As filed with the Securities and Exchange Commission on April , 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
---------------------------
WELLS FARGO & COMPANY
(Exact name of issuer as specified in its charter)
Delaware 13-2553920
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
---------------------------
Wells Fargo & Company
420 Montgomery Street
San Francisco, California 94163
(415) 477-1000
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
---------------------------
THE EMPLOYEE SAVINGS PLAN OF FIRST INTERSTATE BANCORP
(Full titles of the plans)
---------------------------
Guy Rounsaville, Jr.
Executive Vice-President, Chief Counsel and Secretary
Wells Fargo & Company
420 Montgomery Street
San Francisco, California 94163
(415) 477-1000
(Name, address and telephone number, including area code, of agent for service)
---------------------------
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission, and sales of the registered securities
will begin as soon as reasonably practicable after such effective date.
---------------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
==================================================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered per Share Price Fee
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Wells Fargo
Common Stock,
$5.00 par value(1) 0(2) $ n\a (2) $ n\a (2) $100.00(2)
--------- ---------
- -------------------------------------------------------------------------------------------------------------------
<FN>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) 637,563 shares of Wells Fargo Common Stock are being carried forward
pursuant to Rule 429 under the Securities Act of 1933 from Registration
Statement No. 33-64575, as discussed below on this facing page. The
amount of filing fee to register such securities is $48,426.67. The
registration fee shown is the minimum fee required under Section 6 of
the Securities Act of 1933.
</FN>
</TABLE>
<PAGE>
================================================================================
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus under this
Registration Statement constitutes a combined Prospectus relating to 637,963
shares of Wells Fargo Common Stock, unsold as of April 17, 1996, registered
pursuant to Registration Statement No. 33-64575 previously filed by the
Registrant on Form S-4, as well as an indeterminate amount of plan interests
registered pursuant to this Registration Statement. As a result, this
Registration Statement does not register any additional shares of Wells Fargo
Common Stock, but registers an indeterminate number of plan interests.
<PAGE>
PART I
Information Required in the Section 10(a) Prospectus
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended (the "1933
Act") and the Note to Part I of Form S-8.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Certain Documents by Reference
Wells Fargo & Company (the "Registrant") hereby incorporates
by reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report filed with the Commission on
Form 10-K, File No. 01-06214, for the fiscal year ended
December 31, 1995 excluding the information contained therein
described in Item 402(a)(8) of the Commission's Regulation
S-K;
(b) The Registrant's Current Reports filed with the Commission on
Form 8-K, File No. 01-06214, on January 16, January 24,
January 31, February 29, April 1, April 4, April 10 and April
16, 1996;
(c) The description of Common Stock contained in the Registrant's
Registration Statement on Form 8-B, File No. 01-06214, filed
with the Commission on June 17, 1987, and any amendment or
report filed for the purpose of updating such description
filed after the date of this Registration Statement;
(d) The Employee Savings Plan's latest Annual Report on Form 11-K,
File No. 33-36478, filed with the Commission by First
Interstate Bancorp on June 28, 1995; and
(e) First Interstate Bancorp's Annual Report filed with the
Commission on Form 10-K, File No. 61-06214, for the fiscal year
ended December 31, 1995 (excluding information contained
therein described in Item 402(a)(8) of the Commission's
Regulation 5-K).
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act") after the date of this Registration Statement
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 by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document all or a portion of
which is incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Item 4. Description of Capital Stock
Inapplicable.
II-1.
<PAGE>
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
As permitted by Section 102(b)(7) of the Delaware General Corporation
Law ("DCGL"), Article Fifth of the Registrant's Restated Certificate of
Incorporation eliminates the monetary liability of a director to the corporation
or its stockholders for breach of fiduciary duty as a director, with the
following exceptions, as required by Delaware law: (i) breach of the director's
duty of loyalty to the corporation or its stockholder; (ii) acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law; (iii) payment of unlawful dividends or the making of unlawful stock
purchases or redemptions; or (iv) any transaction from which the director
derived an improper personal benefit.
In addition, under Section 145 of the DGCL, a corporation may indemnify
a director, officer, employee or agent of the corporation against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with any threatened,
pending or completed Proceeding (other than an action by or in the right of the
corporation) if he acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. In the case of an action brought by or in the
right of the corporation, the corporation may indemnify a director, officer,
employee or agent of the corporation against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of any threatened, pending or completed action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that a
court determines upon application that, in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses as the court deems proper. Article IV of the Registrant's Bylaws
provides for indemnification of its directors, officers, employees, and other
agents to the fullest extent permitted by the DGCL.
Item 7. Exemption from Registration Claimed
Inapplicable.
Item 8. Exhibits
Exhibit Number Exhibit
- ---------------- -------
4 Description of the Registrant's Common Stock
(Incorporated by reference to the Registrant's
Registration Statement on Form 8-B, File No. 01-06214,
filed with the Commission on June 17, 1987, and any
amendment or report filed for the purpose of updating
such description filed after the date of this
Registration Statement.)
5 Opinion of Brobeck, Phleger & Harrison LLP
23.1 Consent of KMPG Peat Marwick LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Brobeck, Phleger & Harrison LLP is contained
in Exhibit 5
24 Power of Attorney (Reference to page II-4 of this
Registration Statement)
99.1 1994 Restatement of the Employee Savings Plan of First
Interstate Bancorp
99.2 Amendment to the Employee Savings Plan of First
Interstate Bancorp
- ------------------------
II-2.
<PAGE>
The undersigned Registrant hereby undertakes that it will submit the
Employee Savings Plan of First Interstate Bancorp and any amendments thereto, to
the Internal Revenue Service ("IRS") in a timely manner and has or will make all
changes required by the IRS in order to qualify the plan under Internal Revenue
Code Section 401.
Item 9. Undertakings.
A. The undersigned Registrant hereby undertakes: (1) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this Registration Statement (i) to include any prospectus required by Section
10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement, and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
not apply if the information required by those clauses to be included in a
post-effective amendment is contained in the periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into this Registration Statement; (2) that, for the
purpose of determining any liability under the 1933 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 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers or controlling persons of the Registrant
pursuant to the provisions and agreements summarized in Item 6 above or
otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
II-3.
<PAGE>
SIGNATURES
Registrant. Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California, on this day of
April, 1996.
WELLS FARGO & COMPANY
By /s/ Rodney L. Jacobs
------------------------------------------
Rodney L. Jacobs
Vice Chairman and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of WELLS FARGO & COMPANY, a
Delaware corporation, do hereby constitute and appoint Paul Hazen, William F.
Zuendt, Rodney L. Jacobs and any one of them, the lawful attorneys and agents or
attorney and agent, with full power and authority to do any and all acts and
things and to execute any and all instruments which said attorneys and agents,
and any one of them, determine may be necessary or advisable or required to
enable said corporation to comply with the Securities Act of 1933, as amended,
and any rules or regulations or requirements of the Securities and Exchange
Commission in connection with this Registration Statement. Without limiting the
generality of the foregoing power and authority, the powers granted include the
power and authority to sign the names of the undersigned officers and directors
in the capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
all that said attorneys and agents or any one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
<TABLE>
Pursuant to the requirements of the 1933 Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<CAPTION>
Signatures Title Date
- ---------- ------ -----
<S> <C> <C>
/s/ Paul Hazen
- -------------------------------------------- Chairman of the Board, April 16, 1996
Paul Hazen Chief Executive Officer
and Director (Principal
Executive Officer)
/s/ William F. Zuendt
- -------------------------------------------- President and Director April 16, 1996
William F. Zuendt
/s/ Rodney L. Jacobs
- -------------------------------------------- Vice Chairman and Chief April 16, 1996
Rodney L. Jacobs Financial Officer (Principal
Financial Officer)
II-4.
<PAGE>
Signatures Title Date
- ---------- ----- ----
/s/ Frank A. Moeslein
- -------------------------------------------- Executive Vice President April 16, 1996
Frank A. Moeslein and Controller (Principal
Accounting Officer)
/s/ H. Jesse Arnelle
- -------------------------------------------- Director April 16, 1996
H. Jesse Arnelle
/s/ Edward M. Carson
- -------------------------------------------- Director April 16, 1996
Edward M. Carson
/s/ William S. Davila
- -------------------------------------------- Director April 16, 1996
William S. Davila
/s/ Rayburn S. Dezember
- -------------------------------------------- Director April 16, 1996
Rayburn S. Dezember
/s/ Myron Du Bain
- -------------------------------------------- Director April 16, 1996
Myron Du Bain
- -------------------------------------------- Director April 16, 1996
Don C. Frisbee
/s/ Robert K. Jaedicke
- -------------------------------------------- Director April 16, 1996
Robert K. Jaedicke
- -------------------------------------------- Director April 16, 1996
Thomas L. Lee
/s/ William F. Miller
- -------------------------------------------- Director April 16, 1996
William F. Miller
/s/ Ellen M. Newman
- -------------------------------------------- Director April 16, 1996
Ellen M. Newman
II-5.
<PAGE>
/s/ Philip J. Quigley
- -------------------------------------------- Director April 16, 1996
Philip J. Quigley
/s/ Carl E. Reichardt
- -------------------------------------------- Director April 16, 1996
Carl E. Reichardt
/s/ Donald B. Rice
- -------------------------------------------- Director April 16, 1996
Donald B. Rice
/s/ Richard J. Stegemeier
- -------------------------------------------- Director April 16, 1996
Richard J. Stegemeier
/s/ Susan G. Swenson
- -------------------------------------------- Director April 16, 1996
Susan G. Swenson
/s/ Daniel M. Tellep
- -------------------------------------------- Director April 16, 1996
Daniel M. Tellep
/s/ Chang-Lin Tien
- -------------------------------------------- Director April 16, 1996
Chang-Lin Tien
- -------------------------------------------- Director April 16, 1996
John A. Young
</TABLE>
Plan. Pursuant to the requirements of the Securities Act of 1933, as
amended, the 1994 Restatement of the Employee Savings Plan of First Interstate
Bancorp has caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of San Francisco, State of
California, on this day of April, 1996.
EMPLOYEE SAVINGS PLAN OF
FIRST INTERSTATE BANCORP
By: /s/ Patricia R. Callahan
-----------------------------------------------
Patricia R. Callahan
Executive Vice President and Personnel Director
Wells Fargo & Company
II-6.
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
WELLS FARGO & COMPANY
II-7.
<PAGE>
EXHIBIT INDEX
Exhibit Number Exhibit
- -------------- -------
4 Description of the Registrant's Common Stock (Incorporated
by reference to the Registrant's Registration Statement on
Form 8-B, File No. 01-06214, filed with the Commission on
June 17, 1987.)
5 Opinion of Brobeck, Phleger & Harrison LLP
23.1 Consent of KMPG Peat Marwick LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Brobeck, Phleger & Harrison LLP (included in
Exhibit 5)
24 Power of Attorney (Reference is made to page II-4 of this
Registration Statement)
99.1 1994 Restatement of the Employee Savings Plan of First
Interstate Bancorp
99.2 Amendment to the 1994 Restatement of the Employee Savings
Plan
EXHIBIT 5
Opinion of Brobeck, Phleger & Harrison LLP
[Letterhead of Brobeck Phleger & Harrison]
April 18, 1996
Wells Fargo & Company
420 Montgomery Street
San Francisco, California 94163
Re: Form S-8 Registration Statement
Ladies and Gentlemen:
We refer to your Form S-8 Registration Statement (the
"Registration Statement") under the Securities Act of 1933, as amended,
regarding the issuance of shares of Common Stock under the Employee Savings Plan
of First Interstate Bancorp. and plan interests therein, assumed by the Wells
Fargo & Company (the "Company") in connection with the merger of First
Interstate into the Company. We advise you that, in our opinion, when such
shares of Common Stock have been issued and sold pursuant to the applicable
provisions of the Company's Plan and in accordance with the Registration
Statement, such shares will be validly issued, fully paid and nonassessable
shares of the Company's Common Stock.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
BROBECK, PHLEGER & HARRISON
EXHIBIT 23.1
Consent of KMPG Peat Marwick LLP
The Board of Directors
Wells Fargo & Company:
We consent to the incorporation by reference in the Registration Statement on
Form S-8 (No. 33- ) of Wells Fargo & Company of our report dated January 16,
1996 except as to Note 15, which is as of February 27, 1996, incorporated by
reference in the Annual Report on Form 10K of Wells Fargo & Company for the year
ended December 31, 1995.
KPMG Peat Marwick LLP
San Francisco, CA
April 24, 1996
EXHIBIT 23.2
Consent of Ernst & Young LLP
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of Wells Fargo and Company pertaining to The Employee Savings Plan of First
Interstate Bancorp and its Affiliates of our report dated January 23, 1996 with
respect to the consolidated financial statements of First Interstate Bancorp
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1995 and of our report dated June 26, 1995 with respect to the
financial statements of The Employee Savings Plan of First Interstate Bancorp
and its Affiliates included in its Annual Report (Form 11-K) for the year ended
December 31, 1994 filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Los Angeles, California
March 25, 1996
EXHIBIT 23.3
Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5
1994 RESTATEMENT OF THE EMPLOYEE SAVINGS PLAN
OF
FIRST INTERSTATE BANCORP
<PAGE>
TABLE OF CONTENTS
EMPLOYEE SAVINGS PLAN
Page
ARTICLE I PLAN HISTORY AND FEATURES...................... 1
ARTICLE II DEFINITIONS.................................... 4
2.1 Account........................................ 4
2.2 Active Participant............................. 5
2.3 After-Tax Contributions........................ 5
2.4 After-Tax Contributions Account................ 5
2.5 Before-Tax Contributions....................... 5
2.6 Before-Tax Contributions Account............... 5
2.7 Beneficiary.................................... 6
2.8 Board of Directors............................. 6
2.9 Break in Service............................... 6
2.10 Code........................................... 6
2.11 Company or Companies........................... 6
2.12 Company Contributions Account.................. 7
2.13 Company Stock.................................. 8
2.14 Compensation................................... 8
2.15 Disability..................................... 10
2.16 Employee....................................... 10
2.17 Employment..................................... 11
2.18 ERISA.......................................... 11
2.19 Investment Fund................................ 11
2.20 Participant.................................... 11
2.21 Plan........................................... 12
2.22 Plan Administrator............................. 12
2.23 Plan Rules..................................... 12
2.24 Plan Year...................................... 12
2.25 Retirement..................................... 12
2.26 Rollover Account............................... 12
2.27 Savings Plan................................... 12
2.28 Service........................................ 13
2.29 Trust or Trust Fund............................ 15
2.30 Trust Agreement................................ 15
2.31 Trustee........................................ 15
2.32 Vested......................................... 15
ARTICLE III PARTICIPATION.................................. 15
3.1 Requirements for Participation................. 15
3.2 Former Employees............................... 17
ARTICLE IV BEFORE-TAX CONTRIBUTIONS AND AFTER-TAX
CONTRIBUTIONS.................................. 17
4.1 Before-Tax Contributions....................... 17
i.
<PAGE>
Page
4.2 After-Tax Contributions......................... 19
4.3 Matched Contributions........................... 20
4.4 Unmatched Contributions......................... 20
4.5 Commencement, Change, Suspension and
Resumption of After-Tax Contributions and
Before-Tax Contributions........................ 21
4.6 Withholding and Crediting of Before-Tax
Contributions and After-Tax Contributions....... 22
4.7 Special Anti-Discrimination Limits.............. 23
4.8 Rollover Contributions.......................... 30
ARTICLE V MATCHING CONTRIBUTIONS.......................... 31
5.1 Matching Contributions.......................... 31
5.2 Funding of Company Match........................ 32
ARTICLE VI VESTING......................................... 33
6.1 Basic Vesting Rules............................. 33
6.2 Accelerated Vesting............................. 34
6.3 Forfeitures After Resignation or Discharge...... 34
6.4 Vesting after Distributions or Withdrawals
from Partially Vested Accounts.................. 36
6.5 Special Vesting Rule Under Voluntary Early
Retirement Plan................................. 37
ARTICLE VII BENEFITS UPON TERMINATION OF EMPLOYMENT OR
DISABILITY...................................... 37
7.1 Distribution of Accounts........................ 37
7.2 Subsequent Allocations.......................... 39
7.3 Suspension of Benefits.......................... 40
7.4 Immediate Payment Not Required Before Age
70-1/2.......................................... 40
7.5 Joint and Survivor Annuity Requirements......... 41
7.6 Benefit Distribution Requirements............... 41
7.7 Special Distribution Rule Under Voluntary
Early Retirement Plan........................... 45
ARTICLE VIII BENEFITS UPON DEATH............................. 45
8.1 Designation of Beneficiary...................... 45
8.2 Distribution on Death........................... 46
8.3 Election of Other Payment Methods............... 47
8.4 Time of Distribution............................ 49
ARTICLE IX WITHDRAWALS AND LOANS........................... 49
9.1 General......................................... 49
9.2 Withdrawals from After-Tax Contributions
Accounts........................................ 50
9.3 Withdrawals from Company Contributions
Accounts........................................ 50
ii.
<PAGE>
Page
9.4 Hardship Withdrawals from Before-Tax Contri-
bution Accounts and the Matched Portion of
After-Tax Contribution Accounts................. 52
9.5 Withdrawal Procedures and Penalties............. 53
9.6 Loans to Participants........................... 55
ARTICLE X INVESTMENT FUNDS................................ 58
10.1 Investment Choices.............................. 58
10.2 Special Accounting Rules for the Stock Fund..... 60
10.3 Voting, Tendering or Retaining Company Stock.... 63
10.4 Allocation of Gains or Losses on Investment
Funds........................................... 68
10.5 Earnings Factor................................. 69
10.6 Value of Investment Funds....................... 69
10.7 Account Values, Basis and Conversion of
Company Stock to Cash........................... 71
ARTICLE XI ANNUAL ADDITION LIMITS.......................... 72
11.1 Limitation on Allocations....................... 72
11.2 Combined Defined Contribution/Defined Benefit
Plan Limit...................................... 75
ARTICLE XII ADMINISTRATION OF THE PLAN...................... 76
12.1 Duties of the Plan Administrator................ 76
12.2 Investments and Funding Policy.................. 78
12.3 Delegation of Administrative Responsibility..... 78
12.4 Compensation, Expenses and Indemnity............ 79
12.5 Claims Procedure................................ 80
12.6 Effect of Plan Administrator Action............. 83
12.7 Appointment of Committees....................... 84
ARTICLE XIII AMENDMENT AND TERMINATION OF THE PLAN........... 86
13.1 Amendments...................................... 86
13.2 Termination of Plan; Discontinuance of
Contributions................................... 88
ARTICLE XIV MISCELLANEOUS PROVISIONS........................ 91
14.1 Payments........................................ 91
14.2 Consolidation or Merger of Companies............ 93
14.3 Adoption of Plan to Cover Other Companies,
Facilities or Groups............................ 93
14.4 Related Companies............................... 94
14.5 Eligibility Determinations for Part-Time
Employees....................................... 95
14.6 Termination of Employment....................... 98
14.7 Corrective Contributions........................100
14.8 Plan Mergers and Spinoffs.......................101
14.9 Limitation on Rights of Employees...............101
14.10 Duty to Provide Data............................102
iii.
<PAGE>
Page
14.11 Service of Process...............................103
14.12 Governing Law....................................103
14.13 Top Heavy Rules..................................104
14.14 Division of Benefits by Domestic Relations
Orders...........................................109
14.15 Rollovers to Other Plans.........................112
14.16 Family Aggregation Rules.........................114
14.17 Genders and Plurals..............................116
14.18 Titles...........................................116
14.19 References.......................................116
iv.
