<PAGE>
As filed with the Securities and Exchange Commission on June 25,
1996
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
__________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________
WESBANCO, INC.
(Exact name of registrant as specified in its charter)
WEST VIRGINIA 55-0571723
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1 BANK PLAZA
WHEELING, WV 26003-3562
(Address of principal executive offices) (Zip Code)
WESBANCO, INC. KSOP
(Full title of the plan)
EDWARD M. GEORGE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
WESBANCO, INC.
1 BANK PLAZA
WHEELING, WV 26003-3562
(Name and address of agent for service)
(304) 234-9000
(Telephone number, including area code, of agent for service)
Copy to:
J. ROBERT VAN KIRK, ESQ.
KIRKPATRICK & LOCKHART LLP
1500 OLIVER BUILDING
PITTSBURGH, PENNSYLVANIA 15222-2312
(412) 355-6480
<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum Amount of
Securities Amount Offering Aggregate Registra-
to be to be Price Per Offering tion
Registered Registered Share Price Fee
Common 25,000 $26.75<F1> $668,750.00 $230.60
Stock, par shs.
value
$2.0833 per
share
<F1> Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(h) of the Securities
Act of 1933, as amended. The fee is calculated on the basis
of the average of the high and low sale prices of the
registrant's Common Stock reported on the Nasdaq National
Market on June 20, 1996.
=================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by WesBanco, Inc. (the
"Company" or the "Registrant") with the Securities and Exchange
Commission (the "Commission") are incorporated by reference into
this Registration Statement:
1. The Company's Annual Report on Form 10-K, filed with
the Commission for the fiscal year ended December 31, 1995 (File
No. 0-8467).
2. The Company's Quarterly Report on Form 10-Q, filed with
the Commission for the quarter ended March 31, 1996 (File
No. 0-8467).
3. The Company's Report on Form 8-K filed with the
Commission on February 20, 1996 (File No. 0-8467).
4. The Company's Report on Form 8-K filed with the
Commission on April 10, 1996 (File No. 0-8467).
5. The Company's Report on Form S-4 filed with the
Commission on May 16, 1996 (File No. 0-8467).
6. The Company's Report on Form S-3 filed with the
Commision on June 20, 1996 (File No. 0-8467).
7. The description of the Company's Common Stock contained
in the Company's Registration Statement on Form 10 filed with the
Commission under Section 12 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), including all amendments
and reports updating such description.
The consolidated financial statements that have been
incorporated into this Registration Statement by reference to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, have been so incorporated in reliance upon the
report of Price Waterhouse LLP, independent accountants, given on
the authority of said firm as experts in accounting and auditing.
All documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act after the date of this Registration Statement, but
prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all securities
offered by this Registration Statement have been sold or which
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deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration
Statement. Each document incorporated by reference into this
Registration Statement shall be deemed to be a part of this
Registration Statement from the date of the filing of such
document with the Commission until the information contained
therein is superseded or updated by any subsequently filed
document which is incorporated by reference into this
Registration Statement or by any document which constitutes part
of the prospectus relating to the Plan meeting the requirements
of Section 10(a) of the Securities Act of 1933, as amended (the
"Securities Act").
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered under this
Registration Statement is registered under Section 12(g) of the
Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
West Virginia Code Section 31-1-9, as amended, provides that
the Company may indemnify directors and officers against
liabilities that they may incur in such capacities provided that
certain standards are met, including good faith and the belief
that the particular action taken was in, or not opposed, to the
best interests of the Company. In general, the power to
indemnify does not exist in the case of actions against a
director or officer by or in the right of the Company if the
person entitled to indemnification shall have been adjudicated to
be liable for negligence or misconduct in the performance of his
duty to the Company unless, and only to the extent that the court
in which the suit was brought determines, upon application, that
despite the adjudication of liability, the officer or director is
fairly and reasonably entitled to indemnity for such expenses.
Section 31-1-9(c) provides that if the director or officer is
successful on the merits or otherwise in the defense of the
action, he shall be indemnified. Section 31-1-9(f) provides that
the foregoing provisions shall not be deemed exclusive of any
other rights to which a person seeking indemnification may be
entitled under any articles, bylaws or any contract.
The Amended and Restated Bylaws of the Company provide for
the mandatory indemnification of directors and officers, whether
or not then in office, against all costs and expenses reasonably
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incurred or imposed in connection with or resulting from being or
having been a director or officer of the Company, or any other
company which he served at the request of the Company, to the
extent provided by the West Virginia Code. The Company has
purchased directors' and officers' liability insurance covering
certain liabilities which may be incurred by the officers and
directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith or incorporated by
reference as part of this Registration Statement:
EXHIBIT
NO. DESCRIPTION
4.1 Restated Articles of Incorporation of the
Company (incorporated by reference to
Exhibit 3.1 to the Registration Statement on
Form S-4 of the Company dated May 16, 1996)
(No. 33-03905).
4.2 Amended and Restated By-Laws of the Company.
4.3 The Company's Amended and Restated KSOP.
5.1 Opinion of Kirkpatrick & Lockhart LLP as to
the legality of the shares being registered.
23.1 Consent of Price Waterhouse LLP, independent
accountants.
23.2 Consent of Kirkpatrick & Lockhart LLP
(included in opinion filed as Exhibit 5.1).
24.1 Power of Attorney.
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 Securities Act;
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(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration
statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
* * *
(h) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
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(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended (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 Wheeling,
State of West Virginia, on this 21st day of June, 1996.
WesBanco, Inc.
By: /s/ Edward M. George
------------------------
Edward M. George
President and Chief
Executive Officer
(Principal Executive Officer)
By: /s/ Paul M. Limbert
------------------------
Paul M. Limbert
Executive Vice President and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
Pursuant to the requirements of the Securities Act, this
report has been signed below by the following persons on behalf
of the registrant and in the capacities indicated, on this 21st
day of June, 1996.
By: /s/ James C. Gardill
------------------------
James C. Gardill
Chairman of the Board
The Directors of WesBanco (listed on the following page)
executed a power of attorney appointing James C. Gardill their
attorney-in-fact, empowering him to sign this report on their
behalf.
By: /s/ James C. Gardil
------------------------
James C. Gardill
Attorney-in-Fact
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James E. Altmeyer
Charles J. Bradfield
Ray A. Byrd
Christopher V. Criss
Stephen F. Decker
James C. Gardill
Edward M. George
Roland L. Hobbs
John W. Kepner
Frank R. Kerekes
Walter W. Knauss, Jr.
Robert H. Martin
Joan C. Stamp
Thomas L. Thomas
John A. Welty
William E. Witschey
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EXHIBIT INDEX
SEQUENTIAL
EXHIBIT PAGE
NO. DESCRIPTION NUMBER
4.2 Amended and Restated Bylaws 8
of the Company
4.3 The Company's Amended and 18
Restated KSOP.
5.1 Opinion of Kirkpatrick & 146
Lockhart LLP as to the
legality of the shares being
registered.
23.1 Consent of Price Waterhouse 148
LLP, independent
accountants.
23.3 Consent of Kirkpatrick &
Lockhart LLP (included in
opinion filed as Exhibit
5.1).
24.1 Power of Attorney. 149
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Exhibit 4.2
BYLAWS OF WESBANCO, INC.
(As Amended and Restated June 15, 1995)
<PAGE>
AMENDMENTS BYLAWS
OF
WESBANCO, INC.
ARTICLE I
OFFICES
SECTION 1. The principal office of the
corporation shall be in the City of Wheeling,
Ohio County, West Virginia, and other offices
may be established by the Board of Directors
at such place or places as the Board, from
time to time, may deem proper.
ARTICLE II
STOCKHOLDERS MEETINGS
SECTION 1. All meetings of the
stockholders shall be held at the principal
office of the corporation, in the City of
Wheeling, West Virginia, or at such other
place or places, either within or without the
State of West Virginia, as the stockholders
or the Board of Directors, by resolution duly
adopted, may designate.
SECTION 2. Regular meetings of the
DECEMBER 19, 1991 stockholders shall be held annually on the
third Wednesday of April in each year, if not
a legal holiday, and if a legal holiday, then
JUNE 15, 1995 on the next secular day following, at 4:00
p.m.
SECTION 3. Special meetings of the
stockholders may be called by the Board of
Directors, the President, or any number of
stockholders owning in the aggregate at least
one-tenth of the number of shares
outstanding.
SECTION 4. Notice of every meeting of
the stockholders shall be given either (1) by
advertising the same once a week for at least
two weeks preceding the date of such meeting,
in a newspaper published in the City of
Wheeling, or (2) by written notice mailed to
each stockholder, at his address appearing on
the stock records of the corporation, at
least five (5) days before such meeting.
<PAGE>
SECTION 5. The notice of special
meeting shall state the business to be
transacted, and no business other than that
included in the notice, or incidental
thereto, shall be transacted at such meeting.
SECTION 6. The holders of a majority of
the stock issued and outstanding and entitled
to vote, present in person or represented by
proxy appointed in writing, shall be
requisite and shall constitute a quorum at
all meetings of the stockholders. Any number
less than a quorum present may adjourn any
meeting from time to time, without notice
other than announcement at the meeting, until
the requisite amount of voting stock shall be
present. At such adjourned meeting, at which
a quorum is present, any business may be
transacted which might have been transacted
at the meeting as originally called.
SECTION 7. At each meeting of the
stockholders, two Inspectors, to be appointed
by the Board of Directors, or, in the absence
of such appointment, by the Chairman of the
meeting, shall receive and count all proxies
and ballots, and shall determine, subject to
the direction of the Chairman, all questions
touching the qualification of voters, the
validity of proxies or the acceptance of
votes.
ARTICLE III
DIRECTORS
SECTION 1. The business and property of
the corporation shall be managed, and its
corporate powers exercised, by its Board of
Directors, which shall consist of not less
APRIL 20, 1994 than fifteen (15) nor more than thirty-five
(35) members, as the Board, by resolution
duly adopted, shall determine. At each
January meeting, the Board of Directors shall
fix the number of members to be elected at
the annual meeting, and the Board shall have
the power to vary the number so fixed, within
the limits aforesaid at any meeting. At each
January meeting, the Board of Directors also
shall appoint a person, who shall be a
stockholder of the corporation, to preside as
the Chairman at the next regular meeting of
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the stockholders. In the event that the
person appointed, for any reason, should not
be able to preside at the stockholders
meeting, the chief executive officer of the
corporation shall appoint another stockholder
to serve in the place and stead of the person
so elected by the Board.
SECTION 2. The Board of Directors shall
be divided into three classes, as nearly
equal in number as the total number of
Directors to be elected will permit. The
members of such classes shall serve staggered
terms of three years each, and at each annual
stockholders meeting the successors of the
members of the class of Directors whose term
expired at such meeting shall be elected to
serve during the ensuing three years.
Directors shall be elected by ballot at the
annual meeting of the stockholders, or a
special meeting to be held as soon thereafter
MAY 13, 1982 as practicable, and shall hold office until
their successors are elected and qualified.
Any stockholder who intends to nominate or to
cause to have nominated any candidate for
election to the Board of Directors (other
than any candidate proposed by the Board of
Directors) shall so notify the Secretary of
the corporation in writing not less than
thirty (30) days prior to the date of any
meeting of stockholders called for the
election of directors, or five (5) days after
the giving of notice of such meeting in
accordance with Section 4 of Article II
hereof, whichever is later. Only candidates
nominated in accordance with this Section,
except those nominees nominated by the Board,
shall be eligible for election to the Board
of Directors.
SECTION 3. Not withstanding the term
for which any Director may have been elected,
the stockholders, at any duly constituted
meeting, may remove such Director, for cause,
and fill the vacancy thus created. Any
vacancy not caused by such removal, whether
resulting from an increase in the number of
members of the Board or otherwise, may be
filled by the remaining members of the Board.
Any Director so chosen by the Board shall
hold office until the first meeting of the
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stockholders thereafter, or until his
successor is elected and qualified.
SECTION 4. Directors shall possess such
qualifications as may be prescribed by any
law, or rule or regulation promulgated
pursuant thereto, to which the corporation is
subject.
SECTION 5. In addition to the powers by
these Bylaws expressly conferred upon it, the
Board of Directors may exercise all such
powers of the corporation and do all lawful
acts and things as are not by statute, or by
the Certificate of Incorporation or by these
Bylaws, directed or required to be exercised
or done by the stockholders.
SECTION 6. All meetings of the Board of
Directors shall be held at the principal
office of the corporation, or at such other
place as the Board, from time to time, by
resolution, may designate. Regular meetings
may be held without notice, not less often
than quarterly, at such time as, from time to
time, shall be determined by the Board.
Special meetings may be called by the
President, or any two (2) Directors. Notice
of any such special meeting may be given
personally, or by telephone, or by mailing or
delivering a notice to each Director at his
last known residence or place of business, in
each case not less than twenty-four
(24) hours before the time of such meeting.
Such service of notice may be entered on the
Minutes, and such Minutes, upon being read
and approved at a subsequent meeting of the
Board, shall be conclusive upon the question
of service.
SECTION 7. At all meetings of the
Board, a majority of the Directors shall be
necessary and sufficient to constitute a
quorum for the transaction of business, and
the act of a majority of the Directors
present at any meeting, at which there is a
quorum, shall be the act of the Board of
Directors, except as may be otherwise
provided by law or by these Bylaws.
SECTION 8. Directors, as such, shall
not receive any stated compensation for their
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services. By resolution of the Board,
however, Directors who are not salaried
officers or otherwise employed by the
corporation may be allowed a fixed sum and
expenses of attendance, if any, for
attendance at each regular and special
meeting of the Board; provided, however, that
nothing herein contained shall be construed
to preclude any Director from serving the
corporation in any other capacity and
receiving compensation therefor.
SECTION 9. No person shall be eligible
for election to the Board of Directors after
such person has attained the age of 70;
provided, however, that this section shall
JUNE 15, 1995 not apply to any person who was a member of
the Board on January 16, 1986, and who has
not less than 65 years of age on that date.
Present members of the Board falling within
the foregoing exception shall not be eligible
for reelection to the Board after attaining
the age of 75.
SECTION 10. A person who has served as
a member of the Board of Directors, and whose
membership on the Board has terminated for
any reason other than removal by the
stockholders, may be elected an honorary or
Emeritus Director of the corporation.
Honorary Directors shall be elected by the
Board of Directors and shall serve until the
first meeting of the Board following the next
annual meeting of the stockholders. Honorary
APRIL 19, 1990 Directors may not serve more than five one
JUNE 15, 1995 year terms. The privilege of serving as an
Honorary Director may be terminated by the
stockholders, or by the Board of Directors,
at any time. An Honorary Director shall have
the right to attend meetings of the Board of
Directors and shall receive such attendance
fee as the Board of Directors, from time to
time, may determine. An Honorary Director
shall not have any voice or vote in the
deliberations or functions of the Board of
Directors, however, and except as
hereinbefore provided, shall not have or
enjoy any of the rights, powers or privileges
of the duly elected members of the Board.
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ARTICLE IV
COMMITTEES OF DIRECTORS
SECTION 1. The Board of Directors shall
elect an Executive Committee, which shall be
comprised of such number of members of the
Board as the Board, from time to time, may
designate. The Executive Committee shall
possess and exercise all of the powers of the
Board of Directors, except when the Board is
in session. All acts done and powers and
authority conferred by the Executive
Committee, within the scope of its authority,
shall be the act and under the authority of
the Board of Directors and may be certified
as such. The Committee shall have power to
fill any vacancy in its membership.
SECTION 2. The Chairman of the Board of
the Company or such other officer or director
of the Company as may be designated by such
Chairman of the Board, shall preside at all
DECEMBER 14, 1987 meetings of the Executive Committee. A
majority of the members of the Executive
Committee shall constitute a quorum at all
meetings of the Committee; and where
necessary in order to provide a quorum at any
meeting of the Committee, the presiding
officer shall have the authority to appoint
other members of the Board of Directors to
serve as members of the Executive Committee
at such meetings.
SECTION 3. Regular and special meetings
of the Executive Committee shall be held at
such times and places, and upon such notice.
as the Committee, from time to time, may
prescribe.
SECTION 4. The Board of Directors by
resolution duly adopted, may designate and
appoint such other committees, and prescribe
the powers and duties thereof, as the Board
may deem advisable. By like resolution, the
Board may abolish any such committee, or make
such changes in its membership, powers or
duties, as the Board may consider proper.
SECTION 5. All committees shall keep
minutes of their proceedings, and report the
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same to the Board of Directors at the next
regular meeting of the Board.
SECTION 6. Members of committees shall
receive such compensation as the Board of
Directors, from time to time, may determine.
ARTICLE V
OFFICERS
SECTION 1. The Executive Officers of
the corporation shall be chosen and employed
by the Board of Directors, and shall consist
of a Chairman of the Board and such Vice
JUNE 15, 1995 Chairmen of the Board as the Board, from time
to time, may determine, all of whom shall be
chosen from among the members of the Board, a
President, Executive Vice Presidents and Vice
APRIL 19, 1990 Presidents in number as the Board, from time
to time, may determine, a Secretary, and such
other officers as, from time to time, may be
designated and selected by the Board. Any
two of the above-named offices, except those
JUNE 15, 1995 of President and Secretary, may be held by
the same person, but no officer shall
execute, acknowledge or verify any instrument
in more than one capacity, if such instrument
is required by law or by these bylaws to be
executed, acknowledged or verified by two or
more officers.
SECTION 2. The executive officers shall
serve at the pleasure of the Board of
Directors and their compensation shall be
determined by the Executive Committee.
SECTION 3. The authority of the
executive officers shall be that usually
enjoyed, and their duties shall be those
usually performed, by their respective
offices, subject to the supervision and
direction of the Board of Directors and the
Executive Committee.
SECTION 4. The Board of Directors shall
require all officers and employees of the
corporation to be bonded, in such amount, and
with such surety or sureties, as the Board
may deem proper.
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ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. Each Director and officer,
whether or not then in office, shall be
indemnified by the corporation against all
costs and expenses reasonably incurred by and
imposed upon him in connection with or
resulting from any action, suit or
proceeding, to which he may be made a party
by reason of his being or having been a
director or officer of the corporation, or of
any other company which he served at the
request of the corporation, except in
relation to matters as to which a recovery
shall be had against him by reason of his
having been finally adjudged derelict in such
action, suit or proceeding, in that
performance of his duties as such Director or
officer, and the foregoing right of
indemnification shall not be exclusive of
other rights to which he may be entitled as a
matter of law.
ARTICLE VII
SEAL
SECTION 1. The corporate seal of the
corporation shall consist of a circle having
around the inside of its circumference the
words "Wesbanco, Inc.," and in the center the
words and figures "Incorporated 1968 W.Va."
ARTICLE VIII
FISCAL YEAR
SECTION 1. The fiscal year of the
corporation shall be the calendar year.
ARTICLE IX
STOCK
SECTION 1. The certificates of stock of
the corporation shall be in such form as the
Board of Directors, from time to time, may
prescribe. Each certificate shall be
numbered, shall exhibit the holder's name and
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number of shares, and shall be signed in such
manner as directed, from time to time,
JUNE 15, 1995 by the Board of Directors.
SECTION 2. Transfers of shares of stock
shall be made only on the books of the
corporation, by the holder in person or his
attorney duly authorized by power of attorney
properly executed and filed with the
corporation, upon the surrender of the
certificate or certificates for such shares.
SECTION 3. The Board of Directors shall
have power to close the stock transfer books
of the corporation for a period not exceeding
forty (40) days preceding the date of any
meeting of stockholders, or the date for
payment of any dividend, or the date for the
allotment of any rights; provided, however,
that in lieu of closing the stock transfer
books, as aforesaid, the Board of Directors
may fix, in advance, a date not exceeding
forty (40) days preceding the date of any
meeting of the stockholders, any dividend
payment date, or the date for allotment of
rights, as a record date for the
determination of the stockholders entitled to
notice of or to vote at such meeting and/or
entitled to receive such dividend payment or
rights, as the case may be, and only
stockholders of record on such date shall be
entitled to notice of and/or to vote at such
meeting, or to receive such dividend payment
or rights.
SECTION 4. Any person claiming that a
certificate of stock has been lost or
destroyed shall make an affidavit or
affirmation of that fact in such manner as
the Board of Directors may require. The
Board of Directors, in its discretion, may
require the owner of a lost or destroyed
certificate, or his legal representative, to
advertise notice of such loss or destruction,
once a week for two (2) successive weeks, in
a newspaper or newspapers of general
circulation published in such community or
communities as the Board may specify, and, in
its discretion, may require such owner, or
his legal representative, to give the
corporation a bond, in such sum as the Board
may direct, not exceeding double the value of
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the stock represented by the lost or
destroyed certificate, and with one or more
sureties satisfactory to the Board, to
indemnify the corporation against any claim
arising or resulting from the loss or
destruction of such certificate or the
issuance of a new certificate. It is
expressly provided, however, that a new
certificate, of the same tenor and for the
same number of shares as the one alleged to
have been lost or destroyed, may be issued
without requiring the publication of a notice
of loss, or the giving of a bond, when, in
the judgment of the Directors, it is proper
so to do.
