the American Depositary
Shares of Holding on the New York Stock Exchange on March 15, 1999. Pursuant to
Rule 457(h)(2) under the Securities Act, no separate fee is required with
respect to the interests in the Plan covered by this Registration Statement.
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<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by ABN AMRO Holding N.V. ("Holding") with
the Securities and Exchange Commission (the "Commission") are hereby
incorporated herein by reference:
(a) The Annual Report on Form 20-F of Holding and ABN AMRO Bank N.V.
(File No. 1-14624 and File No. 5-52647, respectively) for the fiscal
year ended December 31, 1997, filed with the Commission on April 20,
1998.
(b) The Form 6-K of Holding, filed with the Commission on March 25,
1998.
(c) The Form 6-K of Holding, filed with the Commission on June 17,
1998.
(d) The Form 6-K of Holding, filed with the Commission on July 10,
1998.
(e) The Form 6-K of Holding, filed with the Commission on August 28,
1998.
(f) The Form 6-K of Holding, filed with the Commission on October 9,
1998.
(g) The Form 6-K of Holding, filed with the Commission on November 16,
1998.
(h) The Form 6-K of Holding, filed with the Commission on December 1,
1998.
(i) The Form 6-K of Holding filed with the Commission on March 11,
1999.
(j) The Form 6-K of Holding filed with the Commission on March 12,
1999.
(k) The description of Holding's Ordinary Shares contained in its
Registration Statement on Form 8-A, Registration No. 1-14624, filed with
the Commission on May 7, 1997.
In addition, all documents and other reports filed by Holding or the ABN
AMRO Group Profit Sharing and Savings Plan and Trust (the "Plan") pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), that are filed subsequent to the date hereof
and 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 to be incorporated herein
by reference and to be part hereof from the respective date of filing of each
such document.
Item 6. Indemnification of Officers and Directors
The Articles of Association of Holding contain no provisions under which
any member of the Supervisory Board or the Managing Board or any officer of
Holding is indemnified in any manner against any liability which he or she
may incur in the capacity as such. However, Article 37 of the Articles of
Association of Holding provides that the annual accounts shall be approved by
the shareholders meeting. The unconditional approval of the annual accounts
shall discharge the Managing Board from any liability to Holding and its
shareholders with respect to the conduct of its management activities during
the financial year concerned, and the Supervisory Board for its supervision
thereof, insofar as such management and supervising is reflected in the
annual accounts. Under Dutch law, this discharge is not absolute and would
not be effective as to any matters not disclosed to Holding's shareholders.
Certain officers and members of the Supervisory Board and the Managing
Board of Holding are, to a limited extent, insured under an insurance policy
against damages resulting from their conduct when acting in their capacities
as such.
Item 8. Exhibits
4.1 Articles of Association of Holding, as amended.
4.2 ABN AMRO Group Profit Sharing and Savings Plan and Trust, as amended
and restated effective January 1, 1997.
<PAGE>
8.1 Internal Revenue Service determination letter that the Plan is
qualified under Section 401 of the Internal Revenue Code.
23.1 Accountants' Consent.
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
registration statement;
(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)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs 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 Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, 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; and
(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 of 1933, 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 Securities
Exchange Act of 1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
<PAGE>
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
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 of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Amsterdam, The Netherlands on this 19 day of
March, 1999.
ABN AMRO HOLDING N.V.
By: /s/ R.G.C. van den Brink
--------------------------------------------
Name: R.G.C. van den Brink
Title: Member of the Managing Board
By: /s/ J.M. de Jong
--------------------------------------------
Name: J.M. de Jong
Title: Member of the Managing Board
By: /s/ P.J. Kalff
--------------------------------------------
Name: P.J. Kalff
Title: Chairman of the Managing Board
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
----------- ------- -------
/s/ P. J. Kalff
------------------------ Chairman of the Managing Board 3/19/99
P. J. Kalff (Principal Executive Officer)
/s/ W.M. ten Berg
------------------------- (Principal Financial Officer) 3/19/99
W.M. ten Berg
/s/ O.L.A.M. Spaan
------------------------- (Principal Accounting Officer) 3/19/99
O.L.A.M. Spaan
/s/ M. Epema-Brugman
------------------------- Member of the Supervisory Board 3/19/99
M. Epema-Brugman
/s/ H. B. van Liemt
-------------------------- Member of the Supervisory Board 3/19/99
H. B. van Liemt
/s/ J. J. Endtz
-------------------------- Member of the Supervisory Board 3/19/99
J. J. Endtz
/s/ W. Overmars
-------------------------- Member of the Supervisory Board 3/19/99
W. Overmars
<PAGE>
/s/ R. J. Nelissen
-------------------------- Member of the Supervisory Board 3/19/99
R. J. Nelissen
/s/ W. Dik
-------------------------- Member of the Supervisory Board 3/19/99
W. Dik
/s/ J. M. H. van Engelshoven
---------------------------- Member of the Supervisory Board 3/19/99
J. M. H. van Engelshoven
/s/ R. Hazelhoff
-------------------------- Member of the Supervisory Board 3/19/99
R. Hazelhoff
/s/ S. Keehn
-------------------------- Member of the Supervisory Board 3/19/99
S. Keehn
/s/ C. H. van der Hoeven
-------------------------- Member of the Supervisory Board 3/19/99
C. H. van der Hoeven
/s/ M. C. van Veen
-------------------------- Member of the Supervisory Board 3/19/99
M. C. van Veen
/s/ A. Burgmans
-------------------------- Member of the Supervisory Board 3/19/99
A. Burgmans
/s/ M. J. Drabbe
-------------------------- Member of the Managing Board 3/19/99
M. J. Drabbe
/s/ R. G. C. van den Brink
-------------------------- Member of the Managing Board 3/19/99
R. G. C. van den Brink
/s/ R. W. J. Groenink
-------------------------- Member of the Managing Board 3/19/99
R. W. J. Groenink
/s/ R. W. F. van Tets
-------------------------- Member of the Managing Board 3/19/99
R. W. F. van Tets
/s/ J. M. de Jong
-------------------------- Member of the Managing Board 3/19/99
J. M. de Jong
/s/ W. G. Jiskoot
-------------------------- Member of the Managing Board 3/19/99
W. G. Jiskoot
/s/ T. de Swaan
-------------------------- Member of the Managing Board 3/19/99
T. de Swaan
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the
undersigned, the duly authjorized representative in the United States of ABN
AMRO Holding N.V., has signed this Form S-8 in New York, NY on March 19, 1999.
By: /s/ David J. Deegan
---------------------------------------
Name: David J. Deegan
Title: Authorized Representative
Pursuant to the requirements of the Securities Act of 1933, the trustee
of the ABN AMRO Group Profit Sharing and Savings Plan and Trust has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Chicago, Illinois on this 19 day
of March, 1999.
ABN AMRO GROUP PROFIT SHARING AND
SAVINGS PLAN AND TRUST
By: /s/ Robert Thompson
---------------------------------------
Name: Robert Thompson
Title: Vice President, Trust and
Asset Management, LaSalle
National Bank
<PAGE>
Exhibit 4.1
Name, Registered Offices and Structural Regime
Article 1
1. The Company bears the name: ABN AMRO Holding N.V. It has its registered
offices in Amsterdam.
2. The Company shall be subject to Sections 158 to 164 inclusive of Book 2 of
the Netherlands Civil Code.
Object
Article 2
The object of the Company is:
1. The participation in, collaboration with and financing, administration and
management of other enterprises and companies and the performance of all
acts, activities and services which are related or may be conducive
thereto;
2. The engagement in banking and stockbroking activities, the management of
third-party assets, acting as trustee, administrator, executor of wills and
executive director, non-executive director or liquidator of companies or
other organisations, the provision of insurances and the performance of all
other acts and activities which are related or may be conducive thereto,
all in the broadest possible sense;
3. The fostering of the direct and indirect interests of all those who are
involved in any way in the Company and the safeguarding of the continuity
of the Company and its affiliated enterprise(s).
Capital and Shares
Article 3
1. The Company's authorised share capital amounts to ten billion, five hundred
million and five Dutch guilders (NLG 10,500,000,005). It is divided into
the following classes of shares:
a. one (1) priority share having a nominal value of five guilders (NLG 5);
b. four billion (4,000,000,000) ordinary shares of one guilder and
twenty-five cents (NLG 1.25) nominal value each;
c. one billion (1,000,000,000) preference shares to be divided into one
(1) series of four hundred million (400,000,000) and six (6) series of
one hundred million (100,000,000) preference shares of five guilders
(NLG 5) nominal value each;
d. one hundred million (100,000,000) preference shares convertible into
ordinary shares to be divided into one (1) series of twenty million
(20,000,000) shares and eight (8) series of ten million (10,000,000)
shares of five guilders (NLG 5) nominal value each.
The preference shares convertible into ordinary shares shall hereinafter
also be referred to as "convertible shares".
2. Where reference is made in these Articles of Association to "shares" or
"shareholders", this shall be taken to refer to all classes of shares or
their holders, unless it is expressly stipulated, or is evident from the
context, that such is not the case.
The following stipulations with respect to preference shares shall also
apply to the convertible shares, unless it is expressly stipulated, or is
evident from the context, that such is not the case.
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<PAGE>
Shares
Article 4
1. The ordinary shares and the convertible shares shall be registered shares
or bearer shares. The priority share and the preference shares shall be
registered shares.
2. The shares shall be separately numbered per class and per series.
3. In the event that more than one party is entitled to a share or the said
share belongs to an undivided community, the entitled parties may only have
themselves represented vis-a-vis the Company by one person appointed by
them in writing for that purpose.
4. Each time convertible shares are issued, the body authorised to issue the
shares shall indicate the conditions on which and the term within which the
shares in question can be converted into ordinary shares.
Registers
Article 5
1. The Managing Board shall maintain a separate register of the holders of
each class of registered share, in which such entries and annotations shall
be made, from which such extracts shall be issued and which shall be
available for inspection in such a manner and by such parties as prescribed
by law.
2. Each holder of registered shares or usufructuary or lienholder of such
shares shall be obliged to notify the Managing Board in writing of his
address and any change therein.
3. All entries and annotations made in the registers shall be signed by two
members of the Managing Board or by one member of the Managing Board and
one officer expressly authorised thereto by the said Board, or by two
officers authorised thereto.
4. The registers referred to in this Article may consist of more than one
part; they may be maintained, either in whole or in part, in more than one
copy and in more than one place.
At least one copy of the said registers shall at all times be kept at the
offices of the Company in the place where it has its registered offices,
and shall be available for inspection as required by law.
Share Certificates
Article 6
1. A share certificate shall be issued for each ordinary bearer share and each
convertible bearer share. No certificates shall be issued for registered
shares.
2. The share certificates shall be issued only in the form of "CF"
certificates, i.e. a share certificate provided with a simplified dividend
sheet which does not include a set of dividend coupons and a talon.
3. The Company may issue simplified dividend sheets (hereinafter referred to
as "CF" dividend sheets) only to a custodian designated by the shareholder.
Such designation may only be made from a group of custodians admitted by
the Company in that capacity which have the custody of the "CF" dividend
sheets administered by an institution accepted by the Company in that
capacity but independent of the Company. Such custodians must have
undertaken not to release any "CF" dividend sheets entrusted to their
custody to others than the custodians admitted by the Company or to the
Company itself.
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<PAGE>
4. With respect to dividends and other payments on any share for which a "CF"
certificate has been issued, the Company shall be discharged vis-a-vis the
party entitled thereto by making available such dividends or other payments
to, or in accordance with the instructions of, the independent institution
as referred to in paragraph 3 hereinbefore.
5. In order to be able to distinguish between share certificates, they shall
each be given a number or one or more letters and a number. The method by
which this shall be done and the form and other substance of the share
certificates shall be determined by the Managing Board, in consultation
with the Supervisory Board.
6. Multiple share certificates may be issued for one or more lots of shares,
as determined by the Managing Board, which may be divided into single share
certificates at the request of the owner. The Company shall charge no
costs in relation to such issue and division.
7. Pursuant to a request to that effect made by the shareholder concerned,
ordinary shares and convertible shares in the form of bearer shares ("CF"
certificates) may at any time, free of charge but following the approval of
the Managing Board be exchanged for ordinary shares and convertible shares
respectively which are registered, and vice versa.
Such request may be made only through a form designed for that purpose and
supplied by the Company and completed and signed by or on behalf of the
shareholder concerned. The cooperation of the usufructuary or lienholder
shall be required in the event that the shares concerned are subject to a
right of usufruct or lien.
8. An exchange of ordinary shares or convertible shares which are registered,
for ordinary shares or convertible shares in the form of bearer shares
("CF" certificates) shall be effected by the issuance of share certificates
made out to bearer ("CF" certificates) and the simultaneous deletion of the
entry in the register to in Article 5, paragraph 1 hereinbefore.
9. An exchange of ordinary shares or convertible shares in the form of bearer
shares ("CF" certificates) into ordinary shares or convertible shares which
are registered shall be effected by surrender of the share certificates
("CF" certificates) including the accompanying "CF" dividend sheets and
simultaneous entry in the register referred to in Article 5, paragraph 1
hereinbefore.
10. No exchange may be effected for a period of three days prior to any General
Meeting of Shareholders up to and including the date of such meeting, or
for such longer period as may be determined for the lodging of share
certificates as referred to in Article 30, paragraph 1 of the Articles of
Association.
11. In the event of share certificates or dividend sheets being damaged, lost
or misplaced, share certificates and dividend sheets may be issued in
replacement thereof on conditions to be determined by the Managing Board.
Such issue shall render the original share certificates and dividend sheets
null and void vis-a-vis-the Company. The costs incurred therein may be
charged to the applicant.
Transfer of Registered Shares
Article 7
1. The transfer of registered shares shall require a deed of transfer and
serving of this deed on the Company or acknowledgement in writing by the
Company of the transfer based on the submission of the said deed to the
Company. This acknowledgment shall take the form of a written statement by
the Company.
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<PAGE>
2. The provisions of the preceding paragraph shall apply mutatis mutandis to
the establishment and transfer of the right of usufruct or lien and to the
allotment of registered shares in case of a division of any community.
Issue of Shares
Article 8
1. The issue of shares shall be effected by a resolution to that effect passed
by the General Meeting of Shareholders following a proposal submitted by
the Managing Board and approved by the Supervisory Board. With due
observance of the relevant statutory provisions, the General Meeting of
Shareholders shall be authorised to appoint the Managing Board as the body
which is authorised, subject to the approval of the Supervisory Board, to
issue shares; in this case, the Managing Board shall also be authorised to
determine the share price and further terms of issue.
2. The above provisions with respect to the issue of shares shall also apply
to the granting of rights to acquire shares; they shall not, however, apply
to the issue of shares to a party exercising a previously obtained right to
acquire shares.
Pre-Emptive Right
Article 9
1. When ordinary shares or convertible shares are issued, each holder of
ordinary shares shall have a pre-emptive right, in proportion to the
aggregate amount of his ordinary shares, except in the case of an issue of
shares for a consideration other than in cash or an issue of shares to
employees of the Company or of a group company.
2. The body authorised to issue shares may, with due observance of the
statutory provisions, restrict or exclude the pre-emptive right for any
issue. If the Managing Board has been appointed as the body authorised to
issue shares, the prior approval of the Supervisory Board shall be required
for a decision to that effect.
3. Shareholders shall have no pre-emptive rights with respect to shares issued
to a party exercising a previously obtained right to acquire shares.
Payment on Shares
Article 10
1. Shares shall only be issued against payment in full.
2. Payment shall be made in cash unless a consideration in kind has been
agreed. Payment other than in Dutch currency may only be effected with the
approval of the Company.
Acts in Law Resulting in a Commitment for the Company
Article 11
The Managing Board shall be authorised, without the prior approval of the
General Meeting of Shareholders but subject to the approval of the Supervisory
Board, to perform acts in law:
a. in relation to the acquisition of shares whereby special commitments are
imposed upon the Company;
b. in connection with the acquisition of shares on conditions other than those
on which participation in the Company is made available to the public;
c. concerning payment for shares other than in cash.
Acquisition by the Company of Shares in its Own Capital
Article 12
1. The Company may acquire fully paid-up shares or depositary receipts for
shares in its own capital for a consideration if and in so far as the
General Meeting of Shareholders
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<PAGE>
has authorised the Managing Board thereto, with due observance of the
provisions of Section 98 of Book 2 of the Netherlands Civil Code.
2. The said authorisation shall not be required for the acquisition by the
Company of shares in its own capital for the purpose of transferring the
said shares to employees in the service of the Company or of a group
company under a scheme which applies to the said employees.
Capital Reduction
Article 13
1. The General Meeting of Shareholders may decide, following a proposal
thereto by the Managing Board and approved by the Supervisory Board and
with due observance of the provisions of Section 99 of Book 2 of the
Netherlands Civil Code, to reduce the issued capital by cancellation of
shares or by reduction of the amount of the shares by amendment of the
Articles of Association.
2. A decision to cancel may also relate either to the preference shares only
or to the preference shares belonging to one specific series, or to
preference shares which have been drawn belonging to one specific series,
or to the convertible shares only or to the convertible shares belonging to
one specific series, or to convertible shares which have been drawn
belonging to one specific series, in all cases on repayment of the nominal
amount of the preference shares or the amount paid in on the convertible
shares, respectively.
3. Partial repayment on shares shall take place with respect to all shares or
with respect to either the ordinary shares or the preference shares only,
or with respect to the preference shares belonging to one specific series,
or with respect to either the convertible shares only or the convertible
shares belonging to one specific series only.
Transfer Restriction with Respect to Preference Shares
Article 14
The provisions of this Article with respect to preference shares shall not apply
to convertible shares.
1. Preference shares may only be held by the following parties:
a. natural persons;
b. the Trust Office ("Administratiekantoor").
Under these Articles of Association, the Trust Office shall be taken
to mean the trust office which, in accordance with an agreement
concluded with that office on behalf of the Company by the Managing
Board, with the approval of the Supervisory Board, issues bearer
depositary receipts in exchange for shares in the Company's capital
which it has in its possession;
c. the Company itself;
d. other legal entities than those referred to above, with respect to
which the Managing Board has, with the approval of the Supervisory
Board, passed an irrevocable resolution to withdraw the restriction of
transfer and issue of shares in the cases referred to in paragraph
5, sub c. of this Article, the substance of such a resolution
being the maximum value or percentage in shares to be held by
the said legal entity.
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<PAGE>
2. Transfer of the shares as referred to in paragraph 1 shall not be possible
if the acquiring party is the holder of shares to a nominal value of less
than one per cent (1%) of the share capital of the Company issued in the
form of preference shares.
If the said party is not a holder of the said shares, or if he is the
holder of shares to a nominal value of less than one per cent (1%) of the
share capital of the Company issued in the form of preference shares,
transfer shall not be possible if this would result in the said party
acquiring more than one per cent (1%) of the share capital issued in the
form of preference shares. "Holding of shares" and "acquisition of
shares", respectively, shall be taken to include the holding or
acquisition, respectively, of a right of usufruct, in so far as the
relevant voting rights are vested in the usufructuary.
3. Within the meaning of this Article, "issued share capital shall be taken
to include preference shares repurchased and cancelled by the
Company, until such time as the number of preference shares issued
post-cancellation equals or exceeds the number cancelled.
4. Within the meaning of this Article, "transfer" shall be taken to include
the acquisition of preference shares as a result of issues,
regardless of whether or not such issues take place in the form of
stock dividend and/or bonus shares. The preference shares to be
issued shall be included when calculating the size of the share
capital issued in the form of preference shares. "Issue of shares"
shall be taken to include the granting of rights to acquire shares.
5. The provisions of paragraph 2 above shall not apply to:
a. the Company itself;
b. the Trust Office;
c. a transfer of preference shares acquired by the Company itself or
issue by the Company of preference shares if the said transfer or
issue is effected in relation to either a partnership with or a
takeover of another enterprise, be it by way of a merger or by
acquisition of a participating interest or expansion thereof, with
respect to which the Managing Board has by irrevocable decree
withdrawn, with the approval of the Supervisory Board, the
restriction, either in whole or in part, of the possibility of
transferring or issuing shares, which withdrawal may be made subject
to certain conditions.
6. In the event that an acquisition under general title including legal
merger, division of any community and acquisition by inheritance or by law
results in an acquiring party acquiring more shares than could be
transferred pursuant to paragraph 2 of this Article, the shares held by the
acquiring party or the shares which exceed the said limit, respectively,
shall either be exchanged for depositary receipts issued by the Trust
Office or sold, with due observance of the provisions of this Article,
within a period of fourteen (14) days of this situation arising.
Until the said shares have been exchanged or sold, the rights vested in
them may not be exercised by the acquiring party in question.
7. In the event that an acquiring party who is obliged, pursuant to the
provisions of the preceding paragraph, to exchange or sell his shares fails
to comply with his obligation in this respect within a period of fourteen
(14) days of the Managing Board drawing this obligation to his notice by
registered letter, the Company shall be irrevocably authorised to transfer
the shares in question to the Trust Office in exchange for an issue of
depositary
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receipts, with the obligation that these receipts must be delivered to the
shareholder in question.
8. Depositary receipts issued by the Trust Office shall, for the purposes of
the application of these Articles of Association, be deemed to have been
issued with the cooperation of the Company.
Usufruct and Right of Lien
Article 15
1. A right of usufruct may be established on shares in the Company's capital.
The voting rights shall be vested in the usufructuary provided such was
determined when the usufruct was established; with respect to the
usufructuary of preference shares, they shall be vested in the usufructuary
provided he is a person to whom shares may be transferred with due
observance of the provisions of Article 14.
2. A right of lien may also be vested in shares in the Company's capital.
The voting rights shall be vested in the lienholder provided such has been
determined when the right of lien was established; if a right of lien is
established on a preference share, however, the voting right may not be
vested in the lienholder.
3. Shareholders not having voting rights and usufructuaries and lienholders
having voting right shall have the rights as assigned by law to holders of
depositary receipts issued with the cooperation of the Company.
Usufructuaries or lienholders not having voting rights shall not have the
aforementioned rights.
Holders of Depositary Receipts
Article 16
1. The Managing Board shall, subject to the approval of the Supervisory Board,
be authorised to lend its cooperation to the issue of depositary receipts.
2. Where reference is made in these Articles of Association to "holders of
depositary receipts", these shall be understood to mean all those who have
the same rights as holders of depositary receipts for shares issued with
the cooperation of the Company.
3. In the event that depositary receipts for shares have been issued without
the cooperation of the Company, their holders shall not have the rights
conferred by law or by virtue of these Articles of Association on holders
of depositary receipts issued with the cooperation of the Company.
Management
Article 17
1. The Company shall be managed by a Managing Board.
2. The Managing Board shall consist of at least five members. With due
observance of the above provisions, the Meeting of the Holder of the
Priority Share (hereinafter referred to as: "the Priority") shall
determine the number of members to the Managing Board.
3. The Managing Board shall determine the allocation of its duties in mutual
consultation.
Appointment
Article 18
1. The members of the Managing Board shall be appointed by the Supervisory
Board.
2. In the event that the Supervisory Board proceeds to appoint a member to the
Managing Board, it shall notify the General Meeting of Shareholders of the
intended appointment of a member to the Managing Board.
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3. A combined meeting of the Supervisory Board and the Managing Board shall
appoint one member of the Managing Board Chairman.
4. The Supervisory Board shall determine the salary and further conditions of
appointment of the members of the Managing Board.
Suspension and Dismissal
Article 19
1. The Supervisory Board may suspend members of the Managing Board at any
time. If a member of the Managing Board is suspended, a meeting of the
Supervisory Board shall be held within three months of the date of
suspension, at which meeting the suspension shall be lifted or a decision
taken on the intended dismissal of the suspended member. The latter shall
be given the opportunity at this meeting to render account of his actions.
He may arrange for the assistance of a consultant. The suspension shall
lapse automatically if the Supervisory Board fails to take a decision
within the aforementioned term of three months.
2. A decision to suspend a member of the Managing Board may only be carried at
a meeting of the Supervisory Board at which at least two-thirds of the
incumbents are present. If less than two-thirds of the Supervisory Board
members make their appearance at this meeting, a second meeting of the
Supervisory Board shall be convened within a term of two weeks, at which a
decision shall be taken regardless of the number of incumbent members
present.
Article 20
1. The Supervisory Board may dismiss members of the Managing Board at any
time.
2. The Supervisory Board may dismiss a member of the Managing Board only when
the General Meeting of Shareholders has been consulted on the subject of
the intended dismissal.
The provisions of Article 19, paragraph 2 shall apply mutatis mutandis.
Prior to passing a resolution to this effect, the Supervisory Board may
consult with the Managing Board member concerned. The latter may arrange
for the assistance of a consultant.
3. In the event that the Supervisory Board decides to convene a General
Meeting of Shareholders in order to consult with the said Meeting on the
intended dismissal of a member of the Managing Board, this General Meeting
of Shareholders shall be held within a period of one month of the
resolution passed by the Supervisory Board. The member of the Managing
Board to whom the intended dismissal relates shall be given the opportunity
to render account of his actions at this General Meeting of Shareholders.
4. The Supervisory Board shall notify the Managing Board member concerned, not
later than one month after consulting with the General Meeting of
Shareholders, whether or not it is to effect the intended dismissal,
failing which the Supervisory Board shall not be authorised to dismiss the
member concerned until a General Meeting of Shareholders has again been
convened for the purpose of consultation on the intended dismissal.
Representation
Article 21
1. The authority to represent the Company shall either reside with two members
of the Managing Board acting jointly, or with one member of the Managing
Board and one duly authorised signatory acting jointly.
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2. The Company may also be represented by authorised signatories, with due
observance of any restrictions imposed upon their representative authority.
The Managing Board shall decide on their authority, their job title and the
terms of appointment, on the understanding that the title of Senior
Executive Vice President may only be granted in consultation with the
Supervisory Board.
Absence and Inability to Act
Article 22
In the event of absence or inability to act on the part of one or more
members of the Managing Board, the remaining members of the said Board or the
two remaining members of the said Board, respectively, shall be charged with
the management of the Company. In the event of absence or inability to act on
the part of all but one member of the Managing Board or all members of the
said Board, the sole remaining member of the said Board and the Supervisory
Board jointly or the Supervisory Board, respectively, shall temporarily be
charged with the management of the Company, without prejudice to the
authority of the Supervisory Board to appoint under such circumstances one or
more or two or more officers, respectively, whether or not from its own
membership, to attend to the management of the Company on a temporary basis,
together with the sole remaining member of the Managing Board or jointly,
respectively.
In the event of absence or inability to act on the part of all members of the
Managing Board or all but one member of the said Board, the Supervisory Board
shall be obliged to fill the vacant post(s) with immediate effect.
Approval of Resolutions
Article 23
1. With prejudice to the provisions as stipulated elsewhere in these Articles
of Association, the Managing Board shall require the approval of the
Supervisory Board for the following management decisions:
a. issue and acquisition of shares in and debentures for the account of a
limited or general partnership of which the Company is a fully liable
partner;
b. cooperation in the issue of depositary receipts for shares in the
Company's capital;
c. application for listing or cancellation of listing of the securities
as referred to under a. and b. in the Official Price List of any stock
exchange;
d. entering into or severing a lasting collaboration, either between the
Company or a dependent company and another legal entity or company, or
in its capacity as fully liable partner in a limited or general
partnership if the said collaboration or severing is of material
significance for the Company;
e. participation by the company or a dependent company in the capital of
another company to an amount of at least one quarter of the value of
the issued capital and reserves of the Company as disclosed in its
balance sheet and accompanying notes, or any material increase or
reduction in such participation;
f. investments requiring an amount equal to at least one-quarter of the
issued capital and reserves of the Company as disclosed in its balance
sheet and accompanying notes;
g. any proposal to amend the Articles of Association;
h. any proposal to wind up the Company;
i. filing for bankruptcy and applying for moratorium of payment;
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j. termination of employment for a significant number of employees of the
Company or of a dependent company, either at the same time or within a
short period of time;
k. material changes in the employment conditions of a significant number
of employees of the Company or of a dependent company, either at the
same time or within a short period of time;
1. any proposal relating to a reduction of the issued capital.
2. Failure by the Supervisory Board to approve of any resolution as referred
to in the first paragraph may not be invoked by or against third parties.
Supervisory Board
Article 24
1. The Company shall have a Supervisory Board consisting of at least ten
members.
With due observance of the above provisions, the Priority shall determine
the number of members to the Supervisory Board.
2. Without prejudice to the provisions as stipulated elsewhere in these
Articles of Association, it shall be the duty of the Supervisory Board to
supervise the conduct of business of the Managing Board as well as the
general course of affairs in the Company and its affiliated enterprise(s).
The Supervisory Board shall assist the Managing Board with advice. The
members of the Supervisory Board shall be guided in the performance of
their duties by the interests of the Company and those of its affiliated
enterprise(s).
3. The Managing Board shall provide the Supervisory Board in good time with
the information required for the performance of its duties.
4. If fewer than ten members of the Supervisory Board are in office, the
Supervisory Board shall be obliged to fill the vacant post(s) with
immediate effect.
The Supervisory Board shall continue to be authorised, even if it is
incomplete and even if its members number fewer than ten.
5. The Supervisory Board shall appoint from among its members a Chairman and
one or more Deputy Chairmen.
6. Each member of the Supervisory Board shall receive a fixed remuneration,
the level of which is determined, and may be changed, by the General
Meeting of Shareholders following a proposal to that effect by the said
Board.
Appointment of Supervisory Board Members
Article 25
1. The members of the Supervisory Board shall be appointed by the Supervisory
Board.
2. The General Meeting of Shareholders, the Staff Council and the Managing
Board may recommend persons for appointment to the Supervisory Board to the
said Board.
To this end, the Supervisory Board shall notify them in good time when and
as a result whereof a vacant seat on its Board needs to be filled. The
Supervisory Board may impose a reasonable term on the Managing Board and
the Staff Council for the making of such recommendations.
3. The Supervisory Board shall notify the General Meeting of Shareholders and
the Staff Council of the name of the person it wishes to appoint, with due
observance of Section 142, Subsection 3 of Book 2 of the Netherlands Civil
Code.
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4. The Supervisory Board shall appoint the said person unless the General
Meeting of Shareholders or the Staff Council object to the intended
appointment, on the grounds that the provisions of either the second
sentence of paragraph 2 or of paragraph 3 of this Article have not been
fully complied with, on the grounds that it is expected that the
nominee would be unfit to perform the duties of a member of the
Supervisory Board, or on the grounds that the composition of the
Supervisory Board would be inappropriate following the intended
appointment.
5. The resolution by the General Meeting of Shareholders to lodge an objection
must be passed at the first meeting held after a period of fourteen (14)
days has elapsed since notice was given.
The Staff Council shall pass the resolution to lodge an objection within a
period of two months of the notification.
6. The objection shall be communicated to the Supervisory Board, stating the
reasons.
7. The appointment may be effected as intended despite the objection of the
General Meeting of Shareholders or the Staff Council if the Companies
Division.
("Ondernemingskamer") of the Amsterdam Court of Appeal, at the request of a
representative of the Supervisory Board appointed for that purpose,
declares the said objection to be unfounded.
8. A statement of defense may be submitted by a representative, appointed for
that purpose, of the General Meeting of Shareholders or of the Staff
Council which has lodged the objection referred to in paragraph 4. The
Companies Division of the Court of Appeal shall also summon the
representatives appointed by the General Meeting of Shareholders or the
Staff Council which has not lodged an objection.
No appeal shall be permitted against the decision of the Companies Division
of the Court of Appeal. The Companies Division of the Court of Appeal may
not make an award of legal costs.
9. If no members of the Supervisory Board are in office, the appointment shall
be made by the General Meeting of Shareholders, with due observance of the
provisions of Section 159 of Book 2 of the Netherlands Civil Code.
Retirement by Rotation - Suspension - Dismissal
Article 26
1. Members of the Supervisory Board shall retire from office not later than on
the day of the first General Meeting of Shareholders following the day on
which they have been a member of the Supervisory Board for a period of four
years from their most recent appointment or reappointment. Retiring
Supervisory Board members shall be eligible for immediate reappointment.
2. The Supervisory Board may suspend members of the said Board at any time.
Such suspension shall lapse automatically if the Company, represented by
the Supervisory Board, fails to request the Companies Division of the
Amsterdam Court of Appeal, within a period of one month of the commencement
of the suspension, to dismiss the Supervisory Board member on the grounds
as prescribed by law.
3. Paragraph 2 of Article 19 shall apply mutatis mutandis to the passing of
resolutions by the Supervisory Board with respect to paragraph 2.
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Advisory Committee
Article 27
1. The Managing Board may establish an Advisory Committee.
2. Whenever the Advisory Committee considers it necessary or whenever a
request to that effect is submitted to it by the Managing Board, the
Committee shall advise that Board on matters which are relevant to the
conduct of business. The Managing Board may also request advice to that
effect from individual members of the Advisory Committee.
The establishment of the Committee, the procedures to be followed by it and
appointment of its members shall be defined in more detail in a set of
rules and regulations.
General Meeting of Shareholders
Article 28
1. General Meetings of Shareholders shall be held in Amsterdam.
2. Annual meetings shall be held within six months of the end of each
financial year.
3. The following items shall be included on the agenda of the Annual Meeting:
a. The Annual Report;
b. Approval of the Annual Accounts;
c. Announcements concerning vacancies in the Managing Board and the
Supervisory Board.
4. General Meetings of Shareholders shall furthermore be held as frequently as
deemed necessary by the Managing Board or the Supervisory Board and
whenever such is required either by law or on the basis of the provisions
of the Articles of Association.
Convocation
Article 29
1. General Meetings of Shareholders shall be convened by the Managing Board or
the Supervisory Board, without prejudice to the provisions of Sections 110,
111 and 112 of Book 2 of the Netherlands Civil Code.
2. Convocation shall take place not later than on the fifteenth day prior to
the day of the meeting.
3. The convocation to the meeting shall state the items to be discussed;
alternatively, notice shall be given that the holders of shares and
depositary receipts for shares may inspect such items at the Company's
offices.
4. Proposals to amend the Articles of Association or proposals relating to a
reduction of the Company's capital shall, however, always be included in
the actual convocation.
Convocations to meetings at which a proposal is made relating to a
reduction of the Company's capital shall furthermore include the object of
the said capital reduction and the method whereby it shall be realised.
5. Convocations and other notifications to holders of shares and depositary
receipts for shares shall be made by means of an announcement in at least
one national daily newspaper and in the Official Price List, published by
Amsterdam Exchanges N.V. or one of her subsidiaries, the Official Price
List hereafter to be mentioned as: the Official Price List.
Admission to Meetings
Article 30
1. Each shareholder with voting rights and each usufructuary or holder of a
lien on shares with voting rights shall be entitled, either in person or by
written proxy, to attend General
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Meetings of Shareholders, to address the meeting and to exercise his voting
rights, provided he has made known his intention to do so not later than on
the day to be stated in the convocation, which day may not be more than
seven nor less than three days prior to the date of the meeting, in the
place as stated in the convocation and, with respect to the holder of
bearer shares, provided he has lodged his share certificates not later than
on the day to be stated in the convocation, which day may not be more than
seven nor less than three days prior to the day of the meeting, in the
place as stated in the convocation and in exchange for a receipt which
shall also serve as an admission pass to the said meeting.
2. Each holder of depositary receipts for shares shall be entitled, either in
person or by written proxy, to attend General Meetings of Shareholders and
address the meeting, provided he has lodged his certificates of receipt not
later than within the term as stipulated in paragraph 1 in the place as
stated in the convocation.
3. Each holder of shares not having voting rights shall be entitled, either in
person or by written proxy, to attend General Meetings of Shareholders and
address the meeting. The provisions as stipulated in paragraph 1 of this
Article shall apply mutatis mutandis.
4. Holders of shares and depositary receipts for shares who wish to have
themselves represented at the General Meeting by written proxy shall be
obliged to submit the proxy for the meeting to the offices of the Company,
within the term as stipulated in paragraph l.
5. Holders of shares or depositary receipts for shares or their proxies shall
sign the list of attendance prior to the commencement of the meeting.
6. The Chairman of the General Meeting of Shareholders shall decide on any
disputes as to whether holders of shares or depositary receipts for shares
or their proxies have submitted adequate proof of their identity for the
purpose of attending the meeting and exercising their voting rights and on
all other issues relating to the proper conduct of the meeting.
Chairing of the Meeting - Minutes
Article 31
1. General Meetings of Shareholders shall be chaired by the Chairman of the
Supervisory Board or, in the absence of the said Chairman, by a Deputy
Chairman.
In the absence of both the Chairman and the Deputy Chairman, the
Supervisory Board shall appoint a chairman from among the members of the
Supervisory Board present at the meeting.
The Chairman of the Supervisory Board may furthermore, in consultation with
the Managing Board, invite a person from outside the Supervisory Board to
deputise as chairman.
2. Minutes shall be kept of the meeting, except where notarial records are
made of the items discussed. The Chairman and the Secretary of the Meeting
appointed by him shall approve the minutes and sign them in evidence
thereof.
Voting Rights and Voting
Article 32
1. a. Each ordinary share shall confer the right to cast one vote.
b. Each priority share and each preference share shall confer the right
to cast four votes.
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2. No votes may be cast at the General Meeting of Shareholders with respect
either to shares belonging to the Company or a subsidiary company or to
shares the depositary receipts of which are held by the Company or a
subsidiary company, without prejudice to any further provisions of the law.
3. Shares in respect of which the law prescribes that they shall not confer a
right to vote shall be disregarded for the purpose of determining the
proportion of the shareholders voting, present or represented, or the
proportion of the share capital present or represented.
4. All resolutions by the General Meeting of Shareholders shall be passed by
absolute majority of validly cast votes, unless the law prescribes a
greater majority.
5. All votes shall be cast verbally.
The Chairman may determine, however, that the votes shall be cast by means
of written ballot.
In the case of election of persons, any shareholder present may also
require that the votes shall be cast by means of written ballot.
Written votes shall be cast using sealed unsigned ballot papers.
6. Votes may be cast by acclamation provided none of the shareholders present
objects.
7. Blank votes and invalidly cast votes shall be deemed not to have been cast.
8. In the event of a tied vote concerning matters, the proposal shall be
deemed to have been defeated.
9. If a simple majority is not reached on the first vote in the case of the
appointment of persons, a second ballot shall be held. If a simple
majority is not reached for a second time, a ballot shall be held between
the two persons who acquired the most votes at the second ballot. The
person who acquires the most votes during the final ballot shall be
elected. If more than those persons qualify for the aforementioned second
ballot as a result of a tied vote between them, an interim ballot shall
decide the two persons between whom the final ballot is to be held or which
of them shall go into the final ballot with the person who acquired the
most votes at the second ballot. In the event of a tied vote, the matter
shall be decided by the drawing of lots.
Shareholders' Committee
Article 33
1. The General Meeting of Shareholders shall be authorised to appoint a
Shareholders' Committee to which it may transfer the powers granted and
duties imposed by law with respect to the appointment and dismissal of
members of the Supervisory Board and the Managing Board for a period, to be
determined by the General Meeting, which shall not exceed two years at a
time. Other powers may not be transferred to the Shareholders' Committee.