<PAGE>
1994 RESTATEMENT OF THE
EMPLOYEE SAVINGS PLAN
OF
FIRST INTERSTATE BANCORP
ARTICLE I
PLAN HISTORY AND FEATURES
First Interstate Bancorp originally adopted this Employee
Savings Plan, effective July 1, 1979. At that time, First Interstate Bancorp was
known as "Western Bancorporation." Since its adoption and prior to this
Restatement, the Plan has been amended nine times: on February 22, 1983; August
8, 1983; November 8, 1983; June 27, 1984; November 12, 1984; November 18, 1985;
November 16, 1987; February 21, 1989; and November 20, 1989.
The June 27, 1984 amendment restated the Plan in its entirety
and converted it to a cash or deferred savings plan (the "1985 Restatement").
Effective January 1, 1983, the Companies adopted a tax credit employee stock
ownership plan (the "PAYSOP"), which was called "The Employee Stock Ownership
Plan of First Interstate Bancorp and Its Affiliates." The PAYSOP was
incorporated into the 1985 Restatement and remained set forth in its entirety in
the Savings Plan document. However, the PAYSOP remained a separate stock bonus
plan.
The First Amendment to the 1985 Restatement, adopted November
12, 1984, and effective January 1, 1985, restated the
1.
<PAGE>
Plan in its entirety and continued it in existence. The Second Amendment,
adopted November 18, 1985, and effective January 1, 1986, added an additional
investment option to the Plan. The Third Amendment, adopted November 16, 1987,
and effective January 1, 1987, terminated the PAYSOP as of September 30, 1988,
and set forth the required Tax Reform Act of 1986 amendments applicable to the
terminated PAYSOP. The Fourth Amendment, adopted February 21, 1989, and
effective January 1, 1989, adopted IRS Model Amendment No. 1 set forth in IRS
Notice 88-131.
The Ninth Amendment (the "1989 Restatement"), adopted November
20, 1989 and effective January 1, 1989 (and such earlier dates as may have been
required to comply with applicable law) restated the Plan in its entirety and
continued it in existence, and conformed the Savings Plan to Internal Revenue
Code provisions enacted by the Tax Reform Act of 1986 and subsequent
legislation.
This Tenth Amendment (the "1994 Restatement"), effective
January l, 1993 (and such earlier dates as may be required to comply with
applicable law), restates the Plan in its entirety and continues it in
existence, and conforms it to final Treasury Regulations issued pursuant to
applicable provisions of the Internal Revenue Code as amended by the Tax Reform
Act (of 1986, to the Uniform Compensation Amendments Act of 1992 and to the
Revenue Reconciliation Act of 1993.
The Savings Plan is a cash or deferred profit-sharing plan
which is intended to qualify under applicable provisions of
2.
<PAGE>
the Internal Revenue Code and state law. Domestic, non-bargaining unit Employees
of the Companies which have adopted the Plan become Participants after
completing a year of Service. Each Participant is entitled to make Before-Tax
Contributions and After-Tax Contributions to the Plan. Before-Tax Contributions
are Company contributions to the cash or deferred portion of this Plan made
pursuant to a salary reduction agreement between each Participant and the
Company which employs the Participant. AfterTax Contributions are non-deductible
contributions made by Participants. On a monthly basis, the Companies match the
first six percent of Before-Tax Contributions or After-Tax Contributions by a
Participant at a fifty percent matching rate.
All contributions are credited to separate Accounts for each
Participant and are held under the Trust Agreement pursuant to the Savings Plan.
Matching contributions are normally invested in Company Stock, but Participants
have the right to direct how their contributions are invested by choosing among
a number of investment options.
Before-Tax Contributions and After-Tax Contributions are fully
Vested at all times. Company matching contributions, however, normally become
fully vested under a graded vesting schedule after forty-eight months of
contributions to the Savings Plan or, if earlier, after five years of Service
with the Companies.
Vested Accounts are normally distributed in a lump sum upon
termination of Employment for any reason. However, a
3.
<PAGE>
Participant may defer distribution until age 70-1/2, if a Participant has an
account, of more than $3500. Upon an Employee's Retirement, Disability or death,
installment distributions are also available. Hardship withdrawals under limited
circumstances are permitted prior to the termination of
Employment.
ARTICLE II
DEFINITIONS
The following terms, when capitalized, shall have the meaning
specified below unless the context clearly indicates to the contrary.
2.1 "Account" shall mean a Participant's After-Tax
Contributions Account, Before-Tax Contributions Account, and Company
Contributions Account, collectively or singly as the context requires. Accounts
shall be credited with contributions, credited or debited with investment gains
or losses, debited for distributions and expenses charged to the Plan and
commingled for investment purposes, as provided elsewhere in the Plan. The Plan
Administrator may create subaccounts for administrative purposes (for example,
the Plan Administrator may divide each Participant's Before-Tax Contributions
Account into Matched and Unmatched Before-Tax Contributions Accounts to hold
Before-Tax Contributions which are matched by the Companies and unmatched
Before-Tax Contributions, respectively).
4.
<PAGE>
2.2 "Active Participant" shall mean a Participant who, at the
time in question, is employed in a position covered by the Plan (see Section
3.1(b)).
2.3 "After-Tax Contributions" shall mean a Participant's
non-deductible personal contributions to the Plan made in accordance with
Section 4.2. After-Tax Contributions are not Before-Tax Contributions, i.e.,
deferrals. A Participant's After-Tax Contributions shall be credited to his or
her After-Tax Contributions Account, which shall be fully Vested at all times.
2.4 "After-Tax Contributions Account" shall mean the fully
Vested account of a Participant to which his or her AfterTax Contributions under
Article IV are credited, together with the gains and losses thereon.
2.5 "Before-Tax Contributions" shall mean an amount
contributed to this Plan by a Company in lieu of being paid to a Participant as
salary or wages. Before-Tax Contributions shall be made under salary reduction
arrangements between each Participant and his or her Company. Article IV
contains the provisions under which Before-Tax Contributions may be made. All
Before-Tax Contributions constitute Company contributions, not Employee
contributions. A Participant's Before-Tax Contributions shall be credited to his
or her Before-Tax Contributions Account, which shall be fully Vested at all
times.
2.6 Before-Tax Contributions Account" shall mean the fully
Vested account of a Participant to which his or her Before-
5.
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Tax Contributions under Article IV are credited, together with the gains and
losses thereon.
2.7 "Beneficiary" shall mean a person or entity entitled under
Article VIII to receive a Participant's Account upon his or her death.
2.8 "Board of Directors" shall mean the Board of Directors of
First Interstate Bancorp acting as a whole or through its Executive or
Compensation Committee.
2.9 "Break in Service" shall mean a period of nonemployment
which causes a former Employee to lose credits under this Plan. A former
Employee incurs a Break in Service upon the completion of each 365 consecutive
day period during which the individual is not an Employee. This period shall
commence on the day following the last day on which the individual was an
Employee. See Section 14.6 for special rules relating to maternity and paternity
absences.
2.10 "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
2.11 "Company" or "Companies" shall mean:
(a) Adopting Companies. Employers that have
adopted the Plan (i.e., First Interstate Bancorp, all employers who have adopted
the Plan (as listed in an exhibit to or incorporated by references in the Form
F.R. Y-6 most recently filed with the Federal Reserve System by First Interstate
Bancorp), any employer which subsequently adopts the Plan as a whole or as to
one or more divisions in accordance with Sec-
6.
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tion 14.3, any predecessor to a Company and any successor to a Company which
continues the Plan under Section 14.2); and
(b) Non-Adopting Companies. Employers that have
not adopted the Plan but which are related to the adopting Companies by
ownership, as determined under Section 14.4 (generally subsidiaries at least
eighty percent owned by First Interstate Bancorp, directly or indirectly). All
employees of the adopting and non-adopting Companies shall be treated as
employed by a single employer for all Plan purposes, including Service
crediting, except as noted in this Section. No one shall become a Participant
while employed by a non-adopting Company and a Participant shall cease to be an
Active Participant if he or she transfers to a non-adopting Company (unless he
or she is simultaneously employed by an adopting Company). Compensation paid to
Employees by non-adopting Companies shall be ignored in determining Compensation
for contribution purposes under this Plan, but such amounts shall be taken into
account as "earnings" under Article XI for purposes of determining the maximum
annual addition to a Participant's Account. The Companies shall act through the
Plan Administrator, except as otherwise provided in this Plan.
2.12 "Company Contributions Account" shall mean the account of
each Participant to which Company matching contributions, forfeitures and the
gains and losses thereon are credited or debited.
7.
<PAGE>
2.13 "Company Stock" shall mean the common stock, $2.00 par
value, of First Interstate Bancorp.
2.14 "Compensation" shall mean an Employee's cash basic salary
or straight-time wages paid by the Companies for the payroll period in question.
For all purposes (other than applying the limits of Code Section 415 as
described in Article XI), an Employee's Compensation in Plan Years beginning
before 1994 in excess of $200,000, or in Plan Years beginning after 1993 in
excess of $150,000 (or such other amount prescribed pursuant to Code Section
401(a)(17)) shall be ignored. The following special rules shall be applied in
determining an Employee's compensation:
(a) Payroll periods and paydays shall be
established by the Company which employs the Employee.
(b) Compensation shall only include amounts paid
by a Company which has adopted the Plan for services rendered by the individual
as an Employee while employed in a position covered by this Plan (see Article
III), whether or not such amounts were earned before the individual became a
Participant.
(c) If the Plan Administrator determines that
commissions are being paid in lieu of amounts which would otherwise be treated
as Compensation, the commissions paid in lieu of Compensation shall be treated
as Compensation.
(d) Compensation shall be determined before
reduction for an Employee's After-Tax Contributions or Before-Tax
8.
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Contributions to this Plan, before statutory or other payroll deductions and
before elective welfare plan contributions. To the extent provided by Plan Rule,
Compensation shall be determined before reductions made in connection with the
operation of incentive bonus programs.
(e) Except as provided in subsection (c) or (d),
Compensation shall not include any of the following:
(i) bonuses, overtime, incentive pay, or
commissions;
(ii) non-taxable or non-cash amounts;
(iii) severance benefits other than
salary continuation;
(iv) retirement benefits or
contributions;
(v) pay in lieu of vacations; and
(vi) any other special payments which
are not part of cash basic salary or straight-time wages, such as insurance
benefits or pay for temporary employment.
(f) Even though "Compensation" includes Before-
Tax Contributions and contributions to welfare plans which reduce taxable pay,
such amounts shall not be taken into account in determining an Employee's
maximum allowable annual addition under Article XI, and the maximum deductible
contributions allowable to the Companies.
(g) Except as otherwise determined by the Plan
Administrator or provided by Plan Rule, all forms of individual salary reduction
arrangements or group salary deferral plans not
9.
<PAGE>
generally available to all Employees and not described in subsections (a)
through (f) shall be excluded from the definition of Compensation.
2.15 "Disability" shall mean a Participant's permanent
inability to discharge his or her assigned duties as a result of mental or
physical disease or condition. A Participant shall be considered disabled on the
date as of which he or she is determined to have become disabled within the
meaning of Section 216(i)(1) of the Social Security Act. The Plan Administrator
may, by Plan Rule, adopt a more liberal definition of "Disability." When a
Participant suffers a Disability while an Employee, the Participant's Company
Contributions Account shall become fully Vested and the Participant shall be
entitled to a distribution of his or her Account whether or not his or her
Employment has technically ended.
2.16 "Employee" shall mean an individual who renders services
to the Companies as a common law employee or officer (i.e., a person whose wages
from the Companies are subject to federal income tax withholding). A person
rendering services to a Company purportedly as (1) an independent contractor or
(2) the employee of a company providing services to the Company is not an
Employee before the Company has acknowledged that it must withhold federal
income taxes from his or her pay. To the extent required by Code Section 414(n),
a "leased" worker shall be treated as an Employee but shall not be eligible to
participate actively in this Plan. To the extent required by Code Sec-
10.
<PAGE>
tion 414(o), individuals shall be treated as Employees, but shall not be
eligible to participate actively in this Plan.
2.17 "Employment" shall mean the time during which an
individual is an Employee. Employment shall commence on the day the individual
first performs services for a Company as an Employee and shall terminate on the
day such services cease, as determined under Section 14.6. See Section 14.6 for
special rules relating to maternity and paternity absences.
2.18 "ERISA" shall mean the Employee Retirement Income
Security Act of 1974.
2.19 "Investment Fund" shall mean a segregated investment fund
in which Accounts may be invested, as provided in Section 10.1. The Plan
Administrator may create or terminate Investment Funds or modify their nature.
As of January 1, 1989, the Investment Funds were
(a) the Indexed Equity Fund,
(b) the Fixed Income Fund,
(c) the Guaranteed Income Fund,
(d) the Global Equity Fund,
(e) the Managed Investment Fund, and
(f) the First Interstate Stock Fund.
These Investment Funds are more fully described in Section 1.04 of the Trust
Agreement. Special rules pertaining to the Stock Fund are set forth in Article
X.
2.20 "Participant" shall mean an Employee who is included in
the Plan pursuant to Article III. A person shall
11.
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cease to be a Participant when he or she ceases to be an Employee, as provided
in Article III or Section 14.6.
2.21 "Plan" shall mean this document and the Trust Agreement.
2.22 "Plan Administrator" shall mean First Interstate Bancorp,
acting through its Chairman of the Board, his or her delegate or the
Administrative Committee appointed in accordance with Section 12.7. The Plan
Administrator is the Plan's "named fiduciary" within the meaning of Section
402(a)(2) of ERISA.
2.23 "Plan Rules" shall mean rules adopted by the Plan
Administrator in accordance with Section 12.1(f) for the administration,
interpretation, or application of the Plan.
2.24 "Plan Year" shall mean the fiscal year of the Plan, which
is presently the calendar year. The Plan Year is the Plan's limitation year for
purposes of Code Section 415.
2.25 "Retirement" shall mean a Participant's termination of
Employment on or after his or her sixty-fifth birthday or, if earlier, on or
after his or her attainment of age fifty-five and the completion of ten years of
Service (including years of Service prior to July 1, 1979).
2.26 "Rollover Account" shall mean the account of a
Participant to which his or her rollover contribution (if any) made pursuant to
Section 4.8 and the gains and losses thereon are credited. A Participant's
Rollover Account shall be fully Vested at all times.
2.27 "Savings Plan" shall mean this Plan.
12.
<PAGE>
2.28 "Service" shall mean an Employee's period of Employment.
Service is used to determine whether a Participant is eligible for the Plan,
whether his or her Company Contributions Account is fully Vested and whether the
Participant has qualified for Retirement. The Service requirement for
participation is in Article III; the Service requirement for vesting is in
Article VI; the Service requirement for Retirement is in Section 2.25. Service
shall be calculated under the following elapsed time rules, except as otherwise
provided in Section 14.5 with respect to calculations of Service for eligibility
purposes as to part-time Employees.
(a) Service shall be measured in days. Service
shall commence with the first day on which an individual performs or resumes
performing services for a Company as an Employee. Except as provided in
subsection (b), an Employee's Service shall thereafter end on the day on which
his or her Employment ends, as determined under Section 14.6. An Employee shall
be credited with one year of Service for each 365 days in his or her period or
periods of Service. Fractional years shall be ignored. Section 14.6 contains
rules relating to maternity and paternity absences.
(b) No more than 365 days of Service will be
credited for any continuous period during which an individual is an Employee but
performs no duties as an Employee (except as required by law with respect to
military leaves and maternity and paternity absences (see Section 14.6)). If an
individual's
13.
<PAGE>
Employment terminates but it resumes within 365 days (i.e., before he or she
incurs a Break in Service), the period between the termination and resumption
will be included in his or her period of Service. If an individual was on a
leave of absence (or otherwise not actively performing duties as an Employee)
when his or her Employment terminated, the maximum period of Service credited
under the two preceding sentences shall be 365 days (except as required by law
with respect to military leaves and maternity and paternity absences). An
Employee on a military leave who fails to exercise his or her reemployment
rights shall be credited with no more than 365 days of Service for such leave.
(c) All of an Employee's periods of Service shall
be aggregated, except that a former Employee's prior Service shall be cancelled
if he or she has a parity break before rehire. A former Employee shall suffer a
parity break if the individual did not have a Vested Before-Tax Contributions
Account or Company Contributions Account under this Plan when his or her
Employment terminated, the individual thereafter had five consecutive Breaks in
Service (one Break in Service in the case of a person who completed a parity
break prior to January 1, 1985) and the number of consecutive days from the
individual's termination of Employment to his or her subsequent rehire equals or
exceeds the individual's days of Service then taken into account under this
Section.
(d) Service with an employer before its
acquisition by First Interstate Bancorp or an affiliate shall be
14.
<PAGE>
recognized to the extent provided in Schedule A to this Plan or in relevant
acquisition agreements or corporate resolutions. Unless Schedule A or such
agreements or resolutions specifically provide for recognition of service in
accordance with specified seniority crediting rules of the predecessor employer,
the amount of Service recognized shall be determined with the rules of this
Section.
(e) If this Plan is successor to another qualified
plan (e.g., a plan which was merged into this Plan), all service recognized
under the prior plan shall be recognized under this Plan.
2.29 "Trust" or "Trust Fund" shall mean the fund established
under one or more Trust Agreements pursuant to the Plan.
2.30 "Trust Agreement" shall mean a trust agreement entered
into for the purpose of investing and administering the Trust Fund. Each Trust
Agreement is part of this Plan.
2.31 "Trustee" shall mean the trustee appointed by the Plan
Administrator under a Trust Agreement.
2.32 "Vested" shall mean non-forfeitable.
ARTICLE III
PARTICIPATION
3.1 Requirements for Participation
(a) The first day of each calendar month shall
be an entry date. An Employee shall become a Participant on the
15.
<PAGE>
first entry date on which he or she meets all of the following requirements:
(i) the Employee is then credited with
one year of Service (see Section 2.28 and Section 14.5 with
respect to part-time Employees);
(ii) the Employee is employed by a
Company which has adopted the Plan (see Section 2.11);
(iii) the Employee is not a member of a
bargaining unit which is covered by a collective-bargaining
agreement (unless the agreement provides for his or her
participation in this Plan); and
(iv) the Employee is on a Company's
United States payroll.
(b) A Participant shall be an Active Participant
(i.e., eligible to make After-Tax Contributions and Before-Tax Contributions)
only while employed in a position covered by the Plan under subsection (a)(ii),
(a)(iii) or (a)(iv). If an Active Participant transfers to any position with the
Companies which is not covered by the Plan, he or she shall cease to be an
Active Participant. The individual will again become an Active Participant when
he or she returns to a position covered by the Plan.
(c) A Participant shall cease to be a Participant
when his or her Employment terminates (see Section 14.6). The period between a
non-eligible Employee's termination and resumption of Employment shall be
counted as
16.
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Service only to the extent provided in Section 2.28 (which generally requires
absences of less than one year to be counted as Service). In the case of a
non-eligible Employee who is a part-time Employee to whom Section 14.5 applies,
his or her years of Service shall continue to be calculated with reference to
successive twelve-month periods commencing on the date the Employee was first
entitled to be credited with an hour of Service following his or her original
date of Employment (unless a shift to the Plan Year occurred under Section
14.5).
3.2 Former Employees
(a) A rehired Employee shall become a Participant
on the first day of the calendar month on which he or she meets the requirements
of subsection 3.1(a). Prior Service of a former Employee rehired after July 1,
1984 shall be cancelled if the individual had a "parity break" as defined in
Section 2.28(c). If a rehired Employee's Service is cancelled, he or she must
complete an additional year of Service to requalify.
ARTICLE IV
BEFORE-TAX CONTRIBUTIONS AND AFTER-TAX CONTRIBUTIONS
4.1 Before-Tax Contributions
(a) Subject to subsection 4.4(a), a Participant
may elect to make Before-Tax Contributions of from one percent to twelve percent
of his or her Compensation (in whole percentages only) for each payroll period
during which he or she is an Active
17.