ARTICLE X
AMENDMENTS
SECTION 1. With the exception of
Sections 1, 2 and 3 of Article III, these
Bylaws may be amended, altered, or repealed
at any duly called and constituted
stockholders' meeting on the affirmative vote
of the majority of the stock represented at
such meeting. The said Sections 1, 2 and 3
of Article III may be amended, altered, or
repealed only by the affirmative vote of the
holders of not less than 75 percent of the
outstanding shares of the capital stock of
the corporation. With the exception of the
said Sections 1, 2 and 3 of Article III,
these Bylaws also may be amended, altered
JANUARY 16, 1986 or supplemented at any meeting of the Board
of Directors upon the affirmative vote of the
majority of the whole Board; provided,
however, that each member of the Board shall
have been served with a written notice of the
proposal to make such amendment, alteration
or supplemental provision at least two
(2) days before such meeting.
- 10 -
Exhibit 4.3
#6
WESBANCO, INC.
KSOP
As Amended and Restated
Effective Date: January 1, 1996
December, 1995
<PAGE>
WESBANCO, INC.
KSOP
AS AMENDED AND RESTATED
TABLE OF CONTENTS
ARTICLE I - NATURE OF PLAN . . . . . . . . . . . . . . . . . 1a
1.1 Purpose . . . . . . . . . . . . . . . . . . . . . . . 1a
1.2 CONSTITUTION OF PLAN . . . . . . . . . . . . . . . . 1a
1.3 Amendment and Restatement . . . . . . . . . . . . . . 2a
1.4 Merged Plans . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II - DEFINITIONS. . . . . . . . . . . . . . . . . . . 4a
2.1 Account(s) . . . . . . . . . . . . . . . . . . . . . 4a
2.2 Affiliated Company . . . . . . . . . . . . . . . . . 4a
2.3 Alternate Payee . . . . . . . . . . . . . . . . . . . 4a
2.4 Anniversary Date . . . . . . . . . . . . . . . . . . 4a
2.5 Approved Absence . . . . . . . . . . . . . . . . . . 4a
2.6 Beneficiary . . . . . . . . . . . . . . . . . . . . . 4a
2.7 Board of Directors . . . . . . . . . . . . . . . . . 5a
2.8 Break in Service . . . . . . . . . . . . . . . . . . 5a
2.9 Capital Accumulation . . . . . . . . . . . . . . . . 5a
2.10 Claimant . . . . . . . . . . . . . . . . . . . . . . 5a
2.11 Code . . . . . . . . . . . . . . . . . . . . . . . . 5a
2.12 Committee . . . . . . . . . . . . . . . . . . . . . . 5a
2.13 Company . . . . . . . . . . . . . . . . . . . . . . . 5a
2.14 Company Stock . . . . . . . . . . . . . . . . . . . . 5a
2.15 Company Stock Account . . . . . . . . . . . . . . . . 5a
2.16 Covered Compensation . . . . . . . . . . . . . . . . 5a
2.17 Credited Service . . . . . . . . . . . . . . . . . . 6
2.18 Determination Date . . . . . . . . . . . . . . . . . 7
<PAGE>
2.19 Disability Retirement Date . . . . . . . . . . . . . 7
2.20 Disqualified Person . . . . . . . . . . . . . . . . . 7
2.21 Diversified Account . . . . . . . . . . . . . . . . . 8
2.22 Domestic Relations Order . . . . . . . . . . . . . . 8
2.23 Early Retirement Date . . . . . . . . . . . . . . . . 9a
2.24 Effective Date . . . . . . . . . . . . . . . . . . . 9a
2.25 Employee . . . . . . . . . . . . . . . . . . . . . . 9a
2.26 Employer . . . . . . . . . . . . . . . . . . . . . . 9a
2.27 Employer Contributions . . . . . . . . . . . . . . . 10
2.28 Employer SECURITIES . . . . . . . . . . . . . . . . . 10
2.29 EMPLOYMENT DATE . . . . . . . . . . . . . . . . . . . 10
2.30 ERISA . . . . . . . . . . . . . . . . . . . . . . . . 10
2.31 Family Member . . . . . . . . . . . . . . . . . . . . 11
2.32 Fiduciary . . . . . . . . . . . . . . . . . . . . . . 11
2.33 FMLA . . . . . . . . . . . . . . . . . . . . . . . . 11
2.34 Forfeitures . . . . . . . . . . . . . . . . . . . . . 11
2.35 Highly Compensated Employee . . . . . . . . . . . . . 11
2.36 Hour of Service . . . . . . . . . . . . . . . . . . . 16
2.37 Independent Appraiser . . . . . . . . . . . . . . . . 18
2.38 Key Employee . . . . . . . . . . . . . . . . . . . . 19
2.39 Leased Employee . . . . . . . . . . . . . . . . . . . 19
2.40 Limitation Year . . . . . . . . . . . . . . . . . . . 20
2.41 Non-highly Compensated Employee . . . . . . . . . . . 20
2.42 Non-key Employee . . . . . . . . . . . . . . . . . . 20
2.43 Normal Retirement Date . . . . . . . . . . . . . . . 20
2.44 Other Investments Account . . . . . . . . . . . . . . 20
2.45 Owner-Employee . . . . . . . . . . . . . . . . . . . 20
<PAGE>
2.46 Participant . . . . . . . . . . . . . . . . . . . . . 20
2.47 Permanent Disability . . . . . . . . . . . . . . . . 20
2.48 Permissive Aggregation Group . . . . . . . . . . . . 21
2.49 PLAN . . . . . . . . . . . . . . . . . . . . . . . . 21
2.50 Plan Year . . . . . . . . . . . . . . . . . . . . . . 21
2.51 Plan Administrator . . . . . . . . . . . . . . . . . 21
2.52 Qualified Election Period . . . . . . . . . . . . . . 21
2.53 Qualified Employer Securities . . . . . . . . . . . . 21
2.54 Qualified Participant . . . . . . . . . . . . . . . . 21
2.55 Qualified Replacement Property . . . . . . . . . . . 21
2.56 Reemployment Date . . . . . . . . . . . . . . . . . . 22
2.57 Required Aggregation Group . . . . . . . . . . . . . 22
2.58 Required Beginning Date . . . . . . . . . . . . . . . 22
2.59 Retirement . . . . . . . . . . . . . . . . . . . . . 23
2.60 Securities Acquisition Loan . . . . . . . . . . . . . 23
2.61 Segregated Investments Account . . . . . . . . . . . 23
2.62 Service . . . . . . . . . . . . . . . . . . . . . . . 23
2.63 Suspense Account . . . . . . . . . . . . . . . . . . 23
2.64 Termination of Service . . . . . . . . . . . . . . . 24
2.65 Top-heavy Plan . . . . . . . . . . . . . . . . . . . 24
2.66 Top-heavy Ratio . . . . . . . . . . . . . . . . . . . 25
2.67 TRUST . . . . . . . . . . . . . . . . . . . . . . . . 26
2.68 Trust Agreement . . . . . . . . . . . . . . . . . . 27a
2.69 Trust Assets or Trust Fund . . . . . . . . . . . . 27a
2.70 Trustee(s) . . . . . . . . . . . . . . . . . . . . 27a
2.71 VALUATION DATE . . . . . . . . . . . . . . . . . . 27a
<PAGE>
ARTICLE III - ELIGIBILITY. . . . . . . . . . . . . . . . . 28a
3.1 Eligibility and Participation . . . . . . . . . . . 28a
3.2 Commencement of Participation. . . . . . . . . . . 29a
3.3 Reemployment. . . . . . . . . . . . . . . . . . . . 29a
3.4 Approved Absence. . . . . . . . . . . . . . . . . . 29a
ARTICLE IV - TRUST FUND . . . . . . . . . . . . . . . . . . . 30
4.1 Employer Contribution . . . . . . . . . . . . . . . . 30
4.2 participant contributions . . . . . . . . . . . . . 31a
4.3 Investment of Trust Assets. . . . . . . . . . . . . 31a
4.4 Plan Loans . . . . . . . . . . . . . . . . . . . . . 33
4.5 OTHER CONTRIBUTIONS . . . . . . . . . . . . . . . . 37a
4.6 SALARY DEFERRAL ELECTIONS . . . . . . . . . . . . . 37c
4.7 MATCHING EMPLOYER CONTRIBUTION . . . . . . . . . . 37h
4.8 INVESTMENT OPTIONS . . . . . . . . . . . . . . . . 37n
4.9 HARDSHIP WITHDRAWALS APPLICABLE TO SALARY DEFERRAL
CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . 37p
ARTICLE V - ALLOCATION TO ACCOUNTS . . . . . . . . . . . . 38a
5.1 Individual Accounts. . . . . . . . . . . . . . . . 38a
5.2 Company Stock Account . . . . . . . . . . . . . . . . 39
5.3 Other Investments Account . . . . . . . . . . . . . 41a
5.4 Allocation of Employer Contributions and Forfeitures
42a
5.5 Allocation Limitations . . . . . . . . . . . . . . 43a
5.6 Allocation of Net Income or Loss of the Trust. . . 53a
5.7 Accounting for Allocations. . . . . . . . . . . . . . 54
ARTICLE VI - EXPENSES AND VOTING . . . . . . . . . . . . . . 55
6.1 Expenses of the Plan and Trust . . . . . . . . . . . 55
6.2 Voting Company Stock . . . . . . . . . . . . . . . . 55
6.3 Committee Powers and Duties . . . . . . . . . . . . . 55
<PAGE>
ARTICLE VII - CAPITAL ACCUMULATION . . . . . . . . . . . . 38a
7.1 Capital Accumulation. . . . . . . . . . . . . . . . 57a
7.2 Retirement, Death or Permanent Disability. . . . . 38a
7.3 Other Termination of Service and Vesting. . . . . . 57a
7.4 Vesting Upon Reemployment . . . . . . . . . . . . . 39a
7.5 Amendments to Vesting Schedule . . . . . . . . . . . 59
7.6 Forfeitures . . . . . . . . . . . . . . . . . . . . . 60
7.7 Certain Reemployed Participants. . . . . . . . . . . 61
ARTICLE VIII - DISTRIBUTION . . . . . . . . . . . . . . . . . 62
8.1 Time of Distribution . . . . . . . . . . . . . . . . 62
8.2 Retirement or Permanent Disability . . . . . . . . . 62
8.3 Other Termination of Participation . . . . . . . . . 62
8.4 Term of Distribution . . . . . . . . . . . . . . . . 63
8.5 Death Prior to Distribution . . . . . . . . . . . . 64a
8.6 Benefit Forms for Participants. . . . . . . . . . . 64a
8.7 Benefits on a Participant's Death. . . . . . . . . . 65
8.8 Limitations . . . . . . . . . . . . . . . . . . . . 66a
8.9 Commencement of Benefits . . . . . . . . . . . . . 66a
8.10 Undistributed Accounts . . . . . . . . . . . . . . 67a
8.11 Lien on Distribution . . . . . . . . . . . . . . . 67a
8.12 Benefit Distribution . . . . . . . . . . . . . . . 67a
8.13 Rollover Treatment . . . . . . . . . . . . . . . . 68b
8.14 Delay in Benefit Determination. . . . . . . . . . . 71a
8.15 Designated Beneficiaries. . . . . . . . . . . . . . 71a
ARTICLE IX - RIGHTS AND OPTIONS ON DISTRIBUTED SHARES OF COMPANY
STOCK . . . . . . . . . . . . . . . . . . . . . . . . 73
9.1 Right of First Refusal . . . . . . . . . . . . . . . 73
9.2 "Put" Option . . . . . . . . . . . . . . . . . . . 74a
<PAGE>
9.3 Other Options . . . . . . . . . . . . . . . . . . . . 75
ARTICLE X - SPECIAL PROVISIONS . . . . . . . . . . . . . . 76a
10.1 Diversification of Investments . . . . . . . . . . 76a
10.2 CASH DIVIDENDS . . . . . . . . . . . . . . . . . . 77a
10.3 Hardship Distributions . . . . . . . . . . . . . . 78a
ARTICLE XI - ADMINISTRATION . . . . . . . . . . . . . . . . . 79
11.1 Named Fiduciaries . . . . . . . . . . . . . . . . . . 79
11.2 Claims Procedures . . . . . . . . . . . . . . . . . . 83
ARTICLE XII - AMENDMENT AND TERMINATION . . . . . . . . . . . 86
12.1 Amendment . . . . . . . . . . . . . . . . . . . . . . 86
12.2 Changes in the Code . . . . . . . . . . . . . . . . . 86
12.3 Termination, Partial Termination or Complete
Discontinuance of Contributions . . . . . . . . . . . 87
12.4 Determination by Internal Revenue Service . . . . . . 87
12.5 Distribution Upon Termination. . . . . . . . . . . . 88
ARTICLE XIII - TOP HEAVY PROVISIONS . . . . . . . . . . . . 89
13.1 Effects of Being Top-heavy . . . . . . . . . . . . . 89
13.2 Participant's Top-heavy Account . . . . . . . . . . . 91
13.3 Simplified Employee Pensions . . . . . . . . . . . . 91
13.4 Contributions or Benefits Not Taken Into Account . . 92
ARTICLE XIV - MISCELLANEOUS PROVISIONS . . . . . . . . . . . 93
14.1 Participation by Any Affiliated Company . . . . . . . 93
14.2 Merger or Transfer of Assets . . . . . . . . . . . . 93
14.3 Exclusive Benefit of Participants and Beneficiaries . 94
14.4 Non-guarantee of Employment . . . . . . . . . . . . . 95
14.5 Rights to Trust Assets . . . . . . . . . . . . . . . 95
14.6 Non-alienation of Benefits . . . . . . . . . . . . . 95
<PAGE>
14.7 Payments Pursuant to a Qualified Domestic Relations
Order . . . . . . . . . . . . . . . . . . . . . . . . 96
14.8 Aggregation Rules . . . . . . . . . . . . . . . . . . 97
14.9 Unclaimed Benefits . . . . . . . . . . . . . . . . . 97
14.10 Severability . . . . . . . . . . . . . . . . . . . . 98
14.11 Headings . . . . . . . . . . . . . . . . . . . . . . 98
14.12 Bonding . . . . . . . . . . . . . . . . . . . . . . . 98
14.13 Indemnification . . . . . . . . . . . . . . . . . . . 99
14.14 Applicable Law . . . . . . . . . . . . . . . . . . . 99
EXECUTION . . . . . . . . . . . . . . . . . . . . . . . . . 100
<PAGE>
WESBANCO, INC.
KSOP
AS AMENDED AND RESTATED
ARTICLE I - NATURE OF PLAN
1.1 PURPOSE
(a) The purpose of this WesBanco, Inc. KSOP is to enable
participating Employees to share in the growth and
prosperity of WesBanco, Inc. (hereinafter referred to
as the "Employer") and to provide Participants with an
opportunity to accumulate capital for their future
economic security. The primary purpose of the Plan is
to enable Participants to acquire stock ownership
interests in the Company and to save through the cash
or deferred feature of the Plan. Accordingly, except
as provided in Section 10.1, Employer Contributions to
the Plan will be invested primarily in Company Stock,
(except as otherwise provided in Sections 4.5, 4.7, and
4.8) to the extent that such stock is available on
terms which, in the Committee's judgment, constitute a
prudent investment of Trust Assets.
(b) As a technique of corporate finance to the Company this
WesBanco, Inc. KSOP may be used to accomplish the
following objectives:
(i) to provide Participants with beneficial ownership
of Company Stock, substantially in proportion to
their relative Covered Compensation;
(ii) to meet general financing requirements of the
Company, including capital growth and transfer in
the ownership of Company Stock; and
1a
<PAGE>
(iii) to receive loans (or other extensions of credit)
to finance the acquisition of Company Stock, with
such loans (or credits) secured primarily by a
commitment by the Company to pay Employer
Contributions to the Trust in amounts sufficient
to enable principal and interest on such loans to
be repaid.
(c) This Plan shall be administered by a Committee for the
exclusive benefit of Participants and their
Beneficiaries and shall be operated in a manner so as
not to discriminate in favor of Highly Compensated
Employees. Accordingly, the WesBanco, Inc. Employee
Stock Ownership Plan shall be construed and applied in
a manner consistent with such intent.
1.2 CONSTITUTION OF PLAN
The WesBanco, Inc. Employee Stock Ownership Plan was
originally effective as of December 31, 1986. The WesBanco,
Inc. Employee Stock Ownership Plan is intended to qualify as
an "employee stock ownership plan", as defined in Section
4975(e)(7) of the Internal Revenue Code of 1986, and the
regulations thereunder (hereinafter referred to as the
"Code"), and as a stock bonus plan under Section 401(a) of
the Code, and effective January 1, 1996, to include a
qualified cash or deferred arrangement under Section 401(k)
of the Code. To reflect the addition of the qualified cash
or deferred arrangement feature, effective January 1, 1996
the name of the Plan is changed to be the WesBanco, Inc.
KSOP.
1.3 AMENDMENT AND RESTATEMENT
The WesBanco, Inc. Employee Stock Ownership Plan effective
as of December 31, 1986, is hereby amended and restated,
effective January 1, 1989 except as otherwise specifically
provided, to amend the WesBanco, Inc. Employee Stock
Ownership Plan to include the amendments required by the Tax
Reform Act of 1986, the Omnibus Budget Reconciliation Act of
1987, the Technical and Miscellaneous Revenue Act of 1988,
the Omnibus Budget Reconciliation Act of 1989, the Omnibus
Budget Reconciliation Act of 1990, the Unemployment
Compensation Amendments of 1992, the Omnibus Budget
Reconciliation Act of 1993, the Family and Medical Leave Act
of 1993, as well as the Employee Retirement Income Security
Act of 1974 (hereinafter referred to as "ERISA"), and the
regulations thereunder. This Plan was then known as the
WesBanco, Inc. Employee Stock Ownership Plan, as amended and
restated, effective January 1, 1989. Effective January 1,
1996, the
2a
<PAGE>
WesBanco, Inc. Employee Stock Ownership Plan is amended to
include a qualified cash or deferred arrangement and shall
be known as the WesBanco, Inc. KSOP.
1.4 MERGED PLANS
Effective January 1, 1989, the Bank of Sissonville Employee
Stock Ownership Plan is hereby merged and transferred into
this Plan, and all affiliated banks of the Bank of
Sissonville hereby adopt this Plan and the Company hereby
approves and accepts such merger and adoption, as provided
in Section 14.2
3
<PAGE>
ARTICLE II - DEFINITIONS
In this Plan, whenever the context so indicates, the singular or
plural number and the masculine, feminine or neuter gender shall
each be deemed to include the other, the terms "he," "his" and
"him" shall refer to a Participant and capitalized words shall
have the following meanings:
2.1 ACCOUNT(S) shall mean the Account(s) maintained to record
the interest of a Participant in the Plan, including
effective January 1, 1996, the Participant s interest in
such Participant s Salary Deferral Contributions Account and
Matching Employer Contribution Account established pursuant
to Section 4.6 and Section 4.7. Effective January 1, 1989,
the account balances of participants in the Bank of
Sissonville Employee Stock Ownership Plan shall be
transferred to this Plan and shall be included in the
Accounts of former participants in the Bank of Sissonville
Employee Stock Ownership Plan who are Participants in this
Plan.
2.2 AFFILIATED COMPANY shall mean any company, which is a member
of a controlled group of corporations (as defined in Section
414(b) of the Code) which includes the Employer, any trade
or business (whether or not incorporated) which is under
common control (as defined in Section 414(c) of the Code)
with the Employer, any affiliated service group which
includes the Employer (as defined in Section 414(m) of the
Code), and any other entity required to be aggregated with
the Employer under Section 414(o) of the Code.
2.3 ALTERNATE PAYEE shall mean a spouse, former spouse, child or
other dependent of a Participant who is recognized by a
qualified Domestic Relations Order as having a right to
receive all or a portion of the benefits otherwise payable
to a Participant.
2.4 ANNIVERSARY DATE shall mean the 31st day of December of each
year on which the allocation of Employer Contributions is
made.
2.5 APPROVED ABSENCE shall mean a leave of absence from
employment with the Employer approved by an Employer under
its established leave policy uniformly and consistently
applied with respect to all Employees.
2.6 BENEFICIARY shall mean the person(s) entitled to receive any
benefits under the Plan in the event of a Participant's
death.
4a
<PAGE>
2.7 BOARD OF DIRECTORS shall mean the board of directors of the
Company.
2.8 BREAK IN SERVICE shall mean a Plan Year during which an
Employee or former Employee has been credited with fewer
than five hundred one (501) Hours of Service.