The General Meeting of Shareholders may rescind the transfer at any time.
2. The Supervisory Board may require that resolutions be passed within a
reasonable term on the matters with respect to which it has requested that
a meeting of the Shareholders' Committee be convened. If the Shareholders'
Committee fails to comply, it shall be deemed to be unwilling to exercise
its rights with respect to the items stated on the agenda.
3. The composition of the Committee, the members of which shall be
shareholders, the method of nomination, the division of duties and the
procedures with respect to meetings
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and decision-taking shall be laid down in a set of rules and regulations,
which shall be adopted by the General Meeting of Shareholders.
Meetings of Holders of Different Classes of Shares
Article 34
1. Meetings of holders of shares of the same glass or belonging to the same
series of preference shares shall be convened by the Managing Board or the
Supervisory Board.
The meetings shall be held as frequently as deemed necessary by the
Managing Board or the Supervisory Board and whenever such is required
either by law or on the basis of the provisions of the Articles of
Association.
2. Where possible, the provisions with respect to the General Meetings of
Shareholders shall apply mutatis mutandis to the aforementioned meetings.
Financial Year - Annual Accounts and Annual Report
Article 35
1. The financial year shall be concurrent with the calendar year.
2. Each year, within a period of five months of the end of the financial year,
the Managing Board shall draw up the Annual Accounts.
3. The Annual Accounts shall be signed by all members of the Managing Board
and all members of the Supervisory Board.
4. The Annual Accounts shall be submitted to the Supervisory Board together
with the Annual Report.
5. The Supervisory Board shall adopt the Annual Accounts.
Expert
Article 36
1. The Company shall appoint an expert, within the meaning of Section 393 of
Book 2 of the Netherlands Civil Code, to audit the Annual Accounts.
2. Without prejudice to the statutory provisions, the Supervisory Board shall
be obliged to appoint the said expert if the General Meeting of
Shareholders has failed to do so.
3. The expert shall report on his audit to the Supervisory Board and the
Managing Board.
4. The expert shall state the results of his examination in an auditors'
opinion on the truthfulness and fairness of the Annual Accounts.
5. With due observance of the statutory provisions, the Annual Accounts may
not be adopted or approved if the Supervisory Board or the General Meeting
of Shareholders have not been in a position to inspect the auditors'
opinion drawn up by the expert.
Availability for Inspection - Submission - Approval and Discharge
Article 37
1. From the day of convocation to the Annual Meeting to the end of the said
Meeting, the Annual Accounts as adopted by the Supervisory Board and the
Annual Report of the Managing Board and the other information to be
included by law shall be available for inspection by the holders of shares
and depositary receipts for shares at the offices of the Company and at the
offices as stated in the notification. The said holders of shares and
depositary receipts for shares may obtain a full copy free of charge.
2. The Supervisory Board shall submit the Annual Accounts, within a period of
six months of the financial year end, for approval to the General Meeting
of Shareholders, while the Managing Board shall submit the Annual Report
within the same period.
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3. The Supervisory Board shall simultaneously submit the Annual Accounts to
the Staff Council for discussion.
4. The Annual Accounts shall require the approval of the General Meeting of
Shareholders.
5. Unqualified approval of the Annual Accounts shall serve to ratify the
managerial actions and supervision, respectively, of the members of the
Managing Board and the Supervisory Board with respect to the financial year
then ended.
Profit and Distributions
Article 38
1. The Company may make distributions to the shareholders and other parties
entitled to the profit available for distribution in so far as its
shareholders' equity exceeds the paid and called portion of the capital
plus the reserves required by law to be maintained.
2. The profit as stated in the approved Annual Accounts shall be distributed
as follows:
a. Up to six per cent (6%) of the nominal amount of his share shall be
distributed to the holder of the priority share.
b. 1. A dividend shall subsequently be distributed to the holders of
preference shares and convertible shares equal to a percentage,
to be described below, of the nominal amount of the preference
shares or the amount paid in on the convertible shares,
respectively.
b. 2. The calculation of the dividend percentage for the series of
preference shares issued, either in whole or in part, before
September fifteenth, nineteen hundred and ninety-three, shall
take place by taking the arithmetic mean of the average effective
yield of the five government bond loans with the longest term, as
drawn up by the Netherlands Central Plan Bureau of Statistics and
published in the Official Price List, for the last twenty trading
days preceding the day of the first issue of preference shares of
the said series, increased by a surcharge determined by the
Managing Board and approved by the Supervisory Board of at least
one quarter percentage point and at most one percentage point,
depending on the market situation prevailing at the time.
On the first of January of the year two thousand and one and every ten
years thereafter, the said dividend percentage shall be adjusted to
the average effective yield of the five government bond loans with the
longest term prevailing at the time, calculated in the manner as
stated above, but on the understanding that the said arithmetic mean
shall be calculated over the last twenty trading days preceding the
day on which the dividend percentage is to be adjusted and increased
by a surcharge as determined by the Managing Board and approved by the
Supervisory Board, as described
b. 3. The calculation of the dividend percentage for each series of
preference shares issued, either in whole or in part, after
September fifteenth, nineteen hundred and ninety-three, shall
take place by taking the arithmetic mean of the effective yield
of the government bond loans as described hereinafter, as drawn
up by the Netherlands Central Bureau of Statistics and published
in the Official Price List, for the last twenty trading days
preceding the day of the first issue of preference shares of the
said series, where appropriate increased of reduced by a
surcharge or reduction, as determined by the
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Managing Board and approved by the Supervisory Board, of at most
one percentage point, depending on the market situation
prevailing at the time. The government bond loans as referred to
in this paragraph shall be taken to mean the government bond
loans with a term, remaining or otherwise, of nine to ten years.
In the event that the effective yield of these government bond
loans at the time of the calculation of the dividend percentage
is not currently being drawn up by the Netherlands Central
Bureau of Statistics or published in the Official Price List, the
government bond loans referred to in this paragraph shall be
taken to mean the government bond loans with a term, remaining or
otherwise, matching as closely as possible a term, remaining or
otherwise, of nine to ten years of which the effective yield at
the time of the calculation of the dividend percentage is
currently being drawn up by the Netherlands Central Bureau of
Statistics and published in the manner as referred to in the
foregoing, but with a maximum term, remaining or otherwise, of
ten years.
On the first of January of the year following the year in which
ten years will have elapsed following the date of first issue of
a series of preference shares as referred to in this paragraph,
and every ten years thereafter, the dividend percentage for the
said series of preference shares shall be adjusted to the
effective yield of the government bond loans as referred to
earlier in this paragraph prevailing at that time, but on the
understanding that the said arithmetic mean shall be calculated
over the last twenty trading days preceding the day on which the
dividend percentage is to be adjusted and may be increased or
reduced by a surcharge or reduction as determined by the Managing
Board and approved by the Supervisory Board, as described above.
b. 4. The calculation of the dividend percentage for each series of
convertible shares shall take place by dividing the maximum
dividend amount paid in cash for an ordinary share in the
Company's capital for the financial year preceding the day of the
first issue of convertible shares of the said series by the
arithmetic mean of the share prices, to be described hereinafter,
of the ordinary shares in the Company's capital for the last
twenty trading days preceding the day of the first issue of
convertible shares of the said series, following which the
outcome of this division shall be multiplied by one hundred.
Where appropriate, the percentage thus arrived at may be
increased by a surcharge, as determined by the Managing Board, of
at most two percentage points, depending on the market situation
prevailing at the time.
"Share prices" of the ordinary shares in the Company's capital shall
be taken to mean the closing prices as published in the Official
Price List during the aforementioned trading days, on the
understanding that if during the said trading days the share
price of the ordinary shares is arrived at ex-dividend due to a
dividend having been made payable on the ordinary shares and made
available, either entirely in cash or, at the discretion of the
shareholder, wholly or partly in cash or in the form of
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shares, the said closing prices relating to the trading days on which
the share price of the ordinary shares is arrived at ex-dividend will
be increased by an amount equal to the maximum amount of the said
dividend made payable in cash on an ordinary share.
On the first of January of the year following the year of expiry of
the term within which the convertible shares forming part of one of
the aforementioned series of convertible shares can be converted into
ordinary shares, and every ten years thereafter, the dividend
percentage for the said series of convertible shares shall be
adjusted in the manner as described under b.3 above with respect to
the adjustment of the dividend percentage for the series of
preference shares referred to under b.3.
b. 5 The "day of the first issue" as referred to in this paragraph
shall be taken to mean the day on which the dividend percentage
is announced for the series of preference shares or convertible
shares to be issued, respectively.
b. 6. No profit distribution in addition to that as referred to in the
foregoing shall be made to holders of preference shares or
holders of convertible shares.
c. Subsequently, such reserves shall be formed and charged against the
profit as determined by the Managing Board and approved by the
Supervisory Board.
d. The remaining amount shall then be distributed in the form of dividend
on the ordinary shares.
3. Subject to the approval of the Supervisory Board, the Managing Board may
make the dividend or interim dividend on the ordinary shares payable, at
the discretion of the holders, either in cash or, provided it is authorised
to issue shares, partly or wholly in the form of ordinary shares or
preference shares in the Company's capital or in a combination thereof,
such combination to be determined by the Managing Board.
4. Subject to the approval of the Supervisory Board, the Managing Board shall
be authorised, in so far as such is permitted by the profit as evidenced by
an interim balance sheet drawn up with due observance of the provisions of
Section 105, Subsection 4 of Book 2 of the Netherlands Civil Code, to make
payable an interim dividend on the ordinary shares once or more frequently,
in the course of any financial year and prior to the approval of the Annual
Accounts by the General Meeting of Shareholders.
5. Subject to the approval of the Supervisory Board, the Managing Board may
decide on a distribution charged against reserves in cash or, if the Board
is authorised to issue shares, in the form of shares.
Amendment of the Articles of Association and Dissolution
Article 39
1. Any resolutions to amend the Articles of Association or dissolve the
Company may only be passed by the General Meeting of Shareholders
following a proposal by the Managing Board which has been approved by the
Supervisory Board, and following the approval of the Priority.
2. A copy of the proposal containing the literal text of the proposed
amendments shall be made available for inspection by the holders of shares
and depositary receipts for shares at the offices of the Company and at the
offices stated in the convocation to the meeting,
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<PAGE>
from the day of convocation to the end of the said Meeting. Each holder of
shares or depositary receipts for shares may obtain a full copy of the said
proposal free of charge.
Liquidation
Article 40
1. In the event that the Company is wound up, liquidation shall be effected
with due observance of the statutory provisions.
2. Where possible, the Articles of Association shall remain in force during
the liquidation proceedings.
3. The remainder of the Company's property after settlement of all debts shall
be distributed as follows:
a. to the holder of the priority share: the nominal amount of the
priority share;
b. subsequently, to the holders of preference shares and convertible
shares: the dividend percentage applying to the series of preference
shares or convertible shares of which they are holders, to be
calculated on the basis of the nominal amount of the preference shares
or the amount paid in on the convertible shares, respectively, from
the most recent full financial year until the date of payment, and
subsequently the nominal amount of the preference shares or the
amount paid in on the convertible shares, respectively;
c. finally, to the holders of ordinary shares: the remainder, in
proportion to their shareholding.
4. Following completion of the liquidation, the books and documents of the
Company shall continue to reside, for the periods as prescribed by law,
with the party appointed for that purpose by the General Meeting of
Shareholders.
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<PAGE>
Exhibit 4.2
ABN AMRO GROUP PROFIT SHARING
AND SAVINGS PLAN AND TRUST
(as amended and restated effective January 1, 1997)
<PAGE>
ABN AMRO GROUP PROFIT SHARING
AND SAVINGS PLAN AND TRUST
(as amended and restated effective January 1, 1997)
TABLE OF CONTENTS
ARTICLE 1
INTRODUCTION, PURPOSE AND DECLARATION OF TRUST ..... 1
Section 1.1 INTRODUCTION .......................................... 1
Section 1.2 PURPOSE OF THE PLAN ................................... 1
Section 1.3 DECLARATION OF TRUST .................................. 2
Section 1.4 EFFECTIVE DATE ........................................ 2
ARTICLE 2
DEFINITIONS ....................... 2
Section 2.1 ACCOUNTING DATE ....................................... 2
Section 2.2 AGGREGATION GROUP ..................................... 2
Section 2.3 ANNUAL ADDITIONS ...................................... 3
Section 2.4 BANK .................................................. 3
Section 2.5 BENEFICIARY ........................................... 3
Section 2.6 BREAK IN SERVICE ...................................... 4
Section 2.7 CODE .................................................. 4
Section 2.8 COMMITTEE ............................................. 4
Section 2.9 COMPENSATION .......................................... 5
Section 2.10 CONSIDERED COMPENSATION ............................... 6
Section 2.11 DATE OF EMPLOYMENT .................................... 6
Section 2.12 DESIGNATED AFFILIATE .................................. 7
Section 2.13 DISABILITY RETIREMENT ................................. 7
Section 2.14 EMPLOYEE .............................................. 7
Section 2.15 EMPLOYER .............................................. 8
Section 2.16 [RESERVED] ............................................ 10
Section 2.17 FORMER PARTICIPANT .................................... 10
Section 2.18 FUND .................................................. 10
Section 2.19 HEADINGS .............................................. 10
Section 2.20 HIGHLY COMPENSATED EMPLOYEE ........................... 10
Section 2.21 HOUR OF SERVICE ....................................... 11
Section 2.22 KEY EMPLOYEE .......................................... 14
Section 2.23 LIMITATION YEAR ....................................... 15
Section 2.24 MANAGING BOARD ........................................ 15
Section 2.25 MINIMUM BENEFIT AMOUNT ................................ 15
Section 2.26 MINIMUM CONTRIBUTION AMOUNT ........................... 15
Section 2.27 NORMAL RETIREMENT DATE AND
DEFERRED RETIREMENT ................................... 16
<PAGE>
Section 2.28 OWNER ................................................. 16
Section 2.29 PARTICIPANT ........................................... 17
Section 2.30 PLAN .................................................. 17
Section 2.31 PLAN YEAR ............................................. 17
Section 2.32 PRIOR PLAN ............................................ 17
Section 2.33 PRIOR PLAN SPONSOR .................................... 19
Section 2.34 QUALIFIED EMPLOYER CONTRIBUTIONS ...................... 21
Section 2.35 RELATED EMPLOYER ...................................... 21
Section 2.36 RELATED ENTITY ........................................ 21
Section 2.37 RELATED PLAN .......................................... 22
Section 2.38 RETIREMENT ............................................ 22
Section 2.39 TOP-HEAVY ............................................. 22
Section 2.40 TRUSTEE ............................................... 23
Section 2.41 TRUST ................................................. 23
Section 2.42 YEAR .................................................. 23
Section 2.43 YEAR OF SERVICE ....................................... 24
ARTICLE 3
ELIGIBILITY ....................... 28
Section 3.1 ELIGIBILITY ........................................... 28
ARTICLE 4
EMPLOYER CONTRIBUTIONS ................. 36
Section 4.1 CONTRIBUTIONS BY EMPLOYER ............................. 36
Section 4.2 DETERMINATION OF SHARE OF
EMPLOYER CONTRIBUTION ................................. 38
Section 4.3 PAYMENT DATE .......................................... 38
Section 4.4 LIMITED REVERSION ..................................... 38
Section 4.5 ELECTED EMPLOYER CONTRIBUTIONS ........................ 39
Section 4.6 LIMITATION ON ELECTED EMPLOYER
CONTRIBUTIONS ......................................... 41
Section 4.7 MATCHING EMPLOYER CONTRIBUTIONS ....................... 47
Section 4.8 LIMITATIONS ON MATCHING CONTRIBUTIONS ................. 47
Section 4.9 CONTRIBUTIONS DEEMED CONDITIONED
ON DEDUCTIBILITY ...................................... 52
Section 4.10 MULTIPLE USE OF THE ALTERNATIVE
LIMITATION ............................................ 52
Section 4.11 RESTORATION ........................................... 53
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ARTICLE 5
CONTRIBUTIONS BY PARTICIPATING EMPLOYEES ........ 53
Section 5.1 VOLUNTARY CONTRIBUTIONS ............................... 53
Section 5.2 WITHDRAWAL OF CONTRIBUTIONS ........................... 53
Section 5.3 ROLLOVER OF FUNDS FROM PREVIOUS
EMPLOYER'S PLAN ....................................... 54
Section 5.4 QUALIFIED VOLUNTARY EMPLOYEE
CONTRIBUTIONS ......................................... 55
ARTICLE 6
ACCOUNTING ....................... 56
Section 6.1 PARTICIPANTS' ACCOUNTS ................................ 56
Section 6.2 UNALLOCATED SUSPENSE ACCOUNT .......................... 56
Section 6.3 ADJUSTMENT TO REFLECT CHANGES IN ADJUSTED
NET WORTH OF INVESTMENT FUNDS ......................... 56
Section 6.4 ALLOCATION OF EMPLOYER'S CONTRIBUTION ................. 57
Section 6.5 ALLOCATION OF PARTICIPANTS' ROLLOVER
CONTRIBUTIONS ......................................... 58
Section 6.6 DISTRIBUTIONS ......................................... 58
Section 6.7 SIMILAR PLAN ALLOCATION LIMITATION .................... 58
Section 6.8 DISSIMILAR PLAN ALLOCATION LIMITATION ................. 59
Section 6.9 DATE OF CONTRIBUTIONS ................................. 62
Section 6.10 STATEMENT OF PARTICIPANTS' ACCOUNTS ................... 62
Section 6.11 CORRECTION OF ERRORS .................................. 63
ARTICLE 7
VESTING AND DISTRIBUTION OF ACCOUNTS .......... 63
Section 7.1 VESTING OF ACCOUNTS ................................... 63
Section 7.2 AMOUNT AVAILABLE FOR BENEFITS ......................... 63
Section 7.3 METHODS OF DISTRIBUTION OF BENEFITS
63
Section 7.4 TIME OF DISTRIBUTION OF BENEFITS ...................... 65
Section 7.5 DISTRIBUTIONS TO PERSONS UNDER
DISABILITY ............................................ 73
Section 7.6 RE-EMPLOYMENT ......................................... 73
Section 7.7 NOTICES TO PARTICIPANTS AND
BENEFICIARIES, AND DISTRIBUTION OF
UNCLAIMED AMOUNTS ..................................... 74
Section 7.8 WITHHOLDING OF TAXES .................................. 75
Section 7.9 WITHDRAWALS BY PARTICIPANTS ........................... 75
Section 7.10 CASH-OUTS ............................................. 77
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Section 7.11 ALTERNATE PAYEES ...................................... 78
Section 7.12 DESIGNATION OF BENEFICIARY ............................ 79
Section 7.13 1989 MERGED PLANS' SPECIAL RULES ...................... 80
Section 7.14 AMRO PRIOR PLAN'S SPECIAL RULES ....................... 86
Section 7.15 EAB PRIOR PLAN SPECIAL RULES .......................... 87
Section 7.16 TALMAN PRIOR PLAN SPECIAL RULES ....................... 88
Section 7.17 LEASE PLAN PRIOR PLAN SPECIAL RULES ................... 88
Section 7.18 PIERSON PRIOR PLAN SPECIAL RULES ...................... 93
Section 7.19 LOANS TO PARTICIPANTS ................................. 93
Section 7.20 DIRECT ROLLOVERS ...................................... 97
Section 7.21 CRAGIN PRIOR PLAN SPECIAL RULES ....................... 98
Section 7.22 HORRIGAN PRIOR PLAN SPECIAL RULES ..................... 99
Section 7.23 DISPOSITION OF CERTAIN PAYMENTS .......................101
Section 7.24 HEIGL PRIOR PLAN SPECIAL RULES ........................101
Section 7.25 COLUMBIA PRIOR PLAN SPECIAL RULES .....................103
Section 7.26 STANDARD PRIOR PLAN SPECIAL RULES .....................105
Section 7.27 ALFRED BERG PRIOR PLAN SPECIAL RULES ..................106
ARTICLE 8
THE COMMITTEE ......................106
Section 8.1 COMMITTEE ADMINISTRATION ..............................106
Section 8.2 EFFECT OF ELECTIONS, WAIVERS OR
OTHER DESIGNATIONS UNDER PRIOR PLAN ...................106
ARTICLE 9
INVESTMENT OF FUND ...................107
Section 9.1 GENERAL INVESTMENT AUTHORITY ..........................107
Section 9.2 LASALLE NATIONAL BANK QUALIFIED DUAL
FUND FOR EMPLOYEE BENEFIT PLANS .......................107
Section 9.3 DIRECTED INVESTMENTS ..................................108
Section 9.4 SPECIAL RULE FOR INVESTMENT ELECTIONS
BY CERTAIN EAB PRIOR PLAN PARTICIPANTS ................111
Section 9.5 INITIAL INVESTMENT OF ASSETS SPUN OFF
FROM HORRIGAN PRIOR PLAN ..............................112
Section 9.6 INITIAL INVESTMENT OF ASSETS RECEIVED
FROM MERGER OF CERTAIN PRIOR PLANS ....................112
Section 9.7 INITIAL INVESTMENT OF ASSETS OF ALFRED
BERG PRIOR PLAN .......................................113
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ARTICLE 10
THE TRUSTEE .......................114
Section 10.1 TRUSTEE'S POWERS ......................................114
Section 10.2 RECORDS AND ACCOUNTS OF TRUSTEE .......................116
Section 10.3 REPORTS ...............................................116
Section 10.4 APPROVAL OF ACCOUNTS ..................................117
Section 10.5 RELIANCE UPON ADVICE OF COUNSEL .......................117
Section 10.6 INDEMNIFICATION OF TRUSTEE ............................117
Section 10.7 COMPENSATION AND EXPENSES .............................118
Section 10.8 PROTECTION OF PERSONS DEALING WITH
TRUSTEE ...............................................118
Section 10.9 EXERCISE OF TRUSTEE'S DUTIES ..........................118
Section 10.10 MULTIPLE EMPLOYER TRUST ...............................119
Section 10.11 INVESTMENTS IN EMPLOYER SECURITIES ....................119
Section 10.12 LIMITED CO-TRUSTEE ....................................120
Section 10.13 VOTING OF EMPLOYER SECURITIES .........................121
Section 10.14 RIGHTS, WARRANTS OR OPTIONS ...........................122
Section 10.15 TENDER OFFERS .........................................122
Section 10.16 NAMED FIDUCIARY STATUS ................................124
Section 10.17 REINVESTMENT OF DIVIDENDS .............................124
ARTICLE 11
AMENDMENT, DISCONTINUANCE, TERMINATION OR MERGER ....124
Section 11.1 AUTHORITY TO AMEND, DISCONTINUE OR
TERMINATE .............................................124
Section 11.2 RESTRICTIONS ON AMENDMENT .............................125
Section 11.3 PRIOR BENEFITS ........................................125
Section 11.4 METHOD OF MAKING AMENDMENT ............................125
Section 11.5 EFFECT OF DISCONTINUANCE OR TERMINATION ...............125
Section 11.6 MERGER, CONSOLIDATION OR TRANSFER OF
ASSETS ................................................126
Section 11.7 DIVERSION OF FUND PROHIBITED ..........................126
Section 11.8 1990 PRIOR PLAN MERGERS ...............................127
Section 11.9 AMRO PRIOR PLAN MERGER ................................127
Section 11.10 MERGER WITH LEASE PLAN, EAB AND TALMAN
PRIOR PLANS ...........................................127
Section 11.11 PIERSON SPINOFF OF ASSETS .............................127
Section 11.12 PIERSON MERGER ........................................127
Section 11.13 MERGER WITH THE LASALLE CRAGIN PROFIT
SHARING PLAN ..........................................127
Section 11.14 PINE TREE SPINOFF OF ASSETS ...........................128
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Section 11.15 CERTAIN HORRIGAN PRIOR PLAN
ASSETS TRANSFERRED TO THE PLAN ........................128
Section 11.16 MERGER WITH THE HEIGL PRIOR PLAN ......................128
Section 11.17 MERGER WITH COLUMBIA PRIOR PLAN .......................129
Section 11.18 MERGER WITH STANDARD PRIOR PLAN .......................130
Section 11.19 MERGER WITH ALFRED BERG PRIOR PLAN ....................130
Section 11.20 MERGER WITH BANKERS LEASING PRIOR PLAN ................131
Section 11.21 MERGER WITH CRAGIN KSOP PRIOR PLAN ....................132
ARTICLE 12
CLAIMS PROCEDURE ....................132
Section 12.1 CLAIMS PROCEDURE ......................................132
ARTICLE 13
MISCELLANEOUS ......................132
Section 13.1 TAX EXEMPTION OF TRUST ................................132
Section 13.2 PAYMENT BY EMPLOYER OF EXPENSES OF
COMMITTEE AND TRUSTEE .................................133
Section 13.3 RIGHTS ONLY AS SPECIFIED ..............................133
Section 13.4 ALIENATION ............................................133
Section 13.5 METHOD OF EMPLOYER ACTION .............................133
Section 13.6 INFORMATION FROM PARTICIPANTS AND
BENEFICIARIES .........................................133
Section 13.7 LEGAL ACTIONS .........................................134
Section 13.8 CONTROLLING LAW .......................................134
Section 13.9 BONDING ...............................................134
Section 13.10 COUNTERPARTS ..........................................134
Section 13.11 PRONOUNS AND NUMBER ...................................134
Section 13.12 QUALIFIED DOMESTIC RELATIONS ORDER ....................134
Section 13.13 SPECIAL MILITARY SERVICE RULES ........................135
APPENDIX A
RULES OF ADMINISTRATION .............................................. 1
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<PAGE>
ABN AMRO GROUP PROFIT SHARING
AND SAVINGS PLAN AND TRUST
(as amended and restated effective January 1, 1997)
ARTICLE 1
INTRODUCTION, PURPOSE AND DECLARATION OF TRUST
Section 1.1 Introduction. LASALLE NATIONAL Bank, a national banking
association located in Chicago, Illinois (hereinafter sometimes referred to as
the "Bank"), heretofore established a certain qualified profit sharing plan and
related exempt trust (as part of such plan), whereby eligible Employees (as
defined below) of the Bank, and eligible Employees of designated affiliates of
the Bank, shared in the profits of the Bank and such designated affiliates. ABN
AMRO Bank N.V., a banking corporation organized and existing under the laws of
the Netherlands (hereinafter sometimes referred to as the "Company"), of which
the Bank is a virtually wholly owned subsidiary, and certain of its United
States affiliates have heretofore joined in said plan and trust. From time to
time thereafter, certain new United States affiliates have joined in said plan
and trust. Effective as of January 1, 1991, Amsterdam-Rotterdam Bank N.V., a
banking corporation organized and existing under the laws of The Netherlands
(which became a Related Employer on October 1, 1990 upon its affiliation with
the Company), is joining in the sponsoring of said plan and trust for the
benefit of its eligible employees in the United States.
Section 1.2 Purpose of the Plan. The Employers (as defined below) desire
to continue this plan and trust for their Employees who meet the eligibility
requirements herein specified in order to compensate and reward them for loyal
and faithful service by sharing with them a portion of the profits to which
their efforts and interest contributed, and to create incentives for increased
efficiency, effort, initiative and savings. This plan and trust, with the
changes subsequently incorporated, is entered into subject to the condition that
it remain duly qualified and exempt from taxation under the Internal Revenue
Code, and that it exist for the exclusive benefit of eligible Employees of the
Employers and their beneficiaries, and at no time and under no contingency shall
any part of the Fund (as defined below) be used for, or be diverted to, any
other purpose (except as herein otherwise provided).
<PAGE>
Section 1.3 Declaration of Trust. LaSalle National Bank, hereby declares
that it will continue to take, hold, administer and distribute, as trustee
hereunder, all money and property from time to time delivered to it by, or on
behalf of, any one or more of the Employers and their respective Employees, as
and for contributions under the Plan upon the terms, conditions and trusts
herein contained.
Section 1.4 Effective Date. This plan and trust evidenced hereby shall
amend and supersede, as of January 1, 1997 (except as otherwise provided), all
provisions of said plan and trust as hereinbefore in effect.
ARTICLE 2
DEFINITIONS
Section 2.1 Accounting Date. The phrase "accounting date" includes both a
regular accounting date and a special accounting date. A "regular accounting
date" is any December 31 after the effective date of the Plan. A "special
accounting date" is any other date designated as an accounting date by the
Committee.
Section 2.2 Aggregation Group. "Aggregation Group" shall mean either a
Required Aggregation Group, or, at the Employers' annual election, a Permissive
Aggregation Group.
"Required Aggregation Group" shall mean, each defined contribution plan
and each defined benefit plan (whether or not terminated) of an Employer and
Related Employers in which a Key Employee is a participant, or which enables any
such plan described in (i) above to meet the requirements of Code Section
401(a)(4) and 410.
"Permissive Aggregation Group" shall mean, for Plan Years the group
comprised of each defined contribution plan and defined benefit plan (whether or
not terminated) of an Employer and Related Employers which includes one or more
such plans not in the Required Aggregation Group as determined by such
Employers; provided that all such plans, when aggregated, continue to meet the
requirements of Code Sections 401(a)(4) and 410.
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<PAGE>
Section 2.3 Annual Additions. "Annual Additions" shall mean the sum of:
(a) Employer contributions, Elected Employer Contributions, Matching
Contributions and Qualified Employer Contributions;
(b) Participant voluntary contributions;
(c) Forfeitures;
(d) For Plan Years beginning after March 31, 1984, the amount
credited to Participants' individual medical accounts, as defined in Code
Section 415(l)(1), which is part of a defined benefit plan maintained by
an Employer; and
(e) The amount which is credited to the separate accounts of
Participants who are key employees (as defined in Code Section 419A(d)(3))
under a welfare benefit fund (as defined in Code Section 419(e))
maintained by an Employer to the extent such amount is attributable to
post-retirement medical or life insurance benefits; provided, that such
amount is derived from contributions paid or accrued to such fund after
December 31, 1985 in a taxable year of such fund ending after such date.
For Limitation Years beginning prior to January 1, 1987, the Annual
Addition shall not be recomputed to treat all voluntary contributions as an
Annual Addition.
"Annual Additions" shall not include any Rollover Contributions or any
amounts transferred by a trustee of another qualified plan to the Trustee.
Section 2.4 Bank. The term "Bank" as used herein means LaSalle National
Bank, a national banking association located in Chicago, Illinois.
Section 2.5 Beneficiary. The term "beneficiary" includes the persons and
entities to whom the balance of the account of the
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<PAGE>
deceased employee is payable under Section , or to whom the balance of the
account of a Participant is payable under Section 7.7(b).
Section 2.6 Break in Service. The phrase "Break in Service" means the
failure of an Employee or a Participant to complete more than 500 Hours of
Service during a period of 12 consecutive months beginning on the date on which
the Employee or Participant first completes an Hour of Service or any
anniversary thereof.
For purposes of the break in service rules, if as of the time a Prior Plan
was merged into the Plan the service under the Prior Plan was disregarded, then
such service shall be disregarded under this Plan. For any Employee who was
employed by a Prior Plan Sponsor which maintained a Prior Plan under which the
elapsed time method of crediting service and determining breaks in service was
used, the following rules shall apply for purposes of determining Breaks in
Service under the Plan:
(a) The Employee shall receive credit, as of the date that such
Prior Plan is merged into the Plan, for the number of Years of Service
equal to the number of 1-year periods of service credited to the Employee
as of that merger date, and
(b) The Employee shall receive credit, in the computation period
which includes that merger date, for the number of Hours of Service
determined by applying the equivalency method otherwise applicable under
the Plan (or if no such equivalency method is used under the Plan, then
under the method set forth under Department of Labor Regulation
2530.200b-3(e)(1)(ii)) to any fractional part of a year credited to the
Employee under such Prior Plan as of that merger date.
Section 2.7 Code. The term "Code" means the Internal Revenue Code of 1986,
as amended, or any other statute of similar import.
Section 2.8 Committee. The term "Committee" means the Committee appointed
in accordance with the provisions of Section 8.1.
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<PAGE>
Section 2.9 Compensation. The term "Compensation" means the base wages or
salary paid to an Employee or Participant by one or more of the Employers, but
not including amounts paid or accrued for overtime, bonuses, commissions or any
other form of extra compensation, nor including any contributions by the
Employer to the Plan pursuant to Section or to any other employee benefit plan
of the Employer.
Compensation shall be calculated prior to any reductions due to elected
contributions or salary reductions elected by an Employee in connection with any
other qualified pension or profit sharing plan, employee benefit plan (including
without limitation any top hat plan or excess benefit plan) or employee welfare
benefit plan (including without limitation any cafeteria plan) of any Employer
in which said Employee may be a participant.
For any self-employed individual covered under the Plan, "Compensation"
shall mean earned income. "Earned Income" means the net earnings from
self-employment in the trade or business to which the Plan is established, for
which personal services of the individual are a material income-producing
factor. Net earnings shall be determined without regard to items not included in
gross income and the deductions allocable to such items. Net earnings are
reduced by contributions by the Employer to a qualified plan to the extent
deductible under Code Section 404. Net earnings shall be determined with respect
to the taxpayer under Code Section 164(f) for taxable years beginning after
December 31, 1989.
For Plan Years beginning on or after January 1, 1994, the annual
Compensation of each Participant taken into account for determining all benefits
provided under the Plan for any Plan Year shall not exceed $150,000, as adjusted
for increases in the cost-of-living in accordance with Code Section
401(a)(17)(B). The cost-of-living adjustment in effect for a calendar year
applies to any determination period beginning in such calendar year.
If a determination period consists of fewer than 12 months the annual
Compensation limit is an amount equal to the otherwise applicable annual
Compensation limit multiplied by a fraction, the numerator of which is the
number of months in the short determination period, and the denominator of which
is 12.
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Notwithstanding the foregoing, for purposes of the top heavy rules
Sections (Key Employee), (Minimum Benefit Amount), (Minimum Contribution Amount)
and (Top Heavy) of the Plan, and for purposes of the application of Code Section
415 under Sections (Annual Additions), (Similar Plan Allocation Limitation), and
(Dissimilar Plan Allocation Limitation) compensation means Code Section 415
Compensation. The term "Code Section 415 Compensation" means Code Section
3401(a) wages (for purposes of determining income tax withholding at the source)
but determined without regard to any rules that limit the remuneration included
in wages based on the nature or location of the employment or services performed
(such as the exception for agricultural labor in Code Section 3401(a)(2)) as
determined in Treas. Reg. Sec. 1.415-2(d)(11)(ii) for a Limitation Year.
Notwithstanding the foregoing to the contrary, effective January 1, 1998 Code
Section 415 Compensation includes (i) any elective deferral (as defined in Code
Section 402(g)(3) and (ii) any amount which is contributed or deferred by the
Employer at the election of the Employee and is not includible in income under
Code Section 125 or 457.
For purposes of Sections , , 4.8 and other applicable nondiscrimination
testing, Compensation shall mean Code Section 415 Compensation, plus elective
deferrals not included in gross income under Code Sections 125, 402(a)(8),
402(h), 403(b), 457(b) or 414(h)(2) for the year.
Section 2.10 Considered Compensation. The term "Considered Compensation"
means with respect to each year the Compensation earned by a Participant during
the entire year, except that the Considered Compensation of each such
Participant for the year in which such Participant becomes eligible to
participate or ceases to be eligible to participate hereunder shall be the
Compensation for the months in such year during which such Participant was
eligible to participate hereunder. Each Employer shall, within a reasonable time
after each December 31st, certify to the Committee the names of all of its
Participants entitled to share in its contribution for the year ending on such
date, together with the Considered Compensation of each, and the total
Considered Compensation of all of its Participants for such year.
Section 2.11 Date of Employment. The phrase "Date of Employment" means the
date on which a Participant first
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<PAGE>
completes an Hour of Service of any anniversary thereof, or the date on which a
Participant, after a Break in Service, first completes an Hour of Service
following his or her re-employment by an Employer.
Section 2.12 Designated Affiliate. The term "designated affiliate" means
and includes any corporation of which eighty percent (80%) of the voting stock
is owned directly or indirectly by the Company which by amendment to this trust
instrument shall be named a "designated affiliate", and which already is a party
to, or with the approval of the Company joins in, the Plan and Trust by
resolution of its own Board of Directors or other appropriate authority.
Section 2.13 Disability Retirement. The "disability retirement" of a
Participant shall mean retirement prior to his or her normal retirement date at
his or her own request, or at the request of his or her Employer, because of a
permanent disability. Permanent disability shall mean a physical or mental
condition of a Participant resulting from a bodily injury or disease or mental
disorder which renders the Participant incapable of performing his or her normal
duties for his or her Employer. The permanent disability of any Participant
shall be determined by the Committee, in accordance with uniform principles
consistently applied, upon the basis of competent medical evidence.
Section 2.14 Employee. "Employee" means any natural person (including any
Officer, but not including any person acting only as a Director or any person to
the extent such person is acting as an independent contractor) engaged in the
service of an Employer; provided, that any person whose most recent period of
continuous, unbroken employment with an Employer or with a Related Entity
commenced at a location outside of the United States shall be excluded under
this Plan except that Employees who were Participants in the Plan on December
31, 1985, shall not be excluded under this proviso. Any person who is a member
of the Temporary Reserve Staff shall not be considered an Employee. For purposes
of this Section , the term "Temporary/Reserve Staff" shall mean those persons
employed prior to April 1, 1990 by a 1990 Prior Plan Sponsor (other than
Exchange Bank of River Oaks) for a specific job position on a temporary basis
for a period not normally greater than six months. A person's period of
continuous employment shall not be broken by a "temporary" transfer of
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<PAGE>
employment from one Employer to another, from an Employer to a Related Entity,
from one Related Entity to another or from a Related Entity to an Employer, but
shall be broken if such transfer is "permanent". The Managing Board shall have
the right to designate any such transfer as temporary or permanent for purposes
of the Plan and to change any such designation at any time or times. Transfers
shall be deemed to be of a type which would enable the person to be eligible or
continue to be eligible to participate in the Plan unless the Managing Board
designates otherwise. Any person who is a "leased employee" as defined in Code
Section 414(n) or who is included in a collective bargaining unit and covered by
an agreement between an Employer and such unit in the negotiation of which there
was good faith bargaining concerning the retirement benefits of such bargaining
unit employee shall also be excluded, whether or not such person would otherwise
be an Employee under any of the foregoing provisions of this Section.
Notwithstanding any other provision of the Plan to the contrary, the term
"Employee" shall not include, prior to April 1, 1990, any person engaged in the
service of any Employer or Related Entity other than a member of the Exchange
Group (whether acting as an officer of an Employer and/or a Related Entity or
otherwise) who at the time of such initial service engagement is then also an
officer and/or employee of any one or more members of the Exchange Group. For
this purpose, the term "Exchange Group" shall mean each and every corporation,
national banking association and other business entity which, along with and
including Exchange Bancorp, Inc., a Delaware corporation ("Exchange"), becomes a
Related Entity by virtue of the merger of Exchange into a Related Entity.