<PAGE>
Participant. A Participant's Before-Tax Contributions elections shall be made in
accordance with Section 4.5, which contains rules for commencing, changing,
suspending and resuming BeforeTax Contributions, and Section 4.7, which contains
legal limitations on allowable Before-Tax Contributions.
(b) In no event may a Participant's Before-Tax
Contributions for any Plan Year exceed $9,240 or such higher amount then allowed
pursuant to Code Section 402(g). If this limit is exceeded through no fault of
the Participant, as determined by the Plan Administrator in its sole discretion,
the Plan Administrator may without penalty distribute the excess together with
earnings attributable to the excess (determined in accordance with Code Section
401(k) and applicable Treasury Regulations thereunder) to the Participant no
later than April 15 of the calendar year immediately following the calendar year
for which the Before-Tax Contributions were made. If there is a loss
attributable to excess Before-Tax Contributions, only the excess Before-Tax
Contributions (reduced by the amount of the loss attributable thereto if
permitted by applicable Treasury Regulations) or, if less, the Participant's
entire Account, shall be distributed to the Participant. Excess Before-Tax
Contributions distributed pursuant to this Section shall nevertheless be taken
into account in determining excess BeforeTax Contributions under the
anti-discrimination rules contained in Section 4.7. A Participant's Before-Tax
Contributions in excess of the $9,240 (or higher) limit will be includable in
his
18.
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or her taxable income for his or her tax year for which deferred and, if the
excess is not distributed by the date specified in this subsection, it will
again be includable in the Participant's taxable income for his or her tax year
in which it is distributed.
(c) Before-Tax Contributions shall be subject to
the limitations in Section 4.7, which sets forth the statutory
anti-discrimination test contained in Code Section 401(k), and Section 11.1,
which limits the annual additions attributable to Before-Tax Contributions and
matched contributions.
4.2 After-Tax Contributions
(a) Subject to subsection 4.4(b), a Participant
may elect to make After-Tax Contributions at a rate of from one to ten percent
of Compensation (in whole percentages only) for each payroll period in which he
or she is an Active Participant. A Participant's After-Tax Contributions
elections shall be made in accordance with Section 4.5, which contains rules for
commencing, changing, suspending and resuming After-Tax Contributions.
(b) A Participant's After-Tax Contributions shall
be limited by the Plan Administrator to the extent necessary to keep them from
exceeding the maximum annual addition limits of Article XI.
(c) If an Active Participant is not permitted to
make Before-Tax Contributions at a rate of at least six percent because of the
anti-discrimination rules in Section 4.7,
19.
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those contributions shall be treated as After-Tax Contributions to the extent
permitted by the anti-discrimination rules applicable to such contributions.
These After-Tax Contributions shall be matched by the Companies under Section
4.3 to the extent that these After-Tax Contributions, when added to the
Participant's Before-Tax Contributions, do not exceed six percent of his or her
Compensation for the payroll period in question.
4.3 Matched Contributions
Active Participants may make matched Before-Tax Contributions
or After-Tax Contributions to this Plan of from one to six percent of
Compensation. The Company matches the one to six percent of contributions at a
fifty percent matching rate, as provided in Article V. Matched contributions
must consist of either all Before-Tax contributions or all After-Tax
Contributions regardless of the percentage elected by the Participant, but may
be changed periodically as provided in Section 4.5. Before-Tax Contributions and
After-Tax Contributions shall be credited to Accounts as of the last day of the
calendar month in which they were made, in accordance with Section 4.6. Matching
shall be suspended during post-withdrawal penalty periods imposed under Section
9.5.
4.4 Unmatched Contributions
(a) If a Participant is contributing the maximum
six percent matched contributions, he or she may make unmatched Before-Tax
Contributions from one to six percent of Compensation.
20.
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(b) If a Participant is contributing the maximum
six percent matched contributions, he or she may make unmatched After-Tax
Contributions from one to ten percent of Compensation.
(c) The maximum Before-Tax Contribution rate shall
be twelve percent and the maximum After-Tax Contribution rate shall be ten
percent. In addition, in no event shall the total of the Before-Tax Contribution
and After-Tax Contribution rates exceed sixteen percent.
4.5 Commencement, Change, Suspension and Resumption of
After-Tax Contributions and Before-Tax
Contributions
(a) As of the first day of each month, the Plan
Administrator shall give each Participant who has not started taking Before-Tax
Contributions or After-Tax Contributions, or who has suspended them, an
opportunity to commence making BeforeTax Contributions or After-Tax
Contributions.
(b) On January, April, July, and October l (or at
other times specified by the-Plan Administrator), Participants who are making
Before-Tax Contributions or After-Tax Contributions may change their rate of
Before-Tax Contributions or After-Tax Contributions (and may change their
investment elections, as provided in Section 10.1).
(c) A Participant may totally suspend all
Before-Tax Contributions and After-Tax Contributions at any time, after adequate
advance written notice to the Plan Administrator. A Participant who elects total
suspension may not resume Before-
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Tax Contributions and After-Tax Contributions before his or her first payroll
period ending in the third calendar month beginning after the month in which the
total suspension occurred. Subject to this restriction, resumption shall be
permitted in accordance with Plan Rules.
4.6 Withholding and Crediting of Before-Tax
Contributions and After-Tax Contributions
(a) A Participant's Before-Tax Contributions and
After-Tax Contributions shall be withheld from his or her Compensation for each
payroll period at the elected rate then in effect and transferred to the Trustee
within thirty days after the end of the month in which withheld.
(b) As of the last day of each calendar month, a
Participant's Before-Tax Contributions for the month shall be credited by the
Plan Administrator to his or her Before-Tax Contributions Account and the
Participant's After-Tax Contributions for the month shall be credited to his or
her After-Tax Contributions Account.
(c) If Before-Tax Contributions or After-Tax
Contributions for a month are deposited in the Trust before the end-of-the-month
crediting date, they shall be invested as the Plan Administrator shall direct
and any gains or losses on them shall be allocated as follows: First, the gains
or losses shall be split among the Investment Funds in the same proportions as
the Before-Tax Contributions and After-Tax Contributions are to be credited
(e.g., if half the Before-Tax Contributions and
22.
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After-Tax Contributions are to be credited to a particular Investment Fund, half
the gains and losses on the Before-Tax Contributions and After-Tax Contributions
shall be credited to that Fund); and second, gains and losses credited to an
Investment Fund shall be allocated among Accounts as of the last day of the
calendar month in proportion to their balances in the Investment Fund in
question as of the last day of the preceding calendar month (after all
distributions made as of such date).
4.7 Special Anti-Discrimination Limits
(a) Before-Tax Contributions are subject to the
anti-discrimination rules in Code Section 401(k), as explained in these
subsections (b)-(g). After-Tax Contributions and Company contributions are
subject to the anti-discrimination rules in Code Section 401(m), as explained in
subsection (h). Subsec- tions (i)-(l) set forth related rules.
(b) Before-Tax Contributions of any Participant
who is "highly compensated" for the Plan Year shall be subject to the
restrictions of subsection (c). Determination of whether a Participant is highly
compensated shall be made in accordance with Exhibit II, Code Section 414(q) and
applicable Treasury Regulations.
(c) The aggregate Before-Tax Contributions rate of
all highly compensated Participants for a Plan Year shall not exceed the
aggregate Before-Tax Contributions rate of all nonhighly compensated
Participants for that Plan Year by more than the applicable amount set forth in
the following table:
23.
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If Non-Highly Compensated The Aggregate Before-Tax
Participants* have an Contribution Rate of Highly
Aggregate Before-Tax Compensated Participants* may
Contribution Rate of not Exceed
- ------------------------- -----------------------------
0% to 2% 2.0 times the non-highly
compensated group's aggregate
Before-Tax Contribution Rate
2% to 8% The non-highly compensated
group's aggregate Before-Tax
Contribution rate plus two
percentage points
More than 8% 1.25 times the non-highly com-
pensated group's aggregate
Before-Tax rate
The aggregate Before-Tax Contribution rate during a Plan year for a group of
Participants shall be the percentage determined by averaging the Before-Tax
Contribution rates of each member of the group. A Participant's Before-Tax
Contribution rate shall be determined by dividing
(i) the Participant's Before-Tax
Contributions under Section 4.1, if any, for the Plan Year,
by
(ii) his or her earnings (as defined in
Section 11.1(d)(iii) for the Plan Year while a Participant
plus, at the election of the Plan Administrator, the
Participant's Before-Tax Contributions and any amounts
contributed by the Company on behalf of the Participant
- --------
* Participants who have no Compensation for the Plan Year shall not be counted.
Participants who make no Before-Tax Contributions for the Plan Year shall be
counted.
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pursuant to a salary reduction agreement under Code Section
125, 402(k)(2), 401(h) or 403(b).
See Section 14.16 for special rules regarding the aggregation of certain highly
compensated Employees and their family members.
(d) If the aggregate Before-Tax Contribution
rate for highly compensated Participants for a Plan Year would exceed the
maximum Before-Tax Contribution rate permissible under subsection (c), the Plan
Administrator shall reduce the amount to be contributed by highly compensated
Participants by capping their Before-Tax Contributions at a level at which their
aggregate Before-Tax Contribution rate does not exceed the maximum rate
allowable under subsection (c) and refunding any excess in accordance with
subsection (e).
(e) If, despite subsection (d), the Before-Tax
Contributions for a Plan Year of any highly compensated Participant exceed the
limits of this Section, the excess amount, together with earnings attributable
to such amount, shall be distributed to the Participant. Alternatively, the Plan
Administrator may adopt Plan Rules providing for recharacterization of all or
any part of the excess Before-Tax Contributions as After-Tax Contributions, to
the extent permitted by applicable law.
(f) If excess Before-Tax Contributions are
distributed within two and one-half months after the end of the Plan Year for
which they were made, no penalties will be imposed but the Participant will be
taxed on the excess Before-Tax
25.
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Contributions for his or her tax year in which the excess BeforeTax
Contributions would have been taxable had they not been contributed to the Plan.
If excess Before-Tax Contributions are not distributed within this two and
one-half month period, the Participant will be taxed on the excess Before-Tax
Contributions for his or her tax year in which Before-Tax Contributions are
distributed and the Company will be subject to a ten percent excise tax on the
amount of the excess. Excess Before-Tax Contributions must be distributed no
later than the last day of the Plan Year following the Plan Year for which-the
Before-Tax Contributions were made or the Plan may be disqualified. The earnings
attributable to excess Before-Tax Contributions shall be determined in
accordance with Code Section 401(k) and applicable Treasury Regulations
thereunder. If there is a loss attributable to the excess Before-Tax
Contributions, only the excess BeforeTax Contributions (reduced by the amount of
the loss attributable thereto, if permitted by applicable Treasury Regulations)
or,if less, the Participant's entire Account, shall be distributed to the
Participant.
(g) If the Company has one or more other cash or
deferred plans in addition to this Plan,
(i) the Before-Tax Contribution
limitations of this Section shall be applied to this Plan by
aggregating it with any such other plan with which this Plan
is aggregated for purposes of establishing that either plan
covers a nondiscriminatory group of Employees, and
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(ii) the Before-Tax Contributions and
earnings (within the meaning of Code Section 414(s)) of any
highly compensated active Participant who is also a
participant in one or more other cash or deferred plans of
the Company shall be aggregated for Before-Tax Contribution
limit testing purposes under this Section.
(h) After-Tax Contributions and Company
contributions are subject to the anti-discrimination rules in Code Section
401(m), which are substantially identical to the anti-discrimination rules in
Code Section 401(k) relating to Before-Tax Contributions. Thus, the rules of
subsections (b)-(g) of this Section shall be applied separately and in the same
manner to the aggregate of After-Tax Contributions and Company contributions, as
follows:
(i) After-Tax Contributions shall be
aggregated with Company Contributions for purposes of
applying the limits of this Section. If the limits of this
Section are exceeded, the excess shall be eliminated by
first distributing After-Tax Contributions for the Plan Year
which were not matched by the Company (adjusted for earnings
or losses in accordance with Code Section 401(m) and
applicable Treasury Regulations thereunder) to the
Participants to whom the excess is attributable, in
accordance with Section 401(m) and Treasury Regulations
thereunder. With respect to any Participant, any additional
excess amount that must be distributed shall be made up of
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both After-Tax Contributions which were matched together
with the Company contributions which matched them (both
amounts to be adjusted for earnings or losses as provided
above). If the Company Contributions Account of a
Participant is partially Vested and Company contributions
must be distributed, the Plan Administrator shall treat the
contribution which is being distributed as either (1) Vested
to the same extent as the Participant's Company
Contributions Account, in which case the special vesting
rule in Section 6.4 shall not apply, or (2) consisting to
the fullest extent possible of the Vested portion of that
Account, in which case the special vesting rule in Section
6.4 shall apply. The unvested amount of the excess matching
contribution otherwise to be distributed shall be forfeited,
except as prohibited by law.
(ii) To the extent and in the manner
permitted by applicable Treasury Regulations, Before-Tax
Contributions (excluding Before-Tax Contributions refunded
because they exceed the anti-discrimination limits of this
Section, except as otherwise provided by applicable Treasury
Regulations) may be aggregated with and treated as if they
were Company contributions in determining whether the
requirements of Code Section 401(m) are satisfied.
(i) If Before-Tax Contributions must be
distributed to prevent violation of the anti-discrimination rules of this
Section, or the $9,240 or higher limit, unmatched Before-
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Tax Contributions shall be distributed before matched Before-Tax Contributions.
Until this process is completed during the Plan Year following the Plan Year in
which the Before-Tax Contributions were made, Company contributions shall not
accrue to any highly compensated Participant (although they may be contingently
credited to Accounts before they accrue and, if they accrue, shall be considered
"annual additions" for Section 415 purposes for the Plan Year for which they
were made). If, as part of the process of correcting excess Before-Tax
Contributions, Before-Tax Contributions which were to be matched were
distributed, the matching contributions with respect to such Before-Tax
Contributions shall not accrue and shall be forfeited.
(j) In testing for discrimination under
subsections (c) and (h) and under any other plans of the Company which are
subject to the Section 401(k) or Section 401(m) testing requirements, multiple
use of the so-called "alternative limit" shall not be permitted. If multiple use
would occur, the Plan Administrator shall take the corrective steps authorized
by this Section to prevent or cure multiple use. Determinations of whether
multiple use would occur shall be made in accordance with proposed Treas. Reg.
Section 1.401(m)-2. This regulation generally provides that prohibited multiple
use occurs if any highly compensated Employee participates both in a Section
401(k) arrangement and a Section 401(m) arrangement and the sum of the aggregate
Before-Tax Contributions and aggregate rate of AfterTax Contributions and
Company matching contributions for highly
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compensated persons in those arrangements exceeds the greater of (i) the sum of
(1) 125 percent of the higher of those two rates for all other persons and (2)
two plus the lower of those two rates for all other persons or (ii) the sum of
(1) and (2) applied by substituting "higher" for "lower" and vice versa.
(k) No provisions of this Plan shall prohibit the
Plan Administrator from testing this Plan for discrimination in any manner
allowable by law or to correct any actual or possible discrimination problem in
any manner allowable by law. If a testing or correction procedure which the Plan
Administrator elects to use is inconsistent with this Plan, the Plan
Administrator may nevertheless use that testing or correction procedure without
the need for any Plan amendment.
(l) No Participant may make Before-Tax
Contributions or After-Tax Contributions to the extent it would cause the Plan
to violate the limitations in Section 11.1 (relating to Code Section 415) as to
that Participant.
4.8 Rollover Contributions
(a) As permitted by the Plan Administrator, any
person who is or who may become a Participant and who has received or who is
entitled to receive a distribution from a pension benefit plan or from a
"rollover" individual retirement arrangement may contribute such amount, or
cause such amount to be contributed, to the Plan. Normally, a contribution of
this type will only be permitted if it is received by this Plan before the
beginning of the calendar year in which the individual making
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the contribution attains age 69-1/2. A "rollover" contribution shall only be
allowed to the extent permitted by Code Section 402(c).
(b) The Plan Administrator shall establish a fully
Vested Rollover Account for each Participant electing to make a rollover
contribution under subsection (a), to which shall be credited the rollover
contribution and credited or debited investment gains or losses. For all
purposes of the Plan, a Rollover Account shall be treated as if it were a
separate fully Vested Account belonging to the owner of the Rollover Account. If
the Rollover Account's owner is not otherwise a Participant, the individual
shall be considered a Participant with respect to his or her Rollover Account,
but for no other Plan Purpose until he or she becomes a regular Participant
pursuant to Section 3.1. Amounts may not be withdrawn from Rollover Accounts
during continued Employment, except as otherwise permitted by Plan Rules.
ARTICLE V
MATCHING CONTRIBUTIONS
5.1 Matching Contributions
For each dollar of Before-Tax Contributions credited to a
Participant's Before-Tax Contributions Account or After-Tax Contributions
credited to a Participant's After-Tax Contributions Account, fifty cents shall
be credited to the Participant's Company Contributions Account as of the last
day of the month,
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but Before-Tax Contributions and After-Tax Contributions for any period in
excess of six percent of Compensation shall not be matched. Matching shall be
suspended during post-withdrawal penalty periods imposed under Section 9.5.
5.2 Funding of Company Match
(a) Matching Company contributions under Sec- tion
5.1 shall be funded by Company cash contributions and by forfeitures which are
available for allocation (see Section 6.3). Company contributions needed to
match Before-Tax Contributions and After-Tax Contributions during a month shall
normally be paid to the Trust in the next month. Pending allocation, Company
contributions shall be invested in the Stock Fund, in accordance with Section
10.2. To the extent forfeitures by themselves exceed the amount of matching
Company contributions to be allocated for a Plan Year, the excess shall be
allocated under Section 5.1 as of the last day of the Plan Year.
(b) The Companies may also elect to make an
additional cash contribution to the Plan for a Plan Year in an amount determined
by the Board of Directors. This amount shall be allocated to the Company
Contributions Accounts of Participants who were Employees on the last day of the
Plan Year for which the contribution is made (or who died, suffered a Disability
or took Retirement during the Year) in proportion to the principal amount of
matching contributions credited to their Company Contributions Accounts for the
Plan Year. Pending
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allocation, Company contributions under this subsection shall be invested in the
Stock Fund.
ARTICLE VI
VESTING
6.1 Basic Vesting Rules
(a) A Participant's After-Tax Contributions
Account and Before-Tax Contributions Account and Rollover Account shall be fully
Vested at all times. A Participant's Company Contributions Account shall vest in
full after five years of Service, determined in accordance with subsection (b),
or, if earlier, in accordance with the following schedule:
Number of Calendar Months in
which the Participant Has Made
Before-Tax Contributions or Vested Performance of Company
After-Tax Contributions Contributions Account
- ------------------------------ ------------------------------
11 or less 0%
12 25%
24 50%
36 75%
48 or more 100%
The foregoing vesting rules are subject to Section 6.2 (which accelerates
vesting under certain circumstances) and Section 6.4 (which specifies how the
vesting schedule is to be applied following certain distributions or
withdrawals).
(b) An Employee's years of Service shall be
determined in accordance with Section 2.28 (which defines
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"Service"), except that Service before the date the Plan was adopted (July 1,
1979) shall be disregarded.
(c) If a Participant who has elected to make
After-Tax Contributions is not permitted to make Before-Tax Contributions or
After-Tax Contributions in a month because of the limits of Section 4.7, he or
she will be treated as if he or she made After-Tax Contributions for that month
for purposes of applying the vesting rules in subsection (a).
6.2 Accelerated Vesting
A Participant's Company Contributions Account which is not
otherwise fully Vested shall become fully Vested upon the earliest to occur of:
(a) the later of his or her attainment of age
sixty-five while an Employee or the fifth anniversary of the date the individual
first became a Participant while an Employee (this anniversary requirement shall
not apply to an Employee who was hired before January 1, 1989),
(b) his or her death while an Employee,
(c) his or her suffering a Disability while an
Employee (see Section 2.15), or
(d) partial or complete termination of the Plan,
as more fully provided for in Section 13.2.