2.9 CAPITAL ACCUMULATION shall mean a Participant's vested or
nonforfeitable interest in such Participant's Account(s)
under the Plan.
2.10 CLAIMANT shall mean a Participant or Beneficiary under this
Plan who requests or is entitled to a benefit under this
Plan.
2.11 CODE shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations thereunder.
2.12 COMMITTEE shall mean the Committee appointed by the Board of
Directors to administer the Plan and to give instructions to
the Trustee(s).
2.13 COMPANY shall mean WesBanco, Inc., a corporation organized
and existing under the laws of the State of West Virginia,
and its successors and assigns.
2.14 COMPANY STOCK shall mean shares of any class of stock,
preferred or common, voting or nonvoting, which are issued
by the Company or an Affiliated Company, including Employer
Securities and Qualified Employer Securities or any other
qualifying employer within the meaning of Section 407(d)(5).
2.15 COMPANY STOCK ACCOUNT shall mean the Account of a
Participant which is credited with the shares of Company
Stock purchased and paid for by the Trust or contributed to
the Trust.
2.16 COVERED COMPENSATION shall mean:
(a) The total salary and wages paid to a Participant by an
Employer for each Plan Year, including commissions,
bonuses, overtime compensation, salary reductions under
Section 125 and Section 401(k) of the Code, severance
pay, pay in lieu of notice, accrued vacation pay,
nonqualified stock options, sick pay benefits,
insurance premiums, long-term disability and taxable
medical reimbursements, any noncash fringe benefits,
but excluding mileage and expense allowances,
deductible moving expenses, non-taxable fringe benefits
and contributions to this Plan or any other deferred
compensation plan.
5a
<PAGE>
(b) Effective for Plan Years beginning after December 31,
1988, Covered Compensation shall be limited to $200,000
paid to a Participant for each Plan Year. Such
$200,000 limit shall be adjusted annually for
Limitation Years, commencing on or after January 1,
1988, reflecting cost of living increases as permitted
under Section 415 of the Code.
(c) Notwithstanding subsection (b) above, effective for
Plan Years beginning after December 31, 1993, the
Covered Compensation taken into account for any Plan
Year shall not exceed $150,000, as indexed for
inflation in increments of $10,000, as determined by
the Secretary of the Treasury.
(d) In determining the amount of any Covered Compensation
for a Highly Compensated Employee, the Covered
Compensation of a Family Member shall be considered
Covered Compensation of the Highly Compensated Employee
as provided in Section 401(a)(17) of the Code.
2.17 CREDITED SERVICE shall mean the number of whole years of a
Participant's Service from and after the later of:
(a) the Effective Date; or
(b) for a first year of eligibility, such Participant's
Employment Date to such Participant's Termination of
Service followed by a Break in Service (or, if
reemployed, from the Reemployment Date to a subsequent
Termination of Service followed by a Break in Service)
or, for subsequent years of eligibility, from the first
day of each Plan Year to such Participant's Termination
of Service followed by a Break in Service (provided
that in the event the Participant completes one
thousand (l,000) Hours of Service in the first twelve
(12) month period of such Participant's employment and
such Participant's first Plan Year, such Participant
shall receive two (2) years of Credited Service)
determined by crediting one (1) year of Credited
Service for each of the applicable full twelve (12)
month periods during which the Participant was credited
with one thousand (1,000) or more Hours of Service.
6
<PAGE>
2.18 DETERMINATION DATE shall mean with respect to any Plan Year
subsequent to the first Plan Year, the last day of the
preceding Plan Year. For the first Plan Year, Determination
Date shall mean the last day of that Plan Year.
2.19 DISABILITY RETIREMENT DATE shall mean the first day of the
month following the date of the Participant's Termination of
Service as result of a Permanent Disability.
2.20 DISQUALIFIED PERSON shall mean:
(a) a person who is a fiduciary;
(b) a person providing services to the Plan;
(c) an employer any of whose employees are covered by the
Plan;
(d) an employee organization any of whose members are
covered by the Plan;
(e) an owner, direct or indirect, of fifty percent (50%) or
more of:
(i) the combined voting power of all classes of stock
entitled to vote or the total value of shares of
all classes of the stock of the Company;
(ii) the capital interest or the profits interest of a
partnership; or
(iii) the beneficial interest of a trust or
unincorporated enterprise;
which is an employer or an employee organization
described in subsection (c) or subsection (d);
(f) a member of the family of any person described in
subsections (a), (b), (c) or (e). For purposes of this
subsection (f), the family of an individual shall
include the spouse, ancestor, lineal descendant, and
any spouse of a lineal descendant;
7
<PAGE>
(g) a corporation, partnership, trust or estate of which
(or in which) fifty percent (50%) or more of:
(i) the combined voting power of all classes of stock
entitled to vote or the total value of share of
all classes of stock of such corporation;
(ii) the capital interest or profits interest of such
partnership; or
(iii) the beneficial interest of such trust or estate is
owned, directly or indirectly, or held by persons
described in subsections (a), (b), (c), (d) or
(e);
(h) an officer, director (or an individual having powers
and responsibilities similar to those of officers or
directors), a ten percent (10%) or more shareholder, or
a highly compensated employee (earning ten percent
(10%) or more of the yearly wages of an employer) of a
person described in subsection (c), (d), (e) or (g); or
(i) or a ten percent (10%) or more (in capital or profits)
partner or joint venturer of a person described in
subsection (c), (d), (e) or (g).
2.21 DIVERSIFIED ACCOUNT shall mean the Account of the
Participant as described in Section 10.1(f).
2.22 DOMESTIC RELATIONS ORDER shall mean any judgment, decree, or
order (including approval of a property settlement
agreement) which is made pursuant to a State domestic
relations law and which relates to the provision of child
support, alimony payments or marital property rights to a
spouse, former spouse, child or other dependent of a
Participant.
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2.23 EARLY RETIREMENT DATE shall mean:
(a) except as otherwise provided in subsection (b) below,
the first day of the month immediately following the
date on which a Participant attains age sixty (60) and
has been credited with at least fifteen (15) years of
Credited Service or the tenth (10th) anniversary of the
date the Participant commenced participation, whichever
is later; or
(b) effective January 1, 1989, notwithstanding subsection
(a) above to the contrary, the date that a Participant
retires pursuant to an early retirement incentive
window offered by the Employer.
2.24 EFFECTIVE DATE shall mean December 31, 1986. The Effective
Date of this amended and restated Plan shall be January 1,
1989, except as otherwise specifically provided.
2.25 EMPLOYEE shall mean a person, employed by an Employer on a
full-time or part time basis as defined by the Employer, any
portion of whose income is subject to withholding of income
tax and/or for whom Social Security contributions are made
by an Employer, as well as any other person qualifying as a
common law employee of an Employer, including a Leased
Employee. Notwithstanding the foregoing, a Leased Employee
shall not be treated as an Employee if the Leased Employee
is covered by a money purchase pension plan providing (a) a
non-integrated employer contribution rate of at least ten
percent (10%) of Covered Compensation; (b) immediate
participation; and (c) full and immediate vesting; provided
that, Leased Employees do not constitute more than twenty
percent (20%) of any Affiliated Company's non-highly
compensated work force within the meaning of Section
414(n)(5)(A)(ii) of the Code.
2.26 EMPLOYER shall mean:
(a) WesBanco, Inc., and effective January 1, 1989, the Bank
of Sissonville, located in West Virginia, or any
predecessor or successor corporation, which has been
designated by the Company as an Employer participating
in the Plan, and which such Employer has adopted this
Plan and has agreed to be bound by the terms of the
Plan and Trust Agreement; and
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(b) effective January 1, 1989, any Affiliated Company and
any other affiliate of the Company (as defined in
Section 407(d) of ERISA) which shall become a part of
the Employer upon the date of that such Affiliated
Company or affiliate (as defined in Section 407(d) of
ERISA) is acquired by the Company.
2.27 EMPLOYER CONTRIBUTIONS shall mean payments made to the Trust
by an Employer who has adopted the Plan with the consent of
the Company pursuant to Section 4.1 and which are deductible
under Section 404(a) of the Code.
2.28 EMPLOYER SECURITIES shall mean:
(a) common stock issued by the Company having a combination
of voting power and dividend rights equal to:
(i) that class of common stock of the Company having
the greatest voting power; and
(ii) that class of common stock of the Company having
the greatest dividend rights.
(b) Noncallable preferred stock shall be treated as
Employer Securities if such stock is convertible at any
time into common stock which meets the requirements, of
subsection (a) above and if (as of the date of
acquisition by the Plan) the conversion price is
reasonable.
2.29 EMPLOYMENT DATE shall mean the date on which the Employee
shall first perform an Hour of Service for the Employer.
2.30 ERISA shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations
thereunder.
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2.31 FAMILY MEMBER shall mean an individual described in Section
414(q)(6)(B) of the Code, except that for the purpose of
determining a Highly Compensated Employee's Compensation, it
is an individual described in Section 401(a)(17) of the
Code.
2.32 FIDUCIARY shall mean a fiduciary pursuant to Section 4975(e)
of the Code and Section 3(21) and Section 405(c) of ERISA.
2.33 FMLA shall mean the Family and Medical Leave Act of 1993.
2.34 FORFEITURES shall mean any portion of a Participant's
Accounts which does not become a part of such Participant's
Capital Accumulation upon the occurrence of a Break in
Service.
2.35 HIGHLY COMPENSATED EMPLOYEE shall mean:
(a) an Employee who is described in Section 414(q) of the
Code and the regulations thereunder, and generally
means an Employee who performed services for any
Affiliated Company during the "determination year" and
is in one or more of the following groups:
(i) Employees who at any time during the
"determination year" or "look-back year" were
"five percent owners" of any Affiliated Company.
"Five percent owner" means any person who owns (or
is considered as owning within the meaning of
Section 318 of the Code) more than five percent
(5%) of the outstanding stock of any Affiliated
Company or stock possessing more than five percent
(5%) of the total combined voting power of all
stock of any Affiliated Company or, in the case of
an unincorporated business, any person who owns
more than five percent (5%) of the capital or
profits interest in any Affiliated Company. In
determining percentage ownership hereunder,
employers that would otherwise be aggregated under
Sections 414(b), (c), (m) and (o) of the Code
shall be treated as separate employers;
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<PAGE>
(ii) Employees who received "415 compensation," as
defined in Section 5.5(a)(iii), during the
"look-back year" from any Affiliated Company in
excess of $75,000 (as adjusted pursuant to Section
415(d) of the Code);
(iii) Employees who received "415 compensation," as
defined in Section 5.5(a)(iii), during the
"look-back year" from any Affiliated Company in
excess of $50,000 (as adjusted pursuant to Section
415(d) of the Code) and were in the "top paid
group" of Employees for the Plan Year;
(iv) Employees who during the "look-back year" were
officers of any Affiliated Company (as that term
is defined within the meaning of the regulations
under Section 416 of the Code) and received "415
compensation," as defined in Section 5.5(a)(iii),
during the "look-back year" from any Affiliated
Company greater than fifty percent (50%) of the
limit in effect under Section 415(b)(1)(A) of the
Code for any such Plan Year. The number of
officers shall be limited to the lesser of fifty
(50) employees, or the greater of three (3)
employees or ten percent (10%) of all employees.
For the purposes of determining the number of
officers, Employees described in Section 414(q)(8)
of the Code shall be excluded, but such Employees
shall still be considered for the purpose of
identifying the particular Employees who are
officers. If any Affiliated Company does not have
at least one (1) officer whose annual "415
compensation," as defined in Section 5.5(a)(iii),
is in excess of fifty percent (50%) of the Code
Section 415(b)(1)(A) limit, then the highest paid
officer of any Affiliated Company will be treated
as a Highly Compensated Employee;
(v) Employees who are in the group consisting of the
one hundred (100) Employees paid the greatest "415
compensation," as defined in Section 5.5(a)(iii),
during the "determination year" and are also
described in subsections (ii), (iii) or (iv) above
when these subsections are modified to substitute
"determination year" for "look-back year."
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<PAGE>
(b) The "determination year" shall be the Plan Year for
which testing is being performed, and the "look-back
year" shall be the immediately preceding twelve
(12)-month period.
(c) For purposes of this Section 2.35, the determination of
"415 compensation", as defined in Section 5.5(a)(iii),
shall be based only on "415 compensation", as defined
in Section 5.5(a)(iii), which is actually paid and
shall be made by including amounts that would otherwise
be excluded from a Participant's gross income by reason
of the application of Sections 125, 402(a)(8),
402(h)(1)(B) of the Code and, in the case of any
Affiliated Company contributions made pursuant to a
salary reduction agreement, by including amounts that
would otherwise be excluded from a Participant's gross
income by reason of the application of Section 403(b)
of the Code. Additionally, the dollar threshold
amounts specified in subsections (a)(ii) and (a)(iii)
above shall be adjusted at such time and in such manner
as is provided in regulations. In the case of such an
adjustment, the dollar limits which shall be applied
are those for the calendar year in which the
"determination year" or "look-back year" begins.
(d) In determining who is a Highly Compensated Employee,
Employees who are non-resident aliens and who received
no earned income (within the meaning of Section
911(d)(2) of the Code) from any Affiliated Company
constituting United States source income (within the
meaning of Section 861(a)(3) of the Code) shall not be
treated as Employees. Additionally, all Affiliated
Companies shall be taken into account as a single
employer and Leased Employees shall be considered
Employees unless such Leased Employees are covered by a
plan described in Section 414(n)(5) of the Code and are
not covered in any qualified plan maintained by any
Affiliated Company. The exclusion of Leased Employees
for this purpose shall be applied on a uniform and
nondiscriminatory basis for all of any Affiliated
Company's retirement plans. "Highly compensated former
employees" shall be treated as Highly Compensated
Employees without regard to whether they performed
services during the "determination year."
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<PAGE>
(e) For purposes of this Section 2.35, "top paid group"
means the top twenty percent (20%) of Employees who
performed services for any Affiliated Company during
the applicable year, ranked according to the amount of
"415 compensation," as defined in Section 5.5(a)(iii),
received from any Affiliated Company during such year.
All Affiliated Companies shall be taken into account as
a single employer, and Leased Employees shall be
considered Employees unless such Leased Employees are
covered by a plan described in Section 414(n)(5) of the
Code and are not covered in any qualified plan
maintained by any Affiliated Company. Employees who
are non-resident aliens and who received no earned
income (within the meaning of Section 911(d)(2) of the
Code) from any Affiliated Company constituting United
States source income (within the meaning of Section
861(a)(3) of the Code) shall not be treated as
Employees. Additionally, for the purpose of
determining the number of active Employees in any year,
the following additional Employees shall also be
excluded; however, such Employees shall still be
considered for the purpose of identifying the
particular Employees in the "top paid group":
(i) Employees with less than six (6) months of
service;
(ii) Employees who normally work less than 17 1/2 hours
per week;
(iii) Employees who normally work less than six (6)
months during a year; and
(iv) Employees who have not yet attained age 21.
(f) In addition, if ninety percent (90%) or more of the
Employees of any Affiliated Company are covered under
agreements which the Secretary of Labor finds to be
collective bargaining agreements between Employee
representatives and any Affiliated Company, and the
Plan covers only Employees who are not covered under
such agreements, then Employees covered by such
agreements shall be excluded from both the total number
of active Employees as well as from the identification
of particular Employees in the "top paid group."
14
<PAGE>
(g) The foregoing exclusions set forth in this Section 2.35
shall be applied on a uniform and consistent basis for
all purposes for which the Code Section 414(q)
definition is applicable.
(h) For purposes of this Section 2.35, "highly compensated
former employee" means a former Employee who had a
separation year prior to the "determination year" and
was a Highly Compensated Employee in the year of
separation from service or in any "determination year"
after attaining age fifty-five (55). Notwithstanding
the foregoing, an Employee who separated from service
prior to 1987 will be treated as a "highly compensated
former employee" only if during the separation year (or
year preceding the separation year) or any year after
the Employee attains age fifty-five (55) (or the last
year ending before the Employee's fifty-fifth (55th)
birthday), the Employee either received "415
compensation," as defined in Section 5.5(a)(iii), in
excess of $50,000 or was a "five percent owner," as
defined in subsection (a)(i) above. "Highly
compensated former employees" shall be treated as
Highly Compensated Employees. The method set forth in
this subsection (h) for determining who is a "highly
compensated former employee" shall be applied on a
uniform and consistent basis for all purposes for which
the Code Section 414(q) definition is applicable.
(i) For any Plan Year, any Affiliated Company may make an
election to use the simplified method for determining
Highly Compensated Employees under Section 414(q)(2) of
the Code if the procedures outlined below are followed.
Under this method:
(i) subsection (a)(ii) above shall be applied by
substituting "$50,000" for "$75,000"; and
(ii) subsection (a)(iii) above shall not be applied.
(j) In order to make the election to use the simplified
method for any Plan Year, any Affiliated Company must:
15
<PAGE>
(i) maintain significant business activities (and
employ employees) in at least two (2)
significantly separate geographic areas; and
(ii) satisfy such other conditions as the Secretary of
the Treasury may prescribe.
(k) For any Plan Year, any Affiliated Company may make a
calendar year election as provided under Temporary
Regulation Section 1.414(q)-1T, Q/A-14(b).
2.36 HOUR OF SERVICE shall mean:
(a) Each hour for which an Employee is paid, or entitled to
payment, for the performance of duties for the Employer
or any Affiliated Company during the applicable
computation period.
(b) Each hour for which an Employee is paid, or entitled to
payment, by the Employer or any Affiliated Company on
account of a period of time during which no duties are
performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday,
illness, incapacity (including disability), layoff,
jury duty, military duty or leave of absence.
Notwithstanding the preceding sentence:
(i) no more than 501 Hours of Service will be credited
under this subsection (b) to an Employee on
account of any single continuous period during
which the Employee performs no duties (whether or
not such period occurs in a single computation
period);
(ii) an hour for which an Employee is directly or
indirectly paid, or entitled to payment, during a
period in which no duties are performed, will not
be credited to the Employee if such payment is
made or due under a plan maintained solely for the
purpose of complying with applicable unemployment
compensation or disability insurance laws; and
16
<PAGE>
(iii) Hours of Service will not be credited for a
payment which solely reimburses an Employee for
medical or medically related expenses incurred by
the Employee. For purposes of this subsection
(b), a payment shall be deemed to be made by or
due from an Employer or any Affiliated Company
regardless In order to make the election to
use the simplified method for any Plan Year, of
whether such payment is made by or due from the
Employer or any Affiliated Company directly or
indirectly through, among others, a trust fund, or
insurer, to which the Employer or any Affiliated
Company contributes or pays premiums and
regardless of whether contributions made or due to
the trust fund, insurer or other entity are for
the benefit of particular Employees or are on
behalf of a group of Employees in the aggregate.
(c) Each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to
by the Employer or any Affiliated Company.
(d) The determination of Hours of Service for reasons other
than the performance of duties, and the crediting of
Hours of Service to computation periods, shall be in
accordance with U.S. Department of Labor Regulations
Section 2530.200b-2 which are incorporated herein by
reference.
(e) There shall be no duplication of Hours of Service under
any of the foregoing provisions. Hours under this
Section 2.36 shall be credited to the Employee for the
computation period(s) to which the award or agreement
pertains rather than the compensation period in which
the award, agreement or payment is made.
(f) In the case of a salaried Employee who is not paid on
an hourly basis, such Employee shall be credited with
Hours of Service on the basis of 45 hours for each week
for which the Employee would be credited with at least
one Hour of Service.
(g) Solely for purposes of determining whether an Employee
has a Break In Service, Hours of Service shall also
include an uncompensated authorized leave of absence,
or military leave while the Employee's reemployment
rights are protected by law (credited on the basis of
forty (40) Hours of Service per week or eight (8) Hours
of Service per working day), provided the Employee
returns to employment at the end of such Participant's
leave of absence, or with regard to a military leave,
within the time period prescribed by applicable law.
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<PAGE>
(h) Hours of Service will be credited for employment with
any of any Affiliated Company. Hours of Service will
also be credited for services rendered to any
Affiliated Company by a Leased Employee who is treated
as an Employee.
(i) Solely for purposes of determining whether an Employee
has a Break in Service, Hours of Service shall also
include absence from work for maternity or paternity
reasons. An absence from work for maternity or
paternity reasons means an absence:
(i) by reason of the pregnancy of the Employee;
(ii) by reason of the birth of a child of the Employee;
(iii) by reason of the placement of a child with the
Employee in connection with adoption; or
(iv) for purposes of caring for such a child for a
period immediately following such birth or
placement.
Hours of Service shall be credited in the computation
period following the computation period in which the
absence begins, except as necessary to prevent a Break
in Service in the computation period in which the
absence begins. Effective August 5, 1993, this
subsection (i) shall be subject to the requirements of
the FMLA.