Notwithstanding any other provision of the Plan to the contrary, the term
"Employee" shall not include (i) any independent contractor or consultant, (ii)
any temporary worker or (iii) any person generally treated for payroll purposes
as not being an employee of an Employer.
Section 2.15 Employer. The words "Employer" or "Employers" as used herein
refer collectively to the Company, the Bank and any Related Entity which, with
the approval of the Managing Board and subject to such conditions as the
Managing Board may impose, adopts the Plan and Trust, and any successor or
successors of any of them. Notwithstanding any other provision of this
Section 2.15 to the
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contrary, effective January 1, 1991, Pierson Sal. Oppenheim, Inc. shall become
an "Employer" and as of January 1, 1992 ceased to be an Employer hereunder.
Effective as of January 1, 1991, Amsterdam-Rotterdam Bank became an "Employer".
Effective January 1, 1992, European American Bank and Euram Management, Inc.
became Employers. Effective January 1, 1992, Lease Plan U.S.A., Inc. became an
Employer. Effective February 27, 1992, LaSalle Talman Bank F.S.B. and its
subsidiaries became Employers. Effective January 1, 1993, Pine Tree Capital L.P.
became an Employer. Effective October 1, 1993, StanChart Business Credit, Inc.
and Mees Pierson, Inc. - European Securities (formerly Pierson Sal. Oppenheim,
Inc.) shall become Employers under the Plan. Effective October 1, 1993, Pine
Tree Capital, L.P. shall no longer be an Employer. Effective June 1, 1994, the
Cragin Group (as defined in Section ) shall become Employers under the Plan.
Effective October 1, 1994, Wasco Funding Corporation became an Employer under
the Plan. Effective November 13, 1995, LaSalle Bank, F.S.B., the successor to
LaSalle Cragin Bank, F.S.B. and LaSalle Talman Bank, F.S.B., is an Employer with
respect to the Plan. Effective December 31, 1995, Neville Leasing, Inc. became
an Employer under the Plan. Effective January 1, 1996, Alfred Berg, Inc. is an
Employer. Effective March 1, 1996, the Acquired Companies as defined in Section
2.1 of the Acquisition Agreement by and between Horrigan American, Inc. and EAB
Leasing Corp. dated January 2, 1996 and any successor to an Acquired Company
("Horrigan Acquired Companies") are sponsoring Employers as of March 1, 1996
with respect to their Employees who satisfy the eligibility requirements of the
Plan. Effective August 1, 1996, the successor in interest to Comerica
Bank-Illinois shall become an Employer with respect to eligible Comerica
Bank-Illinois employees acquired on such date.
Effective January 1, 1997, Heigl Mortgage and Financial Corporation and its
subsidiaries (or its successor in interest) shall become a sponsoring Employer
with respect to its Employees who, effective as of such date, satisfy the
eligibility requirements of subparagraph (xv) of paragraph (d) of Section 3.1 of
the Plan. Effective January 1, 1997, Columbia National Bank Corporation (and its
subsidiaries) shall be a sponsoring Employer(s) with respect to its Employees.
Effective January 2, 1997, ChiCorp, Inc. and its subsidiaries (or its successor
in interest) shall become an Employer under the Plan.
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Effective March 6, 1997, Mees Pierson N.V. and its subsidiaries which were sold
to Fortis Amev N.V. and Fortis AG SA/NV (individually and collectively "Fortis")
pursuant to a sale and purchase between ABN AMRO Bank N.V. and Fortis dated
December 20, 1996 cease to be sponsoring Employers of the Plan. Any entity upon
ceasing to be a Related Entity shall also cease to be a sponsoring Employer of
the Plan.
Effective December 30, 1997, Bankers Leasing Association, Inc. shall become a
sponsoring Employer with respect to its salaried Employees who satisfy the
eligibility requirements of Article 3 of the Plan.
Effective January 1, 1998, Standard Federal Bank and its subsidiaries became
sponsoring Employers.
Section 2.16 [RESERVED]
Section 2.17 Former Participant. "Former Participant" means a person who
has been a Participant, but who has ceased to be a Participant for any reason.
Section 2.18 Fund. The assets and money at any time, and from time to
time, held hereunder by the Trustee are hereinafter referred to as the "Fund".
All right, title and interest in and to the Fund shall at all times be vested
exclusively in the Trustee, and no Participant shall have any right in or claim
to, or with respect to, any specific asset of the Fund.
Section 2.19 Headings. The "headings" of Articles, Sections and Paragraphs
in the Plan and Trust are included solely for convenience and shall not be used
in the interpretation or construction of the Plan and Trust.
Section 2.20 Highly Compensated Employee. "Highly Compensated Employee"
means any Employee or former Employee who is a highly compensated employee as
defined in Code Section 414(q). Generally, any Employee or former Employee is
considered a Highly Compensated Employee if:
(a) was at any time a 5% Owner, during the Determination Year or
Lookback Year.
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(b) received Code Section 415 Compensation from the Employer in
excess of $80,000 (or such greater amount as shall be determined under
Code Section 415(d) in the Lookback Year that an individual has "Code
Section 415 Compensation" of more than $80,000. "Code Section 415
Compensation" from each Employer and Related Employer shall be taken into
account.
For purposes of this Section , "Determination Year" shall mean the Plan
Year for which the determination of who is a Highly Compensated Employee is
being made and "Look-back Year" shall mean the twelve (12) month period
immediately preceding the Determination Year.
For purposes of this Section , a former Employee shall be treated as a
Highly Compensated Employee if such Employee was a Highly Compensated Employee
when he separated (or was deemed to have separated) from service with the
Employer or was a Highly Compensated Employee at any time after attaining age
55.
"Non-Highly Compensated Employee" means any Employee or former Employee
who is neither a Highly Compensated Employee nor a Family Member.
Section 2.21 Hour of Service. An "Hour of Service" means:
(a) Each hour for which an Employee or Participant is directly or
indirectly paid or entitled to payment by an Employer for the performance
of duties. These hours shall be credited to the Employee or Participant
for the period in which such duties are performed.
(b) Each hour for which an Employee or Participant is directly or
indirectly paid or entitled to payment by an Employer for reasons (such as
vacation, sickness or disability) other than for the performance of
duties. These hours shall be credited to the Employee or Participant for
the appropriate period or periods in which each such hour occurs as
determined under Labor Regulation Par. 2530.200(b)-2(c)(2) and shall be
computed according to Labor Regulation Par. 2530.200(b)-2(b), provided
that such hours shall, in the case of an Employee or Participant having no
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regular work schedule, shall be computed on the basis of a forty (40) hour
work week.
(c) Each hour for which back pay, irrespective of mitigation of
damages, has either been awarded or agreed to by an Employer, other than
an hour credited to an Employee or Participant under paragraphs (a) or (b)
above. These hours shall be credited to the Employee or Participant for
the period or periods to which the award or agreement pertains rather than
the period or periods in which the award, agreement or payment was made.
(d) ab Each hour of an Employee's or Participant's regular work
schedule, other than an hour credited to an Employee or Participant
elsewhere under this Section , for which an Employee is:
(1) absent from active employment with an Employer by reason
of jury duty or by reason of compulsory service in the Armed Forces
of the United States of America provided the Employee or Participant
returns to the service of the Employer within 120 days of separation
from such military service;
(2) on any other unpaid absence approved by an Employer under
rules uniformly applied by it; or
(3) a temporary cessation from active employment with an
Employer in any Plan Year commencing after December 31, 1984, by
reason of the Employee's pregnancy, birth of the Employee's child,
placement of a child with the Employee in connection with the
adoption of such child, or any absence for the purpose of caring for
such child for a period immediately following such birth or
placement. For this purpose, Hours of Service shall be credited for
the compensation period in which the absence from work begins, only
if credit therefore is necessary to prevent the Employee from
incurring a Break in Service, or, in any other case, in the
immediately following compensation period, which aggregate
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credit shall not exceed 501 Hours of Service. The Committee may
require that the Participant certify that such a leave is for a
permitted purpose as provided above.
These hours shall be credited to the period or periods in which each
such hour occurs.
(e) For purposes of determining the "Hours of Service", if any,
credited under this Plan for service with a Prior Plan Sponsor during the
computation period (as determined under the provisions of the Prior Plan)
that includes the Prior Plan Benefit Discontinuation Date, each hour of
service (or the equivalent thereof) performed by an Employee during such
computation period with a Prior Plan Sponsor (to the extent such service
was counted for purposes of such Prior Plan) as of the Prior Plan Benefit
Discontinuation Date. The Prior Plan Benefit Discontinuation Dates shall
be:
(1) March 31, 1990 for the 1990 Prior Plan;
(2) December 31, 1990 for the AMRO Prior Plan;
(3) December 31, 1991 for the EAB Prior Plan;
(4) December 31, 1991 for the Lease Plan Prior Plan;
(5) February 29, 1992 for the Talman Prior Plan; and
(6) September 30, 1993 for the Pierson Prior Plan and for the
StanChart Prior Plan.
If a Prior Plan listed above credits service on a basis other than
hours of service, the equivalency methods otherwise applicable under the
Plan (or if no such equivalency method is used under the Plan, then under
the method set forth under Department of Labor Regulation
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2530.200b-3(e)(1)(ii)) to any fractional part of a year credited to the
Employee under such Prior Plan as of the applicable Prior Plan Benefit
Discontinuation Date.
(f) For purposes of determining the "Hours of Service" credited
under this Plan for service with Pierson Sal. Oppenheim, Inc. and Pine
Tree Capital L.P. during the eligibility computation period that includes
the Eligibility Date, each hour of service performed by an Employee during
such computation period. The Eligibility Date for Pierson Sal.Oppenheim
employees is January 1, 1991 and for Pine Tree Capital L.P. employees is
December 1, 1991.
Section 2.22 Key Employee. "Key Employee" shall mean any Participant who
at any time during the Plan Year containing the testing date (as defined in
Section ) or any of the four preceding Plan Years is or was an officer of any
Employer or Related Employer whose Compensation exceeds fifty percent (50%) of
the dollar limit in Code Section 415(b)(1)(A) (as adjusted under such Code
Section) for that Plan Year; one of the 10 Employees of an Employer or Related
Employer whose Compensation exceeds the dollar limit in Code Section
415(c)(1)(A) (as adjusted under such Code Section) for that Plan Year and who
owns (or is considered as owning within the meaning of Code Section 318 as
modified by Code Section 415) both more a 1/2 of one percent (1%) interest and
the largest interests in the Employers; a 5% Owner of an Employer or Related
Employer; or a 1% Owner of an Employer or Related Employer whose Compensation
for the Plan Year exceeds $150,000. For purposes of (i) above, the maximum
number of individuals to which (i) can apply is the lesser of (a) 50, or (b) the
greater of 3 or ten percent (10%) of all employees of the Employers and Related
Employers. For purposes of (ii) above, if two (2) Participants own or are
considered as owning the same interest in the same or different Employers, the
Participant having the greater Compensation shall be treated as having a larger
interest. For purposes of (iv) above, in determining whether an individual has
Compensation of more than $150,000, Compensation from each employer required to
be aggregated under Code Sections 414(b), (c), and (m) shall be taken into
account. The determination of whether a person is a Key Employee shall, in all
events, be made in accordance with Code Section 416(i)(1). For purposes of this
Section , the term "Key Employee" shall also include (i) a Former Participant to
the extent he otherwise satisfies the above mentioned requirements
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applicable to a Participant, and (ii) a beneficiary of such Participant or
Former Participant.
Section 2.23 Limitation Year. "Limitation Year" means the twelve month
period ending on December 31st of each year.
Section 2.24 Managing Board. "Managing Board" means the Managing Board of
the Company as constituted from time to time, or the person or persons
designated by the Managing Board, directly or otherwise, to carry out its duties
or powers generally, or specifically under the terms of the Plan (including, but
not limited to, any person or persons designated to act on behalf of the
Managing Board or the Company pursuant to a duly authorized power of attorney
granted by the Managing Board or the Company).
Section 2.25 Minimum Benefit Amount. "Minimum Benefit Amount" shall mean
with respect to a Participant, the aggregate accrued benefit of such Participant
derived from employer contributions under all defined benefit plans in a
Required Aggregation Group with this Plan, which, when expressed as a monthly
retirement benefit payable in the form of a single life annuity (with no
ancillary benefits) beginning at the Normal Retirement Date, satisfies the
requirements of Code Section 416(c)(1).
Section 2.26 Minimum Contribution Amount. Minimum Contribution Amount"
shall mean, with respect to a Participant, the lesser of (i) three percent (3%)
of such Participant's Compensation; or (ii) the percentage of such Compensation
allocated to the Regular Account and any other employer contribution accounts of
the Key Employee for whom the percentage is largest. If the Participant
participates in a defined benefit plan which, along with the Plan, is in a
Required Aggregation Group which is a Top-Heavy Group, than the number "5%"
shall be substituted above for "3%" and clause (ii) above shall be disregarded.
Any allocation of an Employer contribution attributable to a salary reduction or
similar arrangement shall not be taken into account in Plan Years beginning
before January 1, 1985 or in Plan Years beginning after December 31, 1988. The
number "4%" shall be substituted for "3%" (and the number "7-1/2%" shall be
substituted for "5%") if such substitution enables the Plan to avoid the
application of Code Section 416(h)(1), relating to special Code Section 415
adjustments under Section 6.8 hereof for a Top-Heavy Plan, by fully meeting the
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requirements of Code Section 416(h)(2) for such Plan Year, except as to any such
Participant with respect to whom there are no Employer contributions,
forfeitures or voluntary nondeductible contributions allocated under the Plan
for such Plan Year.
Section 2.27 Normal Retirement Date and Deferred Retirement. The "Normal
Retirement Date" of a Participant shall be the first day of the month coinciding
with or next following the Participant's sixty-fifth (65th) birthday. A
Participant may continue in the service of his Employer after reaching his
Normal Retirement Date and his right to participate in the Plan shall not be
adversely affected thereby.
"Normal retirement age" shall mean the day the Participant attains the
earlier of his Normal Retirement Date or age 65.
Section 2.28 Owner.
(a) 5% OWNER. "5% Owner" shall mean any person who owns (or is
considered as owning within the meaning of Code Section 318) more than
five percent (5%) of the outstanding stock of any Employer or stock
possessing more than five percent (5%) of the total combined voting power
of all stock of any Employer or, in the case of an unincorporated
business, any person who owns more than five percent (5%) of the capital
or profits interest in any Employer. In determining percentage ownership
hereunder, Employers that would otherwise be aggregated under Code
Sections 414(b), (c), and (m) shall be treated as separate employers.
(b) 1% OWNER. "1% Owner" shall mean any person who owns (or is
considered as owning within the meaning of Code Section 318) more than one
percent (1%) of the outstanding stock of any Employer or stock possessing
more than one percent (1%) of the total combined voting power of all stock
of any Employer or, in the case of an unincorporated business, any person
who owns more than one percent (1%) of the capital or profits interest in
any employer. In determining percentage ownership hereunder, employers
that would otherwise be aggregated under Code Sections 414(b), (c), and
(m) shall be treated as separate employers.
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Section 2.29 Participant. A "Participant" means each Employee who is or
becomes eligible in accordance with the provisions of Article. For purposes of
distribution of (but not withdrawals from) accounts, the term Participant
includes a former Employee while he has undistributed benefits hereunder, and to
the extent consistent with other provision of this Plan, after the death of a
Participant, his beneficiary.
Section 2.30 Plan. The Plan provided for by this instrument, as amended
from time to time, shall be known as the ABN AMRO GROUP PROFIT SHARING AND
SAVINGS PLAN AND TRUST and is herein referred to as the "Plan".
Section 2.31 Plan Year. The term "Plan Year" means the period commencing
on each January 1st and ending on the next succeeding December 31st.
Section 2.32 Prior Plan.
(a) "1988 Prior Plan" means any one of the following qualified plans
heretofore established and maintained by a Related Entity, as in effect on
December 31, 1988:
(1) Lane Financial, Inc. Profit Sharing Plan;
(2) Lake View Bank Profit Sharing Plan;
(3) Northwest National Bank of Chicago Employees Retirement
Plan;
(4) Employees' Profit Sharing Plan of Northbrook Trust and
Savings Bank;
(5) Employees' Savings and Profit Sharing Plan of Bank of
Westmont; and
(6) Bank of Lisle Employees' Salary Savings Plan.
(b) "1990 Prior Plan" means any one of the following qualified plans
heretofore established and
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maintained by a Related Entity as in effect on March 31, 1990:
(1) Exchange National Bank of Chicago Preferred Retirement
Plan; and
(2) Exchange Bank of River Oaks Profit Sharing Plan.
(c) "AMRO Prior Plan" means the AMRO Bank 401(k) Savings Plan as in
effect on December 31, 1990.
(d) "EAB Prior Plan" means the Employee Savings Plan of European
American Bank as in effect on December 31, 1991.
(e) "Talman Prior Plan" means the Talman Incentive Savings Plan as
in effect on December 31, 1992.
(f) "Lease Plan Prior Plan" means the Lease Plan U.S.A. Inc. Salary
Savings Profit Sharing Plan and Trust as in effect on December 31, 1991.
(g) "StanChart Prior Plan" means the Standard Chartered Bank
Employees Capital Accumulation Plan as in effect on September 30, 1993.
(h) "Pierson Prior Plan" means the Pierson Sal. Oppenheim, Inc.
Profit Sharing and Savings Plan and Trust as in effect on September 30,
1993.
(i) "Cragin Prior Plan", effective December 31, 1995, means the
LaSalle Cragin Profit Sharing and Savings Plan as in effect on December
31, 1995.
(j) "Horrigan Prior Plan", effective March 1, 1996, means the
Horrigan American, Inc. 401(k) Retirement Plan as in effect from time to
time.
(k) Heigl Prior Plan", effective January 1, 1998, means the Heigl
Mortgage and Financial Corporation 401(k) and Profit Sharing Plan as such
plan was in effect on December 31, 1997.
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(l) "Columbia Prior Plan", effective January 1, 1998, means Columbia
National Bank of Chicago Savings and Investment Plan as such plan was in
effect on December 31, 1997.
(m) "Standard Prior Plan", effective January 1, 1998, means Standard
Federal Bank Savings and Investment Plan as such plan was in effect on
December 31, 1997.
(n) "Alfred Berg Prior Plan", effective June 30, 1998, means Alfred
Berg, Inc. Savings Plan as such plan was in effect on June 30, 1998.
(o) "Bankers Leasing Prior Plan", effective December 31, 1998, means
the TransMutual Investment Co., Inc. 401(k) Plan as such plan was in
effect on December 31, 1998.
(p) "Cragin KSOP Prior Plan", effective December 31, 1998, means the
Cragin Federal Bank for Savings Employee Stock Ownership Plan as such plan
was in effect on December 31, 1998.
Section 2.33 Prior Plan Sponsor.
(a) "1988 Prior Plan Sponsor" means any one of the Employers who, on
or before December 31, 1988, sponsored and maintained a 1988 Prior Plan
for the benefit of its employees.
(b) "1990 Prior Plan Sponsor" means any one of the Employers who, on
or before March 31, 1990, sponsored and maintained a 1990 Prior Plan for
the benefit of its employees.
(c) "AMRO Prior Plan Sponsor" means any one of the Employers who, on
or before December 31, 1990, sponsored and maintained an AMRO Prior Plan
for the benefit of its employees.
(d) "EAB Prior Plan Sponsor" means any one of the Employers who, on
or before December 31, 1991, sponsored or
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maintained an EAB Prior Plan for the benefit of its employees.
(e) "Talman Prior Plan Sponsor" means any one of the Employers who,
on or before December 31, 1992, sponsored, maintained or adopted a Talman
Prior Plan for the benefit of its employees.
(f) "Lease Plan Prior Plan Sponsor" means any one of the Employers
who, on or before December 31, 1991, sponsored or maintained a Lease Plan
Prior Plan for the benefit of its employees.
(g) "StanChart Prior Plan Sponsor" means StanChart Business Credit,
Inc.
(h) "Pierson Prior Plan Sponsor" means any one of the Employers who,
on or before September 30, 1993, sponsored or maintained a Pierson Prior
Plan for the benefit of its employees.
(i) "Cragin Prior Plan Sponsor" means, effective December 31, 1995,
any one of the Employers who, on or before December 31, 1995, sponsored or
maintained a Cragin Prior Plan for the benefit of its employees.
(j) "Horrigan Prior Plan Sponsor" means, effective March 1, 1996,
Horrigan American, Inc. or any one of its subsidiaries who, on or before
February 29, 1996, sponsored or maintained a Horrigan Prior Plan for the
benefit of its employees.
(k) ChiCorp Prior Plan means the ChiCorp, Inc. Employees' Profit
Sharing Plan as in effect on January 1, 1997 and as amended thereafter.
(l) "Heigl Prior Plan Sponsor" means, effective January 1, 1998,
LaSalle Home Mortgage Corporation, Heigl Mortgage and Financial
Corporation and any one of the Employers, who on December 31, 1997,
sponsored or maintained the Heigl Prior Plan.
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(m) "Columbia Prior Plan Sponsor" means LaSalle Bank, N.A., Columbia
National Bank of Chicago and any one of the Employers, who on December 31,
1997, sponsored or maintained the Columbia Prior Plan.
(n) "Standard Prior Plan Sponsor" means Standard Federal Bank and
any one of the Employers, who on December 31, 1997, sponsored or
maintained the Standard Prior Plan.
(o) "Alfred Berg Prior Plan Sponsor" means Alfred Berg, Inc., who on
June 30, 1998, sponsored the Alfred Berg Prior Plan.
(p) "Bankers Leasing Prior Plan Sponsor" means, effective December
31, 1998, EAB Leasing Corp. Who on December 31, 1998 sponsored the Bankers
Leasing Prior Plan.
Section 2.34 Qualified Employer Contributions. "Qualified Employer
Contributions" shall mean Matching Contributions (as defined under Code Section
401(m)(4)(A)), and Employer contributions under Section 4.1(c).
Section 2.35 Related Employer. "Related Employer" shall mean any member of
a group of Employers, of which an Employer is also a member, which constitutes:
(i) a "controlled group of corporations" (within the meaning of Code Section
414(b)); (ii) trades or businesses (whether or not incorporated) "under common
control" (as defined in Code Section 414(c)); or (iii) an "affiliated service
group" (as defined in Code Section 414(m)). For purposes of those provisions of
the Plan relating to the application of the limitations of Code Section 415, the
references in the preceding sentence to Code Sections 414(b) and 414(c) shall
mean those Sections as modified by Code Section 415(h).
Section 2.36 Related Entity. "Related Entity" means: (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Code Section 1563(a), determined without regard to Code Section
1563(a)(4) and (e)(3)(C)) as the Company; (ii) any trade or business (whether or
not incorporated) which is under common control (within the meaning of Code
Section 414(c)) with the Company; and (iii) any other corporation or trade or
business (whether or not incorporated)
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which shall be designated, from time to time, as a Related Entity by the
Managing Board.
Section 2.37 Related Plan. "Related Plan" shall mean any other defined
contribution plan (as defined in Code Section 415(k)) maintained by an Employer,
by a designated affiliate or by any other Related Employer (including without
limitation separate accounts maintained for participants under any defined
benefit plan).
Section 2.38 Retirement. The term "Retirement" as used herein means and
includes normal retirement, deferred retirement, disability retirement and
termination of service of a Participant at any time after his or her retirement.
Section 2.39 Top-Heavy. The Plan shall be "Top-Heavy" for any Plan Year
beginning after December 31, 1983 if, as of the testing date, (i) the aggregate
Account balances of all Key Employees under the Plan exceeds sixty percent (60%)
of the aggregate Account balances of all Participants in the Plan, or (ii) it is
in a Required Aggregation Group which is a Top-Heavy Group; PROVIDED THAT, such
Top-Heavy Group is not part of a Permissive Aggregation Group elected by the
Employer which is not a Top-Heavy Group. For purposes of the preceding sentence,
the Account balance of each Participant shall be increased by the aggregate
distributions made therefrom with respect to such Participant under the Plan
during the 5-year period ending on the testing date, and any contributions and
forfeitures allocated to the Participant's Account balances as of the testing
date but not actually made to the Plan as of that date shall be disregarded. The
Account balances of a Participant (1) who is not a Key Employee but who was a
Key Employee in a prior Plan Year, or (2) who has not performed an Hour of
Service at any time during the 5-year period ending on the testing date for the
Employer maintaining the Plan, will be disregarded in determining whether the
Plan is Top-Heavy. Voluntary deductible employee contributions will be
disregarded in determining Account balances for this purpose. The balance in any
Rollover Account shall be disregarded in determining Account balances for this
purpose unless such Rollover Account was created prior to January 1, 1984, or
such Rollover Account balance is all or partially attributable to funds
distributed from any qualified defined contribution or defined benefit plan of
an Employer or Related Employer. "Testing date" shall mean with respect to any
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Plan Year of the Plan, the last day of the preceding Plan Year, and in the case
of the first Plan Year of the Plan the last day of such Plan Year. Testing
whether the Plan is Top-Heavy shall, in all events, be done in accordance with
Code Section 416(g).
"Top-Heavy Group" shall mean an Aggregation Group in which, as of the
testing date, the sum of the aggregate of the account balances of all Key
Employees under all Related Plans and the present value of cumulative accrued
benefits of all Key Employees under all defined benefit plans included in such
Group exceeds sixty percent (60%) of the aggregate of the account balances and
the present value of cumulative accrued benefits of all Participants in such
plans in such Group. The rules used for determining whether a Plan is Top-Heavy
(as set forth in this Section above) shall be used when determining whether an
Aggregation Group is a Top-Heavy Group and for this purpose the term "Account
Balance" shall include the present value of cumulative accrued benefits. When
aggregating plans as aforesaid the value of account balances and accrued
benefits will be calculated with reference to the testing dates that fall within
the same calendar year, and the present value of cumulative accrued benefits for
other than Key Employees shall be determined using the single accrual method
used for all such plans of the Employers and Related Employers, or if no such
single method exists, using a method which results in benefits accruing not more
rapidly that the slowest accrual rate permitted under Code Section 411(b)(1)(C);
provided that, for Plan Years commencing prior to January 1, 1987, such
determination shall be made under the provisions of the applicable defined
benefit plan without regard to the foregoing method.
Section 2.40 Trustee. The word "Trustee" as used herein means LASALLE
NATIONAL TRUST, NATIONAL ASSOCIATION, in its capacity as Trustee of this Trust
and its successors in trust.
Section 2.41 Trust. The trust evidenced by this instrument, as amended
from time to time, shall be known as the ABN AMRO GROUP PROFIT SHARING AND
SAVINGS TRUST, and is herein referred to as the "Trust".
Section 2.42 Year. The term "Year" means the calendar year.
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Section 2.43 Year of Service. A "Year of Service" means a period of twelve
(12) consecutive months commencing on an Employee's Date of Employment, or any
anniversary thereof, during which an Employee or Participant completes at least
1,000 Hours of Service. Years of Service as of January 1, 1976 shall include the
years of continuous service any Employee or Participant would have had on
January 1, 1976, under the rules of the Plan as in effect on December 31, 1975,
but shall not include Years of Service disregarded under the Break in Service
rules of the Plan as in effect on December 31, 1975.
In determining an Employee's service for eligibility to participate and
vesting purposes, all Years of Service with any member of the controlled group
of corporations (within the meaning of Code Section 1563(a), determined without
regard to Code Sections 1563(a)(4) and (e)(3)(C)) of which the Employers are
members shall be taken into account. In determining an Employee's service for
eligibility to participate and vesting purposes, all Years of Service with
Hartford Plaza Bank shall be taken into account for Employees who on April 21,
1980 were Employees of the Hartford Plaza Bank and became Employees of the
Employer by virtue of the merger on that date of the Hartford Plaza Bank into
LaSalle National Bank.
For any Employee who was employed by a Prior Plan Sponsor (other than a
StanChart Prior Plan Sponsor), years of service credited under a Prior Plan as
of the Prior Plan Benefit Discontinuation Date shall be counted as Years of
Service under this Plan. The Prior Plan Benefit Discontinuation Date for each
Prior Plan is set forth in Section 2.21(e).
For any employee who was employed by a Prior Plan Sponsor which maintained
a Prior Plan under which the elapsed time method of crediting service and
determining breaks in service was used, the following rules shall apply for
purposes of determining eligibility and vesting under the Plan:
(a) The Employee shall receive credit, as of the date that such
Prior Plan is merged into the Plan, for the number of Years of Service
equal to the number of 1-year periods of service credited to the Employee
as of that merger date, and
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(b) The Employee shall receive credit, in the computation period
which includes that merger date, for the number of Hours of Service
determined by applying the equivalency method otherwise applicable under
the Plan (or if no such equivalency method is used under the Plan, then
under the method set forth under Department of Labor Regulation
2530.200b-3(e)(1)(ii)) to any fractional part of a year credited to the
Employee under such Prior Plan as of that merger date.
For purposes of eligibility, each Employee who was employed by Pierson
Sal. Oppenheim, Inc. on January 1, 1991 shall be credited with the number of
Years of Service hereunder with which such Employee would have been credited if
such Employee's most recent period of employment had instead been with a Related
Entity.
For purposes of eligibility and vesting under the Plan, each person who
was employed by either Investment and Capital Management Corp. or Chemical
Investment Group, Inc. (collectively, the "Prior Employer") during February,
1991, and who became an Employee hereunder on March 1, 1991 in connection with
the purchase by an Employer of substantially all of the assets of the Prior
Employer, shall be credited with the number of Years of Service hereunder with
which such Employee would have been credited if such Employee's most recent
period of employment with the Prior Employer had instead been employment with a
Related Entity.
For purposes of eligibility, each Employee who was employed by Pine Tree
Capital, L.P. on December 1, 1991 shall be credited with Years of Service
(including fractional parts thereof) hereunder with which such Employee would
have been credited if Pine Tree Capital, L.P. had become a sponsor of the Plan
on September 28, 1990 and had granted service credit to employees on that date
for employment with National Securities and Research Corporation and NSR Asset
Management Corporation.
For an Employee who was employed by a StanChart Prior Plan Sponsor on
September 30, 1993, Years of Service shall include service with such StanChart
Prior Plan Sponsor as of such date, but only to the extent such service was
counted for eligibility and vesting purposes under the StanChart Prior Plan.
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Effective January 1, 1995, Years of Service shall include the number of
years for which a Participant performed services as an employee with Home
Savings of America determined as of November 10, 1994, provided such Participant
has an Hour of Service on or after November 11, 1994 and was an employee
immediately prior to such date of Home Savings of America at an Illinois
location whose assets were acquired by LaSalle Talman F.S.B. on such date.
Effective January 1, 1996, Years of Service shall include service for
which a Participant performed services as an employee with Alfred Berg, Inc.
determined as of April 11, 1995 (i.e. the date prior to the date Alfred Berg,
Inc. was acquired), provided such Participant has an Hour of Service on or after
April 12, 1995 (i.e. the Alfred Berg, Inc. acquisition date) and was an employee
immediately prior to the acquisition date.
Effective December 31, 1995, Years of Service shall include Years of
Service (including any fractional parts thereof) determined as of December 31,
1995 under the Cragin Prior Plan, but only to the extent such service was not
previously taken into account under the Plan.
Effective March 1, 1996, for an Employee of a Horrigan Acquired Company on
such date who was also a participant in the Horrigan Prior Plan on January 2,
1996, Years of Service shall include service with a Horrigan Prior Plan Sponsor
as of January 1, 1996, but only to the extent such service was counted for
eligibility purposes under the Horrigan Prior Plan.
Effective August 1, 1996, Years of Service for an Employee who was
employed by Comerica Bank-Illinois on such date and who continues employment
with an Employer after such date shall include service performed by the
Participant with Comerica Bank-Illinois (and its predecessor) as determined on
such date.
Effective January 1, 1997, Years of Service for an Employee employed by
Heigl Mortgage and Financial Company (or its successor) and its subsidiaries on
such date shall include service performed by such Employee with Heigl Mortgage
and Financial (and its predecessors) as determined on such date to the extent
such service was not previously taken into account under the Plan.
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Effective January 1, 1997, Years of Service for an Employee employed by
Columbia National Bank Corporation (or one of its subsidiaries acquired pursuant
to the merger agreement among ABN AMRO North America, Inc., Richlyn, Inc. and
CNBC Bankcorp, Inc. dated June 26, 1996, as may amended from time to time) on
such date shall include service with Columbia National Bank Corporation (or one
of its subsidiaries described above) and their predecessors as determined on
such date to the extent such service was previously not taken into account under
the Plan.
Effective January 2 1997, Years of Service for an Employee who was
employed by ChiCorp, Inc. or any of its subsidiaries on January 2, 1997 shall
include service performed by such Employee with ChiCorp, Inc. or its
subsidiaries as determined on such date.
Effective January 2, 1997, Years of Service for an Employee who terminated
employment with ChiCorp, Inc. or one of it subsidiaries during the period July
1, 1996 through October 15, 1996 and was immediately thereafter employed by an
Employer shall include employment with ChiCorp, Inc. or one of its subsidiaries.
Effective April 1, 1997, Years of Service for a person who was employed by
Citi Futures Brokers, Citibank N.A. or Citibank International plc who became an
Employee of an Employer on March 31, 1997 shall include service prior to April
1, 1997 to the extent such service was credited for eligibility purposes under
the Savings Incentive Plan of Citibank, N.A. and Participating Employers.
Effective January 1, 1998, Years of Service for an Employee employed by
Standard Federal Bank (or other Related Entity that sponsored the Standard Prior
Plan) as determined on December 31, 1997 (but only to the extent such service
was recognized for purposes of eligibility and vesting under the Standard Prior
Plan).
Effective December 30, 1997, Years of Service for an Employee who was
employed by Trans Mutual Investment Co., Inc. or Bankers Leasing Association,
Inc. on December 30, 1997 shall include service performed by such Employee with
Trans Mutual Investment Co., Inc. or Bankers Leasing Association, as applicable,
as determined on such date.
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Effective May 4, 1998, Years of Service for an Employee who transferred
his employment from Sage Clearing Limited Partnership to an Employer on such
date shall include service performed as an employee with Sage Clearing Limited
Partnership prior to such date.
ARTICLE 3
ELIGIBILITY
Section 3.1 Eligibility.
(a) Each Employee of an Employer on January 1, 1989 who was eligible
to participate in the Plan on December 31, 1988 shall continue to be
eligible to participate hereunder. Except as otherwise provided in this
Section , in order to participate in the Plan, the Employee must be a
member of an eligible class of Employees. The eligible classes of
Employees under the Plan are salaried Employees. An Employee who satisfies
such employee classification and service requirements is an Eligible
Employee. Except as otherwise provided, each Employee who is a member of
an eligible class of Employees shall become eligible to participate in the
Plan as a Limited Participant upon completion of one Year of Service and
as a Full Participant upon completion of two Years of Service. A Limited
Participant is eligible to participate hereunder only to the extent of
electing contributions to be made under Section and receiving Matching
Contributions related thereto under Section subject to the other
provisions of the Plan incidental and related thereto. A Full Participant
is eligible to participate hereunder in all respects.
Each such Eligible Employee shall become a Participant as a Limited
Participant or Full Participant, as the case may be, on the first day of
the month next following the anniversary of the Participant's date of
hire.
Notwithstanding the foregoing to the contrary, effective October 1, 1997,
except as otherwise provided herein, each Employee who is in an eligible
class of Employees shall become eligible to participate in the Plan as a
Limited Participant upon completion of Six Months of Service or a Year of
Service whichever occurs first. For this purpose
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"Six Months of Service" means a Six Month Period during which the Employee
completes at least 500 Hours of Service. "Six Month Period" means the
period of six (6) consecutive months commencing on the Employee's Date of
Employment, or commencing on the sixth month anniversary of such Date of
Hire or commencing on the annual anniversary of either of such two dates.
Each such Eligible Employee who satisfies the service requirement shall
become a Limited Participant as of the first day of the month next
following the last day of the Six Month Period in which the service
requirement is satisfied.
(b) An Employee who has once completed the applicable eligibility
requirement of this Section shall not be required to again meet any hour
of service requirement following a Break in Service. Notwithstanding any
provision to the contrary, a salaried Participant shall become ineligible
to participate in Elected Employer and Employer Contributions hereunder
upon becoming a non-salaried Employee except that such a Participant may
be eligible to share in an Employer Contribution if such Participant has
1,000 Hours of Service during the Plan Year and is employed by an Employer
on the last day of such Plan Year.
(c) Notwithstanding the foregoing, if a nonsalaried Participant who
is eligible to participate in the Plan pursuant to a special eligibility
rule: (i) separates from service (including Retirement) and is
subsequently rehired by an Employer as a nonsalaried Employee, then upon
such reemployment, he will not be in an eligible class of Employees for
purposes of participation hereunder or (ii) switches to salaried status,
then upon subsequently switching to nonsalaried status, he will not be in
an eligible class of Employees for purposes of participation hereunder.
(d) Notwithstanding any provision to the contrary, the following
special eligibility provisions shall apply:
(i) Each Employee who was continuously employed by a 1988
Prior Plan Sponsor (or its successor) during the period June 12,
1988 through
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December 31, 1988 shall be eligible to participate hereunder in all
respects to the first day of the first month following the
completion of one (1) Year of Service (including hours of service
with a 1988 Prior Plan);
(ii) Each Employee who was a participant in a 1990 Prior Plan
on March 31, 1990 shall be eligible to participate hereunder in all
respects on April 1, 1990; and any other Employee who was employed
by a 1990 Prior Plan Sponsor on December 31, 1989 shall become a
Full Participant on the next entry date following such Employee
being credited with one Year of Service.
(iii) Each Employee who was a participant in an AMRO Prior
Plan on December 31, 1990 shall be eligible to participate hereunder
in the limited manner provided under subparagraph (a) above on
January 1, 1991 and each Employee who was an employee of an AMRO
Prior Plan Sponsor on December 31, 1990 (and who was not excluded by
reason of employee classification) but was not participating in an
AMRO Prior Plan shall be eligible to participate in the limited
manner provided under subparagraph (a) above on the date that the
Employee completes one-half (1/2) Year of Service; provided that
each such Employee must complete the requirements for full
participation under subparagraph (a) above to be eligible to
participate in the Plan in all respects.
(iv) Each Employee who was a participant in an EAB Prior Plan
on December 31, 1991 shall be eligible to participate hereunder in
the limited manner provided under subparagraph (a) above on January
1, 1992. Each Employee who was an employee of an EAB Prior Plan
Sponsor on December 31, 1991 but was not participating in an EAB
Prior Plan on that date (and who was not excluded by reason of
employee classification) shall be eligible to participate hereunder
upon completion of one Year of Service in the limited manner
provided under
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subparagraph (a) above. Each such employee of an EAB Prior Plan
Sponsor must complete the requirements for full participation under
subparagraph (a) above in order to be eligible to participate
hereunder in all respects.