6.3 Forfeitures After Resignation or Discharge
(a) The unvested portion of the Company
Contributions Account of a Participant who resigns or is discharged shall be
provisionally forfeited on the day his or her
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Employment terminates. Forfeitures for a Plan Year will be applied in a manner
prescribed in Section 5.1.
(b) If a Participant who resigns or is discharged
again becomes an Employee before he or she has five consecutive Breaks in
Service (one Break in Service in the case of persons who had completed the
single Break in Service before January 1, 1985) and before the Plan is
terminated, the forfeited portion of his or her Account shall be restored, as
more fully provided in subsection (c). Thereafter, any future allocations for
the individual's benefit of Company matching contributions and forfeitures, and
the gains and losses thereon, shall be made to his or her pre-existing Company
Contributions Account and future vesting shall be determined in accordance with
the special rules in Section 6.4. When the Plan is terminated, all rights to
forfeiture restoration shall lapse as to affected persons who have not resumed
Employment before Plan termination.
(c) Each Participant's Company Contributions
Account contains a Cash Account and a Stock Account (see Section 10.2). When
part of a Company Contributions Account is forfeited, a pro rata portion of its
Cash Account and its Stock Account shall be forfeited and made available for
allocation under Section 5.1. If the forfeiture is restored, the Cash Account
shall be credited (from funds available under Section 5.1 or 14.7) with a cash
amount equal to the amount forfeited from such Account plus the cash value of
Company Stock forfeited from the Participant's Stock Account. This value shall
be determined
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under Section 10.7 as of the date of the forfeiture occurred. In making
forfeited Company Stock available for allocation under Section 5.1, it shall
first be converted into cash in accordance with Section 10.7.
6.4 Vesting after Distributions or Withdrawals from
Partially Vested Accounts
If a Participant terminates his or her Employment, receives a
distribution from his or her Company Contributions Account before it is fully
Vested and again becomes an Employee before completing five consecutive Breaks
in Service (one Break in Service in the case of a person who had completed the
single Break in Service before January 1, 1985), the Participant's Vested
interest in the Account shall not be determined under Section 6.1. In addition,
Section 6.1 shall not apply to a Participant who has withdrawn amounts from his
or her Company Contributions Account in accordance with Section 9.3 before it
has Vested fully. In either case, before the Participant's Company Contributions
Account vests in full, the Participant's Vested interest in his or her Company
Contributions Account shall be the amount that would then be Vested under
Section 6.1 if the Company Contributions Account were increased by the amount
previously distributed or withdrawn, but with such Vested amount being reduced
by the amount of the prior distribution or withdrawal.
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6.5 Special Vesting Rule Under Voluntary Early
Retirement Plan
First Interstate Bancorp adopted The 1994 First Interstate
Voluntary Early Retirement Plan ("VERP") to provide exit incentives to certain
employees of First Interstate Bancorp and its affiliates. Although VERP is
separate from this Plan, the following VERP provisions are included herein
because they have an ongoing impact on this Plan.
(a) The Company Contributions Account of a
Participant who also participates in VERP shall become fully Vested (if it is
not already fully Vested under the regular provisions of this Plan) as of the
later of September 1, 1994 or the Participant's "Departure Date" as defined in
VERP.
(b) If a Participant is rehired by the Company
after the Participant's Company Contributions Account becomes fully Vested
pursuant to subsection (a), any Company contributions credited to the
Participant's Company Contributions Account for participation after the
Participant's rehire shall vest in accordance with the regular vesting
provisions of this Plan, ignoring the special rule in subsection (a).
ARTICLE VII
BENEFITS UPON TERMINATION OF EMPLOYMENT OR DISABILITY
7.1 Distribution of Accounts
(a) A Participant's Account shall be distributed
to him or her in a cash lump in the event of his or
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her termination of Employment for any reason or in the event of his or her
Disability, except as provided in subsections (b) and (c) and Section 7.4. See
Article VIII for special rules relating to death benefits. The value of an
Account shall be its value under Section 10.7 as last determined preceding the
distribution.
(b) Lump sum distributions under subsection (a)
shall be made in cash unless the Participant elects to receive in kind the whole
shares of Company Stock credited to his or her Account. A fractional share of
Company Stock credited to the Participant's Account will be distributed in cash.
When Company Stock is distributed in cash, the distribution shall be funded by,
in effect, selling the Company Stock to Stock Accounts in the Stock Fund in
accordance with procedures described in Section 10.7(b). Distribution of Company
Stock may be made in the name of such other person as the Participant shall
specify.
(c) If a Participant's Account is being
distributed on account of Retirement or Disability, he or she may elect (1) to
receive his or her lump sum payment at a future specified date which is not
later than the time prescribed in Section 7.6, or (2) to receive payment of his
or her Account, as adjusted for gains and losses, in annual or more frequent
cash installments of at least $50 (except for the last payment) in a manner
permissible under subsection (e)). Pending distribution, the Participant's
Account shall be invested as the Participant may direct and within the time and
in the manner prescribed by the Plan Administrator.
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(d) Distribution under this Section shall normally
be made or commence not later than the sixtieth day following the end of the
Plan Year in which the Participant's Retirement or Disability occurs, or as soon
as administratively possible. A Participant may elect, in accordance with Plan
Rules, that distribution be made or commence at a later date specified by the
Participant. Any such election shall specify a plan of distribution which
utilizes a distribution option available under this Section 7.1 and which
complies with subsection (e).
(e) Periodic distributions must be made in
installments which meet the requirements of Section 7.6.
(f) If a deferred lump sum or installment payment
is elected, the Participant may nevertheless elect to be paid the unpaid balance
of his or her Account in a lump sum in accordance with subsection (b) upon
reasonable advance request to the Plan Administrator and all future payments
shall thereafter be cancelled.
(g) Pending complete distribution of an Account,
the person entitled to the Account shall have the same investment direction
rights as any other Participant, except to the extent the Plan Administrator
elects to restrict or expand such rights for persons awaiting distribution.
7.2 Subsequent Allocations
If any amount is allocated to a Participant's Account after a
distribution is made or commences, the amount allocated
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shall be paid to the Participant in cash in one lump sum within the time allowed
under Section 7.6.
7.3 Suspension of Benefits
If a former Participant is reemployed with the Companies and
makes additional Before-Tax Contributions or AfterTax Contributions under this
Plan, payments under this Article shall cease, unless otherwise required under
Section 7.6. Upon a subsequent Disability or termination of Employment (other
than by death), payment of the balance then credited to the Participant's
Account shall be made under this Article and the Participant may exercise any
distribution option available under Section 7.1 to the Participant at that time.
7.4 Immediate Payment Not Required Before Age 70-1/2
If a Participant whose Account under the Plan exceeds $3,500
terminates Employment before reaching his or her required beginning date under
Section 7.6(c)(ii), distribution to the Participant shall not be required until
the Participant reaches his or her required beginning date. However, such a
Participant may elect to receive a lump sum distribution at any time prior to
his or her required beginning date. Such election shall be made in accordance
with Plan Rules. Pending distribution, the Participant's entire Account shall be
automatically transferred to and invested in the Guaranteed Income Fund and the
investment elections offered under subsection 7.1(g) shall not be available.
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7.5 Joint and Survivor Annuity Requirements
This Plan is not subject to the joint and survivor Annuity
requirements of ERISA and the Code because it is not a money purchase pension
plan and (1) Vested benefits are payable on the death of a Participant to his or
her surviving spouse (and are not paid to non-spousal Beneficiaries unless the
Participant is not survived by a spouse or the spouse has otherwise consented),
(2) annuities are not available under this Plan (except as provided in this
Section), and (3) prior to January 1, 1985, this Plan had never been the
transferee of benefits from a defined benefit or defined contribution plan which
was subject to the joint and survivor annuity requirements of the Code or ERISA.
7.6 Benefit Distribution Requirements
(a) All distributions from this Plan to a
Participant (or to his or her Beneficiaries following the Participant's death)
shall be made in accordance with the legal requirements set forth in Code
Section 401(a)(9) and related provisions of the Code and Treasury Regulations
issued pursuant to such provisions, notwithstanding any provision in this Plan
to the contrary. These requirements consist of (1) the prohibition of
involuntary benefit commencement before a certain age, absent consent; (2)
minimum and maximum deadlines for the commencement of benefits; (3) a minimum
annual distribution requirement for installment payments after a Participant
attains age 70-1/2; and (4) the prohibition of more than incidental death
benefits. Subsections (b) through (e) of this Section summarize how these
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restrictions shall normally apply to this Plan. The Plan Administrator, however,
may elect to override subsections (b) through (e) in any fashion which complies
with applicable Code provisions and Treasury Regulations thereunder.
(b) Prohibition of Immediate Benefit Commence-
ment Without Consent: Distribution from this Plan shall not commence before the
date the Participant attains age 70-1/2 unless (1) the Participant's Vested
Account does not exceed $3,500 (or such higher amount allowable under applicable
law) or (2) the Participant consents in writing to the distribution. To the
extent authorized by Section 7.1(d), a Participant may elect, in accordance with
Plan Rules, that distribution be made or commence at a later date specified by
the Participant. Any such election shall specify a plan of distribution which
utilizes a distribution option available under Section 7.1(a) and complies with
this Section.
(c) Deadlines for Benefit Commencement
(i) Deadline by which benefits must
commence absent consent: Unless a Participant consents
otherwise (either affirmatively or by failing to request a
distribution), distributions from this Plan to the
Participant must commence within sixty days after the end of
the Plan Year in which the Participant terminates Employment
or attains age 65, whichever is later, except as provided in
paragraph (iii).
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(ii) Absolute deadline by which benefits
must commence. Even if a Participant elects otherwise,
benefit distributions must commence by the Participant's
"required beginning date," except as provided in paragraph
(iii). A Participant's required beginning date shall be the
end of the calendar year in which the Participant attains
age 70-1/2 (although payment for that year can be made at
any time on or before April 1 of the next year).
(iii) Exception to commencement deadline
when amount of payment or identity or location of recipient
is uncertain. If the amount payable under the Plan cannot be
clearly ascertained or the person to whom it is payable has
not been determined or located, distributions under this
Article shall be made or commenced no later than sixty days
after such amount is ascertained or such person is
determined or located.
(d) Minimum Annual Distribution Requirements:
Distributions from the Plan prior to a Participant's required beginning date
(see subsection (c)(ii)) are not subject to legal minimums. However, commencing
with the calendar year in which a Participant attains age 70-1/2 (or the
calendar year in which an Employee first becomes a Participant, if later), a
minimum annual distribution shall be made by the end of each calendar year (or,
on or before April 1 of the following year with respect to the first year for
which a minimum annual distribution must be made). The minimum annual
distribution shall be determined by dividing
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the Participant's "adjusted account balance" (as defined below) as of the last
valuation date during the calendar year preceding the year for which the
distribution is being made by the Participant's life expectancy as of his or her
required beginning date (as defined in subsection (c)(ii)), reduced by l for
each calendar year beginning after his or her required beginning date. Life
expectancies shall be determined from Table V of Treas. Reg. Section 1.72-9. In
the calendar year in which the Participant dies, if the required distribution
was not made before the Participant's death, it shall be paid to the
Participant's Beneficiary during that calendar year in accordance with Article
VIII and the balance of the Participant's Account shall then be distributed to
the Participant's Beneficiary in accordance with that Article. For purposes of
this subsection, a Participant's "adjusted account balance" means the amount
credited to his or her Account as of the applicable valuation date, increased by
any allocation of contributions or forfeitures for the period, if any, between
the valuation date and the end of the calendar year in which the valuation date
falls and decreased by any distributions during that period. No other
adjustments shall be made. See prop. Treas. Reg. subsections 1.401(a)(9)-1 F-6
for special rules to be followed when distributions are being made from an
Account which is not fully Vested.
(e) Incidental Death Benefit Rule. Distri- butions
by this Plan in accordance with its terms comply with the incidental death
benefit rule as set forth in prop. Treas. Reg.
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subsections 1.401(a)(9)-2. No distributions from the Plan shall
violate the incidental death benefit rule.
7.7 Special Distribution Rule Under Voluntary Early
Retirement Plan
First Interstate Bancorp adopted The 1994 First Interstate
Voluntary Early Retirement Plan ("VERP") to provide exit incentives to certain
employees of First Interstate Bancorp and its affiliates. Although VERP is
separate from this Plan, the following VERP provision is included herein because
it may have an ongoing impact on this Plan:
A Participant who also participates in VERP but who has not
attained age fifty-five and completed ten years of Service at the time the
Participant's Account is to be distributed from this Plan shall nevertheless be
allowed to elect any form of payment then available under Section 7.1(c) to a
Participant who has met such age and Service requirements.
ARTICLE VIII
BENEFITS UPON DEATH
8.1 Designation of Beneficiary
(a) Each Participant or former Participant may
designate, revoke and redesignate Beneficiaries. These actions shall be taken in
writing on a form provided by the Plan Administrator and shall be effective upon
delivery to the Plan Administrator.
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(b) A Participant's surviving spouse shall
automatically be his or her Beneficiary unless the spouse has consented in
writing to the designation of a Beneficiary other than the spouse and the
consent has been witnessed by a representative of the Plan Administrator or a
notary public. Such consent shall apply only to the specific Beneficiary
designated and shall acknowledge the effect of the designation. Spousal consent
may be revoked by the spouse in writing at any time prior to the earlier of the
Participant's Retirement or the Participant's death. The Plan Administrator in
its discretion may refuse to recognize a spousal consent if it believes for any
reason that the consent is invalid. Spousal consent shall be waived by the Plan
Administrator if a Participant has no spouse and may be waived if the spouse
cannot be located or for such other reasons authorized In applicable Treasury
Regulations.
8.2 Distribution on Death
(a) Upon the death or presumed death of a
Participant or former Participant, the amount credited to his or her Account
shall be paid to the person or persons determined under subsection (b).
Distribution shall be made in one lump sum in accordance with Section 7.1 unless
another method of distribution is properly elected under Section 8.3.
(b) Amounts payable under subsection (a) shall be
distributed to the highest priority persons or persons surviving at the time the
distribution is actually paid or commences. Distribution priorities are as
follows:
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(i) first, to the person or persons
properly designated by the Participant under Section 8.1,
(ii) second, to the Participant's
surviving spouse.
(iii) third, to the Participant's
surviving heirs at law, if any, determined in the reasonable
judgment of the Plan Administrator under applicable state
law governing succession to personal property.
(iv) fourth, to Participants in the Plan
to be allocated as a forfeiture.
(c) Members of a priority class shall cease to be
entitled to benefits upon the Plan Administrator's determination that no members
of the class exist or the Plan Administrator's failure to locate any members of
the class after making reasonable efforts to do so.
8.3 Election of Other Payment Methods
(a) The Participant's primary Beneficiary under
Section 8.2(b) may elect how distribution is to be made.
(b) Subject to subsection (c), any form of payment
permitted under Section 7.1 at the time of payment may be elected, but
installment payments to a Beneficiary other than the Participant's surviving
spouse shall not extend past the fifth anniversary of the Participant's death
unless installment payments commence before the first anniversary of his or her
death and are to be paid over a period not longer than the Beneficiary's life
expectancy, as determined under Table V of
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Treas. Reg. Section 1.72-9. If the Participant's Beneficiary is his or her
spouse, these payments need not commence any earlier (but must commence no
later) than the end of the calendar year in which the Participant would have
attained age 70-1/2. If the Participant's Beneficiary is his or her estate,
payments must be completed by the end of the fifth calendar year beginning on or
after the Participant's death. The preceding sentence shall also apply to a
trust unless it meets the requirements of prop. Treasury Regulations Section
1.401(a)(9)-1 Q & A D-5.
(c) If the Participant dies on or after April l of
the first calendar year beginning after the Participant attained age 70-1/2, or
if benefit payments commenced before the Participant dies, distributions must be
at least as rapid as under the form of distribution in effect as of the
Participant's death.
(d) Elections under this Article must be made in
the manner specified by the Plan Administrator and must be filed with the Plan
Administrator prior to the commencement of any payments under this Article or
such earlier time as the Plan Administrator specifies.
(e) If an installment distribution of an Account
is elected and a Beneficiary receiving payments dies before the payments have
been completed, the balance then credited to the Account shall be paid to the
next highest priority Beneficiary determined under Section 8.2(b) in a cash lump
sum.
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8.4 Time of Distribution
(a) Distributions under this Article shall be made
or commence not later than sixty days after the close of the Plan Year in which
the Participant in question died, unless the Beneficiary otherwise consents.
(b) If the amount payable under this Article
cannot be ascertained or the person to whom it is payable has not been
determined or located and reasonable efforts to do so have been made within the
time limits of subsection (a), then distributions under this Article shall be
made or commence no later than sixty days after such amount is ascertained or
such person is determined or located.
ARTICLE IX
WITHDRAWALS AND LOANS
9.1 General
A Participant may make withdrawals from his or her Account
while he or she is still an Employee in accordance with the provisions of this
Article and Plan Rules adopted to implement them. There are three withdrawal
options:
(a) Penalty-free withdrawals from After-Tax
Contributions Accounts, as permitted under Section 9.2;
(b) Withdrawals from Company Contributions
Accounts, subject to a penalty, as permitted under Section 9.3; and
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(c) Hardship withdrawals from Before-Tax
Contribution Accounts, certain matched After-Tax Contributions, and Rollover
Contributions, subject to a penalty, as permitted under Section 9.4.
9.2 Withdrawals from After-Tax Contributions Accounts
A Participant may make cash withdrawals from the unmatched
portion of his or her After-Tax Contributions Account of any amount not in
excess of the amount then credited to that Account. Withdrawal requests shall be
made in accordance with Section 9.5. Such a withdrawal will be taxable to the
extent the amount withdrawn exceeds the amount of the Participant's "basis"
recovered with the withdrawal.
9.3 Withdrawals from Company Contributions Accounts
A Participant who has withdrawn all amounts then credited to
and available within his or her After-Tax Contributions Account may withdraw in
cash all or a portion of his or her Company Contributions Account, subject to
the following rules:
(a) If the Participant's Company Contributions
Account is fully Vested, the Participant may withdraw up to the entire amount
then credited to the Account.
(b) If the Participant's Company Contributions
Account is not fully Vested, the Participant may withdraw an amount not in
excess of the lesser of
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(i) the Vested amount then credited to
such Account, or
(ii) the portion of the Account
contributed more than two years previously (i.e., the amount
credited to the Account on the withdrawal date reduced by
the principal amount of matching contributions credited to
the Account under Section 5.1 for the twenty-four months
preceding the month in which the withdrawal occurs).
Matched After-Tax Contributions made on or after January 1,
1987, shall not be made available under Section 9.2, but shall only be made
available pursuant to Section 9.4. After such a withdrawal, the special vesting
rules in Section 6.4 shall apply.
(c) Withdrawal requests shall be made in
accordance with Section 9.5.
(d) Withdrawals shall be funded from cash credited
to the Participant's Company Contributions Account. To the extent that Company
Stock credited to the Participant's Company Contributions Account must, in
effect, be sold to fund the cash withdrawal, the procedure set forth in Section
10.7 shall be followed.
(e) The entire amount withdrawn under this Sec-
tion will normally be included in the Participant's taxable income, except to
the extent he or she recovers "basis."