2.37 INDEPENDENT APPRAISER shall mean any appraiser who is
independent of the Company or any Employer and who meets
requirements similar to the requirements prescribed under
the regulations under Section 170(a)(1) of the Code.
18
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2.38 KEY EMPLOYEE shall mean any Employee, former Employee or
Beneficiary who, at any time during the Plan Year including
the Determination Date or any of the four preceding Plan
Years, is:
(a) an officer of any of any Affiliated Company, if such
officer has total "415 compensation", as defined in
Section 5.5(a)(iii), from any Affiliated Company in
excess of fifty percent (50%) of the dollar limitation
under Section 415(b)(1)(A) of the Code;
(b) an Employee or Beneficiary owning (or considered as
owning within the meaning of Section 318 of the Code)
more than a one-half percent (1/2%) interest which is
also one of the ten largest interests in any of any
Affiliated Company if such individual's Covered
Compensation exceeds the dollar limitation under
Section 415(c)(1)(A) of the Code;
(c) a more than five percent (5%) shareholder or owner of
any Affiliated Company; or
(d) a more than one percent (1%) shareholder or owner of
any Affiliated Company, if such Employee has total "415
compensation", as defined in Section 5.5(a)(iii) from
any Affiliated Company of more than one hundred and
fifty thousand dollars ($150,000).
The determination of who is a Key Employee shall be made in
accordance with the rules and regulations under Section
416(i)(1) of the Code.
2.39 LEASED EMPLOYEE shall mean any person (other than an
Employee of any of any Affiliated Company), who, pursuant to
an agreement between any of any Affiliated Company and any
other person, has performed service for any of any
Affiliated Company (or for any Affiliated Company and any
related person determined in accordance with Section
414(n)(6) of the Code) on a substantially full-time basis
for a period of at least one year and such services are of a
type historically performed by employees in any Affiliated
Company's business field. The determination of whether a
person is a Leased Employee will be made pursuant to Section
414(n) of the Code.
19
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2.40 LIMITATION YEAR shall mean, for purposes of the limitations
on contributions and benefits imposed by Section 415 of the
Code, the Plan Year.
2.41 NON-HIGHLY COMPENSATED EMPLOYEE shall mean an Employee who
is not a Highly Compensated Employee or Family Member.
2.42 NON-KEY EMPLOYEE shall mean any Employee or former Employee
who is not a Key Employee. In addition, any Beneficiary of
a Non-key Employee shall be treated as a Non-key Employee,
but only if the Beneficiary is neither a Key Employee nor a
Beneficiary of a Key Employee.
2.43 NORMAL RETIREMENT DATE shall mean the first day of the month
coincident with or next following the date a Participant
attains age sixty-five (65).
2.44 OTHER INVESTMENTS ACCOUNT shall mean the Account of a
Participant which is credited with such Participant's share
of the net income (or loss) of the Trust and Employer
Contributions and Forfeitures in other than Company Stock
and which is debited with payments made to pay for Company
Stock.
2.45 OWNER-EMPLOYEE shall mean a Participant who owns, outside of
the Plan, more than five percent (5%) of the outstanding
stock of the Company, or more than five percent (5%) of the
total combined voting power of all stock of the Company at
any time during the five Plan Year period ending in the
calendar year in which such Participant attains age 70-1/2.
2.46 PARTICIPANT shall mean any Employee or former Employee who
is participating in this Plan under Article III.
2.47 PERMANENT DISABILITY shall mean disability by bodily injury
or disease or mental condition which has continued for no
less than six (6) months that prevents an Employee, as
determined by the Committee on the basis of a certificate
from a physician approved by the Committee, from engaging in
substantially gainful activity for which he or she is
qualified or may reasonably become qualified, which can be
expected to result in death or to continue for an indefinite
period and for which the Participant is eligible for, and
receives, Social Security benefits.
20
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2.48 PERMISSIVE AGGREGATION GROUP shall mean the Required
Aggregation Group of plans plus any other plan(s) of the
Affiliated Companies which, when considered as a group of
the Required Aggregation Group in accordance with Section
416 of the Code, would continue to satisfy the requirements
of Sections 401(a)(4) and 410 of the Code.
2.49 PLAN shall mean this WesBanco, Inc. KSOP, effective January
1, 1996.
2.50 PLAN YEAR shall mean the twelve (12) consecutive month
period beginning on January 1 and ending on each December
31.
2.51 PLAN ADMINISTRATOR shall mean the Employer, the Committee or
any person appointed by the Employer to administer the Plan.
2.52 QUALIFIED ELECTION PERIOD shall mean the five (5) Plan Year
period beginning with the Plan Year after the Plan Year in
which the Participant first becomes a Qualified Participant.
2.53 QUALIFIED EMPLOYER SECURITIES shall mean Employer Securities
which are issued by a domestic corporation that has no
securities outstanding that are readily tradable on an
established securities market, have been held by the seller
for more than six (6) months prior to sale to the Plan, and
were not received by the seller in a distribution from a
plan qualified under Code Section 401(a) or in a transfer
pursuant to an option or other right to acquire stock under
Sections 83, 422, 422A, 423 or 424 of the Code.
2.54 QUALIFIED PARTICIPANT shall mean any Participant who has
attained age fifty-five (55) and has completed ten (10)
years of participation in the Plan.
2.55 QUALIFIED REPLACEMENT PROPERTY shall mean any stock, bond,
debenture, note, or other evidence of indebtedness issued by
a domestic corporation (other than the Employer corporation
or any corporation which is a member of a parent-subsidiary
controlled group which includes the Employer corporation)
which does not, for the taxable year preceding the taxable
year in which such security is purchased, have passive
investment income exceeding twenty-five percent (25%) of the
gross receipts of such corporation for such year.
21a
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2.56 REEMPLOYMENT DATE shall mean the first date on which an
Employee performs an Hour of Service following a Break in
Service.
2.57 REQUIRED AGGREGATION GROUP shall mean:
(a) each qualified plan of any Affiliated Company in which
at least one Key Employee participates or participated
at any time during the determination period specified
in Section 2.66(c) (regardless of whether the Plan has
terminated); and
(b) any other qualified plan of any Affiliated Company
which enables a plan described in subsection (a) above
to meet the requirements of Sections 401(a)(4) or 410
of the Code.
The determination of which plan(s) are included in the
Required Aggregation Group shall be made in accordance with
Section 416 of the Code.
2.58 REQUIRED BEGINNING DATE shall mean:
(a) for Participants who attain age seventy and one-half
(70 1/2) after December 31, 1987, April 1 of the
calendar year following the calendar year in which the
Participant attains age seventy and one-half (70 1/2);
(b) for Participants who attain age seventy and one-half
(70 1/2) before January 1, 1988, and are not "five
percent owners," the Required Beginning Date is April 1
of the calendar year following the later of the
calendar year in which the Participant attains age
seventy and one-half (70 1/2) or the calendar year in
which the Participant retires;
(c) for Participants who attain age seventy and one-half
(70 1/2) before January 1, 1988, and are "five percent
owners," the Required Beginning Date is April 1 of the
calendar year following the later of the calendar year
in which the Participant attains age seventy and
one-half (70 1/2) or the earlier of the calendar year
with or within which ends the Plan Year in which the
Participant becomes a "five percent owner" as defined
in Section 414(q)(1)(A) of the Code or the calendar
year in which the Participant retires. In addition,
this subsection (c) shall not apply to a Participant if
such Participant elects not to have such section apply
to him or her by executing a "242(b) election" prior to
January 1, 1984;
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<PAGE>
(d) for Participants who attain seventy and one-half (70
1/2) during 1988, who were not "five percent owners"
and who did not separate from service with the any
Affiliated Company by January 1, 1989, the Required
Beginning Date is April 1, 1990.
2.59 RETIREMENT shall mean Termination of Service on or after his
Normal Retirement Date, Early Retirement or Disability
Retirement.
2.60 SECURITIES ACQUISITION LOAN shall mean a loan which is used
to purchase Employer Securities and which meets all of the
requirements of Section 4.3.
2.61 SEGREGATED INVESTMENTS ACCOUNT shall mean the Account of a
Participant which is credited with amounts which may not be
used to purchase shares of Company Stock pursuant to Revenue
Procedure 77-30.
2.62 SERVICE shall mean employment in the United States of
America with an Employer or any Affiliated Company from and
after the Effective Date; provided, however, in the event
that an Affiliated Company becomes an Employer after the
Effective Date, Service shall include only employment with
such Affiliated Company after the date such Affiliated
Company became an Employer. Notwithstanding anything
contained in this Section 2.62 to the contrary, effective
January 1, 1989, for purposes of vesting under Article VIII,
Service with the Bank of Sissonville shall be treated as
Service with the Employer.
2.63 SUSPENSE ACCOUNT shall mean the Suspense Account maintained
by the Committee to which shall be credited all shares of
Employer Securities purchased with the proceeds of a
Securities Acquisition Loan.
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2.64 TERMINATION OF SERVICE shall mean, subject to subsection (b)
below:
(a) the date an Employee's employment is severed or
terminated and shall occur on the earlier of:
(i) the date on which such Employee quits, retires, is
discharged or dies; or
(ii) last to occur of:
(1) the first anniversary of the first date of a
period in which the Employee remains absent
from service (with or without pay) for any
reason other than quit, retirement, discharge
or death;
(2) the date of expiration of a leave of absence;
or
(3) in the case of Employee's absence by reason
of pregnancy, birth of a child, adoption of a
child or child care immediately following
such events, the second anniversary of the
date of the absence.
(b) Notwithstanding anything contained in this Plan to the
contrary, effective August 5, 1993, the date of the
beginning of any period of leave which the Employee
takes pursuant to the FMLA shall not constitute a
Severance From Service Date, except as provided under
the FMLA.
2.65 TOP-HEAVY PLAN shall mean for any Plan Year beginning after
December 31, 1983, this Plan is Top-heavy if any of the
following conditions is satisfied:
(a) the Top-heavy Ratio for this Plan exceeds sixty percent
(60%) and the Plan is not part of any Required
Aggregation Group or Permissive Aggregation Group;
(b) this Plan is part of a Required Aggregation Group, but
not part of a Permissive Aggregation Group and the
Top-heavy Ratio for the group exceeds sixty percent
(60%); or
24
<PAGE>
(c) any Affiliated Company elects to treat the Plan as part
of a Permissive Aggregation Group of plans, and the
Top-heavy Ratio for the Permissive Aggregation Group
exceeds sixty percent (60%).
2.66 TOP-HEAVY RATIO shall mean:
(a) If any Affiliated Company maintains one or more defined
contribution plans (including any simplified employee
pension plan) and has never maintained any defined
benefit plan which during the five (5) year period
ending on the Determination Date has or had accrued
benefits, the Top-heavy Ratio is a fraction, the
numerator of which is the sum of the balances of the
Accounts (including any part of any balance of the
Accounts distributed in the five (5) year period ending
on the Determination Date) of all Key Employees as of
the Determination Date, and the denominator of which is
the sum of account balances of all of the Accounts
(including any part of any balance of the Accounts
distributed in the five (5) year period ending on the
Determination Date) of all Participants as of the
Determination Date, all determined in accordance with
Section 416 of the Code and regulations thereunder.
Both the numerator and denominator of the Top-heavy
Ratio are adjusted to reflect any contribution which is
due but unpaid as of the Determination Date. Both the
numerator and the denominator shall be computed in
accordance with Section 416 of the Code and the
regulations thereunder.
(b) If any Affiliated Company maintain one or more defined
contribution plans (including any simplified employee
pension plan) and maintain or has maintained one or
more defined benefit plans which during the five (5)
year period ending on the Determination Date have or
has had any accrued benefits, the Top-heavy Ratio is a
fraction, the numerator of which is the sum of balances
of the Accounts under the defined contribution plans
for all Key Employees and the present value of accrued
benefits under the defined benefit plans for all Key
Employees, and the denominator of which is the sum of
the account balances under the defined contribution
plans for all Participants and the present value of
accrued benefits under the defined benefit plans for
all Participants as of the Determination Date, all
determined in accordance with Section 416 of the Code
and the regulations thereunder. Both numerator and
denominator of the Top-heavy Ratio are increased for
any distribution of any balance of the Accounts or any
accrued benefit made in the five (5) year period ending
on the Determination Date and any contribution due but
unpaid as of the Determination Date.
25
<PAGE>
(c) For the purposes of subsections (a) and (b) above, the
value of balances of the Account(s) and the present
value of accrued benefits will be determined as of the
most recent valuation date that falls within or ends
with the twelve (12) month period ending on the
Determination Date, except as provided in Section 416
of the Code and the regulations thereunder for the
first and second plan years of a defined benefit plan.
The balances of the Accounts and accrued benefits of a
Participant who is not a Key Employee but who was a Key
Employee in a prior year or who has not been credited
with at least one Hour of Service with any Affiliated
Company maintaining the Plan at any time during the
five (5) year period ending on the determination date
will be disregarded. The calculation of the Top-heavy
Ratio and the extent to which distributions, rollovers
and transfers are taken into account will be made in
accordance with Section 416 of the Code and the
regulations thereunder. Deductible employee
contributions will not be taken into account for
purposes of computing the Top-heavy Ratio. When
aggregating plans, the value of balances of the
Accounts and accrued benefits will be calculated with
reference to the Determination Dates that fall within
the same calendar year.
(d) The accrued benefit of a Participant other than a Key
Employee shall be determined under the method, if any,
that uniformly applies for accrual purposes under all
defined benefit plans maintained by any Affiliated
Company or if there is no method, as if such benefit
accrued not more rapidly than the slowest accrual rate
permitted under the fractional rule under Section
411(b)(1)(C) of the Code.
2.67 TRUST shall mean the Trust created by the Trust Agreement
entered into between the Company and the Trustee(s).
26
<PAGE>
2.68 TRUST AGREEMENT shall mean the agreement between the Company
and the Trustee(s) or any successor Trustee(s) establishing
the Trust and specifying the duties of the Trustee(s).
2.69 TRUST ASSETS OR TRUST FUND shall mean all cash, Company
Stock or other property held in Trust for the exclusive
benefit of Participants and their Beneficiaries.
2.70 TRUSTEE(S) shall mean the Trustee(s) designated by the Board
of Directors, any successor Trustee(s).
2.71 VALUATION DATE shall mean the date as of which the Trust
Fund is valued and gains or losses are allocated, which
shall be the last day of each calendar quarter.
27a
<PAGE>
ARTICLE III - ELIGIBILITY
3.1 ELIGIBILITY AND PARTICIPATION
(a) Eligible Employees
(i) Each Employee who was an Employee on the
Effective Date, shall automatically be a
Participant in the Plan as of January 1, 1989.
(ii) Each other Employee shall become a Participant in
the Plan on the Employee's Employment Date.
Notwithstanding the foregoing, effective January
1, 1996, each Employee shall become a Participant
in the Plan on the January 1, April 1, July 1 or
October 1 following such Employee s Employment
Date if such Employee has reached such Employee s
twenty-first (21st) birthday. If the Employee
has not reached his/her twenty-first (21st)
birthday on the first day of the next quarter
following the Employee s Employment Date, then
such Employee shall become a Participant in this
Plan on the first day of the next quarter
following such Employee s twenty-first (21st)
birthday.
(iii) Effective January 1, 1989, all participants in
the Bank of Sissonville Employee Stock Ownership
Plan shall become Participants in this Plan.
(b) Ineligible Employees
Notwithstanding anything continued in this Plan to the
contrary, the following Employees are not eligible to
participate under this Plan:
(i) Employees covered by a collective bargaining
agreement between Employees' representatives and
the Company and/or an Affiliated Company with
respect to which retirement benefits were a
subject of bargaining, except such collective
bargaining agreement provides for participation
in this Plan;
(ii) temporary Employees; and
(iii) Leased Employees.
28a
<PAGE>
3.2 COMMENCEMENT OF PARTICIPATION.
The Committee shall notify each Employee of such
Participant's eligibility to participate and of the Plan
terms as soon as practicable after such Participant becomes
eligible. Every Employee upon becoming eligible for
participation shall become a Participant, provided such data
as required by the Committee, is received by the Committee,
and the Employee shall be deemed to assent to the terms of
this Plan and the Trust Agreement, including all amendments
thereto, in the manner herein authorized.
3.3 REEMPLOYMENT.
A Participant who has incurred a Termination of Service
followed by a Break in Service shall be reinstated as a
Participant as of such Participant's Reemployment Date. New
Accounts will be established to record such Participant's
interest in the Plan for such Participant's Service after
the Break in Service.
3.4 APPROVED ABSENCE.
If a Participant is granted an Approved Absence, such
Participant's participation is not terminated; however, such
Participant shall not receive credit for Hours of Service in
excess of five hundred one (501) for any such Approved
Absence and, if he or she does not return to employment upon
expiration of such Approved Absence, or with regard to an
Approved Absence relating to military service, within the
time periods required by applicable law, such Participant's
Service shall be determined under the Break in Service rules
otherwise set out in this Plan.
29a
<PAGE>
ARTICLE IV - TRUST FUND
4.1 EMPLOYER CONTRIBUTION
(a) Payment to Trustee(s)
Annual Employer Contributions shall be paid to the
Trustee(s) as provided in subsection (b) below
(b) Payment of Employer Contributions.
(i) For each Plan Year, Employer Contributions may be
paid to the Trustee(s) in such amounts (or under
such formula) as may be determined by the
Employer's Board of Directors (and communicated
to Participants) not later than the due date for
filing the Company's federal income tax return,
including any extensions of such due date;
provided that such Employer Contributions shall
not be paid to the Trust in amounts which would
permit the limitation described in Section 5.5 to
be exceeded.
(ii) Employer Contributions may be paid to the Trust
in cash or in shares of Company Stock, as
determined by the Company's Board of Directors;
provided that Employer Contributions shall be
paid in cash in such amounts and at such times,
subject to the limitation described in Section
5.5, as needed to provide the Trust with funds
sufficient to pay in full when due any principal
and interest payments required by a Securities
Acquisition Loan incurred by the Trustee(s) to
finance the acquisition of Employer Securities,
except to the extent such principal and interest
payments have been satisfied by the Trustee(s)
from cash dividends paid to it with respect to
Company Stock.
(iii) Employer Contributions are conditioned upon their
deductibility, under Code Section 404 and may be
returned to the Employer if made in excess of the
amount deductible by the Employer for its taxable
year, or (ii) made because of a reasonable
mistake as to the facts and circumstances
existing at the time the Employer Contribution
was calculated; provided, however, that such
return is limited, respectively, to that portion
in excess of the amount deductible for the
Employer's taxable year which is not necessary to
enable the Trustee(s) to make Securities
Acquisition Loan payments, or that portion of the
contribution attributable to a reasonable mistake
of fact,
30
<PAGE>
and further provided that any such return must be
made within one (1) year of the date the
deduction was disallowed or the mistaken
contribution was made.
4.2 PARTICIPANT CONTRIBUTIONS.
No Participant shall be required or permitted to make
contributions to the Plan or Trust except, effective January
1, 1996, as provided in Section 4.6.
4.3 INVESTMENT OF TRUST ASSETS.
(a) Authorized Investments
Trust Assets under the Plan will be invested primarily
in Company Stock, to the extent that such stock is
available on terms which, in the Committee's judgment,
constitute a prudent investment of the Trust Assets.
Employer Contributions, and all other Trust Assets,
including cash dividends paid on Company Stock, may be
used to acquire shares of Company Stock from Company
shareholders (including former Participants) or from
the Company, except that any Company Stock acquired
with the proceeds of a Securities Acquisition Loan
shall be limited to Employer Securities. Trust Assets
not acquired with the proceeds of a Securities
Acquisition Loan and Trust Assets subject to Section
10.1 may also be invested by the Trustee(s) in bank
accounts, certificates of deposit, securities, or any
other kinds of realty or personally appropriate for the
Trust, in accordance with the terms of the Trust
Agreement; or Trust Assets may be held in cash. Except
as otherwise provided in subsection (b) below or
pursuant to Section 10.1, all investments will be made
by the Trustee(s) only upon the direction of the
Committee. The Committee may direct that all Trust
Assets be invested and held in Company Stock.
31a
<PAGE>
(b) Initial Purchase
Notwithstanding subsection (a) above, the initial
purchase by the Plan of approximately 20,000 shares of
the common stock of the Company, as contemplated as of
the date the WesBanco, Inc. Employee Stock Ownership
Plan effective as of December 31, 1986, was originally
adopted shall be effected by the Trustee(s) without
direction from the Committee and pursuant to the
Trustees' determination (in the exercise of its
reasonable judgment and after appraisal by an
Independent Appraiser) that such transaction is in the
best interests of Participants and is in compliance
with all applicable provisions of the Code and ERISA.
(c) Purchases Of Company Stock.