(v) Each Employee who was a participant in a Talman Prior Plan
on the date immediately prior to the effective date of the Talman
Merger shall be eligible to participate hereunder in all respects on
the effective date of the Talman Merger. Each Employee who was an
employee of a Talman Prior Plan Sponsor on the date immediately
prior to the effective date of the Talman Merger (and who was not
excluded by reason of employee classification) but was not
participating in a Talman Prior Plan on that date shall be eligible
to participate hereunder in all respects as of the first day of the
month following the completion of one Year of Service.
(vi) Each Employee who was a participant in a Lease Plan Prior
Plan on December 31, 1991 shall be eligible to participate hereunder
in all respects on January 1, 1992. Each Employee who was an
employee of a Lease Plan Prior Plan Sponsor on December 31, 1991
(and who was not excluded by reason of employee classification) but
was not participating in a Lease Plan Prior Plan on that date shall
be eligible to participate hereunder in all respects as of the first
day of the month following the completion of one Year of Service.
(vii) Each Employee who was a participant in the StanChart
Prior Plan on September 30, 1993 shall be eligible to participate
hereunder as a Limited Participant on October 1, 1993. Each Employee
who was an employee of a StanChart Prior Plan Sponsor but was not
participating in the StanChart Prior Plan on that date (and who was
not excluded by reason of employee classification) shall be eligible
to participate hereunder as a Limited Participant upon completion of
one Year of Service. Each such employee of a StanChart Prior Plan
Sponsor must
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complete two Years of Service to be eligible to participate as a
Full Participant.
(viii) Each Employee who was a participant in the Pierson
Prior Plan on September 30, 1993 shall be eligible to participate
hereunder as a Limited Participant on October 1, 1993. Each Employee
who was an employee of a Pierson Prior Plan Sponsor but was not
participating in the Pierson Prior Plan on that date (and who was
not excluded by reason of employee classification) shall be eligible
to participate hereunder upon completion of one Year of Service as a
Limited Participant. Each such employee of a Pierson Prior Plan
Sponsor must complete two Years of Service to be eligible to
participate as a Full Participant.
(ix) Each Employee of LaSalle Cragin Bank F.S.B. who is
regularly receiving Compensation for services from an Employer on a
salaried basis, but excluding each Employee who was an employee of a
member of the Cragin Group (as defined in the Section of the Plan)
on May 31, 1994 or who commences employment with a member of the
Cragin Group after such date and such employment constitutes such
Employee's first employment with a Related Entity under the Plan, is
in an eligible class of Employees.
(x) Each Employee who is credited effective January 1, 1995
with Years of Service for services performed as an employee with
Home Savings of America and who is an Eligible Employee as of such
date shall become a Participant on such date, as the case may be, as
a Limited or Full Participant.
(xi) Each Employee who was a Limited Participant under the
terms of the Cragin Prior Plan on December 31, 1995, shall become a
Limited Participant under the Plan on such date and each Employee
who was a Full Participant under the terms of the Cragin Prior Plan
on December 31, 1995, shall
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become a Full Participant under the Plan on such date.
(xii) Each Employee who is credited effective January 1, 1996
with Years of Service for service performed with Alfred Berg, Inc.
(and who is a salaried Employee on December 31, 1995) shall be
eligible to participate on January 1, 1996 as a Limited Participant
(if credited with one but less than two Years of Service on such
date) or as a Full Participant (if credited with two or more Years
of Service on such date).
(xiii) Each salaried Employee of a Horrigan Acquired Company
(or any nonsalaried Employee employed by a Horrigan Acquired Company
on January 2, 1996 who was a participant in the Horrigan Prior Plan
on such date) who is credited effective March 1, 1996 with Years of
Service performed with a Horrigan Prior Plan Sponsor shall be
eligible to participate on March 1, 1996 as a Limited Participant
(if credited with one but less than two Years of Service on such
date) or as a Full Participant (if credited with two or more Years
of Service on such date).
(xiv) Effective August 1, 1996, a salaried employee of
Comerica Bank-Illinois on such date who continues employment with an
Employer after such date shall be eligible to participate on August
1, 1996 as a Limited Participant (if credited with one but less than
two Years of Service on such date) and as a Full Participant (if
credited with two or more Years of Service on such date).
(xv) Effective September 30, 1996, each employee (A) of Heigl Mortgage
and Financial Company or its subsidiaries on September 30, 1996 or
(B) who commences employment with Heigl Mortgage and Financial
Company or its subsidiaries after September 30, 1996 and such
employment constitutes such employee's first employment with a
Related Entity under the Plan, shall be in an ineligible
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class of employees. Notwithstanding the foregoing to the contrary,
effective January 1, 1997, each salaried Employee of Heigl Mortgage
and Financial Company or its subsidiaries (or its successor) shall
be eligible to participate in the Plan as a Limited Participant, if
such Employee is credited with one but less than two Years of
Service, or as a Full Participant, if credited with two or more
Years of Service, on such date.
(xvi) Effective November 1, 1996, each employee (A) of Columbia National
Bank Corporation or its subsidiaries ("CNBC Group") on November 1,
1996 or (B) who commences employment with a member of the CNBC Group
after November 1, 1996 and such employment constitutes such
employee's first employment with a Related Entity under the Plan, is
in an ineligible class of employees. Notwithstanding the foregoing
to the contrary, effective January 1, 1997, each salaried Employee
of the CNBC Group shall be eligible to participate in the Plan as a
Limited Participant, if such Employee is credited with one but less
than two Years of Service, or as a Full Participant, if such
Employee is credited with two or more Years of Service, on such
date.
(xvii) Effective January 2, 1997, each salaried Employee who was employed
by ChiCorp, Inc. or any of its subsidiaries on January 2, 1997 shall
be eligible to participate in the Plan on such date as a Limited
Participant, if such Employee is credited with one but less than two
Years of Service, or as a Full Participant, if credited with two or
more Years of Service.
(xviii) Effective January 2, 1997, each salaried Employee who terminated
employment with ChiCorp, Inc. or one of its subsidiaries during the
period July 1, 1996 through October 15, 1996 and was immediately
thereafter employed by an Employer shall be eligible to participate
in the Plan on January 2, 1997 as a Limited Participant, if such
Employee is credited
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with one but less than two Years of Service, or as a Full
Participant, if credited with two or more Years of Service.
(xix) Effective April 1, 1997, each salaried Employee who was employed by
Citi Futures Brokers, Citibank N.A. or Citibank International plc
who became an Employee of an Employer on March 31, 1997 shall be
eligible to participate in the Plan on April 1, 1997 as a Limited
Participant, if such Employee is credited with one but less than two
Years of Service, or as a Full Participant, if credited with two or
more Years of Service.
(xx) Effective January 1, 1998, each salaried Employee who was employed
by Standard Federal Bank or by any other Employer who sponsored the
Standard Prior Plan as of December 31, 1997 shall be eligible to
participate in the Plan effective January 1, 1998 as a Limited
Participant, if such Employee is credited with Six Months of Service
but less than two Years of Service, or as a Full Participant, if
credited with two or more Years of Service.
(xxi) Effective January 1, 1998, each salaried Employee who was employed
by Trans Mutual Investment Co., Inc. or Bankers Leasing Association,
Inc. on December 30, 1997 shall be eligible to participate in the
Plan effective January 1, 1998 as a Limited Participant, if such
Employee is credited with Six Months of Service but less than two
Years of Service, or as a Full Participant, if credited with two or
more Years of Service.
(xxii) Effective May 4, 1998, each salaried Employee who was formerly
employed by Sage Clearing Limited Partnership and who became an
Employee of an Employer on May 4, 1998 shall be eligible to
participate in the Plan effective May 4, 1998 as a Limited
Participant, if such Employee is credited with Six Months of Service
but less than two Years of Service, or as a Full Participant, if
credited with two or more Years of Service.
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(e) Notwithstanding the foregoing, effective November 13, 1995, each
Participant (or Employee in an eligible class of Employees that has not
satisfied the applicable service requirement) in the Plan on November 12,
1995 (i.e. the day prior to the effective date of the merger of LaSalle
Cragin Bank F.S.B. into LaSalle Talman Bank F.S.B.) shall continue to
participate (or, if applicable, continue to be eligible to participate) in
the Plan after such date and each Employee who was excluded from
participation in the Plan pursuant to Section 3.1(d)(ix) on such date
shall neither participate nor be eligible to participate after such date
until the date as of which the LaSalle Cragin Profit Sharing and Savings
Plan is merged into the Plan; provided, that a salaried Employee of
LaSalle Bank, F.S.B. (or its subsidiaries or related entities) whose first
date of employment with a Related Entity commences after November 12, 1995
shall be in an eligible class of Employees for purposes of eligibility
under this Plan.
ARTICLE 4
EMPLOYER CONTRIBUTIONS
Section 4.1 Contributions by Employer.
(a) Subject to the provisions of Section and Article , for the year
ending December 31, 1986 and each year thereafter, the aggregate
contribution of each Employer under the Plan will be an amount out of such
Employer's combined current and accumulated earnings and profits as is
determined by resolution or other required action of the Board of
Directors or other appropriate authority of such Employer. Current and
accumulated earnings and profits of each Employer shall be determined in
accordance with the accounting practices employed by each such Employer.
Notwithstanding the foregoing, effective for Plan Years commencing on or
after January 1, 1995, the requirement that an Employer's contribution be
made out of the Employer's current and accumulated earnings and profits
does not apply.
Notwithstanding any provisions of the Plan to the contrary, subject to the
provisions of Section 4.2 and Article 11, for the Plan Year ending
December 31, 1997 and each Plan Year
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thereafter, the aggregate contribution of each Employer under the Plan
will be an amount, regardless of whether the Employer has current or
accumulated profits, as is determined by resolution or other required
action of the Board of Directors or other appropriate, permitted or
empowered authority of such Employer.
(b) In addition to the contribution under paragraph (a) above, for
any Plan Year in which the Plan is Top-Heavy, the Employer contribution
for each Participant who is other than a Key Employee and who is entitled
to share in the allocation of the Employer contribution for such Plan Year
(including the requirement of being employed on the last day of the Plan
Year, if otherwise applicable under the Plan) shall not be less than an
amount so that the total allocation to such Participant's Regular Account
for such Plan Year under Section and to such Participant's corresponding
accounts under all Related Plans in a Required Aggregation Group with the
Plan will not, in the aggregate, be less than the Minimum Contribution
Amount. For purposes of this paragraph (b), such a Participant shall not
be deemed to be ineligible to share in the allocation of Employer
contributions solely because such Participant fails to complete a Year of
Service during such Plan Year, declines to make any mandatory
contributions under the Plan for such Plan Year or is compensated at less
than a stated amount for such Plan Year. This paragraph (b) shall not
apply to a Participant in any Plan Year in which the Participant also
participates in a defined benefit plan in a Required Aggregation Group
with this Plan; provided the minimum benefit requirements of Code Section
416(c) shall be satisfied with respect to such Participant in the related
defined benefit plan. Allocation provisions to the extent inconsistent
with this paragraph (b) under corresponding sections of any Related Plan
shall be disregarded in determining any allocation under this paragraph
(b) and once the top heavy minimum allocation or benefit is provided, it
shall not be provided again in other plans.
(c) In order to satisfy one of the deferral percentage tests of
Section or the contribution percentage tests of Section 4.8, the Employer
may contribute
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the amount provided for under Section 4.6(c), or 4.8(i), respectively, for
any Plan Year.
Section 4.2 Determination of Share of Employer Contribution. Each Employer
shall pay to the Trustee its Employer contribution for each year, as determined
under the provision of Section 4.1(a); provided, that no Employer shall pay as
its contribution a sum in excess of its current and accumulated earnings and
profits. Effective for the 1995 Plan and each Plan Year thereafter, an
Employer's contribution is not limited by its current and accumulated earnings
and profits. This Plan, nonetheless, is intended to be, and is designated as, a
profit sharing plan.
Section 4.3 Payment Date. Contributions by and on behalf of the Employers
for any year shall become due on the last business day of such year, unless
actually paid prior thereto, and shall be payable then, or as soon thereafter as
practicable (but not later than the time prescribed by law for filing the
Employer's federal income tax return including extensions thereof) without
interest.
Section 4.4 Limited Reversion. Notwithstanding anything contained herein
to the contrary, no part of the corpus or income of the Trust Fund shall revert
to any Employer or be used for, or diverted to, purposes other than for the
exclusive benefit of Participants and their Beneficiaries; PROVIDED, HOWEVER,
that:
(a) If part or all of an Employer contribution is made because of a
mistake of fact, then the Trustee shall, within one (1) year after the
payment of such contribution to the Trustee, upon the written request of
the affected Employer, return to the affected Employer the excess of (1)
the amount contributed over (2) the amount that would have been
contributed had there been no mistake of fact. Earnings attributable to
the excess contribution may not be returned to such Employer, but losses
attributable thereto must reduce the amount to be so returned.
(b) To the extent that the deduction under Code Section 404 for all
or part of any Employer contribution is disallowed, the contribution (to
the extent disallowed) shall be returned by the Trustee to the affected
Employer within one (1) calendar year of the date of the disallowance
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upon the written request of the affected Employer. Earnings and losses
thereon shall be treated in the same manner as provided under (a) above.
The Committee shall adjust all Participant's Accounts to reflect only the
deductible portion of the Employer contribution for the end of the year to
which the returned contribution relates.
Section 4.5 Elected Employer Contributions. Subject to the limitations of
Sections , and , each Participant may elect in each Plan Year to reduce his
current Considered Compensation or forego an increase in his Considered
Compensation by an amount (determined as a specified percentage or whole dollar
amount of such Considered Compensation or otherwise based on rules established
by the Committee) and have his Employer contribute to the Trust on his behalf
such amount (hereinafter referred to as the "Elected Employer Contribution"). A
Participant's Elected Employer Contributions for a Plan Year shall not exceed
ten percent (10%) (effective January 1, 1994, thirteen percent (13%)) of his
Considered Compensation for that Plan Year. No Participant shall be permitted to
have Elected Employer Contributions made on such Participant's behalf under this
Plan during any taxable year of the Participant commencing in excess of the
limitation imposed by Code Section 402(g) (as adjusted for each calendar year
commencing after December 31, 1987 to take into account any cost-of-living
adjustment provided for that year under Code Section 415(d) effective as of the
first day of such calendar year). Elected Employer Contributions attributable to
service performed in 1986 and described in Section 1105(c)(5) of the Tax Reform
Act of 1986 shall not be counted against such limit. The Committee may prevent
any such excess that would otherwise occur except for the foregoing limitations
by setting a maximum dollar amount on all such Elected Employer Contributions to
be made by such Employer for each electing Participant for such year. Any such
excess Elected Employer Contributions made on behalf of any Participant shall be
treated as if such excess were the result of the exceeding of the limitations of
Section hereof. Except as otherwise permitted or required by uniform rule
established by the Committee, such Elected Employer Contributions shall be
effected by payroll deductions in accordance with procedures established from
time to time by the electing Participant's Employer, and such election may be
terminated prospectively at any time, but otherwise shall be subject to
prospective change in each year only during the calendar months of January and
July or at such other times as the Committee
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shall determine, subject to the limitations of Sections , and. All such Elected
Employer Contributions so deducted by an Employer shall be paid over to the
Trustee, as soon as practicable after each payroll period; provided that the
total Elected Employer Contributions made by an Employer for a Plan Year shall
be paid over to the Trustee no later than thirty (30) days after the end of such
Plan Year. Unless otherwise specified, any reference to Employer contributions
in other Sections of the Plan shall be a reference to contributions made by an
Employer under Section hereof.
Notwithstanding any other provision of this Section to the contrary, a
Participant may prospectively change his election hereunder effective as of the
next January 1 (or for Plan Years ending on or before December 31, 1994,
effective as of the next January 1 or July 1) following the date such change is
made, subject to the rules established by the Committee regarding the timing of
such elections.
Notwithstanding any other provision of this Plan to the contrary,
effective January 1, 1996, a Participant may prospectively change his election
hereunder once per calendar quarter and such change shall be effective as of the
next payroll period (or, such later date if administratively necessary). Each
Participant shall continue to be eligible to prospectively terminate his
election hereunder at any time. However, effective September 15, 1996, no
Participant who is also a Participant in the ABN AMRO Group Top Hat Benefit Plan
as of the first day of the Plan Year may elect to change his or her salary
deferral percentage (including changing his or her salary deferral percentage to
zero percent); provided, that if such Participant receives a hardship
distribution during such Plan Year, then no elective deferrals will be permitted
for a period of 12 months following the date of the hardship withdrawal as
required by Section 7.9 hereof.
Notwithstanding the foregoing to the contrary, effective January 1, 1997 a
Participant who is also a Participant in the ABN AMRO Group Top Hat Benefit Plan
may change his Elected Employer Contribution rate only once per Plan Year (at a
time and in a manner prescribed by the Committee); provided such change shall be
effective as of the first payroll period (or as soon as administratively
feasible thereafter) of the Plan Year that immediately follows the Plan Year in
which the change was made.
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Effective January 1, 1998, a Participant (other than a Participant who is also a
participant in the ABN AMRO Group Top Hat Benefit Plan) may prospectively change
his election hereunder at any time and such change in election shall be
effective as of the next payroll period following (or as soon as
administratively feasible thereafter) the change in election.
Section 4.6 Limitation on Elected Employer Contributions.
(a) For each Plan Year beginning after December 31, 1996, the annual
allocation derived from Elected Employer Contributions to a Participant's
Elected Employer Contribution Account shall satisfy one of the following
tests:
(1) The Actual Deferral Percentage for all Highly Compensated
Employees as a group for the Plan Year shall not be more than the
Actual Deferral Percentage of all Nonhighly Compensated Employees as
a group for the preceding Plan Year multiplied by 1.25;
(2) The excess of the Actual Deferral Percentage for all
Highly Compensated Employees as a group for the Plan Year over the
Actual Deferral Percentage of all Nonhighly Compensated Employees as
a group for the preceding Plan Year shall not be more than two (or
such lesser amount determined by regulations under the Code to
prevent the multiple use of this limit for a Highly Compensated
Employee) percentage points, and the Actual Deferral Percentage for
all Highly Compensated Employees as a group for the Plan Year shall
not be more than the Actual Deferral Percentage of all Nonhighly
Compensated Employees as a group for the preceding Plan Year
multiplied by two.
For purposes of this Section , the term "Actual Deferral Percentage"
as it applies to any specified group of Participants for a Plan Year,
shall mean the average of the ratios (calculated separately for each
Participant in such group and expressed as a percentage calculated to the
nearest one-hundredth of one percent) of (i) the amount of
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Qualified Employer Contributions that the Plan Administrator elects to
include in this Actual Deferral Percentage (as permitted by the Code and
the regulations thereunder) and the amount of Elected Employer
Contributions actually paid to the Trust on behalf of each such
Participant for such Plan Year, to (ii) the Participant's Compensation for
such Plan Year. Elected Employer Contributions on behalf of any
Participant shall include: (i) any Elected Employer Contributions made
pursuant to a Participant's deferral election (including Excess
Contributions (as defined in this Section ) of Highly Compensated
Employees) but excluding (a) Excess Contributions of a Non-highly
Compensated Employee arising under this Plan or other plans of an Employer
and (b) amounts taken into account under the Contribution Percentage test
of Section (provided the test under this Section 4.6(a), is satisfied with
and without the exclusion of such deferrals) and (ii) Qualified Employer
Contributions as elected by the Plan Administrator. For the purposes of
this paragraph, (i) if two or more plans which include cash or deferred
arrangements are considered one plan for the purposes of Code Section
401(a)(4) or 410(b), the cash or deferred arrangements included in such
plans shall be treated as one arrangement, and (ii) if a Highly
Compensated Employee is a Participant under two (2) or more cash or
deferred arrangements of the Employer or a Related Employer, all such cash
or deferred arrangements shall be treated as one (1) cash or deferred
arrangement for the purpose of determining the deferral percentage with
respect to such Highly Compensated Employee. For Plan Years beginning
after December 31, 1989, plans may be aggregated under this paragraph (a)
only if they have the same plan year.
Notwithstanding the above, the determination (and treatment) of
Elected Employer Contributions and the determination of the "Actual
Deferral Percentage" of any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of the Treasury. Any
Elected Employer Contribution or amount treated as an Elected Employer
Contribution made on behalf of a Highly Compensated Employee, as adjusted
for gains and losses if any, not so meeting one of the tests mentioned in
(1) and (2) above in this subsection 4.6(a) (after taking into account any
added
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contributions made under paragraph (c) below to the extent permissible)
(the "adjusted Excess Contribution") shall be dealt with in accordance
with paragraph (b) below.
The adjustment for gains and losses shall be equal to the income or
loss allocable to a Participant's Elected Employer Contribution Account
(and, if applicable, the Qualified Non-Elective Contribution Account or
the Matching Account to the extent included in the Actual Deferral
Percentage, or both) as determined under Section for the Plan Year
multiplied by a fraction, the numerator of which is such Participant's
Excess Contributions for the year and the denominator of which is the
Participant's account balance attributable to Elected Employer
Contributions (and Qualified Non-Elective Contributions or Matching
Contributions, or both, to the extent such contributions are included in
the Actual Deferral Percentage) without regard to any income or loss
occurring during such Plan Year. Income or loss allocable to the period
between the end of the Plan Year and the date of distribution shall be
disregarded in determining the adjustment for income or loss under this
subsection.
(b) The following rules shall apply to adjusted Excess Contributions
made on behalf of Highly Compensated Employees. The Committee may adjust
either the Elected Employer Contribution or the Qualified Employer
Contribution treated as an Elected Employer Contribution pursuant to the
options set forth below:
(1) On or before the 15th day of the third month following the
end of each Plan Year if practicable, but in no event later than the
close of the following Plan Year, the Highly Compensated Employee
having the largest elective deferral for the Plan Year shall have
his portion of adjusted Excess Contributions distributed to him
until one of the tests set forth in Section 4.6(a) is satisfied or
until his actual deferral amount equals the actual deferral amount
of the Highly Compensated Employee having the second highest actual
deferral amount. This process shall continue until one of the tests
set forth in Section 4.6(a) is satisfied.
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If there is a loss allocable to such excess amount, the distribution
shall in no event be less than the lesser of the Participant's
Elected Employer Contribution Account or the Participant's Excess
Contribution (adjusted for such loss) for the Plan Year. Adjusted
Excess Contributions shall be distributed from the Participant's
Elected Employer Contribution Account and Qualified Employer
Contribution Account (if applicable) in proportion to the
Participant's Elected Employer Contributions (to the extent tested
under this Section ) for the Plan Year.
(2) Within 30 days after the end of the Plan Year, a portion
of the Employer's contribution under Section 4.1(a) shall be deemed
a Qualified Employer Contribution for purposes of Section 4.6(a) and
for vesting and withdrawal purposes. Such portion shall be equal to
an amount necessary to satisfy one of the tests set forth in Section
4.6(a) and shall be reallocated to the Participant's Elected
Employer Contribution Account. Such reallocation of the Employer's
contribution shall be made on behalf of Nonhighly Compensated
Employees.
(3) With respect to the distribution of adjusted Excess
Contributions as provided above, such distribution shall be made (i)
first from unmatched Elected Employer Contributions and, thereafter
simultaneously from Elected Employer Contributions which are matched
and Matching Contributions (to the extent included in the Actual
Deferral Percentage) which relate to such Elected Employer
Contributions. However, any such Matching Contributions which relate
to distributed Elected Employer Contributions shall be forfeited in
lieu of being distributed and (ii) second, from other Qualified
Employer Contributions (to the extent included in the Actual
Deferral Percentage) only to the extent that adjusted Excess
Contributions exceed the balance in the Participant's Elected
Employer Contribution Account attributable to Elected Employer
Contributions and the balance in the
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Participant's Matching Contribution Account (to the extent included
in the Actual Deferral Percentage) attributable to Matching
Contributions.
(4) Any distribution of less than the entire amount of
adjusted Excess Contributions shall be treated on a pro rata basis.
(5) For the purposes of making any distributions in accordance
with this paragraph (b), the amount of any such distributions or
recharacterizations shall be reduced by any Elected Employer
Contributions previously distributed in accordance with paragraph
(d) of this Section.
(c) If no such adjustment is made by the Plan Administrator under
Section 4.6(b)(1) or 4.6(b)(2) above or if such adjustment is not
sufficient to satisfy one of the Section 4.6(a) tests, then within twelve
(12) months after the end of the Plan Year, the Employer may make a
contribution on behalf of Non-highly Compensated Employees in an amount
sufficient to satisfy one of the tests set forth in Section 4.6(a). Such
contribution shall be deemed a Qualified Employer Contribution and
allocated to the Participant's Elected Employer Contribution Account of
each Non-highly Compensated Employee in the same proportion that each
Non-highly Compensated Employee's Compensation for the year bears to the
total Compensation of all Non-highly Compensated Employees for that year.
Such contribution shall be fully vested and non-forfeitable at all times
and shall also be subject to the distribution limitations of Code Section
401(k)(2)(B).
(d) In the event that the dollar limitation provided for in Section
is exceeded, the Plan Administrator shall direct the Trustee to distribute
such excess amount and any income allocable to such amount (including both
the income allocable to such excess amount during the Plan Year for which
the excess Elected Employer Contribution was made and the income allocable
for the period between the end of such Plan Year and the date of
distribution), to the Participant not later than the first April 15th
following the close of the Participant's taxable
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year. The adjustment for income or loss shall be equal to the income or
loss allocable to a Participant's Elected Employer Contribution Account as
determined under Section for the Plan Year multiplied by a fraction, the
numerator of which is the Participant's excess Elected Employer
Contributions for the year and the denominator of which is the
Participant's account balance attributable to Elected Employer
Contributions without regard to any income or loss occurring during such
Plan Year. Income or loss allocable to the period between the end of the
Plan Year and the date of distribution shall be disregarded in determining
the adjustment for income or loss under this subsection. If there is a
loss allocable to such excess amount, the distribution shall in no event
be less than the lesser of the Participant's Elected Employer Contribution
Account or the Participant's excess Elected Contribution (adjusted for
such loss) for the Plan Year. Notwithstanding the foregoing, in the event
that a Participant is also a participant in (1) another qualified cash or
deferred arrangement (as defined in Code Section 401(k)), (2) a simplified
employee pension (as defined in Code Section 408(k)), (3) a salary
reduction arrangement (within the meaning of Code Section 3121(a)(5)(D))
(4) a deferred compensation plan under Code Section 457, or (5) a trust
described in Code Section 501(c)(18), and the elective deferrals, as
defined in Code Section 402(g)(3), made under such other arrangement(s)
and this Plan cumulatively exceed the Code Section 402(g) limitation (or
such amount adjusted annually as provided in Code Section 415(d) pursuant
to regulations) for such Participant's taxable year, the Participant may,
not later than March 1 next following the close of such taxable year,
notify the Committee in writing of any such excess applicable to the Plan
and request that his Elected Employer Contributions under this Plan be
reduced by an amount specified by the Participant. Such amount shall, only
upon such timely notice, then be distributed in the manner provided above
in this paragraph (d).
(e) Any Participant who ceases to be a member of an eligible class
of Employees (as determined under Sections and ) shall no longer be
permitted to make Elected Employer Contributions during the period that he
is a member of an ineligible class.
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Section 4.7 Matching Employer Contributions. Subject to the limitations of
Section 4.8, 6.7 and 6.8, each Employer shall contribute to the Fund for each
Plan Year on behalf of each Participant an amount equal to the lesser of (i)
fifty percent (50%) of the amount of the Elected Employer Contributions made by
the Employer on behalf of such Participant and forwarded to the Trustee for such
pay period beginning after December 31, 1995, or (ii) two percent (2%) of such
Participant's Considered Compensation for such pay period (herein referred to as
the "Matching Contribution"); provided, however, that such Matching
Contributions for such Plan Year shall be limited to the extent necessary to
prevent the aggregate of such Matching Contributions and such Elected Employer
Contributions from exceeding the maximum amount deductible under the Code by the
Employer for such Plan Year.
Section 4.8 Limitations on Matching Contributions.
(a) For each Plan Year beginning after December 31, 1996, the
"Contribution Percentage" for the Plan Year for the Highly Compensated
Employee group shall not exceed the greater of:
(1) 125% of such percentage for the Non-highly Compensated
Employee group for the preceding Plan Year; or
(2) the lesser of 200% of such percentage for the Non-highly
Compensated Employee group for the preceding Plan Year, or such
percentage for the Non-highly Compensated Employee group for the
preceding Plan Year plus two percentage points. However, to prevent
the multiple use of the alternative method described in this
paragraph and Code Section 401(m)(9)(A), any Highly Compensated
Employee eligible to make Elected Employer Contributions pursuant to
Section or similar elective deferrals under any other cash or
deferred arrangement maintained by any Employer or Related Employer
and to make voluntary contributions or to receive Matching
Contributions under this Plan or similar contributions or under any
other plan maintained by any Employer or Related Employer shall have
his actual contribution ratio reduced pursuant
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to Regulation 1.401(m)-2. The provisions of Code Section 401(m) and
Regulations 1.401(m)-1(b) and 1.401(m)-2 are incorporated herein by
reference.
(b) For purposes of this Section , "Contribution Percentage" for a
Plan Year means, with respect to the Highly Compensated Employee group and
Non-highly Compensated Employee group, the average of the ratios
(calculated separately for each Participant in each group) of:
(1) the sum of the Participant's Contribution Percentage
Amounts; to
(2) the Participant's Compensation for such Plan Year.
(c) For purposes of determining the "Contribution Percentage," the
Plan Administrator may elect, pursuant to regulations, to take into
account, with respect to Participants eligible to have Matching
Contributions allocated to their accounts, elective deferrals (as defined
in Code Section 402(g)(3)(A)) and qualified non-elective contributions (as
defined in Code Section 401(m)(4)(C)) contributed to any plan maintained
by any Employer. Such elective deferrals and qualified non-elective
contributions shall be treated as Matching Contributions subject to
Regulation 1.401(m)-1(b)(2) which is incorporated herein by reference. The
Plan Year must be the same as the plan year of the plan to which the
elective deferrals and the qualified non-elective contributions are made.
For purposes of this Section , Contribution Percentage Amounts shall
mean the sum of (i) Matching Contributions (excluding amounts taken into
account under the Actual Deferral Percentage test of Section ) and (ii)
Elected Employer Contributions and Qualified Employer Contributions
elected by the Plan Administrator to be exclusively taken into account in
determining the Contribution Percentage, contributed under the Plan on
behalf of each such Participant for such Plan Year. The Plan Administrator
may elect to include some or all of the Elected Employer Contributions in
the Contribution
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Percentage Amounts provided that the Actual Deferral Percentage test of
Section 4.6(a) is satisfied with and without the exclusion of such
deferrals.
(d) For purposes of this Section , if two or more plans of the
Employer to which Matching Contributions or elective deferrals are made
are treated as one plan for purposes of Code Section 410(b), such plans
shall be treated as one plan for purposes of this Section. In addition, if
a Highly Compensated Employee participates in two or more plans described
in Code Section 401(a) or arrangements described in Code Section 401(k)
which are maintained by any Employer or Related Employer to which such
contributions are made, all such contributions on behalf of such Highly
Compensated Employee shall be aggregated for purposes of this Section. If
the plans have different plan years, this paragraph shall be applied by
treating all plans ending with or within the same calendar year as a
single plan. For purposes of this Section , a Highly Compensated Employee
and Non-highly Compensated Employee shall include any Employee eligible to
have Matching Contributions allocated to his account for the Plan Year.
(e) In the event that a Contribution Percentage for the Highly
Compensated Employee group exceeds the Contribution Percentage for the
Non-highly Compensated Employee group by more than the amount permissible
under this Section , the Plan Administrator (on or before the fifteenth
day of the third month following the end of the Plan Year, but in no event
later than the close of the following Plan Year) shall (except to the
extent not required as a result of contributions made under Section 4.8(i)
direct the Trustee to distribute to the Highly Compensated Employee having
the highest actual contribution amount his vested share of the amount of
Excess Aggregate Contributions (and any income allocable to such vested
contributions, including both the income allocable to such vested
contributions during the Plan Year for which the excess contributions were
made and the income allocable for the period between the end of such Plan
Year and the date of distribution) or, if forfeitable, forfeit such
non-vested "Excess Aggregate Contributions" attributable to Matching
Contributions (and any income allocable to such non-vested
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contributions, including both the income allocable to such non-vested
contributions during the Plan Year for which the excess contributions were
made and the income allocable for the period between the end of such Plan
Year and the date of distribution) until either one of the tests set forth
in this Section is satisfied, or until his actual contribution amount
equals the actual contribution amount of the Highly Compensated Employee
having the second highest actual contribution amount. This process shall
continue until one of the tests set forth in this Section is satisfied.
The distribution of Excess Aggregate Contributions shall be made in the
following order: (i) Matching Contributions distributed under Section
4.6(b)(3) and (ii) any remaining Matching Contributions. If there is a
loss allocable to such excess amount, the distribution shall in no event
be less than the lesser of the affected Participant's Matching
Contribution Account or the Participant's Excess Aggregate Contribution
(adjusted for such loss) for the Plan Year otherwise allocable to the
credit of the affected Participant. Distributions under this Section of
less than the entire amount of Excess Aggregate Contributions shall be
treated on a pro rata basis. The adjustment for income or loss shall be
equal to the income or loss allocable to a Participant's Matching
Contributions Account, and, if applicable, the Participant's Qualified
Non-Elective Contribution Account (exclusively taken into account in
determining the Actual Contribution Percentage) as determined under
Section for the Plan Year multiplied by a fraction, the numerator of which
is the Participant's Excess Aggregate Contributions for the year and the
denominator of which is the Participant's account balance(s) attributable
to Contribution Percentage Amounts without regard to any income or loss
occurring during such Plan Year. Income or loss allocable to the period
between the end of the Plan Year and the date of distribution shall be
disregarded in determining the adjustment for income or loss under this
subsection. Notwithstanding the foregoing, if any Excess Aggregate
Contribution is not fully vested, the non-vested portion may be forfeited
to the extent permitted under Reg. Sec. 1.401(m)-1(e).
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(f) For purposes of this Section , "Excess Aggregate Contributions"
means, with respect to any Plan Year, the excess of:
(1) the aggregate Contribution Percentage Amounts taken into
account under this Section actually made on behalf of the Highly
Compensated Employee group for such Plan Year, over
(2) the maximum Contribution Percentage Amounts permitted
under the limitations of this Section.
(g) For purposes of this Section , the amount of Excess Aggregate
Contributions attributable to a Highly Compensated Employee, with respect
to any Plan Year, is the excess of:
(1) the aggregate Contribution Percentage Amounts actually
made on behalf of such Highly Compensated Employee (determined prior
to the application of this paragraph), over
(2) the amount determined by multiplying such Highly
Compensated Employee's actual contribution ratio (determined after
the application of this paragraph) by his Compensation for the Plan
Year. The actual contribution ratio must be rounded to the nearest
one-hundredth of one percent.
(h) The determination of the amount of Excess Aggregate
Contributions" with respect to any Plan Year shall be made after:
(1) first determining the excess deferrals pursuant to Section
,
(2) then determining the Excess Contributions pursuant to
Section.
(i) Within twelve (12) months after the end of the Plan Year, the
Employer may make a special Qualified Employer Contribution on behalf of
Non-Highly Compensated
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Employees in an amount sufficient to satisfy one of the tests set forth in
Section 4.8(a). Such contribution shall be allocated to the Elected
Employer Contribution Account of each Non-Highly Compensated Employee in
the same proportion that each Non-Highly Compensated Employee's
Compensation for the year bears to the total Compensation of all
Non-Highly Compensated Employees for that year. A separate accounting
shall be maintained for the purpose of excluding such contributions from
the "Actual Deferral Percentage" tests under Section. Such contributions
shall be fully vested and nonforfeitable at all times and shall be subject
to the distribution limitations of Section 7.4(c).
Section 4.9 Contributions Deemed Conditioned on Deductibility. Any and all
contributions of an Employer under this Plan shall be deemed to be conditioned
upon deductibility under Code Section 404.
Section 4.10 Multiple Use of the Alternative Limitation. If one or more
Highly Compensated Employees participate in both a cash or deferred arrangement
subject to the Actual Deferral Percentage test and a plan subject to Actual
Contribution Percentage test (both of which are maintained by the Employer or a
Related Entity) and the sum of the Actual Deferral Percentage and Actual
Contribution Percentage of the Highly Compensated Employees exceeds the
Aggregate Limit, then the Actual Contribution Percentage of the Highly
Compensated Employees who also participate in a cash or deferred arrangement
will be reduced (beginning with the Highly Compensated Employee with the highest
Actual Contribution Percentage) so that the limit is not exceeded. The amount by
which each Highly Compensated Employee's Contribution Percentage Amount is
reduced shall be treated as an Excess Aggregate Contribution. The Actual
Deferral Percentage and Actual Contribution Percentage of the Highly Compensated
Employees are determined after any corrections required to meet the Actual
Deferral Percentage and Actual Contribution Percentage tests. Multiple use does
not does not occur if either the Actual Deferral Percentage or Actual
Contribution Percentage of the Highly Compensated Employees does not exceed 1.25
multiplied by the Actual Deferral Percentage and Actual Contribution Percentage
of the Non-highly Compensated Employees. For purposes of this Section , the
"Aggregate Limit" means the sum of (i) 125 percent of the greater of the Actual
Deferral Percentage of the Non-Highly
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Compensated Employees for the Plan Year or the Actual Contribution Percentage of
the Non-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 (ii) the lesser of 200% or two plus the lesser of such
Actual Deferral Percentage or Actual Contribution Percentage. "Lesser" is
substituted for "greater" in (i) above, and "greater" is substituted for
"lesser" after "two plus the" in (ii) above if it would result in a larger
Aggregate Limit.
Section 4.11 Restoration. If an Employee forfeited all or a portion of his
account balance under a Prior Plan (that was merged into the Plan) and it is
determined that such forfeiture must be restored to such Participant's accounts
hereunder, then such Participant's Employer shall contribute an amount necessary
to restore such forfeiture.
ARTICLE 5
CONTRIBUTIONS BY PARTICIPATING EMPLOYEES
Section 5.1 Voluntary Contributions. Effective January 1, 1989, no
voluntary contributions are permitted under the Plan. Any voluntary
contributions made before that date and remaining in the Plan from time to time
shall be held and accounted for pursuant to the provisions of this Article and
other applicable Plan provisions.
Section 5.2 Withdrawal of Contributions. A Participant may elect to
withdraw any or all of the principal amount of voluntary contributions and
earnings thereon or any or all of the accumulated deductible employee
contributions (as defined under Code Section 72(o)(5)), but not in excess of the
balance of such Participant's voluntary account (as determined on the accounting
date coinciding with or immediately preceding the date of the Participant's
election) at any time. For this purpose, any withdrawal under this Section shall
be deemed to be made first from voluntary contributions made prior to January
1,1987 and then from voluntary contributions made on and after January 1, 1987
and the earnings on all voluntary contributions, whenever made, in the
proportion of such remaining voluntary contributions and earnings.