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9.4 Hardship Withdrawals from Before-Tax Contri-
bution Accounts and the Matched Portion of
After-Tax Contribution Accounts
(a) A Participant who has withdrawn or who
simultaneously withdraws all amounts available under Sections 9.2 and 9.3 may
withdraw amounts on account of a hardship as follows: (1) the matched portion of
his or her After-Tax Contributions Account; (2) the Rollover Contribution; (3)
unmatched Before-Tax Contributions; and (4) matched Before-Tax Contributions. A
Participant's written request for a withdrawal on account of a hardship shall
state all of the facts and circumstances necessary for the Plan Administrator to
determine the existence and extent of the Participant's hardship and shall also
state the amount the Participant requires. A withdrawal shall be deemed
necessary to satisfy a hardship if the amount requested to be withdrawn, net of
anticipated income taxes or penalties reasonably expected to result from the
withdrawal (which may be included in the amount withdrawn), does not exceed the
amount of the need and the Participant has obtained all distributions (other
than hardship distributions) and all nontaxable loans currently available under
the Plan and all other qualified retirement plans maintained by the Company. The
Plan Administrator shall treat all requests uniformly. In no event shall the
Plan Administrator authorize a distribution under this Section greater than the
amount necessary to meet the hardship created by the financial need, nor shall
the cumulative withdrawals from the Participant's Before-Tax Contributions
Account exceed the sum of the amount credited to
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that Account on December 31, 1988, and the Before-Tax Contributions made to that
Account thereafter. The entire amount withdrawn under this Section will normally
be included in the Participant's taxable income, except to the extent the
Participant recovers "basis."
(b) Only the following events shall be considered
a "hardship": (1) unreimbursed medical expenses (those which are not paid by
medical insurance) of the Participant, his or her spouse or his or her dependent
(as defined in Code Section 152); (2) purchase of a principal residence for the
Participant (excluding mortgage payments); (3) unreimbursed tuition and related
educational expenses for the next twelve months of post-secondary education of
the Participant, his or her spouse or his or her dependent (as defined in Code
Section 152); (4) the avoidance of eviction from or foreclosure of a
Participant's principal residence; or (5) funeral expenses for immediate family
members of a Participant (e.g., spouse or children).
(c) A Participant who makes a hardship withdrawal
shall be subject to the penalties prescribed in Sec- tion 9.5(c).
9.5 Withdrawal Procedures and Penalties
(a) Withdrawals under this Article must be
requested by Participants in writing and may only be requested in the form and
at such times as the Plan Administrator establishes. The minimum withdrawal
shall be $200 or, if less, the total then
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available for withdrawal under the Section in question. Only two withdrawals may
be made under this Article in any calendar year. A hardship withdrawal from a
Participant's Before-Tax Contributions Account will not be authorized unless the
Participant has borrowed the maximum amount, if any, then available to him or
her under Section 9.6. Withdrawals from a Participant's Account shall be charged
to the Investment Fund or Funds in which the Account is invested, in the
hierarchy as the Plan Administrator shall specify.
(b) If a Participant withdraws amounts from his or
her Company Contributions Account, his or her After-Tax Contributions and
Before-Tax Contributions shall not be matched during the six calendar months
beginning after the date of the withdrawal. If the Participant withdraws
additional amounts from his or her Company Contributions Accounts during this
six-month penalty period, the period shall be extended by an additional six
months commencing at the end of the first penalty period. The penalty period
shall not be extended further if additional withdrawals are made before the end
of the twelve-month period; however, a subsequent withdrawal will result in a
new penalty period.
(c) If a Participant makes a hardship withdrawal
from his or her Before-Tax Contributions Account, certain Matched After-Tax
Contribution Accounts, or Rollover Contribution Account, the Participant (1)
must stop all contributions to all contributory plans of the Company (such as
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this Plan, any stock option plan or any non-qualified deferred compensation
plan) for twelve months from the date of receipt of the hardship withdrawals,
and (2) for the calendar year beginning after receipt of the hardship
withdrawal, the $9,240 limit set forth in Section 4.1(b) shall be reduced by the
Before-Tax Contributions made by the Participant for the calendar year in which
the hardship withdrawal occurred. Clause (1) shall not apply to group insurance
plans and to any other plans to which the Internal Revenue Service does not
require that it apply, as the Plan Administrator determines in good faith. To
the extent clause (1) does apply, suspension of contributions shall be permitted
notwithstanding anything to the contrary in this or any other affected plan
(which is hereby so amended).
9.6 Loans to Participants
(a) The Plan Administrator shall have the
investment management discretion to direct the Trustee to loan money to
Participants. Each such loan shall be treated as an investment of the Trust Fund
as a whole or, if the Plan Administrator so directs, as an investment of a
specified portion of the Trust Fund such as the borrower's Account. As of the
date of this 1989 Restatement, the Plan Administrator has directed that the loan
is an investment of the affected Participant's Account.
(b) The Plan shall establish Plan Rules governing
loan procedures. These Rules may require loan processing fees, limit the number
of loans a Participant may
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receive, establish ordering rules for funding loans or curing defaults and may
establish any other loan terms or procedures the Plan Administrator believes to
be necessary or desirable. A Participant who wishes to borrow money from the
Plan shall file a written loan application with the Plan Administrator in
accordance with these Plan Rules. The Plan Administrator, in its sole
discretion, shall approve or deny the loan. The Plan Administrator may deny a
loan application if it believes that the loan would not be repaid (e.g., if the
borrower has failed to repay a prior loan on time) or for any other reason if
denial would be in the best interests of the Plan or the Participant. The Plan
Administrator shall exercise its discretion in a uniform and nondiscriminatory
manner. No loan shall be granted unless the following requirements are met:
(i) No loan shall be made in an amount
which is less than $1,000 or which exceeds fifty percent of
the Vested portion of the Participant's Accounts. In
addition, no loan of more than $50,000 shall be made. The
$50,000 limit shall be reduced by the highest outstanding
balance of all qualified retirement plan loans to the
Participant during the one-year period ending on the day
before the date on which the loan is made. A "qualified
retirement plan loan" is any loan from this Plan or any
other qualified pension benefit plan of the Company and all
related companies (see Section 14.4);
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(ii) The loan shall bear a fixed
interest rate of five percent above First Interstate Bank of
California's personal savings passbook rate, determined as
of the commencement of the loan or such other rate as the
Plan Administrator determines to be reasonable and in
accordance with applicable Department of Labor Regulations;
(iii) Except as otherwise authorized by
the Plan Administrator, interest and principal on a loan
must be repaid in installments not less frequently than
quarterly (normally through payroll deductions) over a
specified period not to exceed four years (or thirteen years
if the loan is made to assist the Participant to purchase
his or her primary residence) (including renewals,
extensions and refinancing);
(iv) The loan shall be adequately
secured and security may be required in addition to that
automatically provided under subsection (c); and
(v) The loan shall be documented by such
notes, evidences of indebtedness and other instruments
executed by the Participant which the Plan Administrator in
its discretion requires.
(c) Each loan from the Plan shall be secured by
the borrowing Participant's interest in the Plan. If a Participant's Employment
terminates or the Plan terminates before he or she has repaid a loan, the loan
shall become immediately due and shall be repaid out of the Participant's Vested
Account,
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which shall be reduced accordingly. This right of set-off does not authorize the
Plan Administrator to defer collection of a loan until termination of Employment
but merely provides a method of insuring payment by such time. If a
Participant's loan is in default and the Participant's Employment has not
terminated, the loan shall become immediately due and payable and shall be
satisfied, to the extent possible, from the Participant's Vested Company
Contributions Account or After-Tax Contributions Account. Any remaining unpaid
balance shall be collected when the Participant's Before-Tax Contributions
Account becomes distributable.
(d) Interest paid on a loan shall not be
deductible for federal income tax purposes, beginning January 1, 1991.
ARTICLE X
INVESTMENT FUNDS
10.1 Investment Choices
(a) For investment purposes, the assets of the
Plan have been allocated among a number of Investment Funds, including a Company
Stock Fund, a Guaranteed Income Fund, an Indexed Equity Fund, a Global Equity
Fund, a Fixed-Income Fund and a Managed Investment Fund. See Section 1.04 of the
Trust Agreement.
(b) Each Participant may specify the extent to
which his or her Before-Tax Contributions and After-Tax
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Contributions shall be invested among the Investment Funds, other than the Stock
Fund. Investment directions shall be made in writing in the manner specified by
the Plan Administrator and in accordance with the following rules:
(i) When an individual becomes a
Participant, the Plan Administrator shall give the
Participant the right to specify how his or her After-Tax
Contributions and Before-Tax Contributions shall be
allocated among the Investment Funds, other than the Stock
Fund. Thereafter, the Plan Administrator shall periodically
give all Participants the opportunity to elect to change how
their new After-Tax Contributions or Before-Tax
Contributions are invested or to change how the amounts
previously credited to their After-Tax Contributions
Accounts or Before-Tax Contributions Accounts are invested.
To the extent a Participant does not make an investment
election, his or her Before-Tax Contributions and After-Tax
Contributions shall be invested in the Guaranteed Income
Fund.
(ii) All Company Contributions Accounts
(and only such Accounts) shall be invested in the Stock
Fund, except to the extent that-qualifying Participants
elect to have all or a portion of their Company
Contributions Accounts (or new contributions to such
Accounts) transferred out of the Stock Fund and invested
among the other Investment Funds. (Amounts transferred from
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the Stock Fund cannot thereafter be transferred back into
the Stock Fund.) Elections may be made on dates and in the
manner allowed by the Plan Administrator. A Participant
shall qualify for this special investment option (A) upon
suffering a Disability, or (B) after attaining age fiftyfive
and having a fully Vested Company Contributions Account.
(c) All gains and losses with respect to an
Investment Fund shall be credited to it. Accordingly, in allocating investment
gains and losses among Accounts, each Fund shall be separately valued and the
gains and losses on the Fund shall be credited among Accounts in proportion to
their interests in the Investment Fund, as more fully provided in Sections 10.4,
10.5 and 10.6.
10.2 Special Accounting Rules for the Stock Fund
Each Investment Fund other than the Stock Fund is a pooled
investment fund and the gains or losses on such Funds shall be allocated monthly
using the unit accounting method specified in this Article. The Stock Fund,
however, is only a pooled investment fund in part and special accounting rules
apply. These rules are as follows:
(a) Each Company Contributions Account invested in
the Stock Fund shall consist of a cash portion (the "Cash Account") and a
Company Stock portion (the "Stock Account"). Unallocated amounts being held in
the Stock Fund for Allocation
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shall also be credited to segregated unallocated Cash and Stock Accounts within
the Stock Fund.
(b) Cash Accounts shall be invested in short term
debt instruments, or other assets, pending investment in Company Stock. Gains or
losses on Cash Accounts shall be credited in accordance with this Article as if
all Cash Accounts comprised a separate Investment Fund, put gains and losses
need not be credited on the monthly crediting date prescribed under Section 10.4
and may instead be credited on such other dates specified by the Plan
Administrator.
(c) Each Stock Account shall be credited with a
specific number of shares of Company Stock rather than with an undivided
interest in a pool of Company Stock. Accordingly, the unit accounting procedures
set forth in this Article shall not apply to the Stock Accounts. Each Stock
Account, at any relevant time, shall be worth the fair market value on that date
of the shares of Company Stock credited to it (see Section 10.7(b)).
(d) Company matching contributions shall be made
in cash. Forfeitures shall be converted into cash in accordance with Section
10.7 prior to reallocation as matching contributions. Pending allocation, these
cash amounts shall be held in the unallocated Cash Account within the Stock
Fund. The appropriate amounts shall then be withdrawn from the unallocated Cash
Account and allocated in accordance with Article V to the appropriate
Participant Cash Accounts.
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(e) Each Cash Account shall be invested in Company
Stock from time to time and Company Stock so acquired shall be allocated to the
corresponding Stock Account in proportion to the amount withdrawn from the Cash
Account.
(f) Cash dividends on Company Stock held in a
Stock Account shall be allocated to the corresponding Cash Account.
(g) Stock dividends on Company Stock held in a
Stock Account shall be credited to that Stock Account. Any cash received in
connection with a stock dividend on Company Stock held in a Stock Account in
lieu of a fractional share shall be credited to the corresponding Cash Account
in the Stock Fund.
(h) In the event any rights, warrants or options
are issued with respect to Company Stock, the Trustee, as directed by the Plan
Administrator, shall exercise any or all of the rights, warrants or options
received on Company Stock in a Stock Account for such Account using such cash as
may be available in the corresponding Cash Account. Company Stock so acquired
shall be credited to that Stock Account. Alternatively, the Trustee may sell any
such rights, warrants or options for the benefit of the Cash Account
corresponding to the Stock Account.
(i) Pending allocation with respect to the Plan,
Company Stock attributable to the Plan shall be credited to the unallocated
Stock Account and all other assets shall be credited to the unallocated Cash
Account. Earnings on the
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unallocated Cash Account shall be allocated in the manner specified by the Plan
Administrator.
(j) A Participant shall have no right to request, direct or
demand that the Trustee exercise on his or her behalf rights to purchase shares
of Common Stock or other securities of the company.
10.3 Voting, Tendering or Retaining Company Stock
(a) General
Effective as of the date that shares of Company Stock are
first allocated to the Company Contributions Account of any Participant, each
Participant (or, in the event of his or her death, his or her Beneficiary) is,
for purposes of this Section, hereby designated a "named fiduciary," within the
meaning of Section 403(a)(1) of ERISA, with respect to (i) the number of shares
of Company Stock allocated to his or her Company Contributions Account and (ii)
his or her proportionate share of (a) all shares of Company Stock held in the
unallocated Stock Account and (b), for purposes of subsection 10.3(b), that
portion of the shares of Company Stock allocated to the Company Contribution
Accounts of all Participants for which Participants do not give timely
instructions (such proportionate share being determined at the respective times
such fiduciary rights are exercisable, as set forth below).
(b) Voting Rights
Each Participant (or, in the event of his or her death, his or
her Beneficiary) shall have the right to instruct the
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Trustee in writing as to the manner in which to vote (i) the shares of Company
Stock allocated to his or her Company Contribution Account and (ii) his or her
share (as determined in the last sentence of this subsection 10.3(b) of (a) all
shares of Company Stock (of whatever class) held in the unallocated Stock
Account and (b) that portion of the shares of Company Stock (of whatever class)
allocated to the Company Contribution Accounts of all Participants for which
Participants do not give timely instructions to the Trustee, as described in
this subsection 10.3(b), at any shareholders' meeting of the Company. The
Company shall use its best efforts to timely distribute or cause to be
distributed to each Participant (or Beneficiary) the information distributed to
shareholders of the Company in connection with any such shareholders' meeting,
together with a form requesting confidential instructions on how such shares of
Company Stock shall be voted on each such matter. Upon timely receipt of such
instructions, the Trustee shall, on each such matter, vote as instructed the
appropriate number of shares (including fractional shares) of Company Stock. The
instructions received by the Trustee from Participants (or Beneficiaries) shall
be held by the Trustee in strict confidence and shall not be divulged to any
person, including employees, officers and directors of the Company or any
affiliate; provided, however, that, to the extent necessary for the operation of
the Plan, such instructions may be relayed by the Trustee to a recordkeeper,
auditor or other persons providing services to the Plan if such
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person (i) is not the Company or an affiliate or any employee, officer or
director thereof, and (ii) agrees not to divulge such instructions to any other
person, including employees, officers and directors of the Company or its
affiliates. An individual's proportionate share or shares of Company Stock for
purposes of clause (ii) of the first sentence of this Section shall be a
fraction, the numerator of which shall be the number of shares held in the
individual's Company Contribution Account for which he or she provides timely
instructions to the Trustee, and the denominator of which shall be the number of
such shares of Company Stock in all such accounts for which timely instructions
are provided to the Trustee.
(c) Rights on Tender or Exchange Offer
Each Participant (or, in the event of his or her death, his or
her Beneficiary) shall have the right to instruct the Trustee in writing as to
the manner in which to respond to a tender or exchange offer with respect to (i)
shares of Company Stock allocated to his or her Company Contribution Account and
(ii) his or her proportionate share (as determined in the last sentence of this
subsection 10.3(c)) of shares of Company Stock (of whatever class) held in the
unallocated Stock Account. The Company shall use its best efforts to timely
distribute or cause to be distributed to each such Participant (or Beneficiary)
the information distributed to shareholders of the Company in connection with
any such tender or exchange offer, together with a form requesting confidential
instructions to the Trustee on how
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to respond to such tender or exchange offer. Upon timely receipt of such
instructions, the Trustee shall respond as instructed with respect to such
shares of Company Stock. If, and to the extent that, the Trustee shall not have
received timely instructions from any individual who has the right, pursuant to
the first sentence of this subsection, to instruct the Trustee with respect to
shares of Company Stock, such individual shall be deemed to have timely
instructed the Trustee not to tender or exchange; such shares of Company Stock.
The instructions received by the Trustee from individual Participants (or
Beneficiaries) shall be held by the Trustee in strict confidence and shall not
be divulged or released to any person, including employees, officers and
directors of the Company or any affiliate; provided, however, that, to the
extent necessary for the operation of the Plan, such instructions may be relayed
by the Trustee to a recordkeeper, auditor or other person providing services to
the Plan if such person (i) is not the Company, an affiliate or any employee,
officer or director thereof, and (ii) agrees not to divulge such instructions to
any other person, including employees, officers and directors of the Company and
its affiliates. An individual's proportionate share or shares of Company Stock
held in the unallocated Stock Account shall be a fraction, the numerator of
which shall be the respective number of shares of Company Stock held in such
individual's Company Contribution Account and the denominator of which shall be
the number of such shares in all Company Contribution Accounts.
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(d) Retention of Company Stock
The Trustee is authorized and directed to retain Company Stock
acquired by the Stock Fund, regardless of fluctuations in value, except that (1)
in the normal course of Plan administration, the Trustee may sell Company Stock
to satisfy Plan administration and distribution requirements as directed by the
Plan Administrator or in accordance with provisions of the Plan or Trust
Agreement specifically authorizing such sales, and (2) in the event of a tender
or exchange offer, the Trustee shall have no authority or responsibility to
sell, transfer or exchange (hereinafter, "to tender") Company Stock pursuant to
the offer except in accordance with Participant directions given to the Trustee
pursuant to the procedures described in this Section 10.3.
(e) Confidentiality of Participant Instructions.
The Trustee shall take steps reasonably necessary under the circumstances to (i)
maintain the confidentiality of Participant instructions as to the manner in
which to vote shares of Company Stock under subsection 10.3(b) or to respond to
a tender or exchange offer under subsection 10.3(c), and (ii) prevent disclosure
of such instructions to employees, officers, or directors of the Company or its
affiliates, other than employees and officers of the Trustee who are directly
responsible for receiving, tabulating, and carrying out such instructions. In
extraordinary circumstances, including, without limitation, contested proxy
matters or tender or exchange offers
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not endorsed by Company management, the Trustee may, in its discretion and at
the expense of the Plan, take additional precautions to preserve the
confidentiality of Participant instructions, including, without limitation,
hiring an independent party to receive and tabulate Participant instructions,
and, in the event some, but not all, of the Company Stock held by the Plan is
sold or exchanged pursuant to a tender or exchange offer, to maintain
Participant records. Any such independent party must agree, as a condition of
its retention, not to divulge Participant instructions or records to employees,
officers, or directors of the Company or its affiliates, except as otherwise
required by law. The Company acknowledges and agrees to honor the
confidentiality of Participant instructions to the Trustee.
10.4 Allocation of Gains or Losses on Investment Funds
The last day of each calendar month shall be a valuation date.
As of each valuation date, the Plan Administrator shall allocate the gains and
losses on each Investment Fund since the last valuation date among Accounts
invested in the Fund by adjusting the stated value of each Account to reflect
its actual value as of the current valuation date. This adjustment shall be
accomplished by multiplying the last determined value of each Account's interest
in the Fund (or, at the election of the Plan Administrator, the average value of
its interest during the period since the last valuation date) by
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the Investment Fund's earnings factor for the valuation date. Alternatively, the
Plan Administrator may elect to allocate earnings and losses in any other
consistent manner so long as the resulting allocations would be generally
similar to those determined under the provisions of this Article. In applying
this Section with respect to the Stock Fund, only the Cash Account within the
Stock Fund shall be taken into account, as more fully provided in Section 10.2.