All purchases of Company Stock by the Trust will be
made at a price(s), or at which, in the judgment of the
Committee (or the Trustee(s) in the case of the
purchase pursuant to subsection (b) above), do not
exceed the fair market value of such Company Stock.
The determination of fair market value of Company Stock
for all purposes under the Plan shall be made by the
Committee or the Trustee(s), as the case may be, and,
if such Company Stock is not readily tradable on an
established securities market, based upon the value
determined by an Independent Appraiser having expertise
in rendering such valuations.
(d) Sales of Company Stock.
The Committee may direct the Trustee(s) to sell or
resell shares of Company Stock to any person, including
the Company, provided that any such sales to any
Disqualified Person, including the Company, will be
made at not less than the fair market value as
determined in accordance with subsection (c) above and
no commission is charged. Any such sale shall be made
in conformance with Section 408(e) of ERISA. All sales
of Company Stock by the Trustee(s) will be charged pro
rata to the Company Stock Accounts of the Participants.
32
<PAGE>
4.4 PLAN LOANS
(a) The Committee may direct the Trustee(s) to incur Plan
loans from time to time to carry out the purposes of
the Trust, provided that if the loan is a Securities
Acquisition Loan, the terms of the loan must comply
with the following requirements:
(i) any such loan shall be for a specified term;
(ii) shall bear a reasonable rate of interest;
(iii) shall not be payable on demand except in the case
of default; and
(iv) may be secured by a collateral pledge of the
Employer Securities so acquired.
(b) Any such loan shall be primarily for the benefit of
Plan Participants and their Beneficiaries. No other
Trust Assets may be pledged as collateral by the
Trustee(s), and no lender shall have recourse against
Trust Assets other than any shares of Employer
Securities remaining subject to pledge. Any pledge of
Employer Securities must provide for the release of
shares so pledged pursuant to either the "General Rule'
or the "Special Rule" set forth in Article V.
Repayments of principal and interest on any Securities
Acquisition Loan shall be made by the Trustee(s) (as
directed by the Committee) only from Employer
Contributions in cash to the Trust, from any cash
dividends received by the Trust on such Employer
Securities or from any earnings attributable to the
investment of Employer Contributions made to the Trust
to meet its obligations under the Securities
Acquisition Loan. The proceeds of a Securities
Acquisition Loan may be used only to acquire Employer
Securities, to repay such loan or to repay a prior
Securities Acquisition Loan. The protections and
rights described in this Section 4.4 are nonterminable.
Should this Plan cease to be an employee stock
ownership plan, or should the Securities Acquisition
Loan be repaid, Employer Securities acquired with the
proceeds of a Securities Acquisition Loan will continue
after the Securities Acquisition loan is paid to be
subject to the provisions of this Section 4.4.
33
<PAGE>
(c) In the event of default upon a Securities Acquisition
Loan, the value of Plan assets transferred in
satisfaction of the Securities Acquisition Loan must
not exceed the amount of default. If the lender is a
Disqualified Person, a Securities Acquisition Loan must
provide for a transfer of Plan assets upon default only
upon and to the extent of the failure of the Plan to
meet the payment schedule of the Securities Acquisition
Loan. For purposes of this subsection (c), the making
of a guarantee does not make a person a lender.
(d) Interest earned on any Securities Acquisition Loan made
by a bank, insurance company, regulated investment
company, (as defined in Code Section 851) or
corporation actively engaged in the business of lending
money shall qualify for the fifty percent (50%)
exclusion from gross income under Section 133 of the
Code to the extent the loan proceeds are paid to the
Plan or are paid to the Company and in turn loaned by
the Company to the Plan. Effective for Securities
Acquisition Loans made after November 18, 1989, to
qualify for the foregoing interest exclusion,
immediately after the transaction this Plan must own
more than fifty percent (50%) of each class of
outstanding stock of the Company or the total value of
all outstanding stock of the Company. The proceeds of
the Securities Acquisition Loan must be used to acquire
Employer Securities. If the proceeds of the loan are
in turn lent to the Plan, the repayment terms must be
substantially similar to the terms of the loan to the
Company. Notwithstanding the foregoing, the loan from
the Company to the Plan may provide for more rapid
repayment of principal and interest, but only if the
allocation attributable to such repayments does not
discriminate in favor of Highly Compensated Employees
and the total commitment period of the loan to the
Company does not exceed seven (7) years. Any
"immediate allocation loan" shall also qualify for the
fifty percent (50%) exclusion from gross income under
Section 133 of the Code, provided that the commitment
period of the loan does not exceed seven (7) years. An
"immediate allocation loan" refers to any loan to the
Company to the extent that Employer Securities in an
amount equal to the loan are transferred to the Plan
within thirty (30) days and are allocated to the
Participants in the Plan within one (1) year of the
loan. Interest earned on any Securities Acquisition
Loan made by the Company or by any member of a
controlled group of companies which includes the
Company shall not qualify for such interest exclusions.
34
<PAGE>
(e) If the interest exclusion under Section 133 of the Code
is utilized as described under subsection (d) above,
then the Plan shall provide for full pass-through of
voting rights on all allocated stock to Participants.
If this Plan acquires convertible preferred stock, such
convertible preferred stock shall carry voting rights
equivalent to the stock into which it may be converted.
(f) Estate Tax Assumption or Exclusion
(i) Upon direction from the Board of Directors, the
Committee and the Trustee(s) shall be authorized
to (i) assume part or all of the federal estate
tax liability (reduced by the sum of the credits
allowable against such tax) of a deceased
shareholder of the Company in exchange for an
equivalent dollar value of Employer Securities,
or (ii) to purchase part or all of the Employer
Securities held by the estate of a deceased
shareholder; provided that the executor of the
shareholder's estate shall file with the
Secretary of the Treasury a written agreement by
the Employer consenting to the application of
Section 4979A of the Code to such Employer.
(ii) If the executor elects to have the portion of the
estate tax attributable to the interest in a
closely held business assumed by the Plan, then
the Committee may elect on or before the due date
(including extensions) for filing the federal
estate tax return, to pay part or all of said tax
in installments under the provisions of Section
6166 of the Code, provided that payment of said
estate tax shall be guaranteed by the Company.
(iii) If the executor elects to sell part or all of the
Employer Securities held by the estate to the
Plan, then the estate may exclude fifty percent
(50%) of the proceeds from the taxable estate,
provided that the proceeds are received by the
estate on or before the due date (including
extensions) for filing the federal estate tax
return, and provided that the sale occurs before
December 31, 1991.
35
<PAGE>
(g) Nonrecognition of Gain
(i) There shall be no recognition of gain upon a sale
of Employer Securities to the Plan if:
(1) Qualified Employer Securities are purchased
from a shareholder;
(2) after the purchase the Plan owns at least
thirty percent (30%) of each class of
outstanding stock of the Company (other than
preferred stock described in Section
1504(a)(4) of the Code), or thirty percent
(30%) of the total value of all outstanding
stock of the Company (other than preferred
stock described in Section 1504(a)(4) of the
Code);
(3) the seller purchases Qualified Replacement
Property within three (3) months prior to
the sale or within twelve (12) months after
the sale;
(4) on or before the time (including extension)
for filing such Participant's income tax
return, the seller files with the Internal
Revenue Service (hereinafter referred to as
the "IRS") a written statement verified by
the Company, regarding the terms of the
sale; and
(5) the Plan complies with the allocation
limitations set forth in Section 5.5.
(ii) If, during the three (3) year period after the
Plan acquires Qualified Employer Securities in a
transaction in which gain is not recognized, the
Plan disposes of part or all of such Qualified
Employer Securities, the Company shall be liable
for a tax equal to ten percent (10%) of the
amount realized upon the disposition, unless such
disposition is made to a Participant (or such
Participant's Beneficiary) or by reason of such
Participant's death, Permanent Disability,
Retirement after age 59-1/2, or Break in Service.
36
<PAGE>
(h) Excess Asset Rollovers
Any rollover of excess assets from a terminated
qualified pension plan to this Plan prior to January 1,
1989, shall be exempt from the ten percent (10%) excise
tax on employer reversion under Section 4980 of the
Code provided that such funds are, within ninety (90)
days of the transfer, used to purchase Employer
Securities or to repay Securities Acquisition Loans,
the Employer Securities which are acquired remain in
the Plan until distribution to Participants in
accordance with the Plan, at least half of the
participants in the terminated pension plan are
Participants in this Plan as of the close of the first
Plan Year for which an allocation is required, and the
portion of the rollover which is not allocated (by
reason of the limitations of Section 415 of the Code)
in the Plan Year in which the rollover occurs:
(i) is credited to a Suspense Account and allocated
to Participants no less rapidly than ratably over
a period not exceeding seven (7) years; and
(ii) when allocated, is treated as an Employer
Contribution for purposes of Section 415(c);
provided, however, that the value of the stock
for purposes of Section 415(c) shall be based on
the value of such stock as of the time such
securities were credited to the Suspense Account,
and provided, further, that no additional
Employer Contributions to the Plan shall be
permitted until all such securities have been
allocated.
37
<PAGE>
4.5 OTHER CONTRIBUTIONS
(a) This Section 4.5 shall be effective on or after
January 1, 1996.
(b) The Employer shall, during a Plan Year, contribute the
following to the Plan:
(i) Matching Employer Contributions:
(A) Matching Employer Contributions for each
Participant shall be equal to fifty percent
(50%) of the first two percent (2%) of
Salary Deferral Contributions under Section
4.6 and twenty-five percent (25%) of the
next two percent (2%) of Salary Deferral
Contributions under Section 4.6. No
Matching Employer Contribution will be made
for any Salary Deferral Contribution in
excess of four percent (4%) of Compensation.
The Company reserves the right to modify
Matching Employer Contributions. In such
event, Matching Employer Contributions shall
be at the discretion of the Board of
Directors of the Company both as to amounts
and the circumstances under which such
Matching Employer Contributions shall be
made.
(B) Matching Employer Contributions shall be
calculated for each Participant with respect
to each pay period. The Participant must be
employed with the Employer on the last day
of the last payroll period of each calendar
quarter to receive an allocation of a
Matching Employer Contribution to such
Participant s Matching Employer Contribution
Account. For those Participants who are
employed on the last day of the last payroll
period of each calendar quarter, the total
of such Participants accounts shall be
deposited to the Trust on a quarterly basis.
For purposes of this Section 4.5 and Section
4.7, the Participant s Matching Employer
Contribution Account shall mean that Account
to which is credited the Participant s
Matching Employer Contributions.
(C) The Employer may elect to treat Matching
Employer Contributions as Salary Deferral
Contributions, subject to the same full
vesting and distribution requirements as
Salary Deferral Contributions, for purposes
of the nondiscrimination test under Section
4.6(c), so that they are qualified matching
contributions under Treasury Regulation
Section 1.401(k)-1(g)(13)(i).
37a<PAGE>
(ii) Salary Deferral Contributions: For each
Participant employed by the Employer, Salary
Deferral Contributions shall be determined
according to such Participant s salary deferral
election for such year under Section 4.6 below.
Such contribution is for allocation, in
accordance with Article IV, to the Participant s
Salary Deferral Contribution Account. For
purposes of this Section 4.5 and Section 4.6 the
Participant s Salary Deferral Contribution
Account shall mean the Account to which is
credited the Participant s Salary Deferral
Contributions.
(iii) Deductibility of Employer Contribution:
Notwithstanding the foregoing, the Employer s
contributions for any Plan Year shall not exceed
the maximum amount allowable as a deduction to
the Employer under Section 404 of the Code,
except to the extent that the Employer is
required to provide a minimum allocation for a
top heavy plan pursuant to Article XIII.
37b
<PAGE>
4.6 SALARY DEFERRAL ELECTIONS
(a) This Section 4.6 is effective on or after January 1,
1996.
(b) Election Procedures
(i) Each Participant shall enter into a written
salary deferral agreement with such
Participant s Employer which shall provide that
the Participant elects to defer (on a pre-tax
basis) a portion of his Covered Compensation
equal to a whole percentage of his Covered
Compensation of a minimum of one percent (1%)
and up to a maximum of fifteen percent (15%).
The Company reserves the right to modify the
percentage available to all Participants
eligible for salary deferral under the Plan. In
such event, such whole percentage shall be
determined by the Company and shall be applied
equally to all Participants in a uniform and
nondiscriminatory manner. However, in no event
shall such total salary deferrals exceed the
lesser of the maximum permissible salary
deferral determined in accordance with
subsection (c) below or seven thousand dollars
($7,000), as indexed under Section 415(d) of the
Code, and the regulations thereunder. The
calculation of the Participant s Salary Deferral
Contribution shall be made with respect to each
pay period and deposited to the Trust on a pay
by pay basis.
(ii) A salary deferral agreement shall be entered
into on such forms and at such times as the
Committee may prescribe, and shall be effective
as provided herein on a Plan Year basis.
Participants may discontinue salary deferrals at
any time, and any initial election of salary
deferrals or change in the amount of salary
deferrals shall be effective on the January 1,
April 1, July 1 or October 1 next following such
initial election or change provided that written
notice of such initial election or change is
received no later than the fifteenth (15th) day
of the month immediately preceding such
effective date. If any Participant fails to
make a new election as to salary deferral for
any calendar quarter, the Committee shall deem
his election to be the same as for the prior
calendar quarter.
37c
<PAGE>
(iii) If a Participant in any calendar year
contributes amounts in excess of the dollar
limitations specified in Section 415(d) of the
Code (hereinafter referred to as "excess
deferral amount"), such income derived from such
excess deferral amount shall be distributed to
the Participant by the Committee no later than
the first April 15th following the close of the
Participant s taxable year for which the
contribution was made.
(A) The Participant must notify the Committee,
on a form provided by the Committee, of any
excess deferral amount attributable to
contributions made to a qualified plan other
than this Plan no later than March 15th
following the calendar year for which the
contribution was made.
(B) Earnings allocable to the excess deferral
amount shall be equal to the sum of the
allocable gain or loss for the taxable year
of the Participant. The Committee reserves
the right to include, for a Plan Year, the
earnings allocable to the excess deferral
amount between the end of the taxable year
and the date of the distribution. Any
income which is included for the period
between the end of the taxable year and the
date of distribution shall be calculated as
provided in subsection (iv) below. The term
"income" includes all earnings and
appreciation, including such items as
interest, dividends, rent, royalties, gains
from the sale of property, appreciation in
the value of stocks, bonds, annuities and
life insurance contracts and other property
without regard to whether such appreciation
has been realized. The earnings
attributable to the excess deferral amount
for the taxable year are determined by
multiplying the total earnings or loss for
the taxable year by a fraction. The
numerator of the fraction is the amount of
excess deferrals made by the Participant for
the taxable year. The denominator of the
fraction is the sum of the total account
balance of the Participant attributable to
the Salary Deferral Contributions as of the
beginning of the taxable year of the
Participant plus the Participant s Salary
Deferral Contributions for the taxable year
of the Participant.
37d
<PAGE>
(iv) If amounts are withdrawn after the end of the
taxable year of the Participant, and if the
Committee so provides, earnings allocable to the
excess deferral amounts for the period between
the end of the taxable year of the Participant
and the date of distribution, shall be included
and shall be calculated under a reasonable
method as determined by the Committee provided
that such reasonable method does not violate
Code Section 401(a)(4), is used consistently for
all Participants and for all corrective
distributions under the Plan for the Plan Year,
and is used by the Plan for allocating income to
the Participants Accounts, pursuant to the
Treasury Regulations under Section 401(k) of the
Code.
(c) Nondiscrimination tests - Salary Deferrals: Each Plan
Year, the Trustees or such other person or entity that
the Committee may designate, shall determine:
(i) the "actual deferral percentage" for each
Employee who is eligible for salary deferrals,
whether or not such salary deferral election is
made, which shall be the ratio of the amount of
such Employee's Salary Deferral Contributions
and Matching Employer Contributions (at the
option of the Employer) which qualify as
qualified matching contributions under Treasury
Regulation Section 1.401(k)-1(g)(13)(i), for
such Plan Year to the Employee's Compensation
for such Plan Year.
(ii) the "Non-Highly Compensated Employees' group
deferral percentage," which shall be the average
of the ratios, calculated separately for each
Non-Highly Compensated Employee of the "actual
deferral percentage" for all Non-Highly
Compensated Employees then eligible for salary
deferrals whether or not such salary deferral
election was made;
(iii) the "Highly Compensated Employees' group actual
deferral percentage," which shall be the average
of the ratios calculated separately for each
Highly Compensated Employee, of the "actual
deferral percentages" for all Highly Compensated
Employees then eligible for salary deferrals.
(iv) Notwithstanding anything contained herein to the
contrary, the determination and treatment of
Salary Deferral Contributions and the "actual
deferral percentage" of any Participant shall
satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
(v) In no event shall the "Highly Compensated
Employee group deferral percentage" exceed the
greater of:
(A) a deferral percentage equal to one and
one-quarter
37e<PAGE>
1.25) times the "Non-Highly Compensated
Employees' group deferral percentage"; or
(B) a deferral percentage equal to two (2) times
the Non-Highly Compensated Employees' group
deferral percentage" but not more than two
(2) percentage points greater than the
"Non-Highly Compensated Employees' group
deferral percentage," or such lesser amount
determined pursuant to regulations under
Section 401(k) of the Code to prevent the
multiple use of this alternative limitation
with respect to any Highly Compensated
Employee.
(vi) If the above nondiscrimination tests would
otherwise be violated as of the end of the Plan
Year, then the salary deferrals included in the
"Highly Compensated Employees' group deferral
percentage" may be revoked or modified to the
extent necessary to comply with such
nondiscrimination tests. For the purpose of
determining the "actual deferral percentage" of
a Participant who is a "five percent owner" or a
Highly Compensated Employee who is one of the
top ten (10) Highly Compensated Employees, the
Salary Deferral Contribution and Matching
Employer Contribution (at the option of the
Employer) and Compensation of such Participant
shall include the Salary Deferral Contributions
and Matching Employer Contributions (at the
option of the Employer) and Compensation of
Family Members; and such affected Family Members
shall be disregarded in determining the "actual
deferral percentage" for Participants who are
Non-Highly Compensated Employees. For purposes
of this Section 4.6, "Family Member" shall mean
an individual described in Section 414 (q)(6)(B)
of the Code, except that for purposes of
determining a Highly Compensated Employee's
Compensation, "Family Member" means an
individual described in Section 401(a)(17) of
the Code. Matching Employer Contributions used
to satisfy the nondiscrimination tests under
this subsection (c) shall be qualified matching
contributions as defined under Treasury
Regulation 1.401(k)-1(g)(13)(i).
(vii) Notwithstanding any other provision of the Plan,
the Committee shall distribute to a Participant
any excess elective contributions and any income
allocable thereto within two and one-half
(2-1/2) months after the end of the Plan Year
for which the contribution was made. In the
event that any excess elective contributions
(and any income allocable thereto) are not
distributed within such two and one-half (2-1/2)
month period, in no event shall such excess
elective contributions be distributed later than
twelve (12) months following the close of the
Plan Year. For purposes of this subsection (c),
"excess elective contributions" shall mean
Salary Deferral
37f<PAGE>
Contributions in excess of the nondiscrimination
limitations as stated in this Section 4.6,
including any qualified matching contributions
as defined under Treasury Regulation
1.401(k)-1(g)(13)(iii). The amount of the
"excess elective contributions" of the Highly
Compensated Employees to whom the "excess
elective contributions" are to be distributed
shall be determined by reducing Salary Deferral
Contributions in order of "actual deferral
percentages", beginning with the highest of such
percentage and continuing until no "excess
elective contribution" remains.
(viii) Earnings allocable to the "excess elective
contributions" shall be equal to the sum of the
allocable gain or loss for the Plan Year. The
Committee reserves the right to include, for a
Plan Year, the earnings allocable to the "excess
elective contributions" for the period between
the end of the Plan Year and the date of
distribution. Any income which is included for
the period between the end of the Plan Year and
the date of distribution shall be calculated as
provided in subsection (ix) below. The term
"income" includes all earnings and appreciation,
including such items as interest, dividends,
rent, royalties, gains from the sale of
property, appreciation in the value of stocks,
bonds, annuities and life insurance contracts
and other property without regard to whether
such appreciation has been realized. The
earnings attributable to the "excess elective
contributions" for a Plan Year are determined by
multiplying the total earnings or loss earned
for the Plan Year by a fraction. The numerator
of the fraction is the amount of "excess
elective contributions" made by the Participant
for the Plan Year. The denominator of the
fraction is the sum of the total account balance
of the Participant attributable to the Salary
Deferral Contributions and any qualified
matching contributions as of the beginning of
the Plan Year plus the Participant s Salary
Deferral Contribution. If the Committee
exercises its right to include the earnings
allocable to "excess elective contributions" for
the period between the end of the Plan Year and
the date of distribution, income earned during
such period shall be equal to ten percent (10%)
of the income allocable to "excess elective
contributions" for the preceding Plan Year
multiplied by the number of calendar months that
have elapsed since the end of the Plan Year. A
corrective distribution made on or before the
fifteenth (15th) day of the month will be
treated as made on the last day of the preceding
month. A distribution made after the fifteenth
(15th) day of the month will be treated as made
on the first day of the next month.