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Section 5.3 Rollover of Funds From Previous Employer's Plan. An Employee
who is in an eligible class of Employees, regardless of whether such Employee is
a Participant, who receives from a trust of a previous employer's plan (which is
part of a plan qualified under Code Section 401(a) and is exempt from tax under
Code Section 501(a) ("qualified plan")) a lump sum distribution, as hereinafter
defined, may, on or before the 60th day after the day on which he received the
same, deposit (which shall include, effective January 1, 1993, a direct rollover
by means of a trustee-to-trustee transfer requested by such Employee) part or
all of the property received in such distribution (exclusive of any portion
thereof which consists of after-tax employee contributions or accumulated
deductible employee contributions) with this Plan and Trust upon and subject to
the following terms, conditions and limitations:
(a) Such property will be received only if all such property
received by such Employee from such other employer's qualified plan was
cash.
(b) All cash so received shall be held in the name of the Trustee as
trustee for the benefit of the Employee (and invested as designated by the
Employee pursuant to the investment options available to Participants
under the Plan) until such time as the Employee becomes a Participant, at
which time the amount in said account shall be held and administered in
accordance with terms of this Plan and Trust. The account in which any
amount held by the Trustee under the Plan pursuant to the provisions of
this Section is held shall be entitled a "Rollover Account." Any Rollover
Account shall be separately accounted for and shall be fully vested and
nonforfeitable at all times.
(c) Each such Employee may designate a beneficiary or beneficiaries
pursuant to Section at any time after making the deposit contemplated by
this Section and in the event of his death prior to becoming a
Participant, such Rollover Account shall be distributed to the person or
persons entitled to receive it pursuant to Section.
(d) In the event the employment of such Employee terminates
otherwise than by reason of his death prior to the time he becomes a
Participant, such Rollover Account
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shall be distributed to him in a lump sum at the time provided under
Section.
(e) Notwithstanding the foregoing, the Plan shall permit an eligible
rollover as defined in Code Section 402(c)(4) to be made in a single cash
payment from an individual retirement account as defined in Code Section
408(a); provided (i) that the individual retirement account was
established as a result of an eligible rollover distribution from a
qualified plan of a previous employer, (ii) no other contributions to such
individual retirement account have ever been made and (iii) that the
eligible rollover to the Plan is completed within 60 days after the date
that the distribution from the qualified plan of the previous employer
occurred.
(f) Effective September 30, 1997, notwithstanding the foregoing
provisions to the contrary, with respect to an Employee who is in an
eligible class of Employees, the Plan shall permit, in addition to a
rollover of cash, the rollover of the Employee's promissory note
representing a participant loan under the ChiCorp Prior Plan in connection
with the termination of the ChiCorp Prior Plan, provided that the
distribution that is rolled over constitutes the entire account of the
Employee under the ChiCorp Plan (excluding any portion which is not an
eligible rollover distribution as defined Code Section 402(c)(4)). The
rollover of such promissory note is contingent upon the execution by the
affected Employee of any documentation (including any revised loan
documentation provided such revised documentation does not cause the loan
to violate Code Section 72(p)) that the Committee, or representative of
the Committee, deems necessary or advisable.
Section 5.4 Qualified Voluntary Employee Contributions. Effective January
1, 1989, no qualified voluntary employee contributions (as defined under former
Code Section 219(e)(2)) shall be permitted under the Plan. Any qualified
voluntary employee contributions made before that date and remaining in the Plan
from time to time shall be held and accounted for pursuant to the provisions of
this Article 5.
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ARTICLE 6
ACCOUNTING
Section 6.1 Participants' Accounts. The Committee shall establish and
maintain a Regular Account for each Participant for the allocation of Employer
contributions made under Section , a Matching Contribution Account for the
allocation of Matching Contributions, and an Elected Employer Contribution
Account for the allocation of Elected Employer Contributions. If a Participant
had elected to make voluntary contributions in accordance with Section or
qualified voluntary employee contributions in accordance with Section , the
Committee shall also establish and maintain a Voluntary Account in his name.
Accumulated deductible employee contributions (as defined under Section ) shall
be separately accounted for. If an Employee elects to make a contribution in
accordance with Section , the Committee shall also establish a Rollover Account
in his name. The Committee may establish such other accounts as it deems
appropriate from time to time for the proper administration of the Plan.
Reference to a Participant's "accounts" or "Accounts" means all of his accounts
established hereunder. The Committee shall make all credits, charges and other
adjustments to a Participant's accounts provided for under the Plan and Trust.
Section 6.2 Unallocated Suspense Account. A suspense account may be
established to hold amounts unallocated to Participants' accounts as a result of
the limitations of Section and/or.
A Participant's Account shall be valued as frequently as the investment
funds in which the Participant has invested his Account are valued. In
determining the value of a Participant's Account, the accounting provisions used
by such investment funds to determine the value of an account shall apply. Such
valuation shall reflect the income, realized gain or loss, and unrealized gain
or loss allocable to the Participant's investment of his Account since the last
valuation date.
Section 6.3 Adjustment to Reflect Changes in Adjusted Net Worth of
Investment Funds. Effective July 1, 1994, a Participant's Account shall be
valued as frequently as the Investment Funds in which the Participant has
invested his Account are valued. For purposes of this Section 6.3, an
"Investment Fund" shall mean any
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one of the investment options established pursuant to Article 9 available to
Participants for the Participant-directed investment of their Accounts. In
determining the value of a Participant's Account, the accounting provisions used
by such Investment Funds to determine the value of an account shall apply. Such
valuation shall reflect the contributions, distributions, income, realized gain
or loss, and unrealized gain or loss allocable to the Participant's investment
of his Account since the last valuation date.
Section 6.4 Allocation of Employer's Contribution.
(a) Effective for Plan Years beginning on or after January 1,
1997, as of each regular accounting date, the total contribution
made by an Employer pursuant to Sections 4.1(a) and 4.2 for the Plan
Year ending on that regular accounting date, shall be divided and
credited to the Regular Accounts of the Full Participants employed
by that Employer during the Plan Year who complete at least 1,000
Hours or Service in such Plan Year and who are employed on the last
business day of the Plan Year by that Employer in the ratio that the
Considered Compensation of each such Full Participant for each such
Plan Year bears to total Considered Compensation of all such Full
Participants for such Plan Year.
(b) In addition to the foregoing allocation, each Participant
who is other than a Key Employee shall have allocated to his Regular
Account the amount contributed with respect to him under Section
4.1(b).
(c) Elected Employer Contributions which each Participant
elects to have his Employer make on his behalf shall be credited, as
soon as administratively feasible following the payroll period to
which such contributions relate, to the Elected Employer
Contribution Account of such Participant.
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(d) Matching Contributions made by an Employer to the Plan
shall be credited, at the same time that contributions in paragraph
(c) of this Section 6.4 are credited to the Matching Contribution
Account of the Participant in relation to whose Elected Employer
Contributions such Matching Contributions were made.
(e) Qualified Employer Contributions made by an Employer to
the Plan during the period since the preceding accounting date shall
be credited, as of the next applicable accounting date, to the
Elected Employer Contribution Account (if such contributions are
made pursuant to Section 4.6(c)) or Matching Contribution Account
(if such contributions are made pursuant to Section 4.8(i)), as the
case may be, of the Participant.
Section 6.5 Allocation of Participants' Rollover Contributions. As of each
accounting date, the rollover contribution of each Participant received and held
by the Trustee during the period since the preceding accounting date shall,
subject to Section , be credited to his Rollover Account.
Section 6.6 Distributions. All distributions to or withdrawals by a
Participant or his beneficiary shall be charged to his appropriate account prior
to the adjustments required under Section.
Section 6.7 Similar Plan Allocation Limitation. Notwithstanding anything
herein to the contrary, the total Annual Additions hereunder to any
Participant's Accounts in any Limitation Year shall not in the aggregate, after
taking into account corresponding Annual Additions under any Related Plan,
exceed an amount equal to the lesser of (a) $30,000 (as adjusted to take into
account any cost-of-living adjustment under Code Section 415(d) for that year)
or if greater, one-fourth of the defined benefit dollar limitation set forth in
Code Section 415(b)(1) as in effect for such Limitation Year pursuant to
adjustments under Code Section 415(d), or (b) twenty-five percent (25%) of such
Participant's Code Section 415 Compensation for the Limitation Year; provided
that, paragraph (b) limits shall not apply to any contribution for medical
benefits (within the meaning of Code Section 419A(f)(2))
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after separation from service which is otherwise treated as an Annual Addition,
or any amount otherwise treated as an Annual Addition under Code Section
415(l)(1) or 419A(d)(2). If such Annual Additions exceed such limitation, the
voluntary contributions made by the Participant for the Limitation Year which
cause the excess shall be returned to the Participant, without interest or
earnings thereon. If, after returning such voluntary contributions, an excess
shall still exist, then such excess Elected Employer Contributions shall be
distributed to the Participant to the extent that such distributions reduce the
excess attributable to the Participant and these amounts shall be disregarded
for purposes of Code Sections 402(g), 401(k)(3) and 401(m)(2).
If after the return of voluntary contributions and Elected Employer
Contributions, an excess amount still exists, and the Participant is covered by
the Plan at the end of the Limitation Year, the excess amount in the
Participant's Account will be placed in a suspense account and shall be
allocated and reallocated in the next Limitation Year, and each succeeding
Limitation Year if necessary to all Participants in the Plan before any Annual
Additions are made for the Limitation Year. Employer Contributions to the Plan
for the Limitation Year shall be reduced by the amount of the suspense account
that is allocated and reallocated during such Limitation Year. Excess amounts
may not be distributed to Participants or former Participants.
The provisions of this Section and Section are intended to satisfy Code
Section 415. If any provisions of these Sections conflict with Code Section 415,
then Code Section 415 shall supersede such provisions. If provisions of these
Sections do not address all matters relating to Code Section 415, the provisions
of Code Section 415 and of the regulations thereunder shall apply. For purposes
of this paragraph, the provisions of Code Section 415 are hereby incorporated
herein by reference.
Section 6.8 Dissimilar Plan Allocation Limitation. Notwithstanding any
other provision of this Plan, the contributions of the Employers for any year
shall be limited so that if a Participant is also covered under one or more
qualified defined benefit plans, treated as a single plan of the Employer, the
Annual Addition under this Plan shall not exceed an amount which, when expressed
as a "defined contribution plan fraction" (as defined
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below) and added to a "defined benefit plan fraction" (as defined below) does
not exceed one 1.0. For purposes of this limitation, the terms "defined
contribution plan fraction" and "defined benefit plan fraction" shall be defined
as follows:
(a) the term "defined contribution plan fraction" means a fraction,
the numerator of which is the sum of the total Annual Additions to the
Participant's Accounts in this Plan and all Related Plans (whether or not
terminated) of the Employers and Related Employers for all Limitation
Years as of the end of the current Limitation Year (including all welfare
benefit funds, individual medical accounts, and simplified employee
pensions), and the denominator of which is the sum of the lesser of the
following amounts determined for each of the Participant's Years of
Service with the Employer and Related Employers (regardless of whether a
defined contribution plan was maintained by the Employer or Related
Employer):
(1) the product of 1.25 and the dollar limitation in effect
for such Limitation Year under Code Section 415(c)(1)(A); provided
that, for any Limitation Year in which the Plan is Top-Heavy, 1.0
shall be substituted for 1.25 above in the event that such plans do
not meet the requirements of Code Section 416(h)(2) for the Plan
Year ending within that Limitation Year; or
(2) the product of 1.4 and the amount which may be taken into
account with respect to such Participant for such Limitation Year
under Code Section 415(c)(1)(B).
For purposes of computing the numerator of the fractions
described above, the sum of the Participant's Annual Additions for
the Limitation Years which began before January 1, 1976 shall be
considered only to the extend that the sum does not exceed the
Participant's aggregate maximum Annual Additions for those
Limitation Years. The amount taken into account in the denominator
for all Limitation Years ending before January 1, 1983 shall be an
amount equal to the product of the amount determined under Code
Section 415(e)(3)(B) for each Participant for the Limitation Year
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ending in 1982, multiplied by a fraction, the numerator of which is
the lesser of (i) $51,875 of (ii) 1.4 multiplied by twenty five
percent (25%) of the Compensation of the Participant for the
Limitation Year ending in 1981 and the denominator of which is the
lesser of (i) $41,500 or (ii) twenty five percent (25%) of the
Compensation of the Participant for the Limitation Year ending in
1981; provided, that for any Limitation Year in which the Plan is
Top-Heavy $41,500 shall be substituted for $51,875.
If the Employee was a Participant as of the end of the first
day of the first Limitation Year beginning after December 31, 1986,
in one or more defined contribution plans maintained by the Employer
which were in existence on May 6, 1986, the numerator of this
fraction will be adjusted if the sum of this fraction and the
defined benefit fraction would otherwise exceed 1.0 under the terms
of this Plan. Under the adjustment, an amount equal to the product
of (1) the excess of the sum of the fractions over 1.0 times (2) the
denominator of this fraction, will be permanently subtracted from
the numerator of this fraction. The adjustment is calculated using
the fractions as they would be computed as of the end of the last
Limitation Year beginning before January 1, 1987, and disregarding
any changes in the terms and conditions of the Plan made after May
5, 1986, but using the Code Section 415 limitation applicable to the
first Limitation Year beginning on or after January 1, 1987.
The Annual Addition for any Limitation Year beginning before
January 1, 1987, shall not be recomputed to treat all Employee
contributions as Annual Additions.
(b) the term "defined benefit plan fraction" means a fraction,
the numerator of which is the projected annual benefits of the
Participant under all defined benefit plans (whether or not
terminated) of the Employers and Related Employers as of the end of
the current Limitation Year and the denominator of which is the
lesser of the following amounts:
(1) the product of 1.25 and the dollar limitation in
effect for such Limitation Year under Code Section
415(b)(1)(A); provided that for any
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Limitation Year in which the Plan is Top-heavy, 1.0 shall be
substituted for 1.25 above in the event that such plans do not
meet the requirements of Code Section 416(h)(2) for the Plan
Year ending within such Limitation Year; or
(2) the product of 1.4 and the amount which may be taken
into account with respect to such Participant for such
Limitation Year under Code Section 415(b)(1)(B).
In the event the 1.0 rule is violated with respect to any Participant,
reductions in benefits attributable to any Participant under any defined benefit
plan will first be made. If any excess still remains, reductions will then be
made in contributions to this Plan. Excess contributions shall be retained in
accordance with Section. Notwithstanding the above, if the Participant was a
Participant as of the first day of the first Limitation Year beginning after
December 31, 1986, in one or more defined benefit plans maintained by the
Employer which were in existence on May 6, 1986, the denominator of this
fraction will not be less than one hundred twenty five percent (125%) of the sum
of the annual benefits under such plans which the Participant had accrued as of
the close of the last Limitation Year beginning before January 1, 1987,
disregarding any changes in the terms and conditions of the Plan after May 5,
1986. The preceding sentence applies only if the defined benefit plans
individually and in the aggregate satisfied the requirements of Code Section 415
for all Limitation Years beginning before January 1, 1987.
Section 6.9 Date of Contributions. For the purposes of this Plan, the
contributions made by or on behalf of an Employer for any Plan Year shall be
considered to have been made as of the end of that Plan Year (unless otherwise
specified herein) even though received by the Trustee at a later or an earlier
date.
Section 6.10 Statement of Participants' Accounts. As soon as practicable
after each regular accounting date (or more often as the Committee determines),
the Committee shall deliver to each Participant a statement reflecting the
condition of his accounts as of that date. Except as may be required by law, no
Participant other than a member of the Committee or a person performing
administrative services with respect to the Plan shall have the
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right to inspect any records reflecting the accounts of any other Participant.
Section 6.11 Correction of Errors. If after completing the adjustments
under Section and the allocation of contributions and forfeitures pursuant to
Section required for any accounting date, any error shall be discovered in the
amounts credited or charged to an account of any particular Participant or
Participants, the Committee shall correct such error in the particular account
or accounts but shall not be required to re-compute or reallocate such
adjustments or allocations, and may post the amount of such error or error to an
income or expense account to be taken into consideration as a gain or loss in
making adjustments and allocations as of the next accounting date.
ARTICLE 7
VESTING AND DISTRIBUTION OF ACCOUNTS
Section 7.1 Vesting of Accounts. The Accounts of Participants and all
amounts received by the Trustee pursuant to Section hereof shall, subject to
adjustment pursuant to Section hereof, at all times be fully vested and
nonforfeitable.
Section 7.2 Amount Available for Benefits. The amount available for
distribution of benefits hereunder shall be the entire balance of the
Participant's or Former Participant's Accounts, adjusted as of the accounting
date coincident with, or immediately next following the occurrence of such
event, less any withdrawals from his accounts after such accounting date.
Section 7.3 Methods of Distribution of Benefits. Upon the death,
retirement, resignation or dismissal of a Participant, other termination of
employment of a Participant, or a distribution event that satisfies the
requirements of Code Section 401(k)(10) with respect to a Participant, the
amounts available for distribution determined in accordance with this Article 7
shall be distributed to the Participant, or after his death to his
beneficiaries, in such one or more of the following ways as the Participant or
his beneficiary, as the case may be, shall elect:
(a) By payment in full in a single lump sum; or
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(b) By payment in annual or more frequent installments, except to
the extent not permitted with respect to a Code Section 401(k)(10)
distribution event. So long as an election described in Section 7.4(b)(4)
is in effect, such installments shall be in substantially equal amounts
over such period as the Participant may select with the share of each
Participant's accounts in the increase (or decrease) in the net worth of
the Trust Fund allocated to said account as of the end of each year shall
be taken into account in determining the Participant's installment payment
amounts for the next succeeding year; PROVIDED THAT, such installment
period shall not extend beyond the date which falls at the end of the
period which is equal to the Participant's life expectancy or the joint
life and last survivor expectancy of the Participant and his beneficiary
(as then determined in accordance with tables published under Regulations
applicable to Code Section 72), if the Participant is living on the date
of commencement of payments. If the Participant is deceased on the date of
the commencement of payment, installment payments shall not extend beyond
the life expectancy of the beneficiary. If such an election under Section
7.4(b)(4) is not in effect, the minimum payment that must be made in the
year in which distributions must commence under Section 7.4 and in all
years thereafter shall be an amount equal to the quotient obtained by
dividing the Participant's entire benefit by the life expectancy of the
Participant. Life expectancy shall not exceed the period computed by the
use of the return multiples contained in Section 1.72-9 of the Regulations
under the Code. For purposes of this computation, a beneficiary must be
designated within the 90-day period prior to the date on which benefits
are payable, and a Participant's life expectancy or that of a spouse
beneficiary will, if the Participant or beneficiary (as applicable)
elects, be recalculated annually. The life expectancy of a non-spouse
beneficiary may not be recalculated. If the Participant's spouse is not
the designated beneficiary, the method of distribution selected must
provide that the present value of the payments to be made to the
Participant at the time of commencement thereof is not less than fifty-one
percent (51%) of the present value of the total payments to be made to the
Participant and his beneficiaries; provided however, that, the method of
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distribution must result in the amount being distributed being no less
than that necessary to meet the incidental benefit requirement under Code
Section 401(a) and the regulations thereunder including Regulation
1.401(a)(9)-2 under the Code, as now or hereafter in effect, except for
distributions made in accordance with elections referred to in Section
7.4(b)(4), and distributions required pursuant to such incidental benefit
requirement shall be treated as distributions required under this
paragraph and Section 7.4.
(c) By any combination of the foregoing, except to the extent not
permitted with respect to a Code Section 401(k)(10) distribution event.
At any time, and from time to time, prior to complete distribution,
payment of installments may be accelerated, including but not limited to,
the lump sum distribution of the Participant's remaining amount, upon the
written request of the Participant (or, if the Participant has died, his
Beneficiary). A former Participant who has elected to receive a
distribution at any time prior to the initial distribution of benefits to
him shall be entitled to withdraw without the consent of the Committee,
all or part of his Voluntary Account exclusive of net earnings on his
voluntary contributions. Any Participant, or former Participant, may
direct the mode of payment of benefits to his beneficiary in the manner
set forth in Section 7.12.
Section 7.4 Time of Distribution of Benefits.
(a) Subject to paragraph (b) below, distribution of a Participant's
accounts will be made or commenced as soon as practicable after the
determination under Section of the amount available for distribution to
such Participant, provided that no accumulated deductible employee
contributions of a Participant shall be distributed under this Section ,
other than as a result of the Participant's death or disability, if such
Participant at the time of distribution has not yet attained the age of
59-1/2 years unless such distribution is in the form of a lump sum
distribution as defined under Section 5.3(e).
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(b) All distributions shall be subject to the following rules:
(1) Any benefit payable to a Participant shall begin no later
than the sixtieth (60th) day following the close of the Plan Year in
which the last to occur of the following events takes place unless
the Participant elects otherwise:
(i) The Participant's 65th birthday;
(ii) The termination of the Participant's employment
with the Employer; or
(iii) The ten (10) year anniversary of the date the
Participant initially qualified for participation in the Plan.
Notwithstanding the foregoing, the failure of a Participant
and spouse to consent to a distribution while a benefit is
immediately distributable shall be deemed to be an election to defer
commencement of payment of any benefit sufficient to satisfy this
paragraph (b)(1) have elected to delay distribution.
(2) In no event may the distribution of a Participant's
benefits payable under any provisions of this Plan, on or after the
first day of the first Plan Year commencing after December 31, 1984,
other than as a result of the Participant's death, occur or
commence, as the case may require under Code Section 401(a)(9)(A),
later than the first day of April following the calendar year in
which the Participant attains the age of 70-1/2; PROVIDED THAT the
benefits of a Participant who is not a 5% Owner and has not been a
5% Owner at any time during the 5-Plan Year period ending in the
calendar year in which he attains age 70-1/2and who attains age
70-1/2 before January 1, 1988 need not so occur or commence until
the first day of April following the
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calendar year in which the Participant terminates his employment
with the Employers, if later; and provided further that, if a
Participant who was not previously required to begin receiving
benefits becomes a 5% Owner during a Plan Year which is subsequent
to the Plan Year ending in the calendar year in which such
Participant attains the age of 70-1/2, such Participant shall, only
for the purpose of determining when benefit distributions are
required to begin, be treated as having attained the age of 70-1/2
during the calendar year in which such subsequent Plan Year ends.
Notwithstanding the foregoing to the contrary, any Participant
(other than a 5% Owner) attaining age 70 1/2in 1996, 1997 or 1998
may elect by April 1st of the calendar year in which the Participant
attained age 70 1/2(or by December 31, 1997 in the case of
Participant attaining age 70 1/2 in 1996) to defer distributions
until the calendar year following the calendar in which the
Participant retires. Notwithstanding the foregoing to the contrary,
the preretirement age 70 1/2 distributions option for a Participant
who is not a 5% owner and who reaches age 70 1/2 in 1999 or later is
eliminated.
(3) Upon the death of a Participant, the following
distribution provisions shall govern the latest date by which
benefit payments must commence and the longest period over which
such payments may continue with respect to benefits payable on or
after the first day of the first Plan Year commencing after December
31, 1984:
(i) If the Participant dies after the distribution of
his or her benefits has commenced and the date on which
distributions must be made or commence under paragraph (b)(2)
above has passed, the remaining portion of such benefits will
continue to be distributed at least as rapidly as under the
method of distribution being used prior to the Participant's
death.
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(ii) If the Participant dies before the date on which
distribution of his or her benefits must be made or commence
under paragraph (b)(2) above, the Participant's entire benefit
will be distributed in a manner provided under Section 7.3;
provided that such distribution is completed within 5 years
after the Participant's death or such later date as set forth
in Regulations under the Code. Notwithstanding the foregoing,
such distribution need not be completed within said five (5)
years or such later date under such regulations to the extent
such benefits are distributed to a designated beneficiary over
the life or a period not extending beyond the life expectancy
of the designated beneficiary (as irrevocably elected by such
beneficiary) and such distributions commence in accordance
with (A) or (B) below (by which time such irrevocable election
must have been made):
(A) if such designated beneficiary is not the
Participant's surviving spouse, distributions must
commence no later than on (1) year after the
Participant's death or such later date as set forth in
regulations under the Code;
(B) if the designated beneficiary is the
Participant's surviving spouse, distributions must
commence by the later of the date in paragraph
(b)(3)(ii)(A) above or the date on which the Participant
would have attained age 70-1/2 or such later date as set
forth in regulations under the Code.
For purposes of this subparagraph (b)(3)(ii), life expectancy
shall not exceed the period computed by the use of the return
multiples
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specified in Section 1.72-9 of the Regulations under the Code.
For purposes of this calculation, a beneficiary must be
designated within the 90 day period before the date on which
payments are to commence and, upon the election by the spouse
beneficiary, the life expectancy of a surviving spouse who is
a designated beneficiary shall be recalculated annually;
however, in the case of any other designated beneficiary, such
life expectancy will be calculated at the time payment first
commences without further recalculation. The above election
shall be made by a beneficiary no later than the earlier of
(I) December 31st of the calendar year in which distribution
would be required to commence in order to satisfy the
requirement for the exception to the five year rule in Code
Section 401(a)(9)(B)(iii) and (iv) or (II) December 31st of
the calendar year which contains the fifth (5th) anniversary
of the date of death of the Employee. A beneficiary shall be
deemed to have made the irrevocable election described in
paragraph (b)(3)(ii) above if benefits commence pursuant to a
method applicable to such election.
(iii) If such surviving spouse dies before payments are
made or must commence to such spouse under paragraph
(b)(3)(ii)(B) above, subsequent distributions shall be made as
if such surviving spouse had been the Participant, with all of
the distribution rules relevant to such a distribution under
this paragraph (b)(3) being applicable, except that paragraph
(b)(3)(ii)(B) shall not then apply.
(iv) If such surviving spouse dies after such payments
have begun or must commence under paragraph (b)(3)(ii)(B)
above, subsequent distributions will continue to be
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made at least as rapidly as under the method of distribution
being used immediately prior to such surviving spouse's death.
(v) For purposes of this paragraph (b)(3), any amount
paid to a child of the Participant will be treated as if it
had been paid to the surviving spouse of such Participant if
the amount becomes payable to such surviving spouse when such
child reaches the age of majority or as the result of any
other designated event permitted under regulations under the
Code.
(4) Paragraphs (b)(2) and (b)(3) shall not apply to a
Participant or such Participant's beneficiary, in the event that a
proper and timely election has been made by such Participant in
accordance with Section 242(b) of the Tax Equity and Fiscal
Responsibility Act of 1982 (as in effect prior to the enactment of
the Deficit Reduction Act of 1984) so long as such election is in
effect.
(c) No amounts held in a Participant's Elected Employer Contribution
Account or Qualified Employer Contributions and Matching Contributions
treated as Elected Employer Contributions shall be distributable prior to
the earlier of:
(1) his termination of employment, permanent and total
disability, or death;
(2) his attainment of age 59-1/2;
(3) termination of the Plan without establishing, within 12
months of such termination and benefit distribution, or designating
an existing plan as a successor plan by any Employer or Related
Employer; for this purpose the term "successor plan" shall mean
another defined contribution plan (other than an employee stock
ownership plan as defined in Code Section 4975(e)(7));
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(4) the date of the sale by an Employer to an entity that is
not a Related Employer of substantially all of its assets (within
the meaning of Code Section 409(d)(2)) with respect to a Participant
who continues employment with the corporation acquiring such assets;
(5) the date of the sale by an Employer or a Related Employer
of its interest in a subsidiary (within the meaning of Code Section
409(d)(3)) to an entity which is not a Related Employer with respect
to a Participant who continues employment with such subsidiary; or
(6) proven hardship; such distribution shall be subject to
Section.
(d) If a Participant's regularly scheduled date of distribution
occurs prior to the date of his death or attainment of his Normal
Retirement Date, distribution of benefits due hereunder shall be delayed
until the later of (1) normal retirement age, or (2) the date the
Participant attains age 62, unless the Participant elects and, if
applicable, the Participant's spouse, if any, consents to an earlier
distribution date permitted under the Plan and such spousal consent
acknowledges the effect of such consent and is witnessed by a Plan
representative or notary public; provided that no such election and
consent shall be required and such an earlier distribution shall be made
on the regularly scheduled date of distribution in the event that the
present value of such distributable benefits does not exceed, effective
January 1, 1998, $5,000 and benefit payments have not commenced. Elections
and consents to be valid must be in writing and given not less than 30 nor
more than 90 days before commencement of distribution and such spousal
consents shall be irrevocable. The rules regarding spousal consents under
Section shall also apply. If a distribution is one to which Code Sections
401(a)(11) and 417 do not apply, such distribution may commence less than
30 days after the notice required under Section 1.411(a)-11(c) of the
Income Tax Regulations is given, provided that:
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(1) the Plan Administrator clearly informs the Participant
that the Participant has a right to a period of at least 30 days
after receiving the notice to consider the decision of whether or
not to elect a distribution (and, if applicable, a particular
distribution option), and
(2) the Participant, after receiving the notice, affirmatively
elects a distribution.
If a distribution is subject to Code Sections 401(a)(11) or 417, a
Participant after having received the written explanation a qualified
joint and survivor annuity ("QJSA") elects a form of distribution and the
Participant's spouse consents to that form of distribution, if necessary,
the annuity starting date may be less than 30 days after the written
explanation if:
(I) the Plan Administrator clearly informs the Participant that the
Participant has at least 30 days to consider whether to waive the
QJSA and consent to a form of distribution other than the QSJA,
(II) the Participant is permitted to revoke an affirmative
distribution election at least until the annuity starting date, or
if later, the expiration of the 7 day period beginning on the day
after the notice of QJSA was provided to the Participant,
(III) the annuity starting date is after the date that the
explanation of QJSA is provided to the Participant (except as
otherwise provided by Code Section 417(a)(7) for Plan Years
beginning after December 31, 1996), and
(IV) distribution does not commence prior to the expiration of the 7
day period described in II above.
(e) Nothing in this Plan shall prevent the use of a Participant's
benefits (regardless of amount) to repay loans made or renegotiated
hereunder after August 18, 1985 for which such benefits were held as
security.
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Section 7.5 Distributions to Persons Under Disability. If and whenever any
distributions are to be made hereunder to any person under legal or other
disability and whom the Committee finds is unable properly to administer such
amounts, then such distributions shall be made for the benefit of such person in
such of the following ways as the Committee deems best: (i) directly to such
person; (ii) to the legally appointed guardian or conservator of such person;
(iii) to some near relative or friend to be expended for the benefit of such
person with or without liability to account to the Committee or the Trustee; or
(iv) by the Trustee using such amounts directly for the benefit of such person
as the Committee by general or specific instructions may direct. Every such
distribution shall be deemed a distribution or payment for the account of such
person, and shall be a complete discharge of any liability of the Plan and the
Committee and the Trustee therefor.
Section 7.6 Re-Employment. If a Participant receiving or entitled to
receive benefits under the Plan is reemployed by an Employer on a full-time
basis (as determined by the Committee) in the performance of ERISA Section
203(a)(3)(B) service (as defined under regulations duly promulgated under
ERISA), that Employer shall notify the Committee and the Trustee of such
re-employment within ten (10) days following the date thereof. Upon receipt of
notice of reemployment, the Trustee shall cease making disbursements of
undistributed benefits under this Plan and Trust to such reemployed former
Participant so long as he continues to be so employed. During the reemployment
period, the Participant shall again participate in the Plan provided he
otherwise meets the requirements for eligibility to so participate. On the
Participant's subsequent termination of such employment the amount of his
benefit shall be redetermined in accordance with the provisions of the Plan as
then in effect. Notwithstanding the foregoing, in no event shall the vested
percentage of the Participant's Accounts payable to such Participant on a
subsequent termination of employment be in the percentage that is less than the
percentage that he was receiving, or entitled to receive, as of the date next
preceding his date of reemployment by that Employer. Furthermore, under no
circumstances shall benefits paid or accrued for an Employee who is so
reemployed exceed the benefits to which such Employee would have been entitled
under the Plan had such Employee not previously terminated his employment with
an Employer. In all events, any such suspension of benefits permitted under this
Section 7.6 shall be accomplished under the Plan in conformity with
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the requirements set forth in Department of Labor Regulation Section 2530.203-3,
as such is now or hereafter in effect or any successor thereto, and pursuant to
procedures established by the Plan Administrator in accordance with such
Regulation. Nothing herein shall be deemed to affect the right of any
re-employed former Participant to make withdrawals of his voluntary
contributions as permitted under Article.
Section 7.7 Notices to Participants and Beneficiaries, and Distribution of
Unclaimed Amounts. Each Participant, including beneficiaries of a deceased
Participant, shall file with the Committee from time to time in writing his post
office address and each change of post office address; and any communication,
statement, or notice by the Committee or the Trustee addressed to a Participant
or beneficiary at his last post office address filed with the Committee (or if
no such address is filed with the Committee, then at his last post office
address as shown on the records of the Employer), shall be deemed given when
mailed by first class mail and shall be binding on the Participant and his
beneficiary for all purposes of the Plan. Neither the Committee nor the Trustee
shall be obliged to search for or ascertain the whereabouts of any Participant
or beneficiary. If the Committee notifies any Participant or beneficiary of a
deceased Participant that he is entitled to a distribution and also notifies him
of the following provision of this Section , and such Participant or beneficiary
fails to claim the balance of any account or make his whereabouts known to the
Committee within three years thereafter, the balance of the accounts of such
Participant or beneficiary shall be disposed of as follows:
(a) if the whereabouts of such Participant's beneficiary is known to
the Committee, distribution shall be made to such beneficiary;
(b) if the whereabouts of such Participant and his beneficiary then
is unknown to the Committee, but the whereabouts of one or more of the
next of kin or surviving spouse of such Participant is known to the
Committee, the Committee may cause distribution of the balance of such
Participant's accounts to be made to any one or more or all of such next
of kin and surviving spouse and in such proportions as the Committee
determines; and
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(c) if the Committee then does not know the whereabouts of such
Participant, his surviving spouse, any of his next of kin or his
beneficiary, the balance of the accounts of such Participant or
beneficiary thereupon shall be reduced to zero and the amount of such
reduction will be escheated under the applicable law of the State of
Illinois.
Section 7.8 Withholding of Taxes. The Trustee may withhold or require the
withholding from any distribution pursuant to the Plan, such sum as the Trustee
may reasonably estimate as necessary to cover any taxes for which the Trustee
may be liable or required to withhold, which are or may be assessed with regard
to such distribution, and may pay such taxes from the sums so withheld. Upon
discharge or settlement of obligations with respect to such taxes, the balance,
if any, of such sum so withheld in an account of a Participant shall be
distributed to the distributee from whose distribution it was withheld or, if
such distributee is then deceased, as provided in Section. Prior to the making
of any distribution hereunder, the Trustee may require such releases or other
documents from any taxing authority, or may require such indemnity and surety
bond, as the Trustee shall reasonably deem necessary or advisable for its
protection.
Section 7.9 Withdrawals by Participants.
(a) AGE RELATED RULES.
(1) Upon the application of any Participant who is fifty-nine
and one-half (59-1/2) years of age or older, the Committee, on forms
and subject to rules established from time to time by the Committee
and applied on a uniform, non-discriminatory basis, may direct the
Trustee to permit such Participant to withdraw all or any portion of
his Accounts, but not in excess of the balance of the applicable
Accounts as adjusted on the accounting date coincident with or next
preceding the receipt and approval of such application for
withdrawal, at any time.
Notwithstanding any provisions of the Plan to the contrary, no
provision in this Plan shall be construed in a manner that limits
the ability of a
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non-salaried Employee from making in-service, age-related
withdrawals under the Plan.
(2) Any withdrawal by a Participant which is permitted under
the provisions of this Section due to the age of such Participant
shall be directed by the Committee only upon satisfactory evidence
of such age, as determined by the Committee, being presented by such
Participant to the Committee concurrently with his written
application.
(3) Notwithstanding any of the foregoing provisions of this
Section , if a Participant's Account has amounts which pursuant to
Code Section 401(a)(11) are subject to the joint and survivor
annuity or pre-retirement survivor annuity requirements, any such
withdrawal must be consented to in writing by the Participant's
spouse, if any, within the ninety (90) day period prior to the date
of withdrawal, absent which such withdrawal application shall not be
granted. Such consent shall be irrevocable with respect to the
withdrawal application in connection with which it was given. Such
spouse's consent must acknowledge the effect of such withdrawal and
be notarized or witnessed by a Plan representative. Such consent
with respect to a certain spouse shall not be required if it is
established to the satisfaction of the Committee that the required
consent cannot be obtained because there is no spouse, the spouse
cannot be located, or other circumstances that may be prescribed by
regulations under the code. The Committee may rely in good faith
upon a spousal consent which is valid on its face, or upon the
certification by the Participant that such consent cannot be
obtained for one of the reasons provided above, without liability to
any spouse. Such a withdrawal application made by the Participant,
whether or not required to be consented to by his spouse, may be
revoked by the Participant in writing without the consent of the
spouse at any time prior to the date of withdrawal. Any new
withdrawal application must comply with the
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requirements of this paragraph. A former spouse's consent shall not
be binding on a new spouse. Any such consent shall be on forms
provided by the Committee.
(b) HARDSHIP WITHDRAWAL RULES.
Effective January 1, 1997, hardship withdrawals under the Plan
are not permitted.
(c) FREQUENCY OF WITHDRAWALS. Effective July 1, 1994, there is no
limitation on the frequency that withdrawals may be made, however, all
other conditions, restrictions or limitations on particular withdrawals
remain in effect. Withdrawals which satisfy the criteria under the Plan
relating to such withdrawals are deducted from a Participant's Accounts
(to the extent available and applicable).
Withdrawals are deducted on a pro-rata basis from each investment
fund.
Section 7.10 Cash-Outs. Notwithstanding any of the foregoing provisions of
this Article 7 dealing with the various forms of benefit payment, the Committee
shall make a lump sum payment in full settlement of the Participant's benefit
under the Plan if the total vested benefit on the date of distribution is not
more than $5,000 ($3,500 for Plan Years beginning prior to January 1, 1998);
provided, if the Participant's vested benefit exceeded $5,000 ($3,500 for Plan
Years beginning prior to January 1, 1998) at the time of a distribution of the
Participant's vested benefit, then for purposes of this cash out provision the
Participant's vested benefit at any subsequent time shall be deemed to exceed
$5,000 ($3,500 for Plan Years beginning prior to January 1, 1998). For purposes
of this Section 7.10, if the value of the Participant's Account balance is zero,
the Participant shall be deemed to have received a distribution of such Account
balance. Such a lump sum payment shall satisfy the liability of the Employers,
Committee and Trustee in full such that if the Participant were to be
subsequently reemployed by an Employer, he would be treated, for purposes of
determining his Years of Service, as a new Employee. For years beginning after
December 31, 1984, no such distribution may be made after the payment of
benefits has
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commenced unless the Participant (and, the Participant's spouse if the payments
are being made in the form of an annuity or the Participant's surviving spouse
if the Participant has died) consent(s) in writing to such distribution.