10.5 Earnings Factor
(a) Except as otherwise determined by the Plan
Administrator, an Investment Fund's earnings factor referred to in Section 10.4
shall mean the percentage determined by dividing its current adjusted value, as
defined in subsection (b), by the total amount credited to all Accounts in the
Investment Fund as of the valuation date before allocations of gains and losses
and before distributions as of such date.
(b) The current adjusted value of an Investment
Fund shall be its value, as determined under Section 10.6 as of the monthly
valuation date, reduced by any unallocated amounts credited thereto.
10.6 Value of Investment Funds
The Plan Administrator or its delegate shall determine the
fair market value of Investment Fund assets in compliance with this Section and
the principles of Section 3(26) of ERISA and regulations issued pursuant
thereto. Valuation shall be based upon information reasonably available to the
Plan
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Administrator or its delegate, including data from, but not limited to,
newspapers and financial publications of general circulation, statistical and
valuation services, records of securities exchanges, appraisals by qualified
persons, transactions and bona fide offers in assets of the type in question and
other information customarily used in the valuation of property for purposes of
the Code. The Plan Administrator or its delegate may elect to value any bank
deposit, interest-bearing insurance contract or other evidence of indebtedness
at its unpaid face value (and, at the election of the Plan Administrator or its
delegate, with interest accrued to the valuation date) if the obligation is not
in default. In determining the value of the Plan's investment in any collective
investment fund, separate account, partnership or similar entity, the Plan
Administrator or its delegate may (but need not) rely on the most recent prior
valuation of units or interests in the fund, separate account, partnership or
entity made by or on behalf of the fund, separate account, partnership or
entity. The value of any real property held in an Investment Fund, determined as
of the end of any Plan Year, shall be considered to remain unchanged until the
end of the following Plan Year. With respect to securities for which there is a
generally recognized market, the published selling prices on or last preceding
the valuation date shall establish the fair market value of such securities. The
Plan Administrator or its delegate may elect to treat as an asset the
unamortized amount of capitalized administrative
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expenditures charged to an Investment Fund. Fair market value so
determined shall be conclusive for all purposes of the Plan and
Trust.
10.7 Account Values, Basis and Conversion of Company
Stock to Cash
(a) Except as provided in subsection (b), the
value of an Account for all purposes of this Plan shall be its value as last
determined under this Article on or before the date in question, increased by
contributions thereafter credited to the Account and decreased by amounts
thereafter withdrawn or distributed from the Account.
(b) As provided in Section 10.2, the Stock Account
component of a Participant's Company Contributions Account consists of the
Company Stock credited to the Account at the time in question. The Stock Account
shall be worth the fair market value of the Company Stock credited to it. To the
extent that Company Stock in a Stock Account is to be distributed or withdrawn
in cash, or converted to cash when forfeited, its value shall be determined
based on the closing trading price of the Company Stock credited to the Account,
determined as of the end of the last business day of the calendar month in which
the distribution, withdrawal or forfeiture is processed (or such other earlier
date specified by the Plan Administrator) by the Plan Administrator under a
reasonable method consistently applied. For purposes of informing Participants
of the Plan's basis in Company Stock distributed to them, the Plan
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Administrator shall keep records of the Plan's basis in the Company Stock
credited to each Stock Account in accordance with Treas. Reg. Section
1.402(a)-1(b)(2).
ARTICLE XI
ANNUAL ADDITION LIMITS
11.1 Limitation on Allocations
(a) The annual addition to any Participant's
Account for any Plan Year shall not exceed his or her maximum permissible
amount. Subsection (d) defines the terms used in this Article.
(b) Prior to determining the Participant's actual
earnings for the Plan Year, the Company may determine the maximum permissible
amount on the basis of a reasonable estimate of the Participant's earnings for
the Plan Year, uniformly determined for all Participants similarly situated. As
soon as administratively feasible after the end of the Plan Year, the maximum
permissible amount for the Plan Year will be determined on the basis of the
Participant's actual earnings for the Plan Year.
(c) If a Participant's annual addition would
exceed his or her maximum permissible amount, the excess amount shall be
eliminated as follows:
(i) Any After-Tax Contributions, to the
extent they would reduce the excess, shall be returned to
the Participant as soon as administratively feasible.
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(ii) The excess amount, if any,
remaining after application of paragraph (i) shall be held
unallocated in a suspense account. The suspense account
shall be allocated in the next Plan Year (and succeeding
Plan Years, if necessary) to all remaining Participants in
lieu of Company contributions which would otherwise be
allocated to those Participants.
(d) Terms used in this Article shall have the
following meanings:
(i) "Annual Addition" means the sum for
the Plan Year of all contributions and forfeitures allocated
to a Participant's accounts in all qualified defined
contribution and defined benefit plans maintained by the
Company. Funds set aside to provide post-retirement medical
benefits to the Participant shall be included in his or her
annual addition to the extent required under Code Section
415(1) or 419A(d)(2). Under Code Section 415(c)(6)(C),
certain Company contributions and forfeitures which would
otherwise be considered annual additions may be excluded.
(ii) "Maximum Permissible Amount" shall
mean, with respect to a Participant, the lesser of
(A) twenty-five percent of the
Participant's earnings for the Plan Year, or
(B) $30,000 (or, if greater, one
quarter of the amount (currently $118,800) then in
effect pursuant to Code Section 415(b)(1)(A) for the
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calendar year in or with which the Plan Year ends).
Because the Plan Year is the "limitation year," if a
short Plan Year is created for any reason, the dollar
amount in this subparagraph shall be prorated by
multiplying it by a fraction, the numerator of which is
the number of months in the short Plan Year and the
denominator of which is twelve. Under Code Section
415(c)(6)(A), the dollar amount in this subparagraph
may be increased if certain conditions are met.
(iii) "Earnings" shall mean a
Participant's earned income, wages, salaries, fees for
professional services and other amounts received or
considered received from the Company and all related
companies during the entire Plan Year (even if the
individual is a Participant for only part of the Plan Year)
for personal services actually rendered to the Company as an
Employee and includable in the Participant's gross income
for the Plan Year (including any such amounts which are
otherwise excluded from "Compensation," as defined in
Section 2.14), but excluding
(A) employer contributions for
simplified employee pensions to the extent such
contributions are excludable from the gross income of
the Participant,
(B) salary reduction contributions
to cash or deferred plans or cafeteria plans, deferred
compensation or any distributions from a plan of
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deferred compensation (other than an amount included in
the Participant's gross income for the Plan Year which
is attributable to an unfunded, non-qualified plan),
(C) amounts realized from the
exercise of a non-qualified stock option, or when
restricted stock (or property) held by a Participant
becomes freely transferable or is no longer subject to
a substantial risk of forfeiture,
(D) amounts realized from the sale,
exchange or other disposition of stock under a
qualified or incentive stock option, and
(E) other amounts which receive
special tax benefits, such as contributions made by the
Company (whether or not under a salary reduction
agreement) towards the purchase of a Code Section
403(b) annuity contract (whether or not the contribu-
tions are excludable from the gross income of the
Participant).
11.2 Combined Defined Contribution/Defined Benefit Plan
Limit
(a) If a Participant in this Plan has at any time
participated in any qualified defined benefit plan of the Company, the annual
additions which may be credited to a Participant's Account under this Plan for
any limitation year shall be limited so that the sum of the Participant's
defined contribution plan and defined benefit plan fractions, as defined
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below, will not exceed 1.0. This limitation shall only apply if the defined
benefit plan does not provide for a corresponding limitation on the
Participant's accrued benefit under that plan.
(b) "Defined Contribution Plan Fraction" shall
have the meaning set forth in Code 415(e)(3). If, based on reasonable
projections, it is expected that a Participant's defined contribution plan
fraction in the future will be materially less than his or her current defined
contribution plan fraction, the Plan Administrator shall compute the defined
contribution plan fraction on a projected basis.
(c) "Defined Benefit Plan Fraction" shall have the
meaning set forth in Code Section 415(e)(2).
(d) For any limitation year in which the Plan is
top heavy, "one hundred percent" shall be substituted for "one hundred
twenty-five percent" under Code Sections 415(e)(2) and (3) in determining the
denominators of a key employee's defined contribution and defined benefit plan
fractions.
ARTICLE XII
ADMINISTRATION OF THE PLAN
12.1 Duties of the Plan Administrator
The Plan Administrator shall be responsible for the general
administration of the Plan and shall administer the Plan on a non-discriminatory
basis in accordance with its terms. The Plan Administrator shall have all powers
and duties necessary to
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fulfill its responsibilities, including, but not limited to, the following
powers and duties:
(a) To determine all questions relating to the
eligibility of Employees to participate;
(b) To determine, compute and certify to the
Trustee the amount and kind of benefits payable to Participants and their
Beneficiaries;
(c) To authorize all disbursements by the Trustee
from the Trust;
(d) To maintain all records necessary for the
administration of the Plan, other than those maintained by the Companies or the
Trustees;
(e) To provide for disclosure of all information
and filing or provision of all reports and statements to Participants,
Beneficiaries or governmental bodies as shall be required of the Plan
Administrator by the Code or ERISA or any other federal law;
(f) To adopt or modify Plan Rules for the
regulation or application of the Plan (see Exhibit I); such Rules may establish
administrative procedures or requirements which modify the terms of this Plan,
but Plan Rules shall not substantially alter significant requirements or
provisions of the Plan;
(g) To administer the claims procedure set forth
in Section 12.5;
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(h) To the extent required under Code Section
402(f), to notify each recipient of a distribution from this Plan of his or her
right to make a rollover contribution of all or part of the distribution;
(i) To delegate any power or duty to any person or
entity in accordance with Section 12.3; and
(j) To exercise all other powers or duties granted
to the Plan Administrator by other provisions of the Plan or the Trust
Agreement.
12.2 Investments and Funding Policy
The Plan Administrator shall establish a funding policy. The
Plan Administrator shall advise the Trustee and any other person delegated
investment management responsibility of all such matters, if any, as may be
pertinent to their duties.
12.3 Delegation of Administrative Responsibility
(a) The Plan Administrator may delegate all or any
portion of its administrative responsibilities with respect to the Plan (other
than investment management responsibilities) to any other person or persons
pursuant to this Section. Investment responsibilities may be delegated only to
the extent permitted under the Trust Agreement.
(b) A delegation under this Section shall be
accomplished by a written instrument executed by the Plan Administrator
specifying responsibilities delegated and the fiduciary responsibilities
allocated to such delegate. The delegation of such responsibilities shall be
effective upon the
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date specified in the delegation, subject to written acceptance by the delegate.
12.4 Compensation, Expenses and Indemnity
(a) Any delegate under Section 12.3 who is an
Employee shall serve without compensation for services to the Plan. Any
individual who handles Plan assets shall be bonded. The Companies shall furnish
the Plan Administrator and any such delegate with all clerical or other
assistance necessary in the performance of their duties. The Plan Administrator
is authorized to employ such legal counsel and advisers as it may deem advisable
to assist in the performance of its duties thereafter.
(b) All costs of administering the Plan (including
the cost of the bond and legal services described in subsection (a)) shall be
paid either out of Plan assets or by the Companies. Expenses paid out of the
Plan shall be charged to the Investment Fund or Funds with respect to which the
expenses were incurred or in such other fashion as the Plan Administrator may
direct. Except as the Plan Administrator otherwise directs, any expenses
incurred in resolving disputes among different claimants as to entitlement to a
benefit which is payable under the Plan shall be charged against the benefit,
which shall be reduced accordingly.
(c) To the extent permitted by applicable law, the
Companies shall indemnify and hold harmless the Board of Directors, the Plan
Administrator and any delegate appointed
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pursuant to Section 12.3 who is an Employee or any committee appointed under
Section 12.7 against any and all expenses, liabilities and claims (including
legal fees incurred to defend against such liabilities and claims) arising out
of their discharge in good faith of responsibilities under or incident to the
Plan. Expenses and liabilities arising out of willful misconduct shall not be
covered under this indemnity. This indemnity shall not preclude such further
indemnities as may be available under insurance purchased by the Companies or
provided by the Companies under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, as such indemnities are permitted under
applicable law. Payments with respect to any indemnity and payment of expenses
or fees shall be made only from assets of the Companies and shall not be made
directly or indirectly from Trust assets.
12.5 Claims Procedure
(a) Normally, a Participant or Beneficiary need
not present a formal claim for benefits in order to qualify for rights or
benefits under this Plan. However, if any person is not granted the rights or
benefits to which the individual believes himself or herself to be entitled, a
formal claim for benefits must be filed in accordance with this Section. A claim
by a Participant, former Participant, Beneficiary or any other person shall be
presented to the Plan Administrator in writing. The Plan Administrator shall,
within a reasonable time, consider the claim and shall issue its determination
thereon in writing.
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If the claim is granted, the appropriate distribution or payment shall be made
from the Trust Fund.
(b) If a claim is wholly or partially denied, the
Plan Administrator shall, within ninety days (or such longer period as may be
reasonable necessary), provide the claimant with written notice of such denial,
setting forth, in a manner calculated to be understood by the claimant
(i) the specific reason or reasons for
such denial,
(ii) specific references to pertinent
Plan provisions on which the denial is based,
(iii) a description of any additional
material or information necessary for the claimant to
perfect the claim and an explanation of why such material or
information is necessary, and
(iv) an explanation of the Plan's claim
review procedure.
(c) Each claimant shall have the opportunity to
appeal in writing the Plan Administrator's denial of a claim to a review officer
designated by the Plan Administrator for a full and fair review. The claimant or
his or her duly authorized representative
(i) may request a review upon written
application to the Plan Administrator (which shall be filed
with it),
(ii) may review pertinent documents, and
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(iii) may submit issues and comments in
writing.
(d) The Plan Administrator may establish time
limits within which a claimant may request review of a denied claim as are
reasonable in relation to the nature of the benefit which is the subject of the
claim and other attendant circumstances, but which shall not be less than sixty
days after receipt by the claimant of written notice of denial of his or her
death. The Plan Administrator shall adopt procedures pursuant to which claims
shall be reviewed and may, in its discretion, adopt different procedures for
different claims without being bound by past actions. Any procedures adopted,
however, shall be designed to afford a claimant a full and fair review of his or
her claim.
(e) The decision by the review official upon
review of a claim shall be made not later than sixty days after his or her
receipt of the request for review, unless special circumstances require an
extension of time for processing, in which case a decision shall be rendered as
soon as possible, but not later than 120 days after receipt of the request for
review.
(f) The decision on review shall be in writing and
shall include specific reasons for the decision written in a manner calculated
to be understood by the claimant, with specific references to the pertinent Plan
provisions on which the decision is based.
(g) To the extent permitted by law, the decision
of the Plan Administrator (if no review is properly
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requested) or the decision of the review official on review, as the case may be,
shall be final and binding on all parties. No legal action for benefits under
the Plan shall be brought unless and until the claimant has exhausted his or her
remedies under this Section.
12.6 Effect of Plan Administrator Action
The Plan shall be interpreted by the Plan Administrator and
all Plan fiduciaries in accordance with the terms of the Plan and its intended
meanings. However, the Plan Administrator and all Plan fiduciaries shall have
the discretion to make any findings of fact needed in the administration of the
Plan, and shall have the discretion to interpret or construe ambiguous, unclear
or implied (but omitted) terms in any fashion they deem to be appropriate in
their sole judgment. The validity of any such findings of fact, interpretation,
construction or decision shall not be given de novo review if challenged in
court, by arbitration or in any other forum, and shall be upheld unless clearly
arbitrary or capricious. To the extent the Plan Administrator or any Plan has
been granted discretionary authority under the Plan, the Plan Administrator's or
Plan fiduciary's prior exercise of such authority shall not obligate it to
exercise its authority in like fashion thereafter. If, due to the errors in
drafting, any Plan provision does not accurately reflect its intended meaning,
as demonstrated by consistent interpretations or other evidence of intention, or
as determined by the Plan Administrator in its sole and exclusive judgment, the
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provision shall be considered ambiguous and shall be interpreted by the Plan
Administrator and all Plan fiduciaries in a fashion consistent with its intent,
as determined by the Plan Administrator in its sole discretion. The Plan
Administrator, without the need for Board of Directors' approval, shall amend
the Plan retroactively to cure any such ambiguity. This Section may not be
invoked by any person to require the Plan to be interpreted in a manner which is
inconsistent with its interpretation by the Plan Administrator or by any Plan
fiduciaries. All actions taken and all determinations made in good faith by the
Plan Administrator or by Plan fiduciaries shall be final and binding upon all
persons claiming any interest in or under the Plan.
12.7 Appointment of Committees
(a) The Board of Directors may, but need not,
appoint an administrative committee (the "Administrative Committee") to serve as
Plan Administrator or an investment committee (the "Investment Committee") to
monitor the Plan's investments. The Investment Committee shall not manage
investments or make investment decisions or recommendations. Its sole function
is to monitor the Investment Funds and advise the Board of Directors from time
to time as to their performance.
(b) Each Committee shall consist of at least three
members. The members of a Committee shall be appointed by the Board of
Directors. A person appointed shall become a member of a Committee by filing a
written notice of acceptance with the
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Board of Directors. A member of a Committee may resign by delivering a written
notice of resignation to the Board of Directors. The Board of Directors may
remove any member (with or without cause) by delivering a certified copy of its
resolution of removal to such member. Resignation or removal shall be effective
on the date specified. The Trustee shall be promptly notified of the membership
(and of any changes in the membership) of a Committee and of the Secretary of
the Committee authorized to give directions to the Trustee on behalf of the
Committee. The Trustee shall also be provided with specimen signatures of each
Committee member. These notifications shall be accompanied by certified copies
of the resolution of the Board of Directors relating thereto. Vacancies in the
membership of a Committee shall be filled promptly by the Board of Directors.
(c) Each Committee shall choose a Secretary who
shall keep minutes of the Committee's proceedings and all records and documents
pertaining to the Committee's administration of the Plan. Any action of a
Committee shall be taken pursuant to a majority vote, or pursuant to the written
consent of a majority, of its members and such action shall constitute the
action of the Committee and be as binding as if all members had joined therein.
A quorum of a Committee shall consist of a majority of the members. The
Secretary of a Committee may execute any certificate or other written direction
on behalf of a Committee. The Trustee or third persons dealing with a Committee
may conclusively rely upon any certificate or other written direction
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signed by the Secretary which purports to have been duly authorized by the
Committee.
(d) A member of a Committee shall not vote or act
upon any matter which specifically relates to such person as a Participant or to
any other matter in which the member has an interest which may affect such
member's best judgment as a fiduciary. If a matter arises affecting one of the
members of a Committee and the other members of the Committee are unable to
agree as to the disposition of such matter, the Board of Directors shall appoint
a substitute member of the Committee in the place and stead of the affected
member for the sole and only purpose of passing upon and deciding the particular
matter.
ARTICLE XIII
AMENDMENT AND TERMINATION OF THE PLAN
13.1 Amendments
(a) First Interstate Bancorp shall have the right
to amend this Plan. All amendments may be adopted in writing by resolution of
the Board of Directors or resolution of the Executive Committee or Compensation
Committee of the Board. Notwithstanding the previous sentence, the Plan
Administrator shall have the power to amend the Plan in any way, without
approval of the Board of Directors or its Executive or Compensation Committees,
for the purpose of complying with antidiscrimination provisions of the Code, as
long as the amendment does not substantially increase the expense of the Plan to
the
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Company. By way of illustration, the Plan Administrator may, for the purpose of
anti-discrimination rule compliance, restrict Plan eligibility, divide the Plan
into substantially identical separate plans or change any provisions relating to
Before-Tax or After-Tax Contributions or Company contributions.