(ix) If the amounts are withdrawn after the end of
the Plan Year, and if the Committee so provides,
earnings allocable to the "excess elective
contributions" for the period between the end of
the Plan Year and the date
37g
<PAGE>
of distribution shall be included in such
amounts and shall be calculated under a
reasonable method as determined by the
Committee, provided that such reasonable method
does not violate Code Section 401(a)(4), is used
consistently for all Participants and for all
corrective distributions under the Plan for the
Plan Year, and is used by the Plan for
allocating income to the Participants Accounts,
pursuant to the Treasury Regulations under
Section 401(k) of the Code.
4.7 MATCHING EMPLOYER CONTRIBUTIONS
(a) This Section 4.7 is effective on or after January 1,
1996.
(b) Nondiscrimination Tests - Matching Contributions:
Subject to subsection (c) below, each Plan Year, the
Trustee or other such person or entity as the Committee
may designate shall determine:
(i) the "actual contribution percentage" for each
Employee who is then eligible to receive
Matching Employer Contributions, which shall be
the ratio of the sum of the amount of such
Matching Employer Contributions for such Plan
Year to the Employee's Compensation for such
Plan Year;
(ii) the Non-Highly Compensated Employees' group
contribution percentage", which shall be the
average of the ratios, calculated separately for
each Non-Highly Compensated Employee, of the
"actual contribution percentage" for all
Non-Highly Compensated Employees then eligible
to receive Matching Employer Contributions;
(iii) the "Highly Compensated Employees" group
contribution percentage", which shall be the
average of the ratios, calculated separately for
each Highly Compensated Employee, of the "actual
contribution percentages" for all Highly
Compensated Employees then eligible to receive
Matching Employer Contributions. In no event
shall the "Highly Compensated Employees" group
contribution percentage" exceed the greater of:
(A) a contribution percentage equal to one and
37h
<PAGE>
one quarter (1.25) times the "Non-Highly
Compensated Employees" group contribution
percentage"; or
(B) a contribution percentage equal to two (2)
times the "Non-Highly Compensated Employees'
group contribution percentage" but not more
than two (2) percentage points greater than
the "Non-Highly Compensated Employees' group
contribution percentage".
(iv) All or part of Salary Deferral Contributions
that meet the requirements of Section 4.6(c)
made by Non-Highly Compensated Employees may be
used to the extent necessary to satisfy the
requirements above if the conditions of
Treasury Regulation Section 1.401(m)-1(b)(2) are
met.
(v) For purposes of determining the "actual
contribution percentage" of a Participant who is
a "five percent owner" or a Highly Compensated
Employee who is one of the top ten (10) Highly
Compensated Employees, the Matching Employer
Contributions of such Participant shall include
the Matching Employer Contributions and
Compensation of Family Members; and such Family
Members shall be disregarded in determining the
"actual contribution percentage" for
Participants who are Non-Highly Compensated
Employees. For purposes of this Section 4.7,
"Family Member" shall mean an individual
described in Section 414(q)(6)(B) of the Code,
except that for purposes of determining a Highly
Compensated Employee s Compensation, "Family
Member" means an individual described in Section
401(a)(17) of the Code.
(vi) Notwithstanding any other provisions of the
Plan, the Committee shall distribute to a
Participant his excess contributions (and any
income allocable thereto) within two and
one-half (2-1/2) months after the end of the
Plan Year (i.e., on or before the 15th day of
March) for which the contribution was made. In
the event that any excess contributions (and any
income allocable thereto) are not distributed
within such two and one-half (2-1/2) month
period, in no event shall such excess
contributions be distributed later than twelve
(12) months following the close of the Plan
Year. Excess
37i
<PAGE>
contributions which are forfeitable (and income
attributable thereto) shall be used to reduce
Matching Employer Contributions for the Plan
Year. For the purposes of this Section 4.7,
"excess contributions" shall mean the amount of
Matching Employer Contributions in excess of the
nondiscrimination limitations stated in this
Section 4.7(b). The amount of the excess
contribution of the Highly Compensated Employee
to whom the excess contributions are to be
distributed shall be determined by reducing
Matching Employer Contributions of Highly
Compensated Employees in order of the actual
contribution percentages, beginning with the
highest of such percentages and continuing until
no excess contribution remains.
(vii) Earnings allocable to excess contributions shall
be equal to the sum of the allocable gain or
loss for the Plan Year. The Committee reserves
the right to include, for a Plan Year, the
earnings allocable to excess contributions for
the period between the end of the Plan Year and
the date of distribution. Any income which is
included for the period between the end of the
Plan Year and the date of distribution shall be
calculated as provided in subsection (x) below.
The term "income" includes all earnings and
appreciation including such items as interest,
dividends, rents, royalties, gains from the sale
of property, appreciation in the value of
stocks, bonds, annuities and life insurance
contracts, and other property without regard to
whether such appreciation has been realized.
The earnings allocable to the excess
contributions for a Plan Year are determined by
multiplying the total earnings or loss earned
for the Plan Year by a fraction. The numerator
for the fraction is the amount of excess
contributions made by the Participant for the
Plan Year. The denominator of the fraction is
the sum of the total account balance of the
Participant attributable to Matching Employer
Contributions as of the beginning of the Plan
Year plus Matching Employer Contributions for
the Plan Year.
(viii) If the amounts are withdrawn after the end of
the Plan Year, if the Committee so provides,
earnings allocable to excess contributions for
the period between the end of the Plan Year and
the date of distribution shall be included in
such amounts and shall be calculated under a
reasonable method as determined by the
37j
<PAGE>
Committee provided such method does not violate
Code Section 401(a)(4), is used consistently for
all Participants and for all corrective
distributions under the Plan for the Plan Year
and is used by the Plan for allocating income to
the Participants Accounts pursuant to the
Treasury Regulations under Section 401(m) of the
Code.
(c) Prohibition of the Multiple Use of the Alternative
Methods of Compliance.
(i) General Rules: Effective for Plan Years
beginning after December 31, 1988, this Plan
will be prohibited from the multiple use of
alternative limitations as defined in subsection
(iii) below and must use the limitations under
subsection (iv) to pass the non-discrimination
tests under Section 4.6(c) and Section 4.7(b),
if both of the following conditions are
satisfied:
(A) one or more Highly Compensated Employees are
eligible for and contribute or receive an
allocation of Salary Deferral Contributions
and Matching Employer Contributions; and
(B) the sum of the "actual deferral percentage"
of the entire group of eligible Highly
Compensated Employees and the "actual
contribution percentage" of the entire group
of eligible Highly Compensated Employees
exceeds the aggregate limit of subsection
(iv) below.
(ii) Permitted Adjustments: The "actual deferral
percentage" and the "actual contribution
percentage" of eligible Highly Compensated
Employees shall be determined after any
corrective distribution of excess deferral
amounts and excess contributions.
(iii) Alternative Limitation Definition: For purposes
of this subsection (c), the term "alternative
limitation" means the two hundred percent (200%)
limit or two (2) percentage point limit
contained in Section 401(k)(3)(A)(ii)(II) and
Section 401(m)(2)(A)(ii) of the Code,
respectively.
(iv) Permitted Limitations: For purposes of this
subsection (c), the permitted
37k
<PAGE>
aggregate limit is the greater of:
(A) the sum of:
(i) 125 percent of the greater of:
(1) the "actual deferral percentage"
of the group of Non-Highly
Compensated Employees; or
(2) the "actual contribution
percentage" of the group of
Non-Highly Compensated Employees;
and
(ii) two percentage points plus the lesser
of subsection (1) or subsection (2)
above. In no event shall this amount
exceed two hundred percent (200%) of
the lesser of subsection (1) or
subsection (2) above;
OR
(B) the sum of:
(i) 125 percent of the lesser of:
(1) the "actual deferral percentage"
of the group of Non-Highly
Compensated Employees; or
(2) the "actual contribution
percentage" of the group of
Non-Highly Compensated Employees ;
and
(ii) two percentage points plus the greater
of subsection (1) or subsection (2)
above. In no event shall this amount
exceed two times the greater of
subsection (1) or subsection (2) above.
(v) Corrective Distributions: If a multiple use of
the alternative limitation occurs as described
above, such multiple use shall be corrected by
reducing the "actual contribution percentages"
for all Highly Compensated Employees, as needed.
37l
<PAGE>
(d) If for any Plan Year, a Participant s allocations under
the Plan cannot be credited to his Accounts because of
the limitations imposed by Section 404 or 415 of the
Code, his allocation will be reduced first by the
amounts attributable to Salary Deferral Contributions
until the limitations imposed by Section 404 or 415 of
the Code are satisfied. If the reduction of amounts
attributable to Salary Deferral Contributions does not
satisfy the limitations imposed by Section 404 or 415
of the Code, then his allocation for the Plan Year will
be reduced by amounts attributable to Matching Employer
Contributions until the limitations imposed by Section
404 or 415 of the Code are satisfied. Those amounts of
contributions that are not credited to a Participant s
Accounts because of limitations imposed by Section 404
or 415 of the Code will be refunded to the
Participants.
Those amounts of Matching Employer Contributions that
cannot be credited to a Participant s Accounts will be
used to reduce the amount of Matching Employer
Contributions required of the Employer. If, after all
reallocations are made, any portion or all Matching
Employer Contributions cannot be used, such amount
shall be refunded to the appropriate Employer as
permitted and in accordance with the terms of this
Plan.
37m
<PAGE>
4.8 INVESTMENT OPTIONS
(a) This section 4.8 is effective on or after January 1,
1996.
(b) The Participant may select the percentage in one
percentage (1%) increments, of each Participant s
Salary Deferral Contributions Account, rollover
contributions and Matching Employer Contributions
Account to be invested in the investment options listed
in subsection (d) below.
(c) The Trustee(s) shall value the investment funds in
subsection (d) below on the Valuation Date. There
shall be allocated to the Accounts of each Participant
his proportionate to share of the increase or decrease
in the fair market value of the Participant s Salary
Deferral Contribution Account, rollover contribution
account and Matching Employer Contribution Account in
each of the funds, determined by the Employer in a
uniform and nondiscriminatory manner. When an event
requires a determination of the value of the
Participant's Salary Deferral Contribution Account,
rollover contribution account and Matching Employer
Contribution Account, the value shall be determined as
of the Valuation Date coincident with or immediately
preceding the date of determination.
(d) Subject to subsection (e) below, the investment funds
maintained in the Trust shall be:
(i) Federated Prime Obligations Fund
(ii) WesBanco Wheeling Fixed Income Fund
(iii) WesBanco Wheeling Equity Fund
(iv) Neuberger & Berman Guardian Fund
(v) Brandywine Fund
(vi) Templeton Foreign Fund
(vii) WesBanco Stock Fund
(e) The Company reserves the right to modify the investment
options maintained in the Trust, including but not
limited to, the addition or deletion of any investment
option.
37n
<PAGE>
(f) The Participant must designate his/her investment
election on such form(s) as the Company may prescribe
and follow such administrative procedures as the
Company may determine. Any direction by the
Participant for investment of such Participant s
Account(s) shall be deemed to be a continuing direction
until changed. An investment direction or a change in
investment direction can be made and will be effective
with the first payroll period ending after each
calendar quarter. Investment changes are permitted
based upon uniform and consistent procedures applied as
to all Participants established by the Company. The
Participant shall provide written notice of changes in
his investment direction, and such notice must be
received by the Committee on a form furnished by the
Committee, by at least the fifteenth (15th) day of the
calendar month preceding the effective date of the
direction or the change of direction.
(g) The Trustee shall accept direction from Participants as
to the investment of such portions of his Salary
Deferral Contribution Account, rollover contribution
account, and Matching Employer Contribution Account and
in such investments as permitted under the provisions
of this Plan. Such directions must be followed by the
Trustee. Neither the Trustee nor any other persons
including the Committee shall be under any duty to
question any such direction of the Participant or to
review any property or to make any suggestions to the
Participant in connection therewith, and the Trustee
shall comply as promptly as practicable with directions
given by the Participant hereunder. The Trustee shall
not be responsible or liable for any loss or expense
which may result from compliance with any directions
from the Participant nor shall the Trustee be
responsible for, or liable for, any loss or expense
which may result from the Trustee s refusal or failure
to comply with any directions from the Participants.
The Trustee may refuse to comply with any direction
from the Participant in the event the Trustee, in its
sole and absolute fiduciary discretion, deems such
directions improper by virtue of applicable law.
(h) This Plan intends to conform to the requirements of
ERISA Section 404(c). Each Participant is solely
responsible for the selection of his or her investment
options. Each Participant and Beneficiary shall have a
reasonable opportunity to submit investment
instructions to the Committee and the Committee and the
Trustee shall comply with such instructions. The
Committee may impose reasonable restrictions on the
frequency with which such instructions may be given.
(i) The Trustee(s), the Committee and the officers,
supervisors and other employees
37o
<PAGE>
of the Employer are not empowered to advise a
Participant as to the manner in which such
Participant s Accounts shall be invested. The fact
that an investment option is available to Participants
for investment under the Plan shall not be construed as
a recommendation for investment in that investment
fund.
(j) The Participant shall receive a benefit statement on a
quarterly basis detailing the investment gains or
losses with respect to the Participant s Salary
Deferral Contributions, rollover contributions, or
Matching Employer Contributions.
4.9 HARDSHIP WITHDRAWALS APPLICABLE TO SALARY DEFERRAL
CONTRIBUTIONS
(a) The Committee, at the election of the Participant,
shall direct the Trustee to distribute to any
Participant in any calendar year up to 100% of his
Salary Deferral Contribution Account valued as of the
last Valuation Date, in the case of proven immediate
and heavy financial need of the Participant and only to
the extent such distribution is necessary to satisfy
such financial need. Such distribution shall be
limited to the Participant s Salary Deferral
Contribution for all Plan Years.
(b) A distribution shall be deemed to be made on account of
an immediate and heavy financial need of the
Participant if the distribution is on account of:
(i) medical expenses described in Section 213(d) of
the Code incurred by the Participant, the
Participant s spouse or any dependent of the
Participant (as defined in Section 152 of the
Code) or necessary for such individuals to
obtain medical care (as defined in Section
213(d) of the Code);
(ii) purchase (excluding mortgage payments) of a
principal residence of the Participant;
(iii) payment of tuition for the next twelve (12)
months of post-secondary education for the
Participant, his spouse, children or dependents;
(iv) the need to prevent the eviction of the
Participant from his principal residence or
foreclosure on the mortgage of the Participant s
principal residence; or
37p
<PAGE>
(v) any other situations that the Commissioner of
Internal Revenue Service may deem to be
immediate and heavy financial needs.
(c) A distribution will not be treated as necessary to
satisfy an immediate and heavy financial need of a
Participant to the extent the amount of the
distribution is in excess of the amount required to
relieve the financial need (except that the amount of
the distribution may include any amount needed to pay
any taxes which may be applicable to such distribution)
or to the extent such need may be satisfied from other
resources that are available to the Participant. This
determination generally will be made on the basis of
all relevant facts and circumstances. A distribution
generally may be treated as necessary to satisfy a
financial need if the Employer reasonable relies upon
the Participant's representation that the need cannot
be relieved:
(i) through reimbursement or compensation by
insurance or otherwise;
(ii) by reasonable liquidation of a Participant s
assets which would not itself cause an immediate
and heavy financial need;
(iii) by cessation of Salary Deferral Contributions
under the Plan; or
(iv) by other distributions or non-taxable (at the
time of the loan) loans from plans maintained by
the Employer or by any other employer, or by
borrowing from commercial sources on reasonable
commercial terms.
(d) A distribution will be deemed to be necessary to
satisfy an immediate and heavy financial need of a
Participant if all of the following requirements are
satisfied:
(i) the distribution is not in excess of the amount
of the immediate and heavy financial need of the
Participant;
(ii) the Participant has obtained all distributions,
other than hardship distributions and all
non-taxable loans currently available under all
plans maintained by the Employer;
(iii) the Plan and all other plans maintained by the
Employer provide that the Participant s Salary
Deferral Contributions (and elective
contributions under all other plans maintained
by the Employer) will be suspended for at least
twelve (12) months after receipt of the hardship
distribution; and
(iv) Salary Deferral Contributions (and elective
contributions under other plans
37q
<PAGE>
of the Employer) made on the Participant s
behalf for the Participant's taxable year
immediately following the taxable year of
hardship distribution may not exceed the excess
of the applicable limit under Section 402(g) of
the Code for such next year less the amount of
such Participant s Salary Deferral
Contributions.
(e) Notwithstanding anything contained in this Section 4.9
to the contrary, this Section 4.9 applies only to
Salary Deferral Contributions under this Plan.
37r
<PAGE>
ARTICLE V - ALLOCATION TO ACCOUNTS
5.1 INDIVIDUAL ACCOUNTS.
(a) Separate Company Stock Accounts, Other Investments
Accounts, Salary Deferral Contribution Accounts,
Matching Employer Contribution Accounts and rollover
contribution accounts together with Diversified
Accounts will be established to reflect Participants'
interests under the Plan. Records shall be kept by the
Committee from which can be determined the portion of
each Other Investments Account which at any time is
available to meet Securities Acquisition Loan
obligations and the portion which is not so available,
as determined pursuant to Section 4.4.
(b) Allowable Shares
(i) For purposes of this Section 5.1 and Section
5.2, a Participant's allocable share of Employer
Contributions and Forfeitures for a Plan Year
shall be determined by multiplying the aggregate
of the amounts to be allocated to the Company
Stock Accounts or Other Investments Accounts
times a fraction, the numerator of which is the
Participant's total Covered Compensation for
such Plan Year and the denominator of which is
the aggregate Covered Compensation of all
Participants entitled to an allocation for such
Plan Year.
(ii) Except for reasons of death, Permanent
Disability, Approved Absence or Retirement, a
Participant must complete at least one thousand
(1,000) Hours of Service in the Plan Year and
must have not incurred a Termination of Service
prior to the Anniversary Date in order to share
in the allocation of Employer Contributions and
Forfeitures for such Plan Year.
38a
<PAGE>
5.2 COMPANY STOCK ACCOUNT
(a) The Company Stock Account of each Participant will be
credited as of each Anniversary Date with such
Participant's allocated share of Company Stock
(including fractional shares) purchased and paid for by
the Trust or contributed in kind by the Company, with
Forfeitures of Company Stock and with stock dividends
on Company Stock held in such Participant's Company
Stock Account. Employer Securities acquired by the
Trust with the proceeds of a Securities Acquisition
Loan shall be credited to a Suspense Account. For each
Plan Year during the duration of the Securities
Acquisition Loan, the number of shares of Employer
Securities to be released from said Suspense Account
and allocated to the Company Stock Accounts of
Participants shall be determined pursuant to either the
"General Rule" or the "Special Rule" described below as
selected by the Committee for each Securities
Acquisition Loan. Except as provided subsection
(a)(iii), once the Committee has selected either the
General Rule or the Special Rule, such General Rule or
Special Rule shall be used exclusively for the
allocation of shares of Employer Securities purchased
with the proceeds of a particular Securities
Acquisition Loan.
(i) General Rule:
For each Plan Year during the duration of the
Securities Acquisition Loan, the Committee shall
withdraw from the Suspense Account a number of
shares of Employer Securities equal to the total
number of such shares held in the Suspense
Account immediately prior to the withdrawal
multiplied by a fraction:
(1) the numerator of which is the amount of
principal and interest paid for the Plan
Year; and
(2) the denominator of which is the sum of the
numerator plus the principal and interest to
be paid for all future years.
39
<PAGE>
(ii) Special Rule:
(1) For each Plan Year, the Committee shall
withdraw from the Suspense Account a number
of shares of Employer Securities equal to
the total number of such shares held in the
Suspense Account immediately prior to the
withdrawal multiplied by a fraction:
(A) the numerator of which is the amount of
principal paid for the Plan Year; and
(B) the denominator of which is the sum of
the numerator plus the principal to be
paid for all future Plan Years.
(2) The Committee may select the Special Rule
only if:
(A) the Securities Acquisition Loan
provides for annual payments of
principal and interest at a cumulative
rate which is not less rapid at any
time than level annual payments of such
amounts for ten (10) years;
(B) the interest included in any payment is
disregarded only to the extent that it
would be determined to be interest
under standard loan amortization
tables; and
(C) by reason of a renewal, extension or
refinancing, the sum of the expired
duration of the original loan, any
renewal period, any extension period
and the duration of any new loan does
not exceed ten (10) years.