Section 7.11 Alternate Payees. All rights and benefits, including
elections, provided to a Participant in this Plan shall be subject to the rights
afforded to any "alternate payee" under, and otherwise generally to the
provisions of, a "qualified domestic relations order" as those terms are defined
in Code Section 414(p). To the extent that the Plan treats a former spouse of a
Participant as the spouse of such Participant for purposes of Code Sections
401(a)(11) and 417 pursuant to a qualified domestic relations order, the actual
spouse of such Participant shall not be treated as the spouse of such
Participant for such purposes. The Plan shall not be treated as failing to meet
its distribution restrictions which are included pursuant to Code Sections
401(a) or (k) solely by reason of payments to an alternate payee pursuant to a
qualified domestic relations order. Solely for purposes of distributing benefits
to an alternate payee pursuant to a qualified domestic relations order, the
earliest retirement date of a Participant against whom such order is enforceable
shall be the date that such order is determined to be qualified.
If an alternate payee is awarded all or a portion of a Participant's
vested Accrued Benefit pursuant to an order which is determined to be a
qualified domestic relations order, then, as of the valuation date next
succeeding the date that the order is determined to be qualified domestic
relations order (the "Allocation Date"), the amount awarded to the alternate
payee shall be administered in accordance with the terms of the Plan and, unless
provided otherwise in the qualified domestic relations order, shall (i) be taken
proportionately from the assets of each investment fund (based on the ratio of
the Participant's fund balance to his total fund balances) and (ii) be taken
from the separate accounts of the Participant as determined pursuant to
procedures adopted from time to time by the Plan Administrator in its sole
discretion and shall be allocated to and held in a separate account under the
Plan in the name of the alternate payee. If after being notified that the order
is a qualified domestic relations order, the alternate payee does not properly
request a distribution of the entire award prior to the Allocation Date (or, if
the Alternative Payee is notified of such determination after
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the Allocation Date), then the portion of the award which is not subject to such
a distribution request shall, as of the Allocation Date (if administratively
feasible), be invested in the investment fund in which contributions of
Participants who have failed to make their contribution investment elections are
invested until such time as the alternate payee makes a valid account investment
election. An alternate payee shall be entitled to make an account investment
election in the same manner as a Participant or beneficiary under the Plan
beginning with the January 1st or July 1st next succeeding the Allocation Date
or effective July 1, 1994, as soon as administratively feasible following the
Allocation Date. The separate account shall be credited with any income,
earnings, and other appreciation, as well as losses and depreciation,
attributable to the assets of such account. An alternate payee may not select a
joint and survivor annuity form of payment based on the life of the alternate
payee and the life of the alternate payee's subsequent spouse.
The portion of any account which has been awarded to an alternate payee
under a domestic relations order shall not be distributed, withdrawn, borrowed
or transferred during the period in which the qualified status of the order is
being determined and if necessary, such amounts shall be segregated, as required
by Code Section 414(p)(7), pursuant to procedures adopted from time to time in
the discretion of the Committee and/or the Plan Administrator.
Section 7.12 Designation of Beneficiary. Each Participant, former
Participant and alternate payee may designate (on forms provided by, and filed
with, the Committee) the beneficiary or beneficiaries of any benefits hereunder
upon his or her death, and may in such designation direct the mode of payment of
such benefits by electing one or more of the methods of distribution set forth
in Section 7.3 hereof (subject to the limitations set forth in Section above),
and may similarly change such beneficiary designations or mode of payment from
time to time, or, by written notice to the Committee, may revoke the same;
PROVIDED THAT, the surviving spouse of the Participant shall be such beneficiary
(and the Participant shall be deemed to have designated such surviving spouse as
sole beneficiary for purposes of the Plan) unless the Participant has designated
someone other than or in addition to such surviving spouse and such surviving
spouse has irrevocably consented in writing to such designation, as hereinafter
provided. Such surviving spouse's consent must acknowledge the effect of such
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designation and be notarized or witnessed by a Plan representative. Such consent
shall not be required if it is established to the satisfaction of the Committee
that the consent cannot be obtained because there is no spouse, the spouse
cannot be located, or under the circumstances applicable law does not require
such consent. The Committee may rely in good faith upon a spousal consent which
is valid on its face. Such a designation made by the Participant, whether or not
required to be consented to by the surviving spouse, may be revoked by the
Participant in writing without the consent of the spouse at any time prior to
such Participant's death. Any new designation must comply with the requirements
of this paragraph. A former spouse's consent shall not be binding on a new
spouse.
Except as may result from application of the provisions of Section ,
beneficiaries shall not be entitled to participate in the contributions of the
Employers or forfeitures. Any death benefits payable hereunder, to the extent
not disposed of by a valid beneficiary designation on file with the Committee,
shall be distributed by the Trustee:
(a) to the surviving spouse of the deceased Participant, or
(b) if there is no such surviving spouse, then to the descendants of
the Participant per stirpes; or
(c) if there is no surviving spouse or descendant of the deceased
Participant, then to the estate of the deceased Participant.
Section 7.13 1989 Merged Plans' Special Rules. Any amounts attributable to
accounts held under the Bank of Lisle Employees' Salary Savings Plan (the "Lisle
Plan") or the Bank of Westmont Profit Sharing Plan (the "Westmont Plan") which
become assets of the Trust as a result of the merger of such other plans into
this Plan shall be fully vested and accounted for separately (to the extent such
separate accounting is deemed necessary or appropriate for the administration of
the Plan). Such amounts, as adjusted under Section ("1989 Merged Amounts"),
generally shall be distributed or withdrawn at such times and in such form and
manner as otherwise provided under the Plan except that the following additional
provisions, (even if inconsistent with other provisions of this Plan) shall
apply to the 1989 Merged Amounts:
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(a) In the case of Participants who are former participants in the
Westmont Plan, any such Participant may elect to postpone the distribution
of his 1989 Merged Amount to the later of his Normal Retirement Date or
date of termination of employment, subject to the mandatory distribution
provisions applicable under Section ;
(b) In the case of Participants who are former participants in the
Lisle Plan:
(1) any such Participant may elect to postpone distribution of
his 1989 Merged Amount to a later date subject to the mandatory
distribution provisions applicable under Section ;
(2) any such Participant's 1989 Merged Amount (including the
income, gains and losses, whether realized or unrealized,
attributable thereto) shall be distributed to the Participant or his
beneficiary, as the case may be, under the following rules:
(i) in the case of a Participant (other than a deceased
Participant) who is married on the date on which his benefits
are to commence hereunder, such Participant's 1989 Merged
Amount from his Rollover Account shall be payable in the form
of a Joint and Survivor Annuity which shall be an annuity
payable for such Participant's life and thereafter for the
life of his spouse, provided, that such Annuity shall provide
for payment of fifty percent (50%) of the initial monthly
benefit to the Participant's spouse; and provided, further,
that a Participant may elect not to have his benefit payable
in the form of a Joint and Survivor Annuity (and may revoke or
reinstate any such election) if such election (or revocation)
is made in writing on a form provided by the Plan
Administrator and filed with the Plan Administrator within
ninety (90) days prior to the date on which such Annuity is
payable.
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Any such election must be consented to in writing by the
Participant's spouse within such ninety (90) day period to be
effective and must designate a beneficiary and form of
benefits which may not be changed without spousal consent
(unless the consent of the spouse expressly permits
designations by the Participant without any requirement of
further spousal consent), which consent shall be irrevocable
with respect to the election in connection with which it was
given. Such spouse's consent must acknowledge the effect of
such election and be notarized or witnessed by a Plan
representative. Such consent with respect to a certain spouse
shall not be required if it is established to the satisfaction
of the Plan Administrator that the required consent cannot be
obtained because there is no spouse, the spouse cannot be
located, or other circumstances that may be prescribed by
regulations under the Code. The Plan Administrator may rely in
good faith upon a spousal consent which is valid on its face,
or upon the certification by the Participant that such consent
cannot be obtained for one of the reasons provided above,
without liability to any spouse. Such an election made by the
Participant, whether or not required to be consented to by his
spouse, may be revoked by the Participant in writing without
the consent of the spouse at any time during said ninety (90)
day period. Any new election must comply with the requirements
of this paragraph. A former spouse's consent shall not be
binding on a new spouse. Within a reasonable period of time
(i.e., no less than thirty (30) and no more than ninety (90)
days) prior to the date on which a Participant's annuity is to
commence hereunder the Plan Administrator shall furnish such
Participant with a general written explanation of (A) the
terms and conditions of the Joint and Survivor Annuity,
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(B) the Participant's right to make, and the effect of an
election to waive, the Joint and Survivor Annuity, (C) the
right of the Participant's spouse to consent to any election
to waive the Joint and Survivor Annuity, and (D) the right of
the Participant to revoke such election, and the effect of
such revocation.
(ii) In the case of a Participant to whom paragraph (i)
does not apply, solely because the Participant is not married
on the date on which his benefits are to commence hereunder,
such Participant's 1989 Merged Amount shall be payable in the
form of a single life annuity to the Participant for such
Participant's lifetime (i.e. substantially equal annual or
more frequent installments over such life) with no further
payments being made after the death of the Participant;
provided that such Participant may elect not to have his 1989
Merged Amount payable in the form of a single life annuity
(and may revoke or reinstate any such election) if such
election (or revocation) is made in writing on a form provided
by the Plan Administrator and filed with the Plan
Administrator not less than ninety (90) days prior to the date
on which such annuity is payable.
(iii) unless otherwise elected as provided below, a
Participant with a vested benefit under the Plan who dies
before his benefits are to commence hereunder and who has a
surviving spouse shall have a portion of his 1989 Merged
Amount equal to fifty percent (50%) of the Participant's 1989
Merged Amount as of the Participant's date of death (without
regard to reductions due to otherwise permissible Plan loans
where Account(s) are used as security and without regard to
vesting due to the Participant's
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death) paid to his surviving spouse in the form of a
Pre-Retirement Survivor Annuity which shall be an annuity
payable to the Participant's surviving spouse for the life of
such surviving spouse. Any election to waive the
Pre-Retirement Survivor Annuity must be made by the
Participant in writing during the election period and shall
require the spouse's consent in the same manner provided for
the spouse's consent to a Participant's election to waive the
Joint and Survivor Annuity form of benefit, with such consent
also being irrevocable as provided above. The election period
to waive the Pre-Retirement Survivor Annuity shall begin on
the first day of the Plan Year in which the Participant
attains age 35 and end on the date of the Participant's death.
In the event such Participant separates from service prior to
the beginning of the election period, the election period
shall begin on the date of such separation from service. With
regard to the election, the Plan Administrator shall provide
each Participant a written explanation of the Pre-Retirement
Survivor Annuity containing comparable information to that
required for Joint and Survivor Annuities. Such notice shall
be given to a Participant within whichever one of the
following periods ends last (and consistent with regulations):
(A) The period beginning on the first day of the
Plan Year in which the Participant attains age 32 and
ending on the last day of the Plan Year preceding the
Plan Year in which the Participant attains age 35;
(B) A reasonable period after the individual
becomes a Participant;
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(C) A reasonable period ending after the survivor
benefit applicable to the Participant is no longer fully
subsidized (as defined in Code Section 417(a)(5));
(D) A reasonable period ending after the survivor
benefit provisions of Code Section 401(a)(11) become
applicable to the Participant; or
(E) A reasonable period after separation from
service in the case of a Participant who so separates
before attaining age thirty-five (35).
The surviving spouse may, in accordance with Article , elect
an alternative form of distribution provided under such Article. The
remaining portion of the Participant's 1989 Merged Amount will be
distributed in accordance with Section 7.3 by payment in the form of
a single life annuity to the Participant or beneficiary, as the case
may be, for such Participant's or beneficiary's lifetime as elected
by the Participant or beneficiary, as the case may be (i.e.
substantially equal annual or more frequent installments over such
life) with no further payments being made after the death of the
Participant or beneficiary. A Pre-Retirement Survivor Annuity shall
be treated as attributable to voluntary contributions in the same
proportion which the voluntary contributions are to the total
benefit of the Participant.
(c) Any such Participant who elects pursuant to paragraph 7.13(b)(2)
not to have his 1989 Merged Amount payable in the form of a Joint and
Survivor Annuity, shall be entitled to receive the distribution of his
1989 Merged Amount in cash or in kind.
In addition, any such special provisions as are required in order to
comply with the provisions of Code Section 411(d)(6) shall
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apply to the 1989 Merged Amounts of former participants of the Westmont Plan and
the Lisle Plan.
Section 7.14 AMRO Prior Plan's Special Rules. Any amounts attributable to
accounts held under the AMRO Prior Plan which become assets of the Trust as a
result of the merger of the AMRO Prior Plan into this Plan shall be fully vested
and treated and accounted for separately (to the extent such separate accounting
is deemed necessary or appropriate for the administration of the Plan). Such
amounts, as adjusted under Section ("AMRO Merged Amounts"), except that, the
following provisions (even if inconsistent with other provisions of the Plan)
shall apply to any Participant who is a former participant in the AMRO Prior
Plan with respect to the AMRO Merged Amounts:
(a) the AMRO Merged Amounts will be distributed to any such
Participant in the form and subject to the same conditions as are set
forth in Section 7.13(b)(2) with respect to the 1989 Merged Amount of any
former participant in the Lisle Plan. However, a former participant in the
AMRO Prior Plan, with proper spousal consent if required, may elect, in
lieu of the distribution of his AMRO Merged Amount in a form provided
under Section 7.13(b)(2) pursuant to uniform rules established by the Plan
Administrator to have his AMRO Merged Amount distributed in any one of the
following forms:
(1) a single life annuity with a period certain of 5 or 15
years or with an installment refund feature;
(2) a joint and survivor annuity with a survivorship
percentage of fifty percent (50%) or one hundred percent (100%) and
an installment refund feature;
(3) a fixed period annuity of no less than 5 years and no
greater than the joint and survivor life expectancy of the
Participant and his beneficiary;
(4) annual or more frequent installments with such installment
period not to extend beyond
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the date which falls at the end of the period which is equal to the
Participant's life expectancy or the joint life and last survivor
expectancy of the Participant and his beneficiary (as then
determined in accordance with tables published under Regulations
applicable to Code Section 72), and with distribution to be made to
the Participant's beneficiaries after his death in a lump sum. The
minimum payment that must be made in the year in which distributions
must commence under Section and in all years thereafter shall be an
amount equal to the quotient obtained by dividing the Participant's
entire benefit by the life expectancy of the Participant. Joint and
survivor life expectancy can only be used in the event that the
beneficiary is the Participant's spouse; or
(5) in a manner permitted under Section 7.3.
The rules applicable under Section 7.3 in determining life
expectancy, minimum distributions, and other related matters shall apply
for purposes of this Section.
(b) In addition, any such special provisions as are required in
order to comply with the provisions of Code Section 411(d)(6) shall apply
to the AMRO Merged Amounts of former participants of the AMRO Prior Plan.
Section 7.15 EAB Prior Plan Special Rules. Any amounts attributable to
accounts held under an EAB Prior Plan which become assets of the Trust as a
result of the merger of the EAB Prior Plan into this Plan shall be fully vested
and accounted for separately (to the extent such separate accounting is deemed
necessary or appropriate for the administration of the Plan). Such amounts, as
adjusted under Section ("EAB Merged Amounts"), generally shall be distributed
and withdrawn at such times and in such manner as otherwise provided in the
Plan, except that, the following provisions (even if inconsistent with other
provisions of the Plan), subject to the provisions of applicable law, shall
apply to any Participant who is a former participant in the EAB Prior Plan with
respect to the EAB Merged Amounts:
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(a) The portions of a Participant's EAB Merged Amount which
represent the Participant's matching account balance and rollover account
balance under the EAB Prior Plan are subject to special withdrawal rules.
A Participant may elect to withdraw any or all of such matching account
balance and/or rollover account balance attributable to the EAB Prior
Plan, but not in excess of his available balance in such accounts (as
determined on the accounting date coinciding with or immediately preceding
the date of the Participant's election), subject to the frequency of
withdrawal limitation of Section 7.9(c); and
(b) Any such Participant upon Retirement (other than Disability
Retirement) may elect to postpone the distribution of his EAB Merged
Amount to a date not later than one year after his date of Retirement,
subject to the mandatory distribution provisions applicable under Section
.
Section 7.16 Talman Prior Plan Special Rules. Any amounts attributable to
accounts held under a Talman Prior Plan which become assets of the Trust as a
result of the merger of the Talman Prior Plan into this Plan shall be fully
vested and accounted for separately (to the extent such separate accounting is
deemed necessary or appropriate for the administration of the Plan). Such
amounts, as adjusted under Section ("Talman Merged Amounts"), generally shall be
described and withdrawn at such time and in such form and manner as otherwise
provided in the Plan, except that, subject to the frequency of withdrawal
limitation of Section 7.9(c) (even if inconsistent with other provisions of the
Plan) and the provisions of applicable law, the portions of a Participant's
Talman Merged Amounts which represent voluntary after-tax contributions and
earnings thereon in the Participant's "Settlement A Account" (as defined under
Section A-2 of Supplement A of the Talman Prior Plan) are available for
withdrawal in the same manner as voluntary contributions under Section of this
Plan.
Section 7.17 Lease Plan Prior Plan Special Rules. Any amounts attributable
to accounts held under a Lease Plan Prior Plan which became assets of the Trust
as a result of the merger of the Lease Plan Prior Plan into this Plan shall be
fully vested and accounted for separately (to the extent such separate
accounting is deemed necessary or appropriate for the administration of the
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Plan). Such amounts, as adjusted under Section (the "Lease Plan Merged
Amounts"), generally shall be distributed and withdrawn at such time and in such
form and manner as otherwise provided in the Plan, except that the following
provisions (even if inconsistent with other provisions of the Plan), subject to
the provisions of applicable law, shall apply to any Participant who is a former
participant in the Lease Plan Prior Plan and who elects to receive his Lease
Plan Merged Amounts in the form of an annuity:
(a) in the case of a Participant (other than a deceased Participant)
who is married on the date on which distribution of his Lease Plan Merged
Amounts are to commence hereunder, such Participant's Lease Plan Merged
Amounts shall be payable in the form of a "Joint and Survivor Annuity"
(i.e. the normal form of payment) which shall be an annuity payable for
such Participant's life and thereafter for the life of his spouse,
provided, that such Annuity shall provide for payment of fifty percent
(50%) of the initial monthly benefit to the Participant's spouse; and
provided, further, that a Participant may elect not to have his Lease Plan
Merged Amounts payable in the form of a Joint and Survivor Annuity (and
may revoke or reinstate any such election) if such election (or
revocation) is made in writing on a form provided by the Plan
Administrator and filed with the Plan Administrator within ninety (90)
days prior to the date on which such Annuity is payable. Any such election
must be consented to in writing by the Participant's spouse within such
ninety (90) day period to be effective and must designate a beneficiary
and form of benefits which may not be changed without spousal consent
(unless the consent of the spouse expressly permits designations by the
Participant without any requirement of further spousal consent), which
consent shall be irrevocable with respect to the election in connection
with which it was given. Such spouse's consent must acknowledge the effect
of such election and be notarized or witnessed by a Plan representative.
Such consent with respect to a certain spouse shall not be required if it
is established to the satisfaction of the Plan Administrator that the
required consent cannot be obtained because there is no spouse, the spouse
cannot be located, or other circumstances that may be prescribed by
regulations under the Code. The Plan Administrator may rely in good faith
upon a spousal consent
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which is valid on its face, or upon the certification by the Participant
that such consent cannot be obtained for one of the reasons provided
above, without liability to any spouse. Such an election made by the
Participant, whether or not required to be consented to by his spouse, may
be revoked by the Participant in writing without the consent of the spouse
at any time during said ninety (90) day period. Any new election must
comply with the requirements of this paragraph. A former spouse's consent
shall not be binding on a new spouse. Within a reasonable period of time
(i.e., no less than thirty (30) and no more than ninety (90) days) prior
to the date on which a Participant's annuity is to commence hereunder the
Plan Administrator shall furnish such Participant with a general written
explanation of (i) the terms and conditions of the Joint and Survivor
Annuity, (ii) the Participant's right to make, and the effect of an
election to waive, the Joint and Survivor Annuity, (iii) the right of the
Participant's spouse to consent to any election to waive the Joint and
Survivor Annuity, and (iv) the right of the Participant to revoke such
election, and the effect of such revocation.
(b) In the case of a Participant to whom paragraph (a) does not
apply, solely because the Participant is not married on the date on which
distribution of his Lease Plan Merged Amounts are to commence hereunder,
such Participant's Lease Plan Merged Amounts shall be payable in the form
of a single life annuity (i.e. the normal form of payment) to the
Participant for such Participant's lifetime (i.e. substantially equal
annual or more frequent installments over such life) with no further
payments being made after the death of the Participant; provided that such
Participant may elect not to have his Lease Plan Merged Amounts payable in
the form of a single life annuity (and may revoke or reinstate any such
election) if such election (or revocation) is made in writing on a form
provided by the Plan Administrator and filed with the Plan Administrator
not less than ninety (90) days prior to the date on which such annuity is
payable.
(c) unless otherwise elected as provided below, a Participant with a
Lease Plan Merged Amount who dies before such benefit is to commence
hereunder and who has a
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surviving spouse shall have a portion of his Accounts equal to one hundred
percent (100%) of the Participant's Lease Plan Merged Amount as of the
Participant's date of death (without regard to reductions due to otherwise
permissible Plan loans where Account(s) are used as security and without
regard to vesting due to the Participant's death) paid to his surviving
spouse in the form of a Pre-Retirement Survivor Annuity which shall be an
annuity payable to the Participant's surviving spouse for the life of such
surviving spouse. Any election to waive the Pre-Retirement Survivor
Annuity must be made by the Participant in writing during the election
period and shall require the spouse's consent in the same manner provided
for the spouse's consent to a Participant's election to waive the Joint
and Survivor Annuity form of benefit, with such consent also being
irrevocable as provided above. The election period to waive the
Pre-Retirement Survivor Annuity shall begin on the first day of the Plan
Year in which the Participant attains age 35 and end on the date of the
Participant's death. In the event such Participant separates from service
prior to the beginning of the election period, the election period shall
begin on the date of such separation from service. With regard to the
election, the Plan Administrator shall provide each Participant a written
explanation of the Pre-Retirement Survivor Annuity containing comparable
information to that required for Joint and Survivor Annuities. Such notice
shall be given to a Participant within whichever one of the following
periods ends last (and consistent with regulations):
(i) The period beginning on the first day of the Plan
Year in which the Participant attains age 32 and ending on the
last day of the Plan Year preceding the Plan Year in which the
Participant attains age 35;
(ii) A reasonable period after the individual becomes a
Participant;
(iii) A reasonable period ending after the survivor
benefit applicable to the Participant is no longer fully
subsidized (as defined in Code Section 417(a)(5));
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(iv) A reasonable period ending after the survivor
benefit provisions of Code Section 401(a)(11) become
applicable to the Participant; or
(v) A reasonable period after separation from service in
the case of a Participant who so separates before attaining
age thirty-five (35).
A beneficiary may elect an alternative form of distribution
provided under such Section 7.3. A Pre-Retirement Survivor Annuity
shall be treated as attributable to voluntary contributions in the
same proportion which the voluntary contributions are to the total
benefit of the Participant.
(d) a Participant may elect the following additional forms of
benefit with respect to his Lease Plan Merged Amount:
(i) An annuity for the life of the Participant;
(ii) An annuity for the life of the Participant and, upon his
death, one hundred percent (100%), sixty-six and two thirds percent
(66-2/3%) or fifty percent (50%) of the annuity amount to a
contingent annuitant with no benefit payable after the death of both
the Participant and contingent annuitant;
(iii) An annuity for the joint lives of the Participant and
his joint annuitant with one hundred percent (100%), sixty-six and
two thirds percent (66 2/3%) or fifty percent (50%) of such amount
payable as an annuity for the life of the survivor with no benefit
payable after the death of both the Participant and the joint
annuitant;
(iv) An annuity for the life of the Participant payable in
monthly installments with the guarantee that the Participant and his
beneficiary
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on a combined basis will receive 60 or 120 payments, as elected by
the Participant.
(v) An annuity for the life of the Participant with a lump sum
payable upon the Participant's death to his beneficiary equal to the
Participant's account balance upon retirement reduced by the sum of
the monthly payments made to the Participant prior to the
Participant's death.
Section 7.18 Pierson Prior Plan Special Rules. Any amounts attributable to
accounts held under the Pierson Prior Plan which become assets of the Trust as a
result of the merger of the Pierson Prior Plan into this Plan shall be fully
vested and accounted for separately (to the extent deemed necessary or
appropriate for the administration of the Plan). Such amounts, as adjusted under
Section (the "Pierson Merged Amounts"), generally shall be distributed and
withdrawn at such time and such form and manner as otherwise provided in the
Plan.
Any and all elections of a Participant who was a participant in the
Pierson Prior Plan, including, but not limited to, elections regarding
contributions and investments shall be deemed elections of such Participant
under this Plan and shall remain in effect until revoked or changed.
Section 7.19 Loans to Participants.
(a) Upon the application of a Participant or a beneficiary who is a
party in interest under Section 3(14) of ERISA, the Committee may, in its
sole discretion, authorize a loan to such Participant from the Trust. A
Participant may have only one loan outstanding during any calendar quarter
and no consolidation of loans shall be allowed. A loan may be granted for
any legal purpose subject to the limitations set forth herein.
Notwithstanding the foregoing to the contrary, effective January 1, 1997,
a Participant (or, if applicable, beneficiary) may have two loans
outstanding under the Plan.
(b) Loans shall be made on such terms as the Committee may from time
to time prescribe, which terms shall
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be applied on a uniform and non-discriminatory basis and subject to the
following rules:
(i) The loan shall be evidenced by a note and shall bear
a reasonable rate of interest as determined by the Committee
which may take into account the LaSalle National Bank prime
rate or a similar bank's prime rate;
(ii) The loan shall provide for level amortization, with
payments to be made not less frequently than quarterly, by
payroll deductions or any other method approved by the
Committee, over a period not to exceed 5 years (except for
loans used to acquire a dwelling unit to be used as the
principal residence of the Participant as determined under the
applicable provisions of the Code);
(iii) The loan shall be secured by the maximum
permissible amount of the Participant's Plan accounts (but not
in excess of fifty percent (50%) of such account balance at
the time of the loan) and such other security as the Committee
in its discretion deems appropriate;
(iv) Loans shall be deemed to be a special investment
for the exclusive benefit of the Participant requesting such
loan. A separate account will be maintained for such
investment and any earnings or losses will be debited or
credited to such account as the case may be. Loan repayments
will be invested according to the current contribution
investment election of the Participant;
(v) In the event a loan is outstanding at the time a
Plan benefit is to be distributed, such loan will be assigned
or
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transferred to the Participant as part of the distribution. If
the unpaid balance of the loan, including any unpaid interest,
is greater than the benefit to be distributed to the
Participant, then the remaining balance of such loan and
interest shall be charged against any property pledged as
security with respect to such loan. Any offset of an accrued
benefit by the amount of a Plan loan that is in default shall
not occur prior to the date that amounts may be distributed
under Section 7.4(c).
(c) Effective January 1, 1997, the amount of any loan when added to
the outstanding balance of all other loans of the Participant shall not
exceed fifty percent (50%) of the aggregate balance of the Participant's
(or, if applicable, beneficiary's) Accounts determined as of the
accounting date preceding the date the loan was authorized.
Notwithstanding the foregoing, no loan when added to the outstanding
balance of all other loans may exceed $50,000 reduced by the highest
outstanding balance of loans from the Plan to the Participant (or, if
applicable, the beneficiary) during the one-year period ending on the day
before the date on which such loan is made. For purposes of this Section ,
any loan which is modified, renewed or extended shall be deemed to be a
loan made as of that date.
(d) Loans made in accordance with this Section may not be made in
amounts less than $1,000.00.
(e) Loans shall be made pursuant to procedures, limitations and
requirements set forth in participant loan guidelines (as may be in effect
and as amended from time to time) which are incorporated herein by
reference and are a part of the Plan.
(f) A default shall occur and the entire unpaid amount shall be due
and payable if any of the events of default set forth in the promissory
note occur.
(g) Notwithstanding the foregoing provisions of this Section 7.19,
if a Participant's Accounts are subject
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to the pre-retirement survivor annuity or joint and survivor annuity
requirements of Code Section 401(a)(11), then a loan request shall not be
granted unless the Participant's spouse, if any, consents in writing to
such loan.
(h) No loans shall be made to any shareholder-employer or
owner-employee. For purposes of this requirement, a "shareholder-employee"
means an employee or officer electing small business (Subchapter S)
corporation who owns (or is considered as owning within Code Section
318(a)(1)), on any day during the taxable year of the corporation, more
than five percent (5%) of the outstanding stock of the corporation. An
"owner-employee" means an individual who is a sole proprietor, or who is a
partner owning more than ten percent (10%) of either the capital or
profits interest of the partnership.
(i) If a valid spousal consent has been obtained in accordance with
paragraph (g) above, then, notwithstanding any other provision of this
Plan, the portion of the Participant's vested Account balance used as a
security interest held by the Plan by reason of a loan outstanding to the
Participant shall be taken into account for purposes of determining the
amount of the Account balance payable at the time of death or
distribution, but only if the reduction is used as repayment of the loan.
If less than one hundred percent (100%) of the Participant's vested
Account balance (determined without regard to the preceding sentence) is
payable to the surviving spouse, then the Account balance shall be
adjusted by first reducing the vested Account balance by the amount of the
security used as repayment of the loan, and then determining the benefit
payable to the surviving spouse.
(j) Plan loan repayments of principal and interest made by
Participants shall be credited as soon as administratively feasible
following (i) the payroll period in which such repayments were deducted
from the Participant's paycheck; or (ii) if repaid by means other than
payroll deduction, the date payment is otherwise received by the Trustee.
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(k) Plan loans originated under the Plan shall be charged, as soon
as administratively feasible after the loan is disbursed, to the accounts
from which such loans originated.
Section 7.20 Direct Rollovers.
(a) This Section 7.20 applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a distributee's election under this Section
7.20, a distributee may elect, at the time and in the manner prescribed by
the Committee, to have any portion of an eligible rollover distribution
paid directly to an eligible retirement plan specified by the distributee
in a direct rollover.
(b) For purposes of this Section 7.20, the following terms shall
have the meanings set forth below:
(i) "Eligible rollover distribution": An eligible rollover
distribution is any distribution of all or any portion of the
balance to the Accounts 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 annually) made for the life (or life expectancy) 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 Code Section 401(a)(9);
and the portion of any distribution that is not includible in gross
income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).
(ii) "Eligible retirement plan": An eligible retirement plan
is an individual retirement account described in Code Section
408(a), an individual retirement annuity described in Code Section
408(b), an individual retirement annuity described in Code Section
408(b), an annuity plan
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described in Code Section 403(a), or a qualified trust described in
Code Section 401(a), 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.
(iii) "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 Code Section 414(p), are distributees
with regard to the interest of the spouse or former spouse.
(iv) "Direct Rollover": A direct rollover is a payment by the
Plan to the eligible retirement plan specified by the distributee.
Section 7.21 Cragin Prior Plan Special Rules. Effective December 31, 1995,
any amounts attributable to amounts held under the Cragin Prior Plan which
become assets of the Trust as a result of the merger of the Cragin Prior Plan
into this Plan shall be fully vested and accounted for separately (to the extent
such separate accounting is deemed necessary or appropriate for the
administration of the Plan). Such amounts as adjusted under Section 6.3 ("Cragin
Merged Amounts"), generally shall be distributed and withdrawn at such time and
in such form and manner as otherwise provided in the Plan, except that the
following provisions (even if inconsistent with other provisions of the Plan),
subject to the provisions of applicable law, shall apply to a Participant's
Cragin Merged Amount (to the extent provided below):
(a) if such Participant has attained age fifty-five and
completed five (5) Years of Service but has not
separated from service, then he may at any time make a
one-time election to receive an in-service distribution
of his Cragin Prior Plan as determined on July 31, 1994
(as adjusted for earnings and losses) in
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a lump sum, except that such in-service withdrawal shall
not apply to the portion of such account attributable to
such Participant's Elected Employer Contribution Account
under the Cragin Prior Plan; and
Section 7.22 Horrigan Prior Plan Special Rules. Any amounts attributable
to accounts held under the Horrigan Prior Plan which became assets of the Trust
as a result of the spinoff of certain accounts under the Horrigan Prior Plan
into this Plan shall be fully vested and accounted for separately (to the extent
such separate accounting is deemed necessary or appropriate for the
administration of the Plan). Such amounts, as adjusted under Section (the
"Horrigan Transferred Amounts"), generally shall be distributed and withdrawn at
such time and in such form and manner as otherwise provided in the Plan, except
that the following provisions (even if inconsistent with other provisions of the
Plan), subject to the provisions of applicable law, shall apply to any
Participant who is a former participant in the Horrigan Prior Plan and who
elects to receive his Horrigan Transferred Amounts in the form of an annuity:
(a) in the case of a Participant (other than a deceased Participant)
who is married on the date on which distribution of his Horrigan
Transferred Amounts are to commence hereunder, such Participant's Horrigan
Transferred Amounts shall be payable in the form of a "Joint and Survivor
Annuity" which shall be an annuity payable for such Participant's life and
thereafter for the life of his spouse, provided, that such Annuity shall
provide a survivor annuity of fifty percent (50%) (unless the Participant
elects a greater percentage not in excess of 100%) of the initial monthly
benefit to the Participant's spouse; and provided, further, that a
Participant may elect not to have his Horrigan Transferred Amounts payable
in the form of a Joint and Survivor Annuity (and may revoke or reinstate
any such election) if such election (or revocation) is made in writing on
a form provided by the Plan Administrator and filed with the Plan
Administrator within ninety (90) days prior to the date on which such
Annuity is payable. The election, notice and spousal consent requirements
of Section 7.17(a) are also applicable with respect to this Section
7.22(a).
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(b) in the case of a Participant to whom paragraph (a) does not
apply, solely because the Participant is not married on the date on which
distribution of his Horrigan Transferred Amounts are to commence
hereunder, such Participant's Horrigan Transferred Amounts shall be
payable in the form of a single life annuity with a guaranteed ten year
period to the Participant; provided that such Participant may elect not to
have his Horrigan Transferred Amounts payable in the form of a single life
annuity with a guaranteed ten year period (and may revoke or reinstate any
such election) if such election (or revocation) is made in writing on a
form provided by the Plan Administrator and filed with the Plan
Administrator not less than ninety (90) days prior to the date on which
such annuity is payable.
(c) unless otherwise elected as provided below, a Participant with
Horrigan Transferred Amounts who dies before such benefit is to commence
hereunder and who has a surviving spouse shall have a portion of his
Accounts equal to one hundred percent (100%) of the Participant's Horrigan
Transferred Amounts as of the Participant's date of death (with regard to
reductions due to otherwise permissible Plan loans where Horrigan
Transferred Amounts are used as security only if the reduction is used as
a loan repayment) paid to his surviving spouse in the form of a
Pre-Retirement Survivor Annuity which shall be an annuity payable to the
Participant's surviving spouse for the life of such surviving spouse. Any
election to waive the Pre-Retirement Survivor Annuity must be made by the
Participant in writing during the election period and shall require the
spouse's consent, and such consent shall be irrevocable, in the same
manner provided for the spouse's consent to a Participant's election to
waive the Joint and Survivor Annuity form of benefit. The election period
to waive the Pre-Retirement Survivor Annuity under this Section 7.22(c) is
the same period described in Section 7.17(c).
A beneficiary may elect an alternative form of distribution provided under
such Section 7.3.
(d) a Participant may elect the following additional forms of
benefit with respect to his Horrigan Transferred Amounts:
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(i) an annuity for the life of the Participant or Beneficiary
of any type issued by an insurance company provided that such type
was available at the time of the transfer to the Plan of the
Horrigan Transferred Amounts under Section 11.15 hereof;
(ii) in installments over a period of years as provided in
Section 7.3(b) but payable in cash or by distribution of an annuity
term certain contract.
Section 7.23 Disposition of Certain Payments. Any form of payment of a
Participant's Accounts hereunder payable in the form of an annuity (or, in the
form of installments with respect to Horrigan Transferred Amounts), may be made
by the Trustee (i) directly in regular payments from the Trust Fund or (ii) by
the purchase of one or more single premium nontransferable annuity contracts
(the terms of which shall comply with the requirements of the Plan and
applicable law) from any insurance company authorized to issue such contracts
that is selected by the Plan Administrator and the distribution of such
contract(s) to the Participant or Beneficiary(ies). Such distribution of an
annuity contract shall result in a complete discharge of all liability of the
Plan Administrator, the Employer, the Trustee and the Trust Fund to such
Participant or Beneficiary(ies), as the case may be, under the Plan and Trust to
the extent of the benefits purchased through such annuity contract(s).
Section 7.24 Heigl Prior Plan Special Rules. Effective December 31, 1997,
any amounts attributable to accounts held under the Heigl Prior Plan which
became assets of the Trust as a result of the merger of the Heigl Prior Plan
shall be fully vested and treated and accounted for separately (to the extent
such separate accounting is deemed necessary or appropriate for the
administration of the Plan). Such amounts, as adjusted under Section 6.3 ("Heigl
Merged Amounts"), generally shall be distributed and withdrawn at such time and
in such manner as otherwise provided in the Plan, except that, the following
provisions (even if inconsistent with other provisions of the Plan) shall apply
to any Participant who is a former participant in the Heigl Prior Plan with
respect to the Heigl Merged Amounts:
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(a) the Heigl Merged Amounts will be distributed to any such
Participant in the form and subject to the same conditions as are
set forth in Section 7.13(b)(2) with respect to the 1989 Merged
Amount of any former participant in the Lisle Plan. However, a
former participant in the Heigl Prior Plan, with proper spousal
consent if required, may elect, in lieu of the distribution of his
Heigl Merged Amount in a form provided under Section 7.13(b)(2),
pursuant to uniform rules established by the Plan Administrator to
have his Heigl Merged Amount distributed in any one of the following
forms:
(1) a single life annuity with a period certain of 5,
10, 15, or 20 years with the present value of the remaining
payments for the period certain being paid after the death of
the participant in a lump sum to the participant's designated
beneficiary or, upon the election of the beneficiary, any
remaining period certain payments continue to the beneficiary;
(2) a joint and survivor annuity with a survivorship
annuity percentage of fifty percent (50%), or one hundred
percent (100%);
(3) a joint and survivor annuity for a period certain of
10 years with a 100% survivorship percentage;
(4) a fixed period annuity of no less than 5 and no more
than 30 years with the present value of the remaining payments
for the fixed period being paid after the death of the
participant in a lump sum to the participant's beneficiary or,
upon the election of the beneficiary, any remaining fixed
period payments continue to the beneficiary;
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(5) a joint and survivor annuity with a survivorship
percentage of 100% to the designated contingent annuitant with
a 50% survivor annuity thereafter to the second annuitant
designated by the participant; or
(6) in a manner permitted under Section 7.3.
a. The rules applicable under Section 7.3(b) in
determining life expectancy, minimum distributions, and
other related matters shall apply for purposes of this
Section 7.24.
b. In addition, any such special provisions as are
required in order to comply with the provisions of Code
Section 411(d)(6) shall apply to the Heigl Merged
Amounts of former participants of the Heigl Prior Plan.