(b) No amendment or any other action by the
Companies shall divert any assets of the Plan to any purpose other than the
exclusive benefit of the Participants or their Beneficiaries. No amendment shall
decrease the Vested percentage or amount of a Participant's Account or, to the
extent prohibited by Code Section 411(d)(6)(B), reduce or eliminate any subsidy,
early retirement benefit or optional benefit form.
(c) Any material modification of the Plan shall be
communicated to all interested parties and the Secretaries of Labor and the
Treasury in the time and manner required by law.
(d) No amendment, unless it expressly provides
otherwise, shall be applied retroactively to increase the Vested percentage of a
former Participant whose Employment terminated before the date such amendment
became effective unless and until he or she again becomes a Participant.
(e) No amendment, unless it expressly provides
otherwise, shall be applied retroactively to increase the amount of Service
credited to any person for Employment before the date the amendment became
effective.
(f) Except as provided in subsections (d) and (e),
all rights under the Plan shall be determined under the
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terms of the Plan as in effect at the time the determination is made.
(g) Any other provisions of this Plan to the
contrary notwithstanding, if any amendment to ERISA or the Code (or
administrative interpretation thereof) requires that a conforming plan amendment
be adopted as of a stated effective date in order for this Plan to continue to
be a qualified plan which complies with ERISA, this Plan shall be operated in
accordance with the requirements of that ERISA or Code provision from its
effective date until the date when a conforming plan amendment is adopted, or
the date when a clear and unambiguous nonconforming plan amendment is adopted
whichever occurs first.
(h) If the Internal Revenue Service determines
that the Plan does not qualify under applicable provisions of the Internal
Revenue Code for any Plan Year, the Plan shall be a new and separate plan and
trust for the next plan year and the Plan Administrator shall segregate the
assets of the new plan and trust from all other Plan and Trust assets.
13.2 Termination of Plan; Discontinuance of
Contributions
(a) The Plan is intended to be a permanent
program, but the Companies shall have the right at any time to declare the Plan
terminated completely as to all Companies or as to any Company or any of its
divisions, facilities, operational units or job classifications. Such a
termination by itself shall
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not constitute a "partial termination," within the meaning of subsection (b).
(b) If the Plan Administrator determines in its
sole discretion that the Plan has been terminated partially or completely within
the meaning of regulations under Code Section 411, the Plan Administrator shall
determine the date of such termination and who has been affected by the
termination. The Accounts of all persons affected by the termination who were
Employees on the date thereof shall become fully Vested. In addition, the Plan
Administrator in its sole discretion may vest the Accounts of a group of
Participants in full because they are affected by a business divestiture, layoff
or other similar transaction, in which case the partial termination rules set
forth in this Section shall apply (even when a true "partial termination" has
not occurred). The Plan Administrator shall document in writing its decision to
vest certain Participants' Accounts in full and the reasons therefor. The Plan
Administrator's action in any one event shall not be considered as establishing
a precedent nor requiring a similar action in another event. If the Plan is
being completely terminated, the unvested portion of the Account of each person
who is not then an Employee shall be forfeited (except as otherwise required
under any Treasury Regulation or Internal Revenue Service Revenue Ruling or
Notice issued after 1988). These forfeitures shall be allocated to all other
Participants as of the termination date, as specified by the Plan Administrator.
Since partial
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termination of the Plan does not necessarily involve liquidation of the Plan,
the Accounts of all persons affected by such an occurrence, to the extent
Vested, shall remain payable under the terms set forth in the Plan, except as
provided in subsection (c).
(c) In connection with a complete or partial
termination of the Plan or thereafter, the Plan Administrator may elect to
discharge all of the Plan's obligations to affected Participants. In such event,
the Plan Administrator shall cause the following actions to take place:
(i) Amounts being held under Sec- tion
11.1(c) shall revert to the Companies if a complete Plan
termination is taking place; and
(ii) The Plan Administrator shall direct
the Trustee to liquidate the necessary portion of the Trust
Fund and distribute affected Accounts, less proportionate
shares of the expenses of termination, to the persons
entitled thereto.
(d) Except as provided otherwise in any applicable
collective bargaining agreement, any Company shall have the right at any time to
discontinue contributions to the Plan completely or as to any of the Company's
divisions, facilities, operational units or job classifications. A complete
discontinuance of contributions by all Companies shall constitute a "partial
termination" within the meaning of subsection (b).
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(e) This Section has been included in the Plan to
meet requirements of federal law. It is not intended to create, nor shall it be
construed as creating, any contractual rights whatsoever.
(f) Notwithstanding any other provision in the
Plan to the contrary, the benefit of any person who is highly compensated
(within the meaning of Code Section 414(q)) shall be limited to a benefit that
is nondiscriminatory under Code Section 401(a)(4).
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 Payments
(a) In the event any amount becomes payable under
the Plan to a minor or a person who, in the sole judgment of the Plan
Administrator, is considered to be unable to give a valid receipt for the
payment by reason of physical or mental condition, the Plan Administrator may
direct that such payment be made to any person found by the Plan Administrator,
in its sole judgment, to have assumed the care of the person in question. Any
payment made pursuant to such determination shall constitute payment by the Plan
and result in a full release and discharge of the Trustee, the Plan
Administrator and the Companies and their officers, directors, employees, agents
and representatives.
(b) Payment of benefits to the person entitled
thereto may be sent by first class mail, address correction
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requested, to the last known address on file with the Plan Administrator. If,
within six months from the date of issuance of the payment, the payment letter
cannot be delivered to the person entitled thereto or the payment has not been
negotiated, the payment shall be treated as forfeited and shall be allocated as
specified by the Plan Administrator. However, if the person to whom the benefit
became payable subsequently appears and identifies himself or herself to the
satisfaction of the Plan Administrator, the amount forfeited (without earnings
thereon) shall be restored and subsequently distributed to the person entitled
thereto. The right of any person to restoration of a benefit which was forfeited
pursuant to this Section shall cease upon termination of this Plan.
(c) If the Plan Administrator retains at the
Plan's expense a private investigator or other person or service to assist in
locating a missing person, all costs incurred for such services shall be paid
from the Account to which the missing person was entitled, except as the Plan
Administrator may otherwise direct.
(d) Payments to Participants or Beneficiaries may
be postponed by the Trustee or Plan Administrator until any anticipated taxes or
expenses or amounts to be paid under a qualified domestic relations order have
been paid in full or until it is determined that such charges will not be
imposed.
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14.2 Consolidation or Merger of Companies
In the event of the consolidation or merger of a Company with
or into any other business entity, or the sale by a Company of its assets, the
successor may continue the Plan by adopting the same by resolution of its board
of directors or agreement of its partners or proprietor, with the approval of
the Plan Administrator. If, within ninety days from the effective date of such
consolidation, merger or sale of assets, such new corporation, partnership or
proprietorship does not adopt the Plan, the Plan shall be terminated as to the
Company in question in accordance with Section 13.2, although such a termination
will not ordinarily be a "partial termination."
14.3 Adoption of Plan to Cover Other Companies,
Facilities or Groups
Any Company described in Section 14.4(a) may, with the
approval of the Plan Administrator, adopt the Plan (as a whole Company or as to
any one or more divisions or facilities, or other employment classifications)
effective as of the day it specified. Adoption may be accomplished either (1) by
formal written adoption (i.e., by resolution of the board of directors of the
adopting Company or other written instrument signed by officers of the adopting
Company without board approval) or (2) by adoption in operation as evidenced by
communication of the Plan to the adopting Company's Employees, or the making of
contributions to the Plan or the supplying of Employee data to the Plan by the
adopting Company. The same procedures may be
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followed when a Company that has adopted the Plan wishes to change the positions
or facilities covered by the Plan.
14.4 Related Companies
(a) A Company is a "related company" while it and
the Companies are members of a controlled group of corporations, a group of
trades or businesses under common control or an affiliated service group, within
the meaning of Sections 414(b), 414(c) and 414(m) of the Code, or required to be
aggregated pursuant to Treasury Regulations under Section 414(o) of the Code.
For purposes of determining the maximum annual addition to a Participant's
Account, Code Sections 414(b) and (c) shall be applied as modified by the Code
Section 415(h) with respect to parent-subsidiary groups only. The Plan
Administrator may allow companies which are not "related companies" (e.g.,
because they are less than eighty percent-owned subsidiaries or joint ventures)
to adopt the Plan. Any such company which adopts the Plan shall thereafter be
treated as a "Company," as shall any other entity which is "related" to it under
the rules set forth in this subsection.
(b) If this Plan is adopted by a Company which is
not a member of the controlled group of corporations of which First Interstate
Bancorp is a member, the following special rules shall apply, as required by
Code Section 413(c):
(i) Service with such company (or
companies related to it under subsection (a)) shall be
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recognized by all other Companies for participation and
vesting purposes, and vice versa.
(ii) Deductions with respect to the Plan
under Code Section 404 shall be allocated among the
Companies in a reasonable fashion, in accordance with
applicable law under Code Section 413(c).
(iii) Discrimination as to participation
or benefits (including testing under Code Sections 401(k)
and 401(m) or the occurrence of a partial or complete Plan
termination shall be determined separately for each Company
or group of Companies which constitutes a single employer
under Code Section 414(b), (c) or (m).
(iv) Contribution and benefit limits
under Code Section 415 shall be applied as if all Companies
are a single employer pursuant to Treas. Reg. ss.
1.415-1(e)(1).
(v) To the extent required by applicable
law, if the Plan is disqualified as to any one Company it
shall be disqualified as to all Companies.
14.5 Eligibility Determinations for Part-Time Employees
In the case of an Employee regularly scheduled to work less
than twenty hours per week and solely for purposes of determining his or her
eligibility for the Plan, Service shall be calculated as follows:
(a) An Employee shall have one year of Service for
eligibility purposes if he or she completes one thousand
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hours of Service in the twelve consecutive month period commencing on the day he
or she first performs an hour of Service for the Company or, failing that, in
any Plan Year beginning thereafter.
(b) An Employee shall not be credited with a year
of Service for eligibility purposes until the end of the twelve consecutive
month period in which the hours of Service requirement is met.
(c) An Employee shall be credited with one hour of
Service for:
(i) Each hour (straight-time or
overtime) for which he or she is paid or entitled to payment
for the performance of services as an Employee by the
Company.
(ii) Each hour in or attributable to a
period of time during which the individual performs no such
duties (irrespective of whether his or her Employment has
terminated) due to a vacation, holiday, illness, incapacity
(including pregnancy or disability), layoff, jury duty,
military duty or a leave of absence, for which he or she is
paid or entitled to payment by the Company, whether direct
or indirect; provided, however, that
(A) no more than five hundred and
one hours of Service shall be credited under this
paragraph to an Employee on account of any such period,
and
(B) no such hours shall be credited
to an Employee if attributable to payments made or due
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under a plan maintained solely for the purpose of
complying with applicable workers' compensation,
unemployment compensation or disability insurance laws
or to a payment which solely reimburses the Employee
for medical or medically related expenses incurred by
the Employee.
(iii) Each hour not credited under para-
graphs (i) and (ii) for which the individual is entitled to
back pay, irrespective of mitigation or damages, whether
awarded or agreed to by the Company.
(d) Hours of Service under subsections (c)(ii) and
(c)(iii) shall be calculated in accordance with 29 C.F.R. subsection
2530.200b-2(b). Each hour of Service shall be attributed to the Plan Year or
initial eligibility year in which it occurs except to the extent that the
Company, in accordance with 29 C.F.R. subsection 2530.200b-2(c), credits such
hour to another computation period.
(e) Subsections 2.28(b), (c), (d) and (e) shall,
as applicable, continue to apply to an Employee regularly scheduled to work less
than twenty hours per week whose Service is being measured by this hours of
Service method.
(f) An Employee whose service is or was calculated
under this Section shall lose Service credits attributable to any period of
employment which precedes a "parity break." For purposes of this subsection
only, a "parity break" occurs if an individual who does not have any Vested
Account in
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the Plan completes less than 501 hours of Service (as determined under this
Section) in five consecutive Plan Years or, if longer, in as many consecutive
Plan Years as the Years of Service then credited to the individual.
14.6 Termination of Employment
(a) A person's Employment shall terminate upon his
or her resignation, discharge, death or Retirement. Employment shall not
terminate on account of an authorized leave of absence, sick leave or vacation,
or on account of a military leave described in subsection (b), a direct transfer
between a Company and any other Company, a temporary layoff for lack of work, or
a permanent layoff during a leave of absence for which salary continuation is
paid. However
(i) if a temporary layoff for lack of
work continues beyond the period allowed under applicable
personnel policies of the Companies, a person's Employment
shall terminate as of the last day of such period; and
(ii) failure to return to work upon
expiration of any leave of absence, sick leave or vacation
or within the time period allowed under applicable personnel
policies of the Companies after recall from a temporary
layoff for lack of work shall be considered a resignation
effective as of the expiration of such leave of absence,
sick leave, vacation or layoff.
(b) Any Employee who leaves the Employer directly
to perform service in the Armed Forces of the United
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States or in the United States Public Health Service under conditions entitling
the Employee to reemployment rights, as provided in the laws of the United
States, shall be on military leave. An Employee's military leave shall expire if
such Employee voluntarily resigns from the Companies during the leave or if he
or she fails to make application for reemployment within the period specified by
such laws for the preservation of reemployment rights. In such event, the
individual's Employment shall terminate by resignation on the day such military
leave expired.
(c) Section 2.28(b) imposes limits on the amount
or Service credited to an Employee while absent from work for the reasons set
forth in subsections (a) and (b).
(d) As long as the First Interstate Bancorp group
continues to maintain this Plan, a Participant's Employment shall be considered
terminated for all purposes of this Plan, including distribution-triggering
purposes, if the Participant ceases to be employed by the First Interstate
Bancorp group of companies, as determined under Section 14.4, because of the
sale of a business of such companies (whether the sale is a stock sale or asset
sale), unless the sales agreement or related documents expressly provide to the
contrary. Employment shall be considered terminated under the preceding sentence
on account of a "separation from the service" without regard to whether the
termination was a "separation from the service" within the
99.
<PAGE>
meaning of Code Section 401 or 402 for lump sum distribution or other purposes.
(e) If an Employee is absent from work because of
such individual's pregnancy, the birth of a child, placement of an adopted
child, or caring for an adopted or natural child following birth or placement,
the individual's Employment shall not be deemed to have terminated until the
expiration of one year from the commencement of the maternity or paternity
absence, or such earlier time permitted under applicable Treasury Regulations.
(f) No credit shall be given under subsec- tion
(e) unless a Participant files a written request which establishes valid reasons
for the absence, as determined by the Plan Administrator.
(g) Except to the extent that a maternity or
paternity absence constitutes an authorized leave of absence from the Employer
under applicable personnel policies, an Employee who is absent from work for
reasons of maternity or paternity shall be deemed to have terminated Employment
for all purposes of this Plan other than the special rules in subsection (e).
14.7 Corrective Contributions
To the extent required by an order of a court of competent
jurisdiction or by a settlement or agreement granting back pay, the Companies
shall make corrective contributions to the Plan (subject to the applicable
limitations on deductible Company contributions and maximum annual additions).
On a
100.
<PAGE>
voluntary basis, the Companies may also make corrective contributions in order
to remedy mistakes made in distributing, forfeiting, crediting or investing
Accounts. A corrective contribution shall be allocated or credited in the
fashion specified by the Plan Administrator.
14.8 Plan Mergers and Spinoffs
The Plan shall not be merged or consolidated with any other
plan, nor shall its assets or liabilities be transferred to any other plan,
unless immediately after the merger (if the plan in question were then
terminated), each Participant in this Plan would have a benefit which is equal
to or greater in amount than the benefit the Participant would have been
entitled to under this Plan had this Plan been terminated immediately before the
merger, consolidation or transfer. This provision shall not be construed as
prohibiting the commingling of assets of this Plan and any other qualified plans
for investment purposes. A defined benefit plan, money purchase pension plan or
any other plan subject to the joint and survivor annuity requirements of Code
Section 401(a)(11) may not be merged with this Plan unless the surviving plan is
amended to comply with such requirements.
14.9 Limitation on Rights of Employees
Except as provided in any applicable basic labor agreement,
the Plan is strictly a voluntary undertaking on the part of the Companies and
shall not constitute a contract between the Companies and any Employee, or
consideration for, or an inducement or condition of, the employment of an
Employee.
101.
<PAGE>
Except as otherwise required by statute or such a basic labor agreement, nothing
contained in the Plan shall give any Employee the right to be retained in the
service of the Companies or to interfere with or restrict the right of the
Companies, which is hereby expressly reserved, to discharge or retire any
Employee at any time for any reason not prohibited by statute, without the
Company being required to show cause for termination. Except as otherwise
required by statute, inclusion under the Plan will not give any Employee any
right or claim to any benefit hereunder except to the extent such right has
specifically become fixed under the terms of the Plan and there are funds
available in the hands of the Trustee to pay the benefit. The doctrine of
substantial performance shall have no application to Employees, Participants or
Beneficiaries. Each condition and provision, including numerical items, has been
carefully considered and constitutes the minimum limit on performance which will
give rise to the applicable right.
14.10 Duty to Provide Data
(a) Every person with an interest in the Plan or
claiming benefits under the Plan shall furnish the Plan Administrator on a
timely and accurate basis with such documents, evidence or information as it
considers necessary or desirable for the purpose of administering the Plan. The
Plan Administrator may postpone the withholding of Before-Tax Contributions or
After-Tax Contributions, the allocation of matching contributions
102.
<PAGE>
or the payment of benefits until such information and such documents have been
furnished.
(b) Every person claiming a benefit under this
Plan shall give written notice to the Plan Administrator of his or her post
office address and each change of post office address. Any communication,
statement or notice addressed to such a person at his or her latest post office
address, as filed with the Plan Administrator will, on deposit in the United
States mail with postage prepaid, be binding upon such person for all purposes
of the Plan as if it had been received, whether actually received or not. If a
person fails to give notice of his or her correct address, the Plan
Administrator, the Companies and Plan fiduciaries shall not be obliged to search
for, or to ascertain, his or her whereabouts.
14.11 Service of Process.
The Secretary of First Interstate Bancorp is hereby designated
as agent for the service of legal process on the Plan.
14.12 Governing Law
The Plan and Trust shall be interpreted, administered and
enforced in accordance with the Code and ERISA, and the rights of Participants,
former Participants, Beneficiaries and all other persons shall be determined in
accordance with these laws. To the extent that state law is applicable, however,
the laws of the State of California shall apply, except as provided in Section
8.2(b)(iii) (pertaining to determination of heirs at law).
103.
<PAGE>
14.13 Top Heavy Rules
(a) If the Plan is top heavy for a Plan Year, as
determined under subsection (b), the following special rules shall apply:
(i) Each Participant who is an Employee
on the last day of the Plan Year shall receive an allocation
of Company contributions (including After-Tax Contributions)
and forfeitures under Article V at least equal to the
product of
(A) the Participant's earnings
while an Active Participant during the Plan Year (as
determined under Section 11.1(c)), and
(B) the lesser of (1) three percent
or (2) the percentage of such earnings allocated under
Article V for the Plan Year to the most highly
benefited key employee, determined in accordance with
subsection (c).
(ii) All Company-provided benefits
accruing through the end of the Plan's last top heavy Plan
Year shall vest in accordance with the following schedule:
104.