(iii) In determining the number of shares to be
released for any Plan Year under either the
General Rule or the Special Rule:
40
<PAGE>
(1) the number of future years under the
Securities Acquisition Loan must be
definitely ascertainable and must be
determined without taking into account any
possible extensions or renewal periods;
(2) if the Securities Acquisition Loan provides
for a variable interest rate, the interest
to be paid for all future Plan Years must be
computed by using the interest rate
applicable as of the end of the Plan Year
for which the determination is being made;
and
(3) if the Employer Securities allocated to the
Suspense Account includes more than one
class of shares, the number of shares of
each class to be withdrawn for a Plan Year
from the Suspense Account must be determined
by applying the applicable fraction provided
for above to each such class.
(b) Allocations of Company Stock shall be reflected
separately for each class of Company Stock and the
Committee shall maintain adequate records of the
aggregate cost basis of Company Stock allocated to each
Participant's Company Stock Account.
5.3 OTHER INVESTMENTS ACCOUNT
The Other Investments Account of each Participant will be
credited or debited as provided in Section 5.6. Allocation
of Employer Contributions and Forfeitures shall be made on
each December 31. Each such Other Investments Account will
be debited with its share of any cash payments for the
acquisition of Company Stock for the benefit of Company
Stock Accounts or for any repayment of principal and
interest on any Securities Acquisition Loan or other debt
chargeable to Participants' Company Stock Accounts; provided
that only the portion of each Other Investments Account
which is available to meet obligations under Securities
Acquisition Loans shall be used to pay principal or interest
on a Securities Acquisition Loan.
41a
<PAGE>
5.4 ALLOCATION OF EMPLOYER CONTRIBUTIONS AND FORFEITURES
(a) The allocation shall be made as follows:
(i) Employer Contributions
(1) Employer Contributions shall be allocated as
of each Anniversary Date among the Accounts
of Participants in the Plan in the
proportion that each such Participant's
Covered Compensation for the Plan Year bears
to the total Covered Compensation of all
such Participants for that Plan Year.
Shares of Company Stock released from
suspense (as provided in Section 5.2) by
reason of the payment of interest and
principal on a Securities Acquisition Loan
shall be allocated as of each Anniversary
Date among the Accounts of Participants in
the Plan in the proportion that each such
Participant's Covered Compensation bears to
the total Covered Compensation of all such
Participants for that year.
(2) Notwithstanding anything contained in this
subsection (i) to the contrary, except for
reasons of death, Permanent Disability,
Approved Absence or Retirement, a
Participant must complete at least one
thousand (1,000) Hours of Service in the
Plan Year and have not incurred a
Termination of Service prior to the
Anniversary Date in order to share in the
allocation of Employer Contributions and
Forfeitures for such Plan Year.
(ii) Forfeitures
Forfeitures shall be included in and be a part
of Employer Contributions.
(iii) Net Income or Loss of the Trust
The net income or loss of the Trust shall be
determined as of the last day of each calendar
quarter. Any stock dividends on shares of
Company Stock held by the Trust shall be
allocated to each Participant's Company Stock
Account in the ratio in which the cumulative
number of shares allocated to such Participant's
Company Stock Account as of the beginning of the
calendar quarter bears to the total cumulative
number of shares of Company Stock allocated to
the Company Stock Accounts of all
42a
<PAGE>
Participants as of that date. Any cash
dividends shall be allocated to each
Participant's Other Investments Account in the
ratio in which the cumulative number of shares
allocated to such Participant's Company Stock
Account as of the beginning of the calendar
quarter bears to the total cumulative number of
shares of Company Stock allocated to the Company
Stock Accounts of all Participants as of that
date. All other net income or loss shall be
allocated to each Participant's Other
Investments Account in the ratio in which the
balance of such Participant's Other Investments
Account as of the beginning of the calendar
quarter bears to the sum of the balances of the
Other Investments Accounts of all Participants
on that date. For this purpose, Account
balances shall be reduced by amounts distributed
to Participants during the Plan Year. The net
income or loss includes the increases or
decreases in the fair market value of assets of
the Trust, interest, dividends, other income and
expenses attributable to assets in the Other
Investments Accounts since beginning of the
calendar quarter. Net income or loss does not
include the interest paid under any installment
contract for the purchase of Company Stock by
the Trust or on any loan obtained by the Trust
to purchase Company Stock. For purposes of
distributions upon Termination of Service of the
Participant s Company Stock Account and Other
Investments Account, such accounts shall be
credited with dividends paid between December 31
and the distribution date. For purposes of
distributions upon Termination of Service of the
Participant s Salary Deferral Contribution
Account, Matching Employer Contribution Account
and rollover contribution account, the
distribution shall be based upon the immediately
prior allocation balance without any increase
due to any dividends paid between the last day
of the calendar quarter and the distribution
date.
5.5 ALLOCATION LIMITATIONS
(a) Annual Addition.
(i) Limitation
Notwithstanding any other provisions of the
Plan, the "annual addition" to a Participant's
Accounts, for any Plan Year commencing on or
after January 1, 1987, shall not exceed an
amount equal to:
43a
<PAGE>
(1) the lesser of:
(A) $30,000 or, if greater, one-fourth
(1/4) of the defined benefit dollar
limitation in Section 415(b)(1) of the
Code as in effect for the Plan Year; or
(B) twenty-five percent (25%) of the
Participant's "415 compensation" (as
defined in subsection (iii) below) for
the Plan Year; except that
(C) notwithstanding the foregoing, the
regular dollar limitation specified
above (and any adjustments) may be
increased by up to one hundred percent
(100%) of said amount and a
Participant's allocable share of
Employer Contributions applied to the
payment of interest on a Securities
Acquisition Loan and Forfeitures of
Employer Securities purchased with the
proceeds of a Securities Acquisition
Loan shall not be included as an
"annual addition", provided that
(i) the amount of Employer
Contributions and Forfeitures allocated
to a Participant's Accounts in excess
of the regular dollar limitation above
is in the form of Employer Securities
(or cash used to purchase Employer
Securities within thirty (30) days of
the due date for filing the Company's
federal income tax return for that
year, including extensions of such
date), and no more than one-third
(1/3) of the Employer Contributions for
that year is allocated to the Accounts
of Highly Compensated Employees;
LESS
(2) the sum of the following:
(A) the amount of any employer
contributions credited to the
Participant's Account(s) for that Plan
Year under any plan sponsored by any
Affiliated Company other than this
Plan;
44
<PAGE>
(B) the amount of any Forfeitures credited
to the Participant's Account(s) for
that Plan year under any plan sponsored
by any Affiliated Company other than
this Plan; and
(C) the amount of any employee after-tax
contributions made by the Participant
under any plan sponsored by any
Affiliated Company other than this
Plan.
(ii) Definition.
(1) For purposes of this Section 5.5, "annual
addition" means with respect to any
Limitation Year the aggregate of amounts
credited to a Participant's Account(s) from:
(A) Employer Contributions, Salary Deferral
Contributions, Matching Employer
Contributions and Forfeitures under all
defined contribution plans;
(B) the amount of the Participant's
employee after-tax contributions to a
Plan, if any;
(C) the amount of allocations to any
individual medical account (as defined
in Section 415(l)(2) of the Code) which
is part of a defined benefit plan, if
any, maintained by any Affiliated
Company; and
(D) the amount of contributions paid or
accrued after December 31, 1985, in
taxable years ending after such date
that are attributable to
post-retirement medical benefits
allocated to the separate account of a
Key Employee (as defined in
Section 419A(d)(3) of the Code) under a
welfare benefit fund (as defined in
Section 419(e) of the Code) maintained
by the Affiliated Employers; provided
that Employees Contributions applied to
the payment of interest on a Securities
Acquisition Loan and Forfeitures of
Employer Securities purchased with the
proceeds of a Securities Acquisition
Loan shall be excluded if no more than
one-third (1/3) of the Employer
Contribution for that Limitation Year
is allocated to the Accounts of Highly
Compensated Employees.
45a
<PAGE>
(2) Rollover contributions and earnings thereon,
if any, shall not be taken into account in
determining the limitation of "annual
additions."
(3) If for any Plan Year, a Participant's
allocations under the Plan cannot be
credited to such Participant's
Account(s) because of the limitations
imposed by this Section 5.5, such
Participant's allocation shall be reduced by
the amounts attributable first to Salary
Deferral Contributions, then Matching
Employer Contributions, then Employer
Contributions, then Forfeitures, plus the
gains attributable thereto, until the
limitations imposed by this Section 5.5 are
satisfied.
(iii) Compensation for Purposes of Section 415 of the
Code.
(1) For purposes of applying the limitation of
Section 415 of the Code, "415 compensation"
shall include the Participant's wages,
salaries, and fees for professional service
and other amounts for personal services
(without regard to whether or not an amount
is paid in cash) actually rendered in the
course of employment with any Affiliated
Company maintaining the Plan to the extent
that the amounts are includable in gross
income, including, but not limited to,
commissions paid to salesmen, compensation
for services on the basis of a percentage of
profits, commissions on insurance premiums,
tips and bonuses, overtime, fringe benefits,
reimbursements, and expense allowances, and,
in the case of a Participant who is an
Employee within the meaning of
Section 401(c)(1) of the Code and
regulations thereunder, the Participant's
earned income (as described in
Section 401(c)(2) of the Code and the
regulations thereunder) paid during the
Limitation Year.
46a
<PAGE>
(2) In addition to the amounts in subsection
(i) above, "415 compensation" shall include:
(A) amounts described in Sections
104(a)(3), 105(a) and 105(h) of the
Code, but only to the extent that
amounts are includable in the gross
income of the Employee;
(B) amounts paid or reimbursed by the
Employer for moving expenses incurred
by the Employee, but only to the extent
that these amounts are nondeductible by
the Employee under Section 217 of the
Code;
(C) the value of a non-qualified stock
option granted to an Employee by the
Employer, but only to the extent that
the value of the stock option is
includable in the gross income of the
Employee for the taxable year granted;
and
(D) the amount includable in the gross
income of an Employeeupon making the
election described in Section 83(b) of
the Code.
(3) "415 compensation" shall exclude:
(A) contributions made by any Affiliated
Company to a plan of deferred
compensation to the extent that, before
the application of the limitation
imposed by Section 415 of the Code, the
contributions are not includable in the
gross income of the Employee for the
taxable year in which contributed;
(B) employer contributions made on behalf
of an Employee to a simplified employee
pension plan described in
Section 408(k) of the Code to the
extent such contributions are
deductible by the Employer or any
Affiliated Company under
Section 404(h) of the Code;
47
<PAGE>
(C) any distributions from a plan of
deferred compensation regardless of
whether such amounts are includable in
the gross income of the Employee when
distributed, except any amounts
received by an Employee pursuant to an
unfunded non-qualified plan to the
extent such amounts are includable in
the gross income of the Employee;
(D) amounts realized from the exercise of a
stock option or when restricted stock
(or property) held by an Employee
either becomes freely transferable or
is no longer subject to a substantial
risk of forfeiture;
(E) amounts realized from the sale,
exchange or other disposition of stock
acquired under a qualified stock
option; and
(F) other amounts that receive special tax
benefits, such as premiums for group
term life insurance (but only to the
extent that the premiums are not
includable in the gross income of the
Employee).
(b) Combined Plan Limitations
(i) Limitation
This Section 5.5(b) shall be applicable only if
the Employer maintains a defined benefit plan.
If a Participant in this Plan is also a
participant in a defined benefit plan sponsored
by any Affiliated Company and the sum of such
Participant's Defined Contribution Fraction (as
defined in subsection (ii) below) and such
Participant's Defined Benefit Fraction (as
defined in subsection (c) below), determined as
of the close of any Plan Year, exceeds 1.0, then
the allocation of amounts to such Participant s
Account(s) under the defined benefit plan, as
limited by the annual addition limitations under
Section 415 of the Code, shall be further
limited, to the extent necessary to cause the
sum of those fractions to equal 1.0.
48
<PAGE>
(ii) Defined Contribution Fraction.
For purposes of this Section 5.5(b), a
Participant's Defined Contribution Fraction for
any Plan Year is a fraction:
(1) the numerator of which is the sum of the
"annual additions" to the Participant's
Account(s), and any other defined
contribution plan sponsored by any
Affiliated Company as of the close of the
Plan Year; and
(2) the denominator of which is the sum of the
lesser of subsections (A) or (B) below
determined for such Plan Year and each prior
Year of Service with any Affiliated Company:
(A) the product of 1.25 multiplied by the
dollar limitation in effect under
Section 415(c)(1)(A) of the Code for
such year (determined without regard to
Section 415(c)(6) of the Code); or
(B) the product of 1.4 multiplied by the
amount which may be taken into account
under Section 6.1(a)(i)(B) of the Plan
for such year.
(iii) Defined Benefit Fraction.
For purposes of this Section 5.5(b), a
Participant's Defined Benefit Fraction for any
Plan Year is a fraction:
(1) the numerator of which is the projected
annual benefit of the Participant under any
defined benefit plan of any Affiliated
Company; and
(2) the denominator of which is the lesser of:
49
<PAGE>
(A) the product of 1.25 multiplied by the
maximum dollar limitation in effect
under Section 415(b)(1)(A) of the Code
for such year; or
(B) the product of 1.4 multiplied by the
amount which may be taken into account
under Section 415(b)(1)(B)) of the Code
for such year.
(iv) Substitution.
Notwithstanding the foregoing, for any Top-heavy
Plan Year, 1.0 shall be substituted for 1.25
unless the extra minimum allocation is made
pursuant to Section 13.1(c). However, for any
Plan Year in which this Plan is a "super
top-heavy plan" (as defined in Section 416(h) of
the Code), 1.0 shall be substituted for 1.25 in
any event.
(v) Special Rule for Defined Contribution Fraction.
(1) At the election of the Committee, in
applying the provisions of Section 5.5 with
respect to the Defined Contribution Plan
Fraction for any Plan Year ending after
December 31, 1982, the amount taken into
account for the denominator for each
Participant for all Plan Years ending before
January 1, 1983, shall be an amount equal to
the product of:
(A) the amount of the denominator
determined under Section 5.5(b)(ii) as
in effect for the Plan Year ending in
1982; multiplied by
(B) the "transition fraction."
(2) For purposes of subsection (1) above, the
term "transition fraction" shall be a
fraction:
(A) the numerator of which is the lesser
of:
50
<PAGE>
(aa) $51,875; or
(bb) 1.4 multiplied by twenty-five
percent (25%) of the Participant's
Covered Compensation for the Plan
Year ending in 1981; and
(B) the denominator of which is the lesser
of:
(aa) $41,500; or
(bb) twenty-five percent (25%) of the
Participant's Covered Compensation
for the Plan Year ending in 1981.
Notwithstanding the foregoing, for any
Top-heavy Plan Year, $41,500 shall be
substituted for $51,875 in determining the
"transition fraction."
(vi) Subtraction of Amount.
If the Plan satisfied the applicable
requirements of Section 415 of the Code as in
effect for all Plan Years beginning before
January 1, 1987, an amount shall be subtracted
from the numerator of the Defined Contribution
Fraction (not exceeding such numerator) as
prescribed by the Secretary of the Treasury so
that the sum of the Defined Benefit Fraction and
the Defined Contribution Fraction computed under
Section 415(c)(4) of the Code does not exceed
1.0 for such Plan Year.
(c) If Company Stock is purchased from a shareholder of the
Company and if such shareholder is also a Participant
in this Plan, then notwithstanding anything to the
contrary contained in this Plan, the total Account
balances of such Participant's Accounts other than such
Participant's Segregated Investments Account, combined
with the total Account balances of the Accounts of such
Participant's spouse, parents, grandparents, children,
and grandchildren under the Plan, shall not exceed
twenty percent (20%) of the total of all Account
balances under the Plan. However, if the total Account
balances of such Participant's Accounts exceed twenty
percent (20%) of the total of all Account balances,
then the amounts in excess of said twenty percent
(20%) shall be credited to that Participant's
Segregated Investments Account and invested in
investments other than Company Stock.
51
<PAGE>
(d) If Qualified Employer Securities are purchased from a
shareholder of the Company, and after the purchase the
Plan owns at least thirty percent (30%) of the total
value of the Company's outstanding Employer Securities,
and the seller notifies the Company of such
Participant's intention to purchase Qualified
Replacement Property and elects nonrecognition of gain
under Section 1042 of the Code, then notwithstanding
anything to the contrary contained in this Plan, no
portion of such Qualified Employer Securities may be
allocated to the Account of (i) the seller (or such
Participant's family) or (ii) any other person who owns
(after application of the family attribution rules
under Code Section 318) more than twenty-five percent
(25%) of any class of outstanding Company Stock, or
more than twenty-five percent (25%) of the total value
of any class of outstanding Company Stock, at any time
during the one year period preceding the purchase of
such Qualified Employer Securities by the Plan, or on
any subsequent date when such Qualified Employer
Securities are allocated to Participants in the Plan.
For purposes of this paragraph, the seller's family
shall include such Participant's spouse, ancestors,
lineal descendants, and brothers and sisters.
Notwithstanding the foregoing, lineal descendants of a
seller shall be permitted to share in the allocation of
stock purchased under Section 1042, provided that the
aggregate amount of such stock allocated for the
benefit of all such lineal descendants does not exceed
more than five percent (5%) of such stock purchased
from the seller. For purposes of this paragraph, a
person shall be considered to be a more than
twenty-five percent (25%) shareholder if the amount of
Company Stock which he/she owns (whether outright or as
a Plan Participant), together with the amount of
Company Stock owned by such Participant's spouse,
children, grandchildren and parents (whether outright
or as a Plan Participants), exceeds twenty-five percent
(25%) of any class of outstanding Company Stock or
twenty-five percent (25%) of the total value of any
class of outstanding Company Stock.
52
<PAGE>
(e) If, due to Forfeitures, reasonable error in estimating
compensation, or other limited facts and circumstances
as determined by the Internal Revenue Service, the
Account balances or the annual additions to a
Participant's Accounts would exceed the limitation
described in Subsection 5.5, the aggregate of the
annual additions to this Plan and the annual additions
to any other plan described in Section 5.5. shall be
reduced until the applicable limitation is satisfied.
(f) The reduction shall be treated as a Forfeiture and
shall be allocated in accordance with
Section 5.4(a)(ii) to the Accounts of Participants who
are not affected by this limitation.
(g) If any amount cannot be reallocated under the foregoing
provision, such amount shall be deposited in a suspense
account and allocated to the maximum extent possible
under Section 5.4(a)(ii) in succeeding years, provided
that
(i) no Employer Contributions are made until
Section 415 of the Code will permit their
allocation;
(ii) no investment gains or losses are allocated to
such suspense account; and
(iii) the amounts in such suspense account are
allocated at the earliest possible date.
5.6 ALLOCATION OF NET INCOME OR LOSS OF THE TRUST.
The net income or loss attributable to Trust Assets for each
Plan Year will be determined on the last day of each
calendar quarter. Each Participant's allocable share of the
net income or loss attributable to other than Diversified
Accounts will be allocated to such Participant's Other
Investments Account in the ratio in which the credit balance
of each such Account on the preceding Anniversary Date
(reduced by the amount of any distribution of Capital
Accumulation from such Account) bears to the sum of such
balances for all Participants as of that date. The net
income or loss attributable to Diversified Accounts will be
allocated to a Participant's Diversified Account
respectively by investment fund in the ratio in which the
Participant's credit balance in an investment fund on the
preceding quarterly valuation date bears to the sum of such
balances for all Participants as of that date. The net
income or loss includes the increase or decrease in the fair
market value of Trust Assets (other than Company Stock),
interest income, dividends other income or loss attributable
to Trust Assets (other than allocated Company Stock), since
the preceding quarterly valuation date. For purposes of
computing net income or loss, interest paid on any
Securities Acquisition Loan or installment sales contract
for the acquisition of Company Stock by the Trustee(s) shall
be disregarded.
53a
<PAGE>
5.7 ACCOUNTING FOR ALLOCATIONS.
The Committee shall adopt accounting procedures for the
purpose of making the allocations, valuations, and
adjustments to Participants' Accounts provided for in this
Plan. Except as provided in Treasury Regulation
Section 54.4975-11, Company Stock acquired by the Plan shall
be accounted for as provided under Treasury Regulation
Section 1.402(a)-l(b)(2)(ii), allocations of Company Stock
shall be made separately for each class of stock, and the
Committee shall maintain adequate records of the cost basis
of all shares of Company Stock allocated to each
Participant's Company Stock Accounts. From time to time,
the Committee may modify the accounting procedures for the
purpose of achieving equitable and nondiscriminatory
allocations among the Accounts of Participants in accordance
with the provisions of this Plan. Annual valuations of
Trust Assets shall be made at fair market value.
54
<PAGE>
ARTICLE VI - EXPENSES AND VOTING
6.1 EXPENSES OF THE PLAN AND TRUST
(a) Subject to applicable laws all expenses of establishing
and administering the Plan shall be paid by the Trust
to the extent such are not paid by the Company. The
Company may, but shall not be required to, pay such
expenses from time to time.