Section 7.25 Columbia Prior Plan Special Rules. Effective December 31,
1997, any amounts attributable to accounts held under the Columbia Prior Plan
which became assets of the Trust as a result of the merger of the Columbia Prior
Plan shall be fully vested and treated and accounted for separately (to the
extent such separate accounting is deemed necessary or appropriate for the
administration of the Plan). Such amounts, as adjusted under Section 6.3
("Columbia Merged Amounts"), generally shall be distributed and withdrawn at
such time and in such manner as otherwise provided in the Plan, except that, the
following provisions (even if inconsistent with other provisions of the Plan)
shall apply to any Participant who is a former participant in the Columbia Prior
Plan:
(a) With respect to any loan from the Columbia Prior Plan that
is outstanding on December 31, 1997 that is transferred from the
trust under the Columbia Prior Plan to the Trust as part of the
merger of the plans, the Trustee, as successor trustee, shall be
deemed to have
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substituted for the trustee under the Columbia Prior Plan as the
lender and any such loan that satisfied the provisions of the
Columbia Prior Plan shall be deemed to satisfy the loan provisions
of the Plan. With respect to any loan from the Columbia Prior Plan
outstanding on December 31, 1997, if a borrower does not repay a
loan (including interest due thereon) within the time prescribed by
the Committee, the Committee may deduct the total amount of the loan
(including interest due thereon) or any portion thereof from any
payment or distribution from the account to which the borrower or
the borrower's beneficiary or beneficiaries may be entitled, and
thereupon charge the Trust C account (i.e. voluntary employee
after-tax and rollover contribution account under Columbia Prior
Plan) in an amount equal to the amount then due (including interest)
on said loan. In the event that the aforesaid charge to the
borrower's Trust C account is not sufficient to repay the balance of
any loan (including interest), the balance may be charged to the
Trust D (i.e. profit sharing contribution account under the Columbia
Prior Plan) and Trust E (i.e. matching contribution account under
Columbia Prior Plan) accounts. In the event that the aforesaid
charge to the Trust D and Trust E accounts is not sufficient to
repay the balance of any loan (including interest), upon the earlier
of the borrower's attainment of age 59-1/2 or the borrower's
termination of employment, retirement or death, the balance may be
charged to the Participant's Trust A (i.e. salary deferral account
under Columbia Prior Plan) and Trust B (i.e. an account for employer
contributions other than salary deferrals that is designated by the
Employer as fully vested) accounts, if any, and if such account is
not sufficient, the Participant shall be liable for any balance. In
the event of a charge to the Participant's Trust D or Trust E
account, appropriate adjustment shall be made upon subsequent
termination of employment where applicable.
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(b) Rollovers and Voluntary After-Tax Contributions. With
respect to the portion of a Participant's Columbia Merged Amounts
attributable to his Trust C account (i.e. rollover and voluntary
employee after-tax contributions under the Columbia Prior Plan)
shall be available for withdrawal, in whole or in part, from time to
time, by any Columbia Prior Plan Participant who is employed by an
Employer.
Section 7.26 Standard Prior Plan Special Rules. Effective December 31,
1997, any amounts attributable to amounts held under the Standard Prior Plan
which became assets of the Trust as a result of the merger with the Standard
Prior Plan shall be fully vested on December 31, 1997 before determining any
forfeiture for 1997 and treated and accounted for separately (to the extent such
separate accounting is deemed necessary or appropriate for the administration of
the Plan). Such amounts, as adjusted under Section 6.3 ("Standard Merged
Amounts") generally shall be distributed and withdrawn at such time and in such
manner as otherwise provided in the Plan, except that, the following provisions
(even if inconsistent with other provisions of the Plan), shall apply to any
Participant who is a former participant in the Standard Prior Plan with respect
to the Standard Merged Amounts:
(a) With respect to any Participant loan from the Standard
Prior Plan that is outstanding on December 31, 1997 any payments
shall be credited to increase the Participant's Standard Prior Plan
before tax contribution account.
(b) With respect to any loan from the Standard Prior Plan that
is outstanding on December 31, 1997 that is transferred from the
trust under the Standard Prior Plan to the Trust as part of the
merger of the plans, the Trustee, as successor trustee, shall be
deemed to have substituted for the trustee under the Standard Prior
Plan as the lender and any such loan that satisfied the provisions
of the Standard Prior Plan shall be deemed to satisfy the loan
provisions of the Plan.
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Section 7.27 Alfred Berg Prior Plan Special Rules. Effective June 30,
1998, any amounts attributable to accounts held under the Alfred Berg Prior Plan
which became assets of the Trust as a result of the merger with the Alfred Berg
Prior Plan shall be accounted for separately until such time as a favorable
determination letter is received with respect to the Alfred Berg Prior Plan (and
thereafter may be accounted for separately to the extent such separate
accounting is deemed necessary or appropriate for the administration of the
Plan). Such amounts, as adjusted under Section 6.3 ("Alfred Berg Prior Plan
Amounts") generally shall be distributed and withdrawn at such time and in such
manner as otherwise provided in the Plan.
ARTICLE 8
THE COMMITTEE
Section 8.1 Committee Administration. The Plan shall be administered by
the named fiduciaries designated pursuant to "The ABN AMRO Group U.S. Employee
Benefits Program Rules of Administration" acting as and denominated the "ABN
AMRO Group U.S. Employee Benefits Committee". The powers and responsibilities
and duties of the Committee with respect to the Plan shall be as established
under the Rules as now in effect or as hereafter amended. A current copy of the
Rules are annexed as Appendix A and made a part of the Plan. In addition to the
powers granted to the Committee under the Rules, the Committee shall have the
powers granted under the Plan with respect to the administration of the Plan.
Section 8.2 Effect of Elections, Waivers or Other Designations Under Prior
Plan. Unless specifically provided otherwise herein, any and all valid
elections, waivers, consents or designations of beneficiaries by or with respect
to a participant in a Prior Plan shall be deemed elections, waivers, consents or
designations of beneficiaries under this Plan until revoked or changed.
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ARTICLE 9
INVESTMENT OF FUND
Section 9.1 General Investment Authority. Except as otherwise provided
herein, contributions of the Employers, contributions of the Participants, and
the net income and profits of the Fund shall be accumulated, added to the
principal of the Fund and invested and reinvested as a single Fund. Subject to
the rules governing prohibited transactions set forth in Section 406 of ERISA
and any regulations thereunder, the Trustee is authorized to invest and reinvest
the Fund in such bonds, notes, debentures, mortgages, equipment trust
certificates, investment trust certificates, preferred or common stocks, units
of LaSalle National Bank Qualified Dual Fund for Employee Benefit Plans (or any
similar fund established by the Trustee), beneficial interests, fees,
leaseholds, leasing paper, oil, gas and other mineral leases, interests,
payments, royalties and agreements, and other securities, contracts,
obligations, instruments, commodities, and such other property, real, personal
or mixed, of any kind or nature whatsoever, either within or without the United
States, including any of the foregoing which may be issued by or through, or
acquired from any Employer, or which may relate to any person, firm,
corporation, or other entity in which an Employer, either individually or as a
trustee, is financially interested as lender or otherwise, and including any
participation or undivided interest in any of the foregoing with others
(including any trust under any pension plan of an Employer), all as the Trustee
may deem advisable. The Trustee, in its discretion, may, without any liability
for interest, hold any portion of the Fund in cash, pending investment or
payment of expenses, or distribution of benefits. Notwithstanding the foregoing,
accumulated deductible employee contributions shall not be used to purchase life
insurance.
Section 9.2 LaSalle National Bank Qualified Dual Fund For Employee Benefit
Plans. The Declaration of Trust by LaSalle National Bank dated October 30, 1957,
as heretofore amended and as hereafter amended from time to time in accordance
with the terms thereof, creating and governing the LaSalle National Bank
Qualified Dual Fund for Employee Benefit Plans, is hereby made a part of this
Agreement. Notwithstanding any other provisions of this Agreement, the
Trustee may cause any part or all of the money or other property of this Trust
to be commingled with the money or other
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property of trusts created by others by causing such assets to be invested as
part of either or both of the Funds created by said Declaration of Trust, and
assets of this Trust so added to either of said Funds at any time shall be
subject to all of the provisions of said Declaration of Trust as heretofore and
hereafter amended as aforesaid.
Section 9.3 Directed Investments.
(a) INVESTMENT FUNDS. Each Participant shall elect (as provided
below) that all of the amount standing to his credit in his accounts and
additional amounts credited to his accounts from time to time be invested
in any one or more of the funds (including, effective April 1, 1998 or as
soon as administratively feasible thereafter as determined by the
Committee, a fund which invests primarily in qualified employer securities
(as defined in ERISA) of any Employer ("Employer Securities Fund"))
selected from time to time in the sole discretion of the Trustee
(collectively the "Investment Funds" and individually each an "Investment
Fund"). For purposes of establishing and maintaining the Employer
Securities Fund, the Trustee is authorized to invest as much as 100
percent of the assets of the Employer Securities Fund in qualifying
employer securities as defined by ERISA. Employer securities, include, but
are not limited to, American Depositary Receipts or American Depositary
Shares, issued by any Employer or an affiliate (as defined in Section
407(d)(7) of ERISA).
(b) CONTRIBUTION INVESTMENT ELECTIONS. Commencing as of January 1,
1991 and thereafter, each Participant shall, on such form and in such
manner as the Committee may from time to time prescribe in accordance with
the Program Rules, designate the portion of each contribution made by or
for him or on his behalf which is to be invested in each of the Investment
Funds (the 'contribution investment election'). An initial contribution
investment election shall be effective as of the first day of the month
(or as soon as practicable thereafter) following the date the election is
made. To the extent a Participant fails to elect the investment of any
contribution made by or for him or on his behalf the Participant will be
deemed to have elected that contribution to be invested in the fund
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designated by the Trustee from time to time as the default fund. Any
contribution investment election of a Participant shall be of a continuing
nature and may be revoked or changed by his executing a new contribution
investment election on such form and in such manner as the Committee may
from time to time prescribe, effective as of the next succeeding January 1
or July 1 following the date such election change or revocation is deemed
made hereunder. Notwithstanding the foregoing, effective July 1, 1994,
such investment contribution election may be revoked or changed once
during each calendar quarter and in such manner as the Committee may from
time to time prescribe, effective as soon as administratively feasible
following such election.
Notwithstanding the foregoing to the contrary, effective January 1, 1998,
such investment contribution election may be revoked or changed at any
time and in such manner as the Committee may from time to time prescribe,
effective as soon as administratively feasible after the election.
(c) ACCOUNT INVESTMENT ELECTIONS. Each Participant may, in such form
and manner as the Committee may from time to time prescribe, elect to
transfer all or any portion of the amounts credited to his accounts from
one Investment Fund to another Investment Fund to the extent such
transfers are permitted under the Program Rules (an 'account investment
election'). Any account investment election may be revoked or changed
prior to its effective date provided that revocation or change is made,
pursuant to the Program Rules, more than thirty (30) days (or such shorter
period as the Committee shall from time to time determine) prior to the
date the election is effective. Notwithstanding the foregoing, effective
July 1, 1994, an account investment election may be made once during each
calendar quarter and shall become effective as soon as administratively
feasible.
Notwithstanding the foregoing to the contrary, effective January 1, 1998,
an account investment election may be made at any time and shall be
effective as soon as administratively feasible after such election.
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(d) TIMING OF ELECTIONS. Any such investment election or a change in
or renewal of such election will be deemed made upon the expiration of 30
days after such election or change is received by the Committee (or such
shorter period as the Committee shall from time to time determine)
provided that such election or change is actually made in accordance with
the Program Rules as in effect from time to time. Where a Participant
properly makes a new contribution investment election pursuant to the
Program Rules, such new election shall be treated prospectively as a
complete revocation of any prior contribution investment election. Any
such investment election may be made at or after the occurrence of any
event giving rise to distribution only in the event and to the extent
distribution is to be made in installments pursuant to Section 7.3.
(e) PROGRAM RULES. The Committee shall (in such manner as it deems
advisable) relay the appropriate election information to the Trustee or
its designee, and the Trustee or such designee shall observe it as of its
effective date all in accordance with and subject to the rules governing
investment in the Investment Funds (the "Program Rules"). The Program
Rules shall be those rules established from time to time by the Committee
taking into account the requirements of each Investment Fund Manager, if
any, and shall be subject to change at any time and from time to time by
the Committee in its sole and absolute discretion, subject to the
requirements of each Investment Fund Manager from time to time acting, if
any. The Program Rules (as may be in effect and as amended from time to
time) are incorporated herein by reference and are a part of the Plan. The
Committee shall advise the Participants of the Program Rules and any
changes therein in a reasonable manner. The Committee shall notify the
Participants of the Investment Funds available for investment from time to
time. The term "Investment Fund Manager" shall mean, in relation to any
Investment Fund, that person or business entity which manages the
Investment Fund or vehicle utilized under the Plan as that Investment
Fund.
(f) AUTHORITY OF BENEFICIARY. The Beneficiary of a deceased
Participant shall discharge the investment
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responsibility as to his or her interest subsequent to the Participant's
death and any reference to the Participant in any provision of this
Section shall in such event be construed as a reference to the
Beneficiary.
(g) LIABILITY FOR DIRECTED INVESTMENTS. Neither the Trustee, the
Committee, the Plan Administrator nor the Employer shall be liable for any
losses incurred with respect to any investment made in any Investment
Fund. The Trustee shall carry out proper investment elections without
regard to investment diversification between Investment Funds. Except as
indicated herein, neither the Trustee nor any other person shall be under
any duty to question any such investment election, change or revocation or
to make any suggestions in connection therewith. Effective November 1,
1994, the Plan is intended to satisfy the requirements of ERISA Section
404(c) and the regulations thereunder.
(h) TRUSTEE'S POWER CONCERNING INVESTMENT FUNDS. Each Investment
Fund and the instruments, securities, accounts and other property making
up the investments in such fund shall be selected from time to time in the
sole discretion of the Trustee. The Trustee shall be the sole owner, as
trustee hereunder, of any assets in Investment Funds and shall have the
exclusive power to exercise all rights, privileges, options and elections
with respect thereto. With respect to any investment contract of an
insurance company or fund thereof making up all or part of an Investment
Fund, the status of the insurer(s) shall be governed by the terms of such
contract. No insurer is a party to this Plan and Trust and any insurer
shall be fully protected in acting on any instrument executed by the
Trustee and shall incur no liability for so doing.
Section 9.4 Special Rule for Investment Elections by Certain EAB Prior
Plan Participants. The EAB GIC Fund under the EAB Prior Plan was, effective
January 1, 1992, divided proportionately between the UNUM GIC Fund (which held
guaranteed investment contracts issued by UNUM Life Insurance Company) and the
Principal GIC Fund (which held guaranteed investment contracts issued by
Principal Mutual Life Insurance Company) for certain Participants who were EAB
Prior Plan participants on that date. In addition to the other investment
options offered under the Plan,
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the UNUM GIC Fund and the Principal GIC Fund shall remain investment options for
a Participant who had a balance in the EAB GIC Fund on December 31, 1991. Each
such Participant may elect 1) not to change his investment in the UNUM GIC Fund
and/or Principal GIC Fund or 2) to transfer such investment to the other
investment funds as of any January 1st or July 1st subject to certain
restrictions. Transfers made from the UNUM GIC Fund may be made to any of the
other investment funds offered under the Plan. Transfers made from the Principal
GIC Fund may be made to the General Investment Fund or Equity Fund and effective
January 1, 1992, the Rembrandt Balanced Fund shall be substituted for the
General Investment Fund and the Rembrandt Growth Fund shall be substituted for
the Equity Fund. As contracts held by the UNUM GIC Fund and the Principal GIC
Fund (collectively the "GIC Funds") mature, each Participant's proportionate
share of the cash proceeds therefrom shall be transferred to the Income Plus
Fund (or such other investment fund as the Committee shall designate upon no
less than 30 days notice to affected Participants) effective as of the next
succeeding allocation date. No transfers or contributions may be made to such
GIC Funds. A GIC Fund shall be terminated when all its contracts have matured
and the proceeds of such contracts have been transferred to the Income Plus Fund
(or such other duly designated investment fund) as provided above.
Section 9.5 Initial Investment of Assets Spun Off from Horrigan Prior
Plan. Notwithstanding the foregoing, cash and other amounts received from the
spinoff of accounts from the Horrigan Prior Plan that were allocated to a
particular investment fund under the Horrigan Prior Plan immediately prior to
the spinoff transaction will initially be invested in the particular Investment
Fund under the Plan that, as determined in the sole discretion of the Committee,
corresponds in character most closely to the particular Horrigan Prior Plan
investment fund.
Section 9.6 Initial Investment of Assets Received From Merger of Certain
Prior Plans. Effective December 31, 1997, notwithstanding the foregoing to the
contrary, cash and other amounts received from the Heigl Prior Plan or the
Columbia Prior Plan that were allocated to a particular investment fund under
such Prior Plan shall initially be invested in the particular Investment Fund
under the Plan that, as determined in the sole discretion of the Committee,
corresponds in character most closely to the particular Prior Plan investment
fund. Effective December 31,
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1997, notwithstanding the foregoing to the contrary, cash and other amounts
received from the Standard Prior Plan that were allocated to a particular
investment fund under the Standard Prior Plan (to the extent not already
allocated to an investment fund offered as an Investment Fund under the Plan)
shall initially be invested in the particular Investment Fund under the Plan
that, as determined in the sole discretion of the Committee, corresponds in
character most closely to the particular Standard Prior Plan investment fund. A
Participant's right to direct the investment of merged amounts referenced herein
above may be suspended on or about the time that the plan assets are merged for
a period of time determined in the sole discretion of the Committee.
Section 9.7 Initial Investment of Assets of Alfred Berg Prior Plan.
Effective June 30, 1998, notwithstanding the foregoing to the contrary, cash and
other amounts received from the Alfred Berg Prior Plan ("Alfred Berg Merged
Amounts") of a Participant who had an account under the Plan at the time of the
plan merger shall initially be invested pursuant to such Participant's
investment election for current contributions to the Plan. With respect to an
individual who did not have an account balance under the Plan at the time of
plan merger, the individual's Alfred Berg Merged Amount shall be invested in the
same manner as a Participant who does not have an investment election in effect.
A Participant's or other individual's right to direct the investment of his
Alfred Berg Merged Amount may be suspended on or about the time that the Alfred
Berg Prior Plan assets are merged into the Plan for a period of time determined
in the sole discretion of the Committee.
Section 9.8 INITIAL INVESTMENT OF ASSETS RECEIVED FROM MERGER OF CRAGIN
KSOP AND BANKERS LEASING PRIOR PLANS. Effective December 31, 1998,
notwithstanding the foregoing to the contrary, cash and other amounts received
from the Bankers Leasing Prior Plan ("Bankers Leasing Prior Plan Merged Amount")
that were allocated to a particular investment fund under such Prior Plan shall
initially be invested in the particular Investment Fund under the Plan that, as
determined in the sole discretion of the Committee, corresponds in character
most closely to the particular Bankers Leasing Prior Plan investment fund.
Effective December 31, 1998, notwithstanding the foregoing to the
contrary, cash and other amounts received from the Cragin KSOP Prior Plan
("Cragin KSOP Merged Amounts") of a Participant who
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had an account under the Plan at the time of the plan merger shall initially be
invested pursuant to such Participant's investment election for current
contributions to the Plan. With respect to an individual who did not have an
account balance under the Plan at the time of plan merger, the individual's
Cragin KSOP Merged Amount shall be invested in the same manner as a Participant
who does not have an investment election in effect.
A Participant's or other individual's right to direct the investment of
his Bankers Leasing Prior Plan Merged Amount or Cragin KSOP Merged Amount may be
suspended on or about the time that such Prior Plan assets are merged into the
Plan for a period of time determined in the sole discretion of the Committee.
ARTICLE 10
THE TRUSTEE
Section 10.1 Trustee's Powers. In addition to any other powers, rights or
duties granted to the Trustee in any other provisions of the Plan, the Trustee
shall have the following powers, rights and duties in addition to those vested
in it elsewhere in this Plan and Trust or by laws:
(a) to take action in all things requiring the exercise of
discretion by the Trustee;
(b) to retain, control, manage, improve, develop, repair and operate
any asset of the Fund;
(c) to sell, convey, transfer, exchange, partition, grant options
with respect to, lease for any term (even though such term extends beyond
the duration of the Trust or commences in the future), enter into
agreements (including pooling and operating agreements) and orders
(including division and transfer orders) with respect to, and to mortgage,
pledge, or otherwise deal with or dispose of, any asset of the Fund in
such manner, for such consideration and upon such terms and conditions, as
the Trustee in its discretion shall determine;
(d) to employ such agents and counsel (who may be counsel for the
Company and/or the Bank) as the Trustee may
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deem reasonably necessary or desirable, and to pay them reasonable
compensation;
(e) to settle, compromise or abandon any claim or demand in favor of
or against the Fund;
(f) to borrow money for the Fund (either from the Company, the Bank
or from others) with or without giving security from the Fund;
(g) to vote any corporate stock either in person or by proxy for any
purpose; to exercise any conversion privilege, subscription right or any
other right or option given to the Trustee as the owner of any security
which may be an asset of the Fund and to make any payments incidental
thereto; to consent to, take any action in connection with, and receive
and retain any securities resulting from, any reorganization,
consolidation, merger, readjustment of the financial structure, sale,
lease or other disposition of the assets of any corporation or other
organization, any securities of which may be an asset of the Fund;
(h) to organize or incorporate (or participate in the organization
or incorporation of) under the laws of any jurisdiction, one or more
corporations or other entities for the purpose of acquiring and holding
title to and operating any property which the Trustee is authorized to
acquire for the Fund and to exercise with respect thereto any of the
powers, rights, and duties it has with respect to other assets of the
Fund;
(i) to cause any asset of the Fund to be issued, held or registered
in the name of its nominee, or in such form that title will pass by
delivery, provided the records of the Trustee shall indicate the true
ownership of such asset;
(j) to make all distributions to Participants and their
beneficiaries as directed from time to time by the Committee; and
(k) to exercise all powers and rights of an individual owner with
respect to any property of the Fund
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and to do all other acts in its judgment necessary or desirable for the
proper administration of the Fund, although such powers, rights and acts
are not specifically enumerated herein.
(l) to invest and reinvest all or part of the Fund in accordance
with the investment directions of Participants in any available Investment
Fund selected by the Trustee, with any remaining assets to be held in cash
or invested in short term interest funds, and to deposit funds in a bank,
including a bank operated by any institutional Trustees, or in a savings
and loan association, including a temporary deposit, not at interest, if
considered desirable by the Trustee to facilitate distributions or
reinvestment.
(m) to purchase and sell American Depositary Receipts or American
Depositary Shares of ABN AMRO Bank Holding N.V. (or shares of any other
Employer security that the Trustee designates as available for
Participant-directed investment) as the Trustee deems appropriate to
comply with any investment direction from a Participant involving the
investment in or disinvestment from the Employer Securities Fund.
(n) to appoint, in its discretion, a Limited Co-Trustee or Limited
Co-Trustees for the purposes set forth in and in accordance with Section
10.12.
Section 10.2 Records and Accounts of Trustee. The Trustee shall maintain
accurate and detailed records and accounts of all transactions of the Trust,
except those which under the provisions hereof are to be maintained by the
Committee. All records and accounts of the Trustee shall be available at all
reasonable times for inspection or audit by the auditors for an Employer and by
any other person or entity required by law. All accounts of the Trustee shall be
kept on a cash basis.
Section 10.3 Reports. As soon as practicable following the close of each
year, the Trustee shall file with the Committee and with any other person or
entity required by law a written account setting forth all transactions with
respect to the Fund during such year and listing the assets of the Fund and the
fair market valuation thereof as of the close of such year. The Trustee may
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file with the Committee such other accounts for such periods as it desires. The
Trustee shall file with the Committee all such other reports as are required by
this Plan and Trust.
Section 10.4 Approval of Accounts. Upon receipt by the Trustee of the
Committee's written approval of any such account, or upon the expiration of six
months after delivery of any such account to the Committee, such account (as
originally stated if no objection has been theretofore filed by the Committee,
or as theretofore adjusted pursuant to agreement between the Committee and the
Trustee) shall be deemed to be approved by the Committee except as to matters,
if any, covered by written objections theretofore delivered to the Trustee by
the Committee regarding which the Trustee has not given an explanation, or made
adjustments, satisfactory to the Committee, and the Trustee shall be released
and discharged as to the Committee and the Employers regarding all items,
matters and things set forth or reflected in such account which are not covered
by such written objections as if such account has been settled and allowed by a
decree of a court having jurisdiction regarding such account and of the Trustee,
the Employers and the Committee. The Trustee, nevertheless, shall have the right
to have its accounts settled by judicial proceeding if it so elects, in which
even the Employers, the Committee and the Trustee shall be the only necessary
parties.
Section 10.5 Reliance Upon Advice of Counsel. The Trustee may consult with
legal counsel, who may be counsel for the Company and/or the Bank, in respect to
any of its or their rights, powers, discretions, duties or obligations
hereunder.
Section 10.6 Indemnification of Trustee. The Trustee shall be indemnified
and held harmless by the Employers (to the extent not indemnified or saved
harmless under liability insurance contracts or indemnification agreements) from
and against all claims, losses, damages, expenses and liabilities to which such
Trustee may be subjected by reasons of any such act taken or omitted, including
all expenses reasonably incurred in its defense in case the Employers fail to
provide such defense, provided the Trustee has acted in good faith in reliance
on the written direction of the Committee or an Employer. Subject to the
foregoing, the Trustee shall be accountable for all contributions received by
it, but shall have no duty to require any contributions
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to be made to it or to determine that any contribution received by it complies
with the terms thereof.
Section 10.7 Compensation and Expenses. The Trustee is authorized to pay
from the Fund all expenses and taxes of the Trustee and the Committee (including
fees of their attorneys and agents) incurred in connection with the exercise of
their powers, duties and functions under the Plan and Trust, to the extent such
expenses and taxes are not paid by the Employer. The Trustee shall receive no
compensation for its services as Trustee.
Section 10.8 Protection of Persons Dealing with Trustee. Except as
otherwise provided by law, no person dealing with the Trustee shall be required
or entitled to see to the application of any money paid or property delivered to
the Trustee, or to determine whether or not the Trustee is acting pursuant to
authorities granted to it hereunder or to authorizations or directions herein
required.
Section 10.9 Exercise of Trustee's Duties. Subject to the provisions of
this Article 10, the Trustee shall discharge the duties hereunder solely in the
interest of the Plan Participants and their beneficiaries, and:
(a) for the exclusive purpose of:
(1) providing benefits to Plan Participants and their
beneficiaries; and
(2) defraying reasonable expenses of administering the Trust;
(b) with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of like character and with like aims; and
(c) by diversifying the investments in the Fund so as to minimize
the risk of large losses, unless under the circumstances it is clearly
prudent not to do so.
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Section 10.10 Multiple Employer Trust. Notwithstanding any other
provisions of this Article 10 or relating to the Plan and Trust generally, the
terms of this Agreement establishing this Trust may be adopted by any Related
Entity who adopts a defined contribution plan which is qualified under Code
Section 401 as a part of such qualified defined contribution plan for the
purpose of utilizing such Trust as the funding vehicle under such qualified
defined contribution plan. To that extent, reference to the Employer or to the
Plan or any provision thereof under the Trust Agreement embodied herein shall be
a reference to the Related Entity so adopting such Trust Agreement or such
Related Entity's subject qualified defined contribution plan or any
corresponding provision thereof, respectively, with respect to matters involving
the administration or operation of such qualified defined contribution plan of
such Related Entity and this Trust. In no event shall the funds attributable to
one such plan which are held in this Trust be used in any manner for or in
connection with any such other plan and the funds of each such plan shall be
separately accounted for by the Trustee.
Section 10.11 Investments in Employer Securities.
(a) SCOPE OF RIGHT TO INVEST. Up to 100% of the Employer Securities
Fund may be invested in Employer securities, provided that such stock
constitutes "qualifying Employer securities" as defined in ERISA Section
407(d)(5). If the Employer security is acquired from, or sold to, a
party-in-interest, as defined in ERISA Section 3(14), no commission shall
be paid.
(b) USE OF UNITIZED FUND. In the event that an Employer Securities
Fund is established on a unitized basis (i.e. Participant Accounts are
credited with units of the Investment Fund, wherein each such unit may
represent an undivided interest in the Employer securities and other
property held in such Investment Fund), then the Trustee shall establish
uniform, non-discriminatory rules regarding the manner in which each such
Participant's interest in such unitized Investment Fund shall be treated
as full or fractional shares of the Employer securities and other property
held by the Trustee in such Investment Fund for purposes of the Plan, and
any Plan provisions dealing with the allocation of Employer securities to
the account of any
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Participant shall be interpreted to mean the allocation of the appropriate
number of units in the Employer Securities Fund.
Section 10.12 Limited Co-Trustee. The Trustee, in its discretion, may
appoint a Limited Co-Trustee which shall have the limited and exclusive powers
set forth below in this Section 10.12. The Limited Co-Trustee may be an
institutional trustee, such as a bank or trust company, that is unaffiliated
with any Employer. The Limited Co-Trustee may also be a group of three
individuals selected by the Trustee to act together, as provided herein, as the
Co-Trustee. The Trustee shall have the power to appoint or remove a Limited
Co-Trustee or otherwise fill any vacancy in the office of the Limited
Co-Trustee. The Limited Co-Trustee shall have only the following limited and
exclusive powers:
(a) to exercise any and all rights, powers, responsibilities and
discretions of the Trustee with respect to the voting of any
Employer securities.
(b) to take any and all other action relating to the Employer
Securities Fund that the Trustee does not, from time to time,
reserve to itself.
It is intended that if a group of individuals is acting, collectively, as
the Limited Co-Trustee, then such individuals shall act by majority vote
with or without a meeting; but in the event of any vacancy in the office
of the Limited Co-Trustee, the remaining individuals holding such office
of Limited Co-Trustee shall have the power to act as the Limited
Co-Trustee until the vacancy is filled. Any individual, while acting with
other individuals in the office of the Limited Co-Trustee, who dies, or
for a period of ninety (90) consecutive days becomes incapacitated so as
to be unable to perform the duties of such office, shall automatically
cease to hold such office. Any individual, while acting with other
individuals in the office of the Limited Co-Trustee, who is also an
employee of an Employer and who terminates employment or retires with
respect to an Employer shall automatically cease to hold such office. Any
determination by two individuals acting in the office of the Limited
Co-Trustee that the other individual acting in such office has become
incapacitated as aforesaid, shall be
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conclusive. Any Limited Co-Trustee (or any individual acting with others
in the office of the Limited Co-Trustee) may, by filing a written
resignation with the Trustee (and with the other individuals acting in the
office of the Limited Co-Trustee, if any), resign at any time.
Section 10.13 Voting of Employer Securities. Notwithstanding any other
provision of this Trust, each Plan Participant shall have the right to direct
the Trustee, (or, if applicable, the Limited Co-Trustee) as to the manner in
which Employer securities allocated to his or her Account shall be voted.
Fractional shares allocated to Accounts may be voted by each Plan Participant,
and the Trustee (or, if applicable, the Limited Co-Trustee) shall total all
fractional votes of all Plan Participants who have directed the Trustee (or, if
applicable, the Limited Co-Trustee) to vote such shares in the same manner, and
shall cast the largest number of full votes possible from the total of
fractions. Any remaining fraction shall be disregarded. The Trustee (or, if
applicable, the Limited Co-Trustee), in its discretion, may engage an agent to
receive instructions for Participants.
The Employer shall notify the Trustee (or, if applicable, the Limited
Co-Trustee) and Plan Participants when voting rights should be exercised and
shall furnish the Trustee (or, if applicable, the Limited Co-Trustee) and Plan
Participants with information similar to that furnished to other shareholders of
the Employer, and within the time periods required by law or the Articles of
Incorporation or bylaws of the Employer (or other comparable governing rule or
document) for other shareholders. The Employer shall furnish to Plan
Participants a form of proxy upon which voting instructions shall be given by
Plan Participants directly to the Trustee (or, if applicable, the Limited
Co-Trustee), and the Trustee (or, if applicable, the Limited Co-Trustee) shall
vote the shares allocated to each Participant's Account in accordance with the
instructions of such Participant. The Trustee (or, if applicable, the Limited
Co-Trustee), in its discretion, may engage an agent to receive voting
instructions from Plan Participants.
The Trustee (or, if applicable, the Limited Co-Trustee) shall vote, either
directly or by proxy, allocated shares for which it has not received directions
and any shares which have not yet been allocated to the Accounts of Participants
in the same
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proportion as shares for which voting directions are received from Participants;
provided that such proportionate voting does not violate the Trustee's (or, if
applicable, Limited Co-Trustee's) fiduciary duty under the Plan to act
exclusively in the best interests of the Participants and their beneficiaries.
Section 10.14 Rights, Warrants or Options. Stock rights (including
warrants and options) issued with respect to Employer securities shall be
exercised by the Trustee (or, if applicable, the Limited Co-Trustee) on behalf
of Participants to the extent that cash is available. Rights which cannot be
exercised due to lack of cash in the Fund shall be sold and the proceeds shall
be invested in Employer securities, subject to rules established by the Trustee
(or, if applicable, the Limited Co-Trustee) governing the Employer Securities
Fund.
Section 10.15 Tender Offers.
(a) RIGHTS OF PARTICIPANTS. Notwithstanding any other provision of
this Trust, in the event that an offer is made generally to the
shareholders of the Employer, including any Limited Co-Trustee, to
transfer all or a portion of the securities of the Employer in return for
valuable consideration, including, but not limited to, offers regulated by
Section 14 of the Securities Exchange Act of 1934, as amended, each Plan
Participant for whose account shares of Employer securities are held shall
have the right to determine whether the shares credited to his or her
Account shall be tendered. The foregoing rights shall be applicable to
each Participant, irrespective of whether or not his or her Account is
vested. Each Participant also shall have the right, to the extent
permitted by the terms of the tender offer or applicable law, to direct
the withdrawal of such shares from the tender. A Participant shall not be
limited as to the number of instructions to tender or withdraw that he or
she may give. All rights granted to Participants in this paragraph are
subject to compliance with rules established by the Trustee (or, if
applicable, the Limited Co-Trustee) pursuant to paragraph (c) hereof.
(b) DUTIES OF THE EMPLOYER. The Employer shall be responsible for
communicating the terms of any
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offers described in paragraph (a) above to Participants in the Plan and
for providing a means by which each Participant may provide instructions
directly to the Trustee (or, if applicable, the Limited Co-Trustee) with
respect to his or her shares. In connection therewith, as soon as
practicable after the commencement of any tender offer, the Employer shall
provide to each Participant in the Plan:
(i) the offer to purchase, as distributed by the offeror to
the shareholders of the Employer,
(ii) a statement of the number of shares of Employer
securities allocated to the Participant's Account (vested and
nonvested), based upon the most recent information available to the
Employer, and
(iii) directions as to the means by which a Participant may
give instructions with respect to the tender of shares credited to
his or her Account.
The Employer shall establish and pay for a means by which Participants may
expeditiously deliver directly to the Trustee (or, if applicable, the
Limited Co-Trustee) instructions with respect to the shares allocated to
their Accounts. The instructions from Participants received by the Trustee
(or, if applicable, the Limited Co-Trustee) shall be held by the Trustee
(or, if applicable, the Limited Co-Trustee) in strict confidence and shall
not be divulged or released to any person, including officers or employees
of the Employer.
(c) DUTIES OF THE TRUSTEE. The Trustee, (or, if applicable, the
Limited Co-Trustee) shall follow the instructions of Participants pursuant
to paragraph (a) above. The Trustee (or, if applicable, the Limited
Co-Trustee), in its discretion, may engage an agent to receive
instructions from Participants. The Trustee (or, if applicable, the
Limited Co-Trustee) shall establish, on the basis of its ability to comply
with the terms of the tender offer, a reasonable time or times after which
it will not
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accept such instructions and such other rules as it may deem appropriate.
Allocated shares for which instructions are not received from Participants
and shares which have not yet been allocated to the Accounts of
Participants shall be tendered in the same proportion as shares of
Employer securities for which instructions are received from Participants
have been tendered; provided that such proportionate tender does not
violate the Trustee's (or, if applicable, the Limited Co-Trustee's)
fiduciary duty under the Plan.
Section 10.16 Named Fiduciary Status. Each Participant in the Plan is
hereby designated as a "named fiduciary" within the meaning of Section 403(a)(1)
of ERISA with respect to voting and tender offer decisions relating to shares of
Employer securities allocated to his or her Account and as to any shares for
which directions are not received from Participants or which have not yet been
allocated to the Accounts of Participants to the extent that his or her voting
or tender offer decisions affect the Trustee's (or, if applicable, the Limited
Co-Trustee's) voting or tender (or the failure to tender) of such shares.
Section 10.17 Reinvestment of Dividends. Dividends paid on Employer
securities shall be allocated to Participants' Accounts in a uniform manner
determined by the Trustee.
ARTICLE 11
AMENDMENT, DISCONTINUANCE, TERMINATION OR MERGER
Section 11.1 Authority to Amend, Discontinue or Terminate. Subject to the
provisions of Sections , and , the Managing Board shall have the exclusive right
at any time or times to amend the Plan and Trust in any manner, in whole or in
part, (and retroactively if deemed necessary or appropriate to meet the
requirements of Code Section 401(a) and of ERISA and any similar provisions of
subsequent revenue or other laws, or the rules and regulations from time to time
in effect under any of such laws or to conform with governmental regulations or
other policies) or to terminate the Plan and Trust, and each Employer by
resolution of its Board of Directors or other appropriate action shall have the
right to discontinue its contributions under the Plan, either temporarily for a
period of one year, or permanently. Any action
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taken by the Managing Board in accordance with this Section shall be in writing
and shall be signed by a person or persons designated by the Managing Board.
Section 11.2 Restrictions on Amendment. No amendment to the Trust may be
made which shall:
(a) diminish the amount of any balance of any Participant's
account which would be distributable to such Participant if such
Participant had resigned from the service of the Employer
immediately prior to such amendment, or diminish the balance
distributable to any beneficiary of a Participant who died prior to
such amendment;
(b) authorize or cause a diversion or use of any part of the
Fund in a manner prohibited by Section ;
(c) cause or permit any portion of the Fund to revert to or
become a part of the property of an Employer; or
(d) change the duties, liabilities or immunities of the
Trustee without its written consent.
Section 11.3 Prior Benefits. No amendment which becomes effective
subsequent to the most recent retirement or other termination of employment of a
Participant shall in any way affect the amount or conditions of payment of any
benefit to which such Participant is or may become entitled hereunder, except to
the extent expressly so provided in such amendment or as required by law.