<PAGE>
Years of
Service Vested Percentage
(at least) 2 20%
3 40%
4 60%
5 80%
6 or more 100%
A former Employee's Vested percentage shall not be determined under this
Paragraph unless he or she again becomes an Employee before the unvested portion
of his or her Company Contributions Account is permanently forfeited under the
terms of this Plan. When the Plan ceases to be top heavy, vesting in Company
contributions accruing thereafter shall be determined in accordance with the
regular vesting provisions of the Plan. However, to the extent required by
applicable law, a Participant with at least five years of Service when the Plan
ceases to be top heavy shall be entitled to elect to have the Vested percentage
of Company contributions accruing thereafter determined under this paragraph
rather than under the regular vesting provisions of the Plan. The period during
which the election may be made shall commence with the date the Plan ceases to
be top heavy and shall end on the later of (i) sixty days after such date, or
(ii) sixty days after the Participant is issued written notice of the right to
make the election by the Plan Administrator. The Plan Administrator shall
establish
105.
<PAGE>
appropriate procedures consistent with the other vesting provisions of this Plan
for administering this special vesting rule.
(b) This Plan is top heavy for a Plan Year
commencing after 1983 if, as of the last day of the preceding Plan Year, the
amount credited to the Accounts of key employees (as defined in subsection (c))
exceeds sixty percent of the amounts credited to all Participant Accounts. The
Account of (1) a former key Employee (i.e., a person who was a key employee for
any prior Plan Year but not for the Plan Year in question) or (2) any
Participant who has not received earnings from the Companies during the
five-year period ending on the determination date, shall not be included in
determining whether the Plan is top heavy. The amount credited to an Account
shall be determined as of the last valuation date coincident with or next
preceding the determination date, and shall include contributions not yet made
but to be allocated as of the determination date. For purposes of determining
whether this Plan is top heavy, the aggregate distributions (without interest
thereon) made under the Plan to a Participant, other than a former key employee,
during the five-year period ending on the determination date shall be taken into
account. Deductible (IRA-type) contributions and rollovers (or similar
transfers) initiated by the Participant and made after December 31, 1984 shall
be ignored in determining whether this Plan is top heavy, except as otherwise
provided in applicable Treasury Regulations. Notwithstanding the foregoing, if,
as of
106.
<PAGE>
the determination date described above, this Plan is part of an "aggregation
group," this Plan shall be top heavy if the group is top heavy and shall not be
top heavy if the group is not top heavy. An "aggregation group" shall include
all plans of the Companies in which a key employee participates and each other
plan of the Companies which enables any such plan to meet the requirements of
Code Section 401(a)(4) or 410. Distributions made within the five Plan Years
ending on the determination date from a terminated and liquidated plan shall be
included in the aggregation group if the terminated plan would have been
required to be included in the group had the plan not been terminated. The
Companies may treat any plan not required to be included in an aggregation group
as pact of that group if inclusion of the plan would not prevent the aggregation
group from meeting the requirements of Code Section 401(a)(4) or 410. The rules
set forth above for determining whether this Plan is top heavy shall be applied
with respect to the sum of benefits provided under all plans in the aggregation
group to determine whether the group is top heavy.
(c) A Participant shall be a "key employee" if,
during the Plan Year in question or any of the four preceding Plan Years, he or
she is or was
(i) one of the top fifty corporate
officers of the Companies having an annual compensation
greater than 50 percent of the amount in effect under Code
Section 415(b)(1)(A) for the Plan Year in question.
107.
<PAGE>
(ii) one of the ten Employees owning (or
considered as owning within the meaning of Code Section 318)
the largest interest in the Companies and having an annual
compensation at least equal to the amount in effect under
Code Section 415(c)(1)(A) for the Plan Year in question,
(iii) a five-percent owner of the
Companies, or
(iv) a one percent or more owner of the
Companies having an annual compensation from the Companies
of more than $150,000.
In determining under paragraph (ii) which Employees own the largest interests in
the Employer, if two Employees have the same interest, the Employee having the
greatest annual compensation for the Plan Year in question shall be treated as
owning the greater interest. A Beneficiary of a key employee or a former key
employee shall also be treated as a key employee or former key employee,
respectively. Determinations under this subsection shall be made in accordance
with Code Section 416(i) and applicable Treasury Regulations. For all purposes
of this subsection, except for calculation of ownership interests under
paragraphs (ii), (iii) and (iv), the Companies and all related companies
described in Section 14.4 shall be treated as a single employer.
108.
<PAGE>
14.14 Division of Benefits by Domestic Relations Orders
(a) This Plan will follow the terms of any
qualified domestic relations order issued with respect to a Participant.
However, except as provided in subsection (e), the Plan will only follow orders
which meet all of the requirements of subsection (b) or subsection (c).
Subsection (c) establishes an optional standardized procedure.
(b) A "qualified domestic relations order" is any
judgment, decree or order, including the approval of a property settlement
agreement, provided that
(i) the order relates to the provision
of child support, alimony or marital property rights and is
made pursuant to state domestic relations or community
property law;
(ii) the order creates or recognizes the
existence of an alternate payee's right to receive all or a
portion of a Participant's Account;
(iii) the order specifies the name and
last known mailing address of the Participant and each
alternate payee covered by the order;
(iv) the order precisely specifies the
amount or percentage of the Participant's Account to be paid
to each alternate payee or the manner in which the amount or
percentage is to be determined;
109.
<PAGE>
(v) the order specifies the number of
payments or the period to which the order applies;
(vi) the order specifically names this
Plan as the plan to which the order applies;
(vii) the order does not require this
Plan to provide any type of benefits or form of benefits not
otherwise provided under this Plan;
(viii) (if the order requires that
payments to the alternate payee commence before they
commence with respect to the Participant) the order
specifies that payments will not commence before the
Participant's fifty-fifth birthday.
Subsection (d) sets forth the procedures under which the Plan Administrator
shall determine whether a domestic relations order properly qualifies.
(c) The Plan Administrator in its discretion may
furnish a standard form of qualified domestic relations order to a Participant
or any other person. This order may provide for an immediate lump sum payment of
the present value of the amount to which the alternate payee is determined to be
entitled. If this form is used without substantial modification and is
incorporated in a judgment, decree or order described in subsection (b)(i) which
on its face appears to be valid, the Plan Administrator shall treat it as a
qualified domestic relations order and shall pay benefits to the alternate payee
in accordance with its terms. If this procedure is not followed, the alternate
110.
<PAGE>
payee (1) must wait until the time described in subsection (b)(viii) before
benefits which are not in pay status can become payable to the alternate payee
and (2) cannot use any special forms of benefit payment authorized in the
standard form of order. Any special benefit form provisions in standard domestic
relations orders adopted by the Plan Administrator shall be authorized as
benefit options under this Plan, but only as to alternate payees for whom the
standard order has been used.
(d) The Plan Administrator shall not treat any
judgment, order or decree as a "qualified domestic relations order" unless it
meets all of the requirements set forth in subsection (b) or (c) and is
sufficiently precise and unambiguous so as to preclude any interpretative
disputes. If the order meets these requirements, the Plan Administrator shall
follow the terms of the order whether or not this Plan has been joined as a
party to the litigation out of which the order arises. Upon receipt of a
domestic relations order, the Plan Administrator shall notify the Participant
and alternate payee of (1) its receipt of the order and (2) its need to
determine the qualified status of the order in accordance with subsection (b) or
(c). The alternate payee may designate a representative to receive copies of
future notices with respect to the qualified status of the order. To the extent
an order calls for benefits to be paid to an alternate payee before the
qualified nature of the order is determined, a separate account shall be
established to hold the benefit payments affected by the order. This account
shall be
111.
<PAGE>
administered in accordance with the rules set forth in Sec- tion 206(d)(3)(H) of
ERISA.
(e) The Plan Administrator, in its discretion, may
treat a property settlement agreement or stipulation which is not contained in a
judgment, order or decree as a qualified domestic relations order if it meets
all of the other requirements of this Section.
14.15 Rollovers to Other Plans
(a) Notwithstanding any contrary provision of the
Plan, a Distributee may elect, at the time and in the manner prescribed by the
Plan Administrator, to have any portion of an Eligible Rollover Distribution
paid directly to an Eligible Retirement Plan specified by the Distributee in a
Direct Rollover.
(b) The special capitalized terms used only in
this Section shall have the meanings specified below:
(i) "Eligible Rollover Distribution"
means any distribution of all or any portion of the balance
to the credit of the Distributee, except that an Eligible
Rollover Distribution does not include:
(A) any distribution that is one of
a series of substantially equal periodic payments (not
less frequently than annually) made for the life (or
life expectancy) of the Distributee or the joint lives
(or joint life expectancies) of the Distributee and the
112.
<PAGE>
Distributee's designated beneficiary, or for a
specified period of ten years or more;
(B) any distribution to the extent
such distribution is required under Section 401(a)(9)
of the Code; and
(C) 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" means an
individual retirement account described in Section 408(a) of
the Code, an individual retirement annuity described in
Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, or a qualified trust described
in Section 401(a) of the Code, that accepts the
Distributee's Eligible Rollover Distribution. However, in
the case of an Eligible Rollover Distribution to a surviving
spouse, only an individual retirement account or individual
retirement annuity shall be an Eligible Retirement Plan.
(iii) "Distributee" means an Employee or
former Employee. In addition, the Employee's or former
Employee's surviving spouse and the Employee's or former
Employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined
in Section 414(p) of the Code, are Distributees with regard
to the interest of the spouse or former spouse.
113.
<PAGE>
(iv) "Direct Rollover" means a payment
by the Plan to the Eligible Retirement Plan specified by the
Distributee.
(c) The provisions of this Section shall apply
only to distributions made after December 31, 1992 and only to the extent
required by the plan qualification rules of Section 401(a) of the Code.
14.16 Family Aggregation Rules
(a) Notwithstanding anything in the Plan to the
contrary, certain Plan provisions must be applied by treating certain family
members as if they were a single Employee whose compensation or Plan benefits
equals the sum of the compensation or Plan benefits of all family members so
aggregated.
(b) The Plan provisions to which family
aggregation applies are:
(i) application of the
anti-discrimination rules of Section 4.7, in accordance with
Treas. Reg. ss.ss. 1.401(k)-1(g)(1)(ii)(C),
1.401(k)-1(f)(5)(ii), 1.401(m)-1(f)(1)(ii)(C) and
1.401(m)-1(e)(2)(iii);
(ii) the Compensation limit of Section
2.14;
(iii) any other provisions, to the
extent required by applicable law.
(c) In addition, the family aggregation rules
shall apply to determinations of whether the Plan discriminates in favor of
highly compensated employees in violation of Code
114.
<PAGE>
Section 401(a)(4) or 410(b) and for such other purposes as may be required by
law.
(d) The individuals to whom family aggregation
applies are generally (1) any five percent owner of the Companies who is or has
been employed by the Companies or any Employee who is among the ten most highly
compensated Employees of the Companies, and (2) such a person's spouse and
lineal ascendants and descendants and their spouses (in applying the
Compensation limit of Section 2.14, only such a person's spouse and lineal
descendants who have not attained age 19 before the close of the year to which
the limit applies shall be aggregated with the person). Determinations of the
individuals to whom family aggregation applies shall be made in accordance with
Treas. Reg. Section 1.414(g)-IT Q&A-11 and Q&A-12.
(e) If this Plan would violate any qualification
requirement if benefits were to accrue to family members subject to aggregation
under this Section without the application of special limits which prevent
disqualifying accruals, these special limits shall automatically apply and shall
prevent any disqualifying accrual from occurring (even if such a disqualifying
accrual was initially recognized on records of the Plan because application of
these special limits was not then recognized). The Plan Administrator shall
determine how the special limits imposed by this subjection shall apply and
shall take any actions needed to effect these special limits, including
115.
<PAGE>
any steps needed to impose them as of the date they previously prevented a given
accrual.
14.17 Genders and Plurals
Where the context so indicates, the masculine pronoun shall
include the feminine pronoun and the singular shall include the plural.
14.18 Titles
Titles are used in the Plan for convenience only and are not
to serve as a basis for interpretation or construction of the Plan or Trust
Agreement.
14.19 References
Unless the context clearly indicates to the contrary, a
reference to a Plan or Trust provision, statute, regulation or document shall be
construed as referring to any subsequently enacted, adopted or executed
counterpart.
Executed this ____ day of _____________.
FIRST INTERSTATE BANCORP
By
--------------------------------
Executive Vice President
By
--------------------------------
Secretary
116.
<PAGE>
EXHIBIT I
PLAN RULES
As permitted by Section 2.23 and 12.1 of the Plan, the Plan
Administrator may adopt Plan Rules for the administration and interpretation of
the Plan. These Rules may be changed from time to time. The Plan Rules shall
consist of the Rules set forth in this document, in administrative forms adopted
by the Plan Administrator or in written or oral policy decisions or
interpretations made by the Plan Administrator.
Although the Plan Administrator has broad powers to establish
administrative procedures and to interpret the Plan by means of Plan Rules, the
following Plan provisions, among others, expressly contemplate the establishment
of Plan Rules:
a) Section 2.15 (Adoption of a more liberal
definition of "Disability")
b) Article IV (Procedures for making and changing
After-Tax Contributions and Before-Tax
Contributions elections)
c) Section 7.1 (Benefit distribution elections)
d) Article VIII (Beneficiary designations and death
benefit elections)
e) Article IX (Rules governing withdrawals from
accounts)
f) Section 10.1 (Choice among investment funds)
117.
<PAGE>
g) Section 10.4 (Allocation of earnings among
accounts)
h) Section 10.7(b) (Conversion of stock in account to
cash)
i) Section 11.1 (Establishment of alternate method
for dealing with annual additions problem)
j) Section 12.2 (Funding policy)
k) Section 12.5 (Implementation of claims procedure)
l) Section 14.1(b) (Forfeitures in lieu of escheats)
m) Section 14.14 (Qualified Domestic Relations Order)
118.
<PAGE>
EXHIBIT II
DETERMINATION OF HIGHLY
COMPENSATED EMPLOYEES
NOTE: Determinations using the attached forms are to be made in
conformity with Temporary Treas. Reg. Sec. 1.414(q)-IT, which
is hereby incorporated by reference. Many of the terms used in
these forms are defined in a highly precise, technical manner
by that regulation and correct application of the rules in
that regulation is critical.
SUMMARY LIST OF
HIGHLY COMPENSATED ACTIVE EMPLOYEES
All of the following information must be taken from both the
current year and prior year highly compensated employee
schedules, which are attached.
1. List all "five percent owners" for either year:
--------------------------------------------------------------
--------------------------------------------------------------
2. List all Employees who were paid more than $75,000(1)
by the Employer for the prior year:
--------------------------------------------------------------
--------------------------------------------------------------
3. List all officers of the Employer for the prior year:
--------------------------------------------------------------
--------------------------------------------------------------
4. List all Employees who were paid more than $50,000(1)
and who were in the top paid 20% group for the prior
year:
--------------------------------------------------------------
--------------------------------------------------------------
- --------
(1) The $75,000 and $50,000 amounts are indexed for inflation and are $99,000
and $66,000 respectively for years beginning in 1994.
119.
<PAGE>
5. List the 100 highest paid Employees who earn more than
$50,000 and are in the top paid 20% group for the
current year:
--------------------------------------------------------------
--------------------------------------------------------------
6. List all Employees who are family members of highly
compensated Employees for either year:
--------------------------------------------------------------
--------------------------------------------------------------
120.
<PAGE>
SCHEDULE ONE:
HIGHLY COMPENSATED EMPLOYEE CENSUS
FOR PRIOR YEAR, THE YEAR ENDING ________
1. List all "five percent owners" (see Code Sec-
tion 416(i)):
--------------------------------------------------------------
--------------------------------------------------------------
2. List all Employees who were paid more than $75,000 (as
indexed) by the Employer:
--------------------------------------------------------------
--------------------------------------------------------------
3. List bona fide officers of the Employer earning more
than $45,000 (see indexed). If there are 500 or more
Employees, no more than 50 need be listed; if there are
30-500 Employees, no more than 10% need be listed as
officers; if there are 30 or fewer Employees, no more
than 3 need be listed as officers. If these numerical
caps would limit the number of officers listed, list
the highest paid officers first. If no officer earns
more than $45,000 (as indexed), list just the highest
paid officer:
--------------------------------------------------------------
--------------------------------------------------------------
4. Determine the size of the top paid 20% group:
(a) total number of Employees
during the year ......................... _____________
(b) Employees with less than 6 months of
Service as of the end of the year ....... _____________
(c) part-time and seasonal Employees
during the year (normally working
less than 17.5 hours weekly or six
months annually) ........................ _____________
(d) Employees under age 21 as of
the end of the year ............... _____________
121.
<PAGE>
(e) bargaining unit Employees(1)
during the year ......................... _____________
(f) non-resident aliens with no U.S.
source income from the Employer
during the year ......................... _____________
(g) add the amounts on lines (b),(c),
(d), (e) and (f) ........................ _____________
(h) subtract line (g) from line (a) ......... _____________
number in top paid 20% group .......... x 20%
-------------
5. List each Employee who earned more than $50,000 (as indexed)
from the Employer in descending order of pay. Stop when all
such Employees are listed or, if sooner, when the list
includes the number of Employees determined at the end of step
4:
--------------------------------------------------------------
--------------------------------------------------------------
6. List each Employee who is a family member of (i) a person
listed in step 1, or (ii) a person who is among the ten
highest paid Employees (a "family member" is an Employee's
spouse or a lineal ancestor or descendant of the Employee or
the spouse of a lineal ancestor or descendant):
--------------------------------------------------------------
--------------------------------------------------------------
- ---------------------------
(1) Complete (e) only if (1) at least 90 percent of the total number of
Employees are bargaining unit members and (2) no bargaining unit members are
covered by the Plan.
122.
<PAGE>
SCHEDULE TWO:
HIGHLY COMPENSATED EMPLOYEE CENSUS
FOR CURRENT YEAR, THE YEAR ENDING ________
1. List all "five percent owners" (see Code Sec-
tion 416(i)):
--------------------------------------------------------------
--------------------------------------------------------------
2. List all Employees who were paid more than $75,000 (as
indexed) by the Employer (prorate the dollar amount if the
prior year is a calendar year and the current year is less
than twelve months):
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
3. List bona fide officers of the Employer earning more
than $45,000 (see indexed). If there are 500 or more
Employees, no more than 50 need be listed; if there are
30-500 Employees, no more than 10% need be listed as
officers; if there are 30 or fewer Employees, no more
than 3 need be listed as officers. If these numerical
caps would limit the number of officers listed, list
the highest paid officers first. If no officer earns
more than $45,000, list just the highest paid officer:
--------------------------------------------------------------
--------------------------------------------------------------
4. Determine the size of the top paid 20% group:
(a) total number of Employees
during the year ......................... _____________
(b) Employees with less than 6 months of
Service as of the end of the year ....... _____________
(c) part-time and seasonal Employees
during the year (normally working
less than 17.5 hours weekly or six
months annually) ........................ _____________
(d) Employees under age 21 as of the
end of the year ......................... _____________
123.
<PAGE>
(e) bargaining unit Employees(1)
during the year ......................... _____________
(f) non-resident aliens with no U.S.
source income from the Employer
during the year ......................... _____________
(g) add the amounts on lines (b),(c),
(d), (e) and (f) ........................ _____________
(h) subtract line (g) from line (a) ......... _____________
number in top paid 20% group ............ x 20%
--------------
5. List each Employee who earned more than $50,000 (as indexed)
from the Employer in descending order of pay. Stop when all
such Employees are listed or, if sooner, when the list
includes the number of Employees determined at the end of step
4:
--------------------------------------------------------------
--------------------------------------------------------------
6. List each Employee who is a family member of (i) a person
listed in step 1, or (ii) a person who is among the ten
highest paid Employees (a "family member" is an Employee's
spouse or a lineal ancestor or descendant of the Employee or
the spouse of a lineal ancestor or descendant):
--------------------------------------------------------------
--------------------------------------------------------------
- ---------------------------
(1) Complete (e) only if (1) at least 90 percent of the total number of
Employees are bargaining unit members and (2) no bargaining unit members are
covered by the Plan.
124.
EXHIBIT 99.2
Amendment to the 1994 Restatement of the Employee Savings Plan