Section 11.4 Method of Making Amendment. A copy of each Amendment of the
Plan and Trust shall be delivered to the Trustee. The copy of such amendment
(with the consent of the Trustee endorsed thereon if its duties, liabilities or
immunities are changed thereby) shall constitute the instrument of amendment. An
additional copy of each such amendment shall be filed with the Committee.
Section 11.5 Effect of Discontinuance or Termination. If any Employer
terminates its participation in or permanently discontinues its contributions
under the Plan (the Employer so
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terminating its participation or discontinuing contributions being referred to
in this Section as the "discontinuing Employer"), the date of such
discontinuance shall, unless such date is a regular accounting date, be
considered a special accounting date and all adjustments required as of that
date shall be made and, regardless of any other provision of the Plan and Trust,
the accounts of each Participant who on the date of such discontinuance is in
the service of the discontinuing Employer shall (unless such Participant is then
or immediately thereafter in the service of another Employer) be fully vested in
him and shall be distributed to him by any one or more of the methods specified
in Section 7.3 as the Committee may determine. In the event of termination or
partial termination of the Plan and Trust, or permanent discontinuance by the
Employers of contributions under the Plan, then regardless of any other section
of the Trust the accounts of each Participant shall be fully vested in him and
shall be distributed to him by any one or more of the methods specified in
Section 7.3, except that in the case of a partial termination this sentence
shall apply only to the portion of the Plan so terminated. Notwithstanding the
foregoing provisions of this Section , any distribution provided for in this
Section to any Participant may be postponed by the Committee, in its discretion,
during any period while such Participant is in the service of an Employer. In
the event the Managing Board terminates the Trust or in the event the Employers
shall permanently discontinue contributions under the Plan, the Trustee shall
continue to hold, invest, administer and distribute the Fund pursuant to the
provisions hereof until no assets of the Fund remain in the possession of the
Trustee.
Section 11.6 Merger, Consolidation or Transfer of Assets. This Plan and
Trust shall not be merged or consolidated with, nor shall any assets or
liabilities be transferred to, any other Plan, unless the benefits payable to
each Participant if the Plan was terminated immediately after such action would
be equal to or greater than the benefits which such Participant would have been
entitled if this Plan had been terminated immediately before such action.
Section 11.7 Diversion of Fund Prohibited. Subject to Section , at no time
(either by operation of law, amendment or termination of the Trust, the
happening of any contingency, collateral agreement, or otherwise) shall any part
of the Fund (other than such part as is required to pay taxes and expenses) be
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used for or diverted to purposes other than for the exclusive benefit of
Participants or their beneficiaries.
Section 11.8 1990 Prior Plan Mergers. It is contemplated that the 1990
Prior Plans will be merged into the Plan; the Exchange National Bank of Chicago
Preferred Retirement Plan to be so merged effective April 1, 1990 and the
Exchange Bank of River Oaks Profit Sharing Plan to be so merged effective July
1, 1990 or such later date as the Managing Board determines. Such mergers shall
be effective as provided above, subject to the terms and conditions of the Plan
as in effect from time to time. The Committee shall conclusively determine, in a
uniform and non-discriminatory manner, any administrative issues arising as a
result of each such merger.
Section 11.9 AMRO Prior Plan Merger. The AMRO Prior Plan was merged into
the Plan effective September 30, 1991.
Section 11.10 Merger With Lease Plan, EAB and Talman Prior Plans.
Effective December 31, 1992, the assets of the Lease Plan, EAB and Talman Prior
Plans were merged with and into the Plan and Trust. Effective upon the merger of
the aforementioned plans, the Plan, the surviving plan, acquired all right,
title and interest in such assets of the Prior Plans.
Section 11.11 Pierson Spinoff of Assets. Effective December 31, 1992, the
Trustee shall transfer from the Trust Fund to LaSalle National Trust, N.A. as
Trustee of and under the Pierson Sal. Oppenheim, Inc. Profit Sharing and Savings
Plan an amount equal to the account balances (as adjusted on that date)
attributable to each Participant's service as an employee of Pierson Sal.
Oppenheim, Inc.
Section 11.12 Pierson Merger. Effective December 31, 1993, the assets of
the Pierson Prior Plan were merged with and into the Plan and Trust. Effective
upon the merger of the plans, the Plan, the surviving plan, acquired all right,
title and interest in such assets of the Pierson Prior Plan.
Section 11.13 Merger With the LaSalle Cragin Profit Sharing Plan.
Effective December 31, 1995, the assets of the LaSalle Cragin Profit Sharing and
Savings Plan and related trust shall be merged with and into the Plan and Trust.
Effective upon the merger
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of the plans, the ABN AMRO Group Profit Sharing and Savings Plan and Trust, the
surviving plan, shall have all the right, title and interest in such assets of
the Plan, and to the extent not inconsistent with this Section and applicable
law, shall be operated in accordance with the terms of the Plan, as amended from
time to time.
Section 11.14 Pine Tree Spinoff of Assets. Effective December 31, 1995 or
such later date as the Managing Board shall determine, the Trustee shall
transfer from the Trust Fund to the trustees of the Nakagama & Wallace Inc.
401(k) Plan an amount equal to the account balances (as adjusted on that date)
attributable to those certain Participants who, as of the date of such transfer
of assets from the Plan into the Nakagama & Wallace Inc. 401(k) Plan, are
employed at Pine Tree Capital, Nakagama & Wallace L.P. and are participating in
the Nakagama & Wallace Inc. 401(k) Plan.
Section 11.15 Certain Horrigan Prior Plan Assets Transferred to the Plan.
Effective December 31, 1996 or as soon as administratively feasible thereafter,
for Employees under this Plan who have account balances on December 31, 1996
under the Horrigan Prior Plan, such Employee's account balance (as adjusted on
such date) under the Horrigan Prior Plan shall be transferred to the Plan.
Effective upon the transfer, the Plan, the surviving Plan, shall have all right,
title and interest in such assets of the Horrigan Prior Plan. Any contribution
or correction that is required with respect to the Horrigan Plan as a result of
the standardized voluntary compliance program application with respect to
transferred accounts shall, to the extent not implemented by the Horrigan Prior
Plan prior to the transfer of assets to the Plan, be implemented by the Plan as
the surviving plan. Notwithstanding the foregoing, the spinoff of assets
described above is contingent upon the Horrigan Prior Plan being tax-qualified
at the time of the spinoff and upon the Plan remaining tax-qualified immediately
thereafter. If either of the foregoing conditions is not satisfied, then the
spinoff shall be null and void. The Managing Board or its authorized
representatives may amend the Plan as may be required to obtain a favorable
determination letter with respect thereto.
Section 11.16 Merger With the Heigl Prior Plan. Effective December 31,
1997, the assets of the Heigl Prior Plan and related trust shall be merged with
and into the Plan and Trust. Effective
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upon such merger, the Plan (and related Trust), the surviving plan, shall have
all right, title and interest in such assets of the Heigl Prior Plan and related
trust, and to the extent not inconsistent with this Section and applicable law,
shall be operated in accordance with the terms of the Plan as amended from time
to time.
With respect to the transferred assets of the Heigl Prior Plan, any contribution
or correction which may be required as a result of the Heigl Prior Plan's
application under any Internal Revenue Service ("Service") voluntary compliance
program or self correction which may be need to be implemented pursuant to the
Service's Administrative Policy Regarding Self-Correction, to the extent not
implemented prior to the merger of the Heigl Prior Plan into the Plan, shall be
implemented by the Plan as the surviving Plan. Notwithstanding the foregoing,
the transfer of assets described above shall be contingent upon the Heigl Prior
Plan being tax-qualified at the time of transfer and upon the tax qualification
of the Plan not being adversely affected by the merger of the Heigl Prior Plan
into the Plan. If either of the foregoing contingencies is not satisfied, then
the merger shall be null and void. The Managing Board or its authorized
representatives may amend the Plan as may be required to obtain a favorable
determination letter.
Section 11.17 Merger With Columbia Prior Plan. Effective December 31,
1997, the assets of the Columbia Prior Plan and related trust shall be merged
with and into the Plan and Trust. Effective upon such merger, the Plan (and
related Trust), the surviving plan, shall have all right, title and interest in
such assets of the Columbia Prior Plan and related trust, and to the extent not
inconsistent with this Section and applicable law, shall be operated in
accordance with the terms of the Plan as amended from time to time.
With respect to the transferred assets of the Columbia Prior Plan, any
contribution or correction which may be required as a result of the Columbia
Prior Plan's application under any Internal Revenue Service ("Service")
voluntary compliance program or self correction which may be need to be
implemented pursuant to the Service's Administrative Policy Regarding
Self-Correction, to the extent not implemented prior to the merger of the
Columbia Prior Plan into the Plan, shall be implemented by the Plan as the
surviving Plan. Notwithstanding the foregoing, the transfer of assets described
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above shall be contingent upon the Columbia Prior Plan being tax-qualified at
the time of transfer and upon the tax qualification of the Plan not being
adversely affected by the merger of the Columbia Prior Plan into the Plan. If
either of the foregoing contingencies is not satisfied, then the merger shall be
null and void. The Managing Board or its authorized representatives may amend
the Plan as may be required to obtain a favorable determination letter.
Section 11.18 Merger With Standard Prior Plan. Effective December 31,
1997, the assets of the Standard Prior Plan and related trust shall be merged
with and into the Plan and Trust. Effective upon such merger, the Plan (and
related Trust), the surviving plan, shall have all right, title and interest in
such assets of the Standard Prior Plan and related trust, and to the extent not
inconsistent with this Section and applicable law, shall be operated in
accordance with the terms of the Plan as amended from time to time.
With respect to the transferred assets of the Standard Prior Plan, any
contribution or correction which may be required as a result of the Standard
Prior Plan's application under any Internal Revenue Service ("Service")
voluntary compliance program or self correction which may be need to be
implemented pursuant to the Service's Administrative Policy Regarding
Self-Correction, to the extent not implemented prior to the merger of the
Standard Prior Plan into the Plan, shall be implemented by the Plan as the
surviving Plan. Notwithstanding the foregoing, the transfer of assets described
above shall be contingent upon the Standard Prior Plan being tax-qualified at
the time of transfer and upon the tax qualification of the Plan not being
adversely affected by the merger of the Standard Prior Plan into the Plan. If
either of the foregoing contingencies is not satisfied, then the merger shall be
null and void. The Managing Board or its authorized representatives may amend
the Plan as may be required to obtain a favorable determination letter.
Section 11.19 Merger With Alfred Berg Prior Plan. Effective June 30, 1998,
the assets of the Alfred Berg Prior Plan and related trust shall be merged with
and into the Plan and Trust. Effective upon such merger, the Plan (and related
Trust), as the surviving plan, shall have all right, title and interest in such
assets of the Alfred Berg Prior Plan and related trust, and to the extent not
inconsistent with this Section and applicable law, shall be
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operated in accordance with the terms of the Plan as amended from time to time.
With respect to the transferred assets of the Alfred Berg Prior Plan, any
contribution or correction which may be required as a result of the Alfred Berg
Prior Plan's application under any Internal Revenue Service ("Service")
voluntary compliance program or self correction which may need to be implemented
pursuant to the Service's Administrative Policy Regarding Self-Correction, to
the extent not implemented prior to the merger of the Alfred Berg Prior Plan
into the Plan, shall be implemented by the Plan as the surviving Plan.
Notwithstanding the foregoing, the transfer of assets described above shall be
contingent upon the Alfred Berg Prior Plan being tax-qualified at the time of
transfer and upon the tax qualification of the Plan not being adversely affected
by the merger of the Alfred Berg Prior Plan into the Plan. If either of the
foregoing contingencies is not satisfied, then the merger shall be null and
void. The Managing Board or its authorized representatives may amend the Plan as
may be required to obtain a favorable determination letter.
Section 11.20 Merger With Bankers Leasing Prior Plan. Effective December
31, 1998, the assets of the Bankers Leasing Prior Plan and related trust shall
be merged with and into the Plan and Trust. Effective upon such merger, the Plan
(and related Trust), as the surviving plan, shall have all right, title and
interest in such assets of the Bankers Leasing Prior Plan and related trust, and
to the extent not inconsistent with this Section and applicable law, shall be
operated in accordance with the terms of the Plan as amended from time to time.
With respect to the transferred assets of the Bankers Leasing Prior Plan, any
contribution or correction which may be required as a result of the Bankers
Leasing Prior Plan's application under any Internal Revenue Service ("Service")
voluntary compliance program or self correction which may need to be implemented
pursuant to the Service's Administrative Policy Regarding Self-Correction, to
the extent not implemented prior to the merger of the Alfred Berg Prior Plan
into the Plan, shall be implemented by the Plan as the surviving Plan.
Notwithstanding the foregoing, the transfer of assets described above shall be
contingent upon the Bankers Leasing Prior Plan being tax-qualified at the time
of transfer and upon the tax qualification of the Plan not being adversely
affected by the
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merger of the Bankers Leasing Prior Plan into the Plan. If either of the
foregoing contingencies is not satisfied, then the merger shall be null and
void. The Managing Board or its authorized representatives may amend the Plan as
may be required to obtain a favorable determination letter.
Section 11.21 Merger With Cragin KSOP Prior Plan. Effective December 31,
1998, the assets of the Cragin KSOP Prior Plan and related trust shall be merged
with and into the Plan and Trust. Effective upon such merger, the Plan (and
related Trust), as the surviving plan, shall have all right, title and interest
in such assets of the Cragin KSOP Prior Plan and related trust, and to the
extent not inconsistent with this Section and applicable law, shall be operated
in accordance with the terms of the Plan as amended from time to time.
Notwithstanding the foregoing, the transfer of assets described above shall be
contingent upon the Cragin KSOP Prior Plan being tax-qualified at the time of
transfer and upon the tax qualification of the Plan not being adversely affected
by the merger of the Cragin KSOP Prior Plan into the Plan. If either of the
foregoing contingencies is not satisfied, then the merger shall be null and
void. The Managing Board or its authorized representatives may amend the Plan as
may be required to obtain a favorable determination letter.
ARTICLE 12
CLAIMS PROCEDURE
Section 12.1 Claims Procedure. The procedure for making claims is the
procedure specified in the Rules of Administration referred to in Article
hereof.
ARTICLE 13
MISCELLANEOUS
Section 13.1 Tax Exemption of Trust. The Trust is hereby designated as
constituting a part of a plan intended to qualify and to be tax exempt under
Code Section 401(a) and Code Section 501(a), respectively. Until advised
otherwise, the Trustee may conclusively assume that the Trust is so qualified
and tax exempt.
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Section 13.2 Payment by Employer of Expenses of Committee and Trustee. The
Employers may pay any expenses (including fees of attorneys and agents) of the
Committee and of the Trustee in connection with the exercise of their powers,
duties and functions under the Plan and Trust.
Section 13.3 Rights Only as Specified. Participation in the Plan will not
give any Employee the right to be retained in the service of any Employer nor
give any person any interest in the assets, business or affairs of any Employer,
nor any right or claim to any benefit under the Plan or Trust unless such right
or claim has specifically accrued under the terms of the Trust. Neither the
Committee, the Trustee, nor any Employer in any way guarantee the Fund from loss
or depreciation.
The Trust Fund shall be the sole source of benefits under this Plan, and
each Employee, Participant, beneficiary or any other person who shall claim the
right to any payment or benefit under this Plan shall be entitled to look only
to the Trust Fund for payment of benefits. Except as may be otherwise provided
by ERISA or other applicable law, the Employers, and each of them, shall have no
liability to make or continue from their or its own funds the payment of any
benefit under the Plan.
Section 13.4 Alienation. No part of or interest in the Trust Fund or
anticipation or payment therefrom shall be in any manner transferable or
assignable, either by the voluntary or involuntary act of any Participant or
beneficiary, or by operation of law, or be liable or be taken for any debt,
liability, contract or other obligation of or claim against any such person,
except to the extent provided for in Sections , and .
Section 13.5 Method of Employer Action. Any action required or permitted
to be taken by any Employer which is not required herein to be evidenced by a
resolution of its Board of Directors or action of its Managing Board or other
appropriate authority, as the case may be, may be taken on its behalf by any one
of its Chairman of the Board of Directors, President, any Vice President,
Cashier, Comptroller or Regional Manager - North America, as applicable.
Section 13.6 Information From Participants and Beneficiaries. Each
Participant and his beneficiaries shall
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furnish to the Committee such evidence, data or information as the Committee may
from time to time consider necessary or desirable for the purpose of
administering the Plan.
Section 13.7 Legal Actions. The Company, the Bank and the Committee have
the authority, either jointly or severally, to enforce the Trust on behalf of
any and all persons having or claiming any interest in the Fund. Except as may
be specifically provided for by law, the Committee, the Company, the Bank and
the Trustee shall be the only necessary parties in any legal action or equitable
proceeding pertaining to the Trust or the Fund or any interest therein or the
administration thereof, or for instructions to the Trustee.
Section 13.8 Controlling Law. The Trust and Plan shall be construed and
administered according to the laws of the State of Illinois to the extent such
laws are not preempted by the laws of the United States of America.
Section 13.9 Bonding. The bonding requirements of Section 412 of ERISA
have been met with respect to the appropriate Plan officials.
Section 13.10 Counterparts. The Trust and Plan may be executed in any
number of counterparts, each of which shall be considered an original, and no
other counterpart need be produced.
Section 13.11 Pronouns and Number. Except where the context otherwise
requires, words in the masculine gender include the feminine and neuter gender;
words in the plural include the singular, and words in the singular include the
plural.
Section 13.12 Qualified Domestic Relations Order. Section shall not apply
to a "qualified domestic relations order" defined in Code Section 414(p), and
those other domestic relations orders which are treated by the Committee as
"qualified domestic relations orders" as permitted under the provisions of the
Retirement Equity Act of 1984. The Committee shall establish a written procedure
to determine the qualified status of domestic relations orders and to administer
distributions under such qualified orders. Further, to the extent provided under
a "qualified domestic relations order", a former spouse of a
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Participant shall be treated as such Participant's spouse or surviving spouse
for all purposes under the Plan.
Section 13.13 Special Military Service Rules. Notwithstanding any
provision of the Plan to the contrary, contributions, benefits and service
credit with respect to military service will be provided in accordance with Code
Section 414(u). Loan repayments may be suspended under this Plan as permitted
under Code Section 414(a) of the Code.
IN WITNESS WHEREOF, to evidence the amendment and restatement of the ABN
AMRO Group Profit Sharing and Savings Plan and Trust, this instrument has been
executed on behalf of ABN AMRO Bank N.V. and LaSalle National Bank, as Trustee
as aforesaid, has executed and consented to said amendment and restatement, all
as of the 22nd day of December, 1998.
ABN AMRO BANK N.V.
By: /s/ Harrison F. Tempest
--------------------------------
By: /s/ Herman Siegelaar
--------------------------------
LASALLE NATIONAL BANK
not individually but as Trustee as aforesaid
By: /s/ E. Vaughn Gordy
--------------------------------
<PAGE>
APPENDIX A
RULES OF ADMINISTRATION
ABN AMRO GROUP U.S. EMPLOYEE BENEFITS PROGRAM
RULES OF ADMINISTRATION
-------------------------------------------
WHEREAS, ABN AMRO Bank N.V. (the "Bank") has established certain employee
pension and welfare benefit plans which are subject to the provisions of Title I
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA");
and
WHEREAS, the Bank established rules of administration (which are a part of
each plan subject to such rules of administration) which govern the operation
and administration of each such plan ("Rules"); and
WHEREAS, the Managing Board of the Bank ("Managing Board") has retained
the authority to amend the Rules and previously delegated such authority to the
highest United States official of the Bank, who currently is the Chief Executive
Officer of the International Branch Network of the Bank for the United States,
Canada and Mexico (the "CEO"), and such delegation of authority has not been
revoked; and
WHEREAS, the Rules shall be subject to the same procedures for amendment
as apply to the Plan; and
WHEREAS, the Managing Board desires to amend and restate the Rules;
NOW, THEREFORE, effective as of January 1, 1999, the Managing Board hereby
amends and restates the Rules to be and read as hereinafter set forth:
RULES OF ADMINISTRATION
(1) PLANS SUBJECT TO THE RULES. The Rules shall govern the control and
management of the operation and administration of: (i) each employee pension
benefit plan and each employee welfare benefit plan (except the ABN AMRO North
America, Inc. SevTrust Plan) now or hereafter established or maintained by the
Bank or a Related Entity (as defined in the ABN AMRO Group Retirement Plan) for
the benefit of its present, future and past United States employees and their
beneficiaries, which is subject to the provisions of Title I of ERISA (the
"Subject Plans"); and (ii) each plan of a Related Entity, if such plan is
designated by the CEO as a Subject Plan.
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Any reference to a "Subject Plan" shall be deemed to include, unless the
context clearly requires otherwise, any related trust instrument or insurance
policy thereunder and any other document(s) or instrument(s) comprising a part
of such plan. Notwithstanding the foregoing, any Subject Plan which is exempt
from the requirements of Part 4 of Title I of ERISA by reason of Section 401(a)
of ERISA shall be exempt from the provisions of these Rules which implement the
requirements of such Part.
(2) COMMITTEES. The authority to control and manage the operation and
administration of each Subject Plan shall, except as set forth in Section 17 and
as expressly provided elsewhere herein, be vested jointly in four fiduciaries
who shall, without increase or decrease of their liabilities hereunder, act with
respect to any or all of the Subject Plans as and under the name of the ABN AMRO
Group U.S. Employee Benefits Committee (the "Benefits Committee"). The four
members of the Benefits Committee shall be appointed by the CEO. The Benefits
Committee shall be the Plan Administrator described in Section 15.
The authority to establish a funding policy and method and, where
appropriate, an investment policy for each Subject Plan shall be jointly vested
in those fiduciaries who shall, without increase or decrease of their
liabilities hereunder, act with respect to any or all of the Subject Plans as
and under the name of the ABN AMRO Group U.S. Fiduciary Committee (the
"Fiduciary Committee"). Such authority shall be exercised pursuant to the
provisions of Section 3 below. The Fiduciary Committee shall be composed of
those individuals appointed by the CEO.
Any member of the Benefits or Fiduciary Committee may resign as a Benefits
or Fiduciary Committee member, as the case may be, upon not less than 60 days'
notice to the CEO (or upon such shorter notice as may be acceptable to the CEO).
Any member of the Benefits or Fiduciary Committee may be removed from office at
any time by the CEO. In the event of any such resignation or removal, the CEO
shall designate an employee of the Bank (or of any U.S. affiliate of the Bank)
as a successor Benefits or Fiduciary Committee member. If a person who is a
Benefits or Fiduciary Committee member shall cease to hold such position for any
reason other than such person's death or termination of employment with the Bank
(or of any U.S. affiliate of the Bank), then such person shall remain a
fiduciary and a member of the Benefits or Fiduciary Committee, as the case may
be, for 60 days (or for such other period as may be established by the CEO).
Any instrument or document signed on behalf of the Benefits or Fiduciary
Committee by any member of the Benefits or Fiduciary Committee, as the case may
be, may be accepted and relied upon as the act of such Committee.
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(3) FUNDING AND INVESTMENT POLICY. In establishing a funding policy and
method and an investment policy for a Subject Plan, the Fiduciary Committee
shall act in conjunction with any trustee, insurance carrier, investment manager
or other party responsible for the investment of the assets of such Subject Plan
("Funding Agent"). The Fiduciary Committee shall determine the short- and
long-run financial needs of each Subject Plan, considering the objectives of
each such plan, its needs for liquidity, and such other factors as it deems
appropriate. The Fiduciary Committee may retain such consultants, counsel,
advisors and other persons as it may deem necessary or advisable in order to
determine the needs of each such plan. The Fiduciary Committee shall, if
appropriate for a Subject Plan, advise the Funding Agent of the financial needs
of each Subject Plan. The Funding Agent of a Subject Plan, after evaluating such
information and other information regarding the funding needs of, and the
investment policy for, a Subject Plan, shall establish or maintain an
appropriate investment program for such plan.
The Fiduciary Committee shall review the funding and investment policies
(and any related information) no less frequently than annually for any plan
which is not insured. Notwithstanding the foregoing, the Fiduciary Committee may
modify the procedures set forth in this Section, including, without limitation,
provisions relating to actions to be taken by any Funding Agent or by the
Fiduciary Committee with respect to any Funding Agent, as it deems necessary or
appropriate considering the nature and manner of funding the Subject Plan and
the investment policy in effect.
With respect to a Subject Plan providing benefits on a term insurance
basis, the funding policy shall be, unless the Fiduciary Committee determines
otherwise, the timely payment of premiums required by the Funding Agent for the
provision of plan benefits, and no investment policy shall be required.
Any instrument signed on behalf of the Fiduciary Committee by any member
of the Fiduciary Committee may be accepted and relied upon as the act of the
Fiduciary Committee.
(4) POWER OF DELEGATION. The Benefits Committee may allocate among its
members specified fiduciary responsibilities (other than trustee
responsibilities as defined in Section 405(c)(3) of ERISA). The Benefits
Committee may also delegate to one or more persons, other than a member of the
Benefits Committee, specified fiduciary responsibilities (other than trustee
responsibilities as defined in Section 405(c)(3) of ERISA). Any delegation
pursuant to this Section shall be in writing and shall specify the person so
designated, the fiduciary responsibilities being delegated, and the terms of the
delegation. The Benefits Committee shall not enter into any delegation under
this Section which does not provide for
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<PAGE>
the termination thereof by the Benefits Committee upon reasonable notice to such
person. Without limiting the generality of the foregoing, the Benefits Committee
shall have the power to delegate, pursuant to the foregoing provisions of this
Section, to one or more persons, the authority to: (i) determine the amount of
benefits due to any person under any Subject Plan; (ii) execute, in the name and
on behalf of the Benefits Committee, any direction for payment of any benefit
under any Subject Plan; (iii) maintain records and accounts; and (iv) determine
the form of any benefit payments under any Subject Plan.
(5) MINISTERIAL PLAN SERVICES. The Benefits Committee may designate any
employee of the Bank or any U.S. affiliate of the Bank, or any other party in
interest (as defined in Section 3(14) of ERISA) or other person to perform any
ministerial services in the administration of any Subject Plan. The Benefits
Committee shall furnish any such person with such framework or policies,
interpretations, rules, practices and procedures as the Benefits Committee shall
deem necessary or appropriate. The Benefits Committee may rely on any
information, data, statistics, reports or analyses furnished by any such person.
(6) REPORTS OF THE BENEFITS COMMITTEE. The Benefits Committee shall report
to the CEO, not less often than annually, on the performance of its
responsibilities and on the performance of any persons to whom any of its powers
and responsibilities may have been delegated pursuant to Section 4.
(7) SERVICE IN VARIOUS FIDUCIARY CAPACITIES. Any person or group of
persons may serve in more than one fiduciary capacity with respect to any
Subject Plan, and any fiduciary may serve as such in addition to being a
shareholder, director, officer, employee, agent, or other representative of a
party in interest (as defined in Section 3(14) of ERISA).
(8) RETENTION OF ADVISORS. Each of the Benefits Committee and the
Fiduciary Committee may employ one or more persons to render advice with regard
to any responsibilities assumed by it under the Subject Plans or ERISA. Each of
the Benefits Committee and the Fiduciary Committee shall have the authority to
retain such clerical, legal, accounting, actuarial and other services as it may
deem necessary or appropriate in the exercise of its authority hereunder.
(9) POWER TO CONSTRUE. The Benefits Committee shall have full, conclusive
and exclusive power and discretion to: (i) interpret and construe the terms and
conditions of the Subject Plans; (ii) make final determinations with respect to
all questions of plan administration, plan policy and eligibility to participate
in and receive benefits under the Subject Plans, in a uniform manner consistent
with the terms of the Subject Plans; (iii)
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determine whether or not any Participant in a Subject Plan has made the
necessary and proper elections with respect to the manner in which benefits
under such Subject Plans are paid; (iv) promulgate rules and regulations deemed
necessary to implement the provisions of the Subject Plans; and (v) review,
re-evaluate and change, at any time, any decision of the Benefits Committee or
of any predecessor to the Benefits Committee. All decisions made by the Benefits
Committee with respect to any Subject Plan shall be final and binding on all
parties. All of the power, discretion and authority granted in this Section to
the Benefits Committee with respect to each Subject Plan shall also apply to the
Benefits Committee with respect to any other plan which becomes a part of any
Subject Plan by merger, consolidation or otherwise.
(10) POWER TO DIRECT DISBURSEMENTS. The Benefits Committee shall have
authority to direct any Funding Agent with respect to any payments or
disbursements from, or contributions to, any Subject Plan, except with respect
to disbursements from such Subject Plans which by their terms require or permit
direct application for benefits to the Funding Agent by participants in such
plan, or their beneficiaries.
(11) POWER TO MAKE RULES. Each of the Benefits Committee and the Fiduciary
Committee shall have the power to make such rules and procedures as it may deem
necessary or appropriate hereunder, including, but not being limited to, rules
governing the manner in which that Committee shall act and manage its own
affairs.
(12) EXPENSES. Each of the Benefits Committee and the Fiduciary Committee
may defray the reasonable expenses which it may incur in the administration of
any Subject Plan from the assets of such plan unless such expenses shall be paid
by the employers which maintain such plan; provided, however, that where the
payment of such expenses from a Subject Plan which is an insured employee
welfare benefit plan could jeopardize the coverage of the participants in such
plan, or their beneficiaries, the Benefits Committee or the Fiduciary Committee,
as the case may be, shall be entitled to recover its reasonable expenses from
the employers which maintain such plan.
(13) MANNER OF EXERCISE OF POWERS AND AUTHORITY. The Benefits Committee
and the Fiduciary Committee shall each exercise their respective powers and
authority hereunder consistently with the requirements of ERISA and, with
respect to any Subject Plan qualified under the Internal Revenue Code of 1986,
as amended (the "Code"), without discrimination in favor of highly compensated
employees (within the meaning of Code Section 414(q)).
(14) PROVISIONS OF SUBJECT PLANS. Except as otherwise provided in these
Rules, the provisions of the Subject Plans shall remain in effect and shall
govern, among other things, the persons
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eligible for benefits, the amount of benefits and the basis on which payments
are made to and from any such plan.
(15) PLAN ADMINISTRATOR. The Plan Administrator of each Subject Plan shall
be the Benefits Committee described in Section 2. Any member of the Benefits
Committee may sign a document required to be executed by the Plan Administrator
of a Subject Plan, and such execution shall be the act of the Plan Administrator
for all purposes. On behalf of the Plan Administrator, any member of the
Benefits Committee may authorize any employee of the Bank, or of any U.S.
affiliate of the Bank which sponsors a Subject Plan, to execute any document
pertaining to such Subject Plan on such member's behalf, provided that such
execution shall in no way absolve such member of any responsibility for such
document. The Plan Administrator is hereby designated as agent for service of
process with respect to each Subject Plan.
(16) INDEMNIFICATION. To the extent permitted by law, the Bank shall
indemnify the members of the Benefits Committee and the Fiduciary Committee, the
Plan Administrator and those to whom fiduciary duties have been duly delegated
in accordance herewith, and shall keep and hold such persons harmless from and
against any and all damages, costs, liabilities, expenses, actions, claims,
demands and accounts whatsoever which such persons may incur, whether jointly
and severally, by reason of, or in any manner arising directly or indirectly
from, the effects and consequences of their acts, omissions and conduct in their
official capacity as members of the Benefits Committee, of the Fiduciary
Committee or as Plan Administrator, or as such delegate, except with respect to
any act, omission or conduct which is dishonest or which constitutes a willful
violation of ERISA or other law or regulation under which such damage, cost,
liability, expense, action, claim, demand or account arises. No action taken or
omitted by the Benefits Committee, the Fiduciary Committee, any member of such
committees or the Plan Administrator on the advice of counsel shall be regarded
as an act or omission constituting a willful violation of ERISA or other law or
regulation for purposes of this Section, and the members of such committees and
the Plan Administrator shall be fully protected with respect to any act or
omission on the basis of such advice, including, without limitation, advice with
respect to the scope of the responsibilities or powers of such person under
ERISA and the Subject Plans.
(17) AMENDMENT OF RULES AND SUBJECT PLANS; APPOINTMENT AND REMOVAL OF
FUNDING AGENCIES. The Managing Board (or the designated representative or agent
of the Managing Board), retains the authority to amend these Rules and any
Subject Plan and to appoint (or remove) any Funding Agent (or trustee other than
a Funding Agent) in accordance with the provisions of the Subject Plans, and no
other person shall have responsibility or liability with respect to any such
authority. Amendments to any trust agreement,
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insurance policy or contract or other document providing for the funding medium
of any Subject Plan or other agreement entered into in order to effectuate any
Subject Plan shall be subject to the requirements provided therein.
(18) CLAIMS PROCEDURE. The following claims procedure shall apply to each
Subject Plan, subject to such modifications therein applicable to any Subject
Plan as the Benefits Committee may deem necessary or appropriate in order to
most effectively apply such procedure to such Subject Plan:
(a) Any participant, or his beneficiary, in a Subject Plan ("claimant"),
or his duly authorized representative, may file a written claim for
a plan benefit with the Plan Administrator or with the person (which
term includes an insurance carrier or similar organization)
specified in the plan or named by the Benefits Committee to receive
claims under such plan. The written claim shall state the nature of
the claim, the facts supporting the claim and the address of the
claimant.
(b) The claim shall be reviewed and, unless special circumstances
require an extension of time, within 90 days after receipt of the
claim the claimant shall be given written notice of the decision
with respect to the claim by the Plan Administrator; provided,
however, in the case of an employee welfare benefit plan under which
benefits are provided by an insurance carrier or similar
organization, such notice may, if the Benefits Committee so
specifies, be furnished by such carrier or organization. If special
circumstances require an extension of time, the claimant shall be so
advised within the initial 90-day period and in no event shall such
an extension exceed 90 days. The notice of the decision with respect
to the claim shall set forth, if the claim is wholly or partially
denied, the specific reason(s) for the denial, the specific
references to the pertinent plan provision(s) on which the denial is
based, a description of any additional material or information
necessary for the claimant to perfect the claim as well as an
explanation of why such material or information is necessary, and an
explanation of the claim review procedure set forth in paragraph (c)
of this Section. In the event that notice of the decision with
respect to the claim is not furnished to the claimant within the
period specified above, the entire claim shall be deemed to have
been denied for purposes of permitting the claimant to appeal the
decision.
(c) Every claimant shall have a reasonable opportunity to appeal the
denial of a claim to the Benefits Committee;
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<PAGE>
provided, however, in the case of an employee welfare benefit plan
under which benefits are provided by an insurance carrier or similar
organization, such appeal may, if the Benefits Committee so
specifies, be made to such carrier or other organization. Such
appeal must be made in writing, by the claimant or his duly
authorized representative, within 60 days after the notice of the
denial has been received by the claimant. The claimant or his
representative may have reasonable access and opportunity to review
pertinent documents and submit issues and comments in writing.
(d) If an appeal of a denied claim is made, a decision shall be rendered
within 60 days after the receipt of an appeal, unless special
circumstances require an extension of time. If special circumstances
require an extension of time, the claimant shall be so advised in
writing within the initial 60-day period and in no event shall such
an extension exceed 60 days. The notice of the decision on the
appeal shall be in writing and shall include specific reason(s) for
the decision and specific references to the pertinent plan
provision(s) on which the decision is based.
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<PAGE>
Exhibit 8.1
AMRO BANK NV
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
DISTRICT DIRECTOR
P.O. BOX 2508
CINCINNATI, OH 45201
Employer Identification Number:
13-5268975
Date: July 10, 1997 DLN:
17007050007007
ABN AMRO BANK NV Person to Contact:
C/O MARK F. ZAENGER CINDY PERRY
NISEN & ELLIOTT Contact Telephone Number:
200 W ADAMS ST STE 2500 (513) 241-5199
CHICAGO, IL 60606 Plan Name:
GROUP PROFIT SHARING AND
SAVINGS PLAN
Plan Number: 003
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend on
its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation
periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some events that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other
federal or local statutes.
Your plan does not consider total compensation for purposes of figuring
benefits. In operation, the provision may discriminate in favor of employees
who are highly compensated. If this occurs, your plan will not remain
qualified.
Your plan does not provide for contributions on behalf of participants
not employed on the allocation date. In operation, the provision may
discriminate in favor of employees who are stockholders, officers or highly
compensated. If this discrimination occurs, your plan will not remain
qualified. (See Rev. Rule. 76-250, 1976-2 C.B. 124.)
<PAGE>
AMRO BANK NV
This determination letter is applicable for the amendment(s) adopted on
12-18-96 & 12-30-96.
This determination letter is also applicable for the amendment(s) adopted
on 2-12-97.
This plan has been mandatory disaggregated, permissively aggregated, or
restructured to satisfy the nondiscrimination requirements.
At your request, this determination letter does not express an opinion,
and may not be relied on with respect to, whether the nondiscrimination in
amount requirement of section 1.401(a)(4)-1(b)(2) of the regulations has been
satisfied.
This plan satisfies the nondiscriminatory current availability
requirements of section 1.401(a)(4)-4(b) of the regulations with respect to
those benefits, rights, and features that are currently available to all
employees in the plan's coverage group. For this purpose, the plan's
coverage group consists of those employees treated as currently benefiting
for purposes of demonstrating that the plan satisfies the minimum coverage
requirements of section 410(b) of the Code.
This plan also satisfies the requirements of section 1.401(a) (4)-4(b)
of the regulations with respect to the specific benefits, rights, or features
for which you have provided information.
Except as otherwise specified this letter may not be relied upon with
respect to whether the plan satisfies the qualification requirements as
amended by the Uruguay Round Agreements Act, Pub. L. 103-465 and by the Small
Business Job Protection Act of 1996 (SBJPA), Pub. L. 104-108, other than the
requirements of Code section 401(a)(26).
Based on the information supplied, we have determined that your plan
meets the requirements of section 401(k) of the Internal Revenue Code.
The information on the enclosed addendum is an integral part of this
determination. Please be sure to read and keep it with this letter.
We have sent a copy of this letter to your representative as indicated in
the power of attorney.
<PAGE>
AMRO BANK NV
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/ Bobby G. Scott
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
Addendum
<PAGE>
AMRO BANK NV
This letter considers the amendments required by the Tax Reform Act 1986
except as otherwise specified in this letter.
<PAGE>
[LETTERHEAD OF MORET ERNST & YOUNG]
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the use of our report dated March 31,1998 included in
the annual report on Form 20-F filed with the commission on April 20, 1998,
on our examination of the financial statements of ABN AMRO Holding N.V. and
subsidiaries as of December 31, 1996 and 1997, and the related consolidated
statements of income, cash flows and changes in shareholders' equity for each
of the three years in the period ended December 31, 1997 for inclusion in the
registration statement S-8 regarding the ABN AMRO Group Profit Sharing and
Savings Plan and Trust dated March 1999.
Amsterdam, The Netherlands
March 19, 1999
Moret Ernst & Young Accountants
MORET ERNST & YOUNG ACCOUNTANTS