(b) Each Employer, other than the Company, shall reimburse
the Company for that portion of costs and expenses paid
by the Company for any Plan Year as the amount of
Employer Contributions from each such Employer for such
Plan Year bears to the aggregate Employer Contributions
from all Employers for that Plan Year.
6.2 VOTING COMPANY STOCK
Subject to the requirements of ERISA, all Company Stock held
by the Trust shall be voted by the Trustee(s) in accordance
with instructions from the Committee. Notwithstanding the
foregoing, each Participant shall be entitled to direct the
voting of any voting shares of Company Stock allocated to
such Participant's Company Stock Account with respect to any
vote required for the approval or disapproval of any
corporate merger or consolidation, recapitalization,
reclassification, liquidation, dissolution, or sale of
substantially all the assets of the Company. Any
unallocated shares held by the Trust shall be voted by the
Trustee(s).
6.3 COMMITTEE POWERS AND DUTIES
(a) Unallocated Shares. The Committee shall direct the
Trustee(s) concerning the manner of voting any shares
of Company Stock not allocated to the Accounts of
Participants. In addition, the Committee shall direct
the voting of shares of Company Stock in the manner set
forth in subsection (b). In the event that
Participants are permitted to direct the Committee
concerning the manner of voting allocated shares and no
directions are received with respect to all or some of
such unallocated shares, such allocated shares for
which instructions are not received shall not be voted.
55
<PAGE>
(b) Allocated Shares.
(i) Registration Class of Securities. In the event
that the shares to be voted are of a class
required to be registered under Section 12 of
the Securities and Exchange Act of 1934 or which
would be required to be registered except for an
exemption provided in Section 12(g)(2)(H) of the
Securities and Exchange Act of 1934, each
Participant (and Beneficiary with separate
Accounts) shall be entitled to instruct the
Committee as to the manner in which shares of
Company Stock then allocated to such
Participant's Accounts will be voted with
respect to any matter submitted to the
shareholders of the Company.
(ii) No Registration Class of Securities. In the
event that the shares to be voted are of a class
not required to be registered or exempt from
registration as described above in subsection
(i), each Participant (and Beneficiary with
separate Accounts) shall be entitled to instruct
the Committee as to the manner in which shares
of Company Stock then allocated to such
Participant's Accounts will be voted with
respect to any corporate matter which must, by
the laws of the State of West Virginia or the
charter of the Company, be decided by more than
a simple majority vote of the outstanding shares
of such class, but only to the extent required
by Section 401(a)(22) and 409(e)(3) of the Code.
The Committee shall be entitled to direct the
voting of all allocated shares which are not of
a registration class with respect to any other
matter.
56
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ARTICLE VII - CAPITAL ACCUMULATION
7.1 CAPITAL ACCUMULATION.
Upon Termination of Service, a Participant (or in the case
of the Participant's death, such Participant's
Beneficiary) shall have a nonforfeitable interest in all, a
part, or none of the final balances in the Participant's
Accounts in accordance with this Article VII. Such
Participant's Capital Accumulation shall be determined as
provided in this Article VII. Such distribution of a
Participant s Salary Deferral Contribution Account, Matching
Employer Contribution Account and rollover contribution
account shall be made after the quarterly allocation to such
Accounts is made. Such distribution of a Participant's
Company Stock Account and Other Investments Account shall be
made after December 31 allocation to such Accounts is made.
7.2 RETIREMENT, DEATH OR PERMANENT DISABILITY.
Upon attainment of age sixty-five (65) or upon Termination
of Service on account of a Participant's death, Permanent
Disability or Retirement, a Participant shall have a
nonforfeitable right to one hundred percent 100% of such
Participant's Account balances. In such event, the
Participant's Capital Accumulation shall be determined as of
the Anniversary Date coinciding with or next following such
Participant's death, Disability Retirement Date or
Retirement Date, respectively, and such Participant shall be
entitled to receive an allocation of Employer Contributions
and Forfeitures as described in Section 5.1(b) for the Plan
Year in which such Participant's Termination of Service
occurs.
7.3 OTHER TERMINATION OF SERVICE AND VESTING.
(a) Vesting Schedule.
Except as otherwise provided in subsection (b) below,
if a Participant incurs a Termination of Service for
any reason other than Retirement, death, or Permanent
Disability, such Participant Capital Accumulation, with
respect to such Participant s Company Stock Account and
Other Investments Account, shall be determined as of
the Anniversary Date coinciding with or next following
such Participant s Termination of Service. Such
Participant s Capital Accumulation, with respect to
such Participant s Salary Deferral Contribution
Account, Matching Employer Contribution Account and
rollover contribution account shall be determined as of
the quarterly allocation coinciding with or next
following such Participant s Termination of Service.
Such Participant Capital Accumulation shall be
determined in accordance with the following vesting
schedule:
57a
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Years of Credited Service Percentage of Accounts Vested
------------------------- -----------------------------
Less than 5 Years 0%
5 Years or More 100%
(b) Former Employees of the Bank of Sissonville.
The provisions of this subsection (b) are effective
January 1, 1989.
(i) Notwithstanding subsection (a) above, each
former employee of the Bank of Sissonville with
at least three (3) years of Service may elect to
have his/her nonforfeitable percentage computed
under this Plan according to the vesting
schedule contained in the Bank of Sissonville
Employee Stock Ownership Plan in effect on
December 31, 1988 and prior to its merger with
this Plan.
(ii) For the purpose of subsection (i) above, such
former employee shall be considered to have
completed three (3) years of Service if such
former employee has completed one thousand
(1,000) Hours of Service in each of three
(3) Plan Years, whether or not consecutive,
ending with or prior to the last day of the
election period as described in the plan as in
effect on December 31, 1986, and as subsequently
amended on January 1, 1989.
(c) Effective January 1, 1996, a Participant's Salary
Deferral Contribution Account, Matching Employer
Contributions Account, rollover contributions account,
and any earnings attributed to such Salary Deferral
Contributions, Matching Employer Contributions and
rollover contributions shall be fully vested and
nonforfeitable at all times.
7.4 VESTING UPON REEMPLOYMENT
If a Participant is reemployed following a Break in Service,
such Participant's Accounts shall be vested as follows:
(a) Vesting of Prior Account Balances
If a Participant has had five (5) consecutive one year
Breaks in Service, years of Credited Service after such
five (5) year period will not be taken into account for
purposes of determining a Participant's Capital
Accumulation in such Participant's prebreak Account
balances, and new Accounts will be established to
record such
58a
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Participant's Capital Accumulation in the Plan for such
Participant's Service after such five (5) year period.
58b
<PAGE>
(b) Vesting of Subsequent Account Balances.
(i) In the case of a Participant who, at the time of
a Break in Service, does not have any vested
right under this Plan as in effect prior to
January 1, 1989, years of Credited Service
before such Break in Service shall not
thereafter be taken into account for purposes of
determining a Participant's Capital Accumulation
in such Participant's postbreak Account balances
if the number of consecutive one-year Breaks in
Service equals or exceeds five (5) years or the
aggregate number of years of prebreak service,
whichever is greater.
(ii) If a Participant had any degree of Capital
Accumulation at the time of such Participant's
Break in Service, such Participant shall
participate retroactively to such Participant's
Reemployment Date for purposes of determining a
Participant's Capital Accumulation in such
Participant's postbreak Account balances. Upon
resuming participation, such Participant's years
of Credited Service shall include all years of
Credited Service prior to such Participant's
Break in Service.
7.5 AMENDMENTS TO VESTING SCHEDULE.
(a) No amendment to the Plan shall decrease a Participant's
Account(s), except to the extent permitted under
Section 412(c)(8) of the Code, or eliminate an optional
form of distribution. No amendment to the Plan shall
have the effect of decreasing a Participant's
non-forfeitable percentage determined without regard to
such amendment as of the later of the date such
amendment is adopted or the date it becomes effective.
(b) If the Plan's vesting schedule is amended, or the Plan
is amended in any way that directly or indirectly
affects the computation of a Participant's
non-forfeitable percentage, each Participant with at
least three (3) Years of Service with the Employer or
any Affiliated Company may elect, within a reasonable
period after the adoption of the amendment, to have
such Participant's non-forfeitable percentage computed
under the Plan without regard to such amendment. The
Participant's election may be made at any time during
the period ending on the latest of:
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(i) sixty (60) days after the amendment is adopted;
(ii) sixty (60) days after the amendment becomes
effective; or
(iii) sixty (60) days after the Participant is issued
written notice of the amendment by the Employer
or the Committee.
7.6 FORFEITURES
(a) Any portion of the final balances in a Participant's
Accounts which are not vested and which does not become
part of such Participant's Capital Accumulation will
become a Forfeiture. The amount of any such Forfeiture
shall first be deducted from a Participant's Other
Investments Account. If Forfeiture of a Participant's
Other Investments Account is not sufficient to reduce
the fair market value of such Participant's Capital
Accumulation to the percentage of the total value of
such Participant's Accounts determined under Section
7.3, the remainder of the Forfeiture shall be deducted
from the Participant's Company Stock Account. If a
Participant's Company Stock Account include more than
one class of Company Stock, the Forfeiture will consist
of the same proportion of each class of stock. All
Forfeitures shall be reallocated to the Accounts of the
remaining Participants pursuant to Section 5.1(b) as of
the Anniversary Date of the Plan Year in which the
Break in Service occurs.
(b) If distribution of Capital Accumulation to a
Participant occurs prior to the occurrence of a Break
in Service, and if such Participant is not one hundred
percent (100%) vested in such Participant's Account
balances, the nonvested portion which is not
distributed will be held in such Participant's Accounts
under the Plan, and will become a Forfeiture only on
the Anniversary Date of the Plan Year in which a Break
in Service occurs. At any given time, the vested
interest ("X") in such Suspense Accounts shall be
determined in accordance with the following formula:
X = P(AB + D) - D
For purposes of applying this formula, P is the vested
percentage at the time of the subsequent termination;
AB is the total of the Account balances at the time;
and D is the amount of the Capital Accumulation
previously distributed.
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7.7 CERTAIN REEMPLOYED PARTICIPANTS.
If a Participant has a five (5) or more consecutive one year
Breaks in Service, all Service after such Breaks in Service shall
be disregarded for the purpose of determining such Participant's
Capital Accumulation attributable to the prior period of Service.
Such Participant's pre-break Service shall count in determining
such Participant's Capital Accumulation derived from post-break
Employer Contributions only if either (i) such Participant has
any Capital Accumulation attributable to Employer Contributions
at the time such Participant's Break in Service commences, or
(ii) upon returning to Service the number of consecutive Breaks
in Service is less than the greater of (a) five or (b) the number
of Years of Credited Service. Should a Participant who has
received a distribution of less than one hundred percent (100%)
of his/her Account be rehired, such Participant may repay such
distribution at any time prior to incurring five (5) consecutive
one year Breaks in Service or within five (5) years of
reemployment and, if such amount is timely paid, such
Participant's Account(s) shall be fully restored.
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ARTICLE VIII - DISTRIBUTION
8.1 TIME OF DISTRIBUTION.
Unless the Participant elects otherwise pursuant to the
terms of this Article VIII, distribution of benefits shall
begin no later than as provided in Section 8.7 or the
Participant's Required Beginning Date.
8.2 RETIREMENT OR PERMANENT DISABILITY.
A Participant whose employment ends on or after becoming
eligible for Retirement or by reason of such Participant's
Permanent Disability shall receive such Participant's
Capital Accumulation within sixty (60) days after the end of
the Plan Year in which employment ends.
8.3 OTHER TERMINATION OF PARTICIPATION.
(a) In the event a Participant ceases to participate for
reasons other than death or Retirement, and is not
reemployed before the end of the fifth (5th) Plan Year
following the Plan Year in which he separates from
service, distribution of such Participant's benefit
attributable to Employer Securities acquired by the
Plan after December 31, 1986 will commence not later
than one year after the close of the fifth (5th) Plan
Year following the Plan Year in which he separated from
service.
(b) Notwithstanding the foregoing, distribution of a
Participant's Plan Benefit attributable to Employer
Securities acquired by the Plan prior to January 1,
1987, will commence not later than sixty (60) days
after the close of the Plan Year in which he dies,
incurs a Permanent Disability, or attains the Early
Retirement Date, or within sixty (60) days after the
benefit is determined, whichever is later.
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(c) The portion of a Participant's Account balance
attributable to Employer Securities which were acquired
by the Plan prior to January 1, 1987, shall be
determined by multiplying the number of shares of such
securities held in the Account by a fraction, the
numerator of which is the number of shares acquired by
the Plan prior to January 1, 1987, and allocated to
Participants' Accounts, and the denominator of which is
the total number of shares held by the Plan at the date
of the distribution.
(d) Notwithstanding the foregoing, at the request of a
Participant, the Committee may direct that the
distribution be deferred and commence not later than
the Participant's Required Beginning Date.
(e) Notwithstanding the foregoing provisions of this
Section 10.2, the Plan shall not be required to
distribute any Employer Stock acquired with the
proceeds of a Securities Acquisition Loan until the
close of the Plan Year in which such Securities
Acquisition Loan has been repaid in full.
8.4 TERM OF DISTRIBUTION.
(a) Distribution of a Participant's Benefit will be made in
either a lump sum (as provided under this Plan) or
substantially equal annual installments over a period
of five (5) years; provided, however, that if the
distribution exceeds five hundred thousand dollars
($500,000), as indexed under Code Section 415, the term
of the distribution shall be five (5) years, plus one
(1) year (but not more than five (5) additional years)
for each one hundred thousand dollars ($100,000), as
indexed under Code Section 415, (or fraction thereof)
by which the distribution exceeds five hundred thousand
dollars ($500,000), as indexed under Code Section 415.
Notwithstanding the foregoing, the Committee may, at
the request of a Participant, direct that the
distribution be distributed in substantially equal
annual installments, plus net income or loss over a
longer period of years, provided that the period of
installments may not exceed such Participant's life
expectancy or the joint life expectancy of the
Participant and such Participant's designated
Beneficiary, as determined annually under life
expectancy tables promulgated under Section 72 of the
Code and provided that if a Participant dies after such
Participant's distribution has commenced, the remaining
portion of such Participant's distribution shall be
distributed at least as rapidly as under the method
being used at the date of such Participant's death.
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(b) Notwithstanding anything in this Article VIII to the
contrary, in the event that the benefit of a
Participant is distributed over the joint life
expectancy of the Participant and such Participant's
designated Beneficiary, the present value of benefits
payable to such Beneficiary shall not exceed fifty
percent (50%) of the present value of the total
benefits payable to the Participant and such
Participant's Beneficiary.
8.5 DEATH PRIOR TO DISTRIBUTION.
If a Participant who has elected to defer such Participant's
distribution dies before such Participant's distribution has
commenced, such Participant's entire benefit shall be
distributed within five (5) years of the date of such
Participant's death; provided, however, that if any portion
of a Participant's benefit is payable to or for the benefit
of an individual who is such Participant's designated
Beneficiary, such portion may be distributed over a period
not exceeding the life expectancy of such Beneficiary
provided such distributions begin not later than one (1)
year after the death of the Participant; and provided
further that if the designated Beneficiary is the spouse of
the Participant, at the election of the spouse, such
distribution (over a period not exceeding the life
expectancy of said spouse) need not commence until the
Participant's Required Beginning Date.
8.6 BENEFIT FORMS FOR PARTICIPANTS.
With respect to the Participant s Compnay Stock Account and
Other Investments Account only, if the benefits attributable
to the Participant s Company Stock Account and Other
Investments Account will be payable in the form of annual
installments as provided under this Plan, each installment
shall be equal to (i) the number of shares of Company Stock
credited to the Participant's Company Stock Account and the
balance credited to the Participant's Other Investments
Account, each divided by (ii) the number of installments
which remain to be paid (including the current installment
being computed). With respect to installment distributions
of shares of Company Stock acquired after December 31, 1986,
the number of installments may not exceed five (5). If a
Participant dies after such Participant's installment
payments begin but before such Participant's entire vested
interest in such Participant's accounts has been paid, the
Participant's benefits shall continue to be paid in
installments to such Participant's Beneficiary. If a
Participant's benefits are to be paid in installments, the
period for the installments must be such that, except where
the Participant's designated Beneficiary is such
Participant's spouse, the present value of the benefits
payable to the Participant will exceed fifty percent (50%)
of the present value of the total benefits to be paid and
that all benefits will be paid over a period not exceeding
the life expectancy of the Participant or the joint life and
last survivor expectancy of the Participant and such
Participant's designated Beneficiary (where the
Participant's life expectancy and, if the Participant's
designated Beneficiary is such Participant's spouse, such
Participant's designated Beneficiary's life expectancy is
redetermined as of the first day of each Plan Year).
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8.7 BENEFITS ON A PARTICIPANT'S DEATH.
If a Participant's employment is ended by death or if a
Participant has any vested interest under the Plan when such
Participant's employment ends and he then dies before such
Participant's benefits are fully paid, such Participant's
vested interest in such Participant's Accounts shall be paid
to such Participant's Beneficiary. The benefits will
generally be payable in a single lump sum within sixty (60)
days after the end of the Plan Year in which the Participant
died. However, a Participant may elect at any time to have
such Participant's Beneficiary receive all or any portion of
the benefits at a later time or in annual installments,
payable for a period elected by the Participant, each
installment being equal to (i) the number of shares of
Company Stock credited to the Participant's Company Stock
Account and the balance credited to the Participant's Other
Investments Account, each divided by (ii) the number of
installments which remain to be paid (including the current
installment being computed). The foregoing elections shall
also be available to the Beneficiary of any deceased
Participant who had not made an election as to the form of
death benefits which was not to be changed by the
Beneficiary. Any election shall be made by the Beneficiary
not later than sixty (60) days after benefits become
payable. In all events, all of the Participant's interest
in this Plan shall be completely distributed within five (5)
years after the date of such Participant's death, except (i)
if benefits are payable to or for the benefit of a
designated Beneficiary and the benefit payments begin within
one year after the Participant's death (or such later period
as may be permitted by regulations), the designated
Beneficiary's benefits may be paid over a period not
exceeding the designated Beneficiary's life expectancy at
the date of the Participant's death and (ii) if the
Participant's designated Beneficiary is such Participant's
spouse, benefit payments need not begin until the date the
Participant would have reached such Participant's Required
Beginning Date and, if the spouse dies before such payments
begin, the Participant's interest in this Plan shall then be
distributed pursuant to this section applied as if the
spouse were the Participant. Further, for purposes of this
Section 8.7 any benefits paid to a child of a Participant
shall be treated as if they have been paid to the
Participant's spouse if the benefits will become payable to
the spouse when the child reaches majority (or upon such
other designated event permitted by regulations).
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8.8 LIMITATIONS.
(a) Notwithstanding anything contained in this Plan to the
contrary, if a present value of a Participant's benefit
(determined in accordance with Section 411(a)(11)(B) of the
Code) exceeds $3,500 (or has ever exceeded $3,500 at the
time of any other prior distribution), any distribution
prior to such Participant's Early Retirement Date may be
made only with the written consent of the Participant.
(b) Failure of a Participant to consent to an immediate
distribution is an election to defer benefits to the
later of age sixty-two (62) or the Normal Retirement
Date of the Participant.
8.9 COMMENCEMENT OF BENEFITS.
(a) Notwithstanding anything in this Article VIII to the
contrary, payment of Plan Benefit will commence no
later than the sixtieth (60th) day after the close of
the Plan Year (or if later after the Plan Benefit is
determined) in which the latest of the following events
occur:
(i) the attainment by the Participant of age
sixty-five (65);
(ii) the Participant's actual retirement from the
employ of the Company;
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(iii) tenth (10th) anniversary of the year in which the
Participant commenced participation in the Plan.
(b) Notwithstanding the foregoing, a Participant's benefit
distribution shall commence not later than the
Participant's Required Beginning Date.
8.10 UNDISTRIBUTED ACCOUNTS.
Any part of a Participant's benefit which is retained in the
Trust after the Anniversary Date coinciding with or
immediately following the date on which such Participant's
Service terminates will continue to be treated as a Company
Stock Account, Other Investments Account, Diversified
Accounts, Salary Deferral Contribution Account, Matching
Employer Contribution Account or rollover contribution
account, respectively. However, except as provided in
Section 3.4 and Section 5.1(b), no further Employer
Contributions or Forfeitures will be credited to the
Participant's Accounts.
8.11 LIEN ON DISTRIBUTION.
Notwithstanding anything contained herein to the contrary,
if at the time of distribution, a Participant is indebted to
the Trust, or has retained in such Participant's possession
money or property which properly belongs to the Trust, the
Trust shall have a lien on such distribution pending the
resolution of such ownership rights. The Trustee(s) may
exercise such lien either by directing the Company secretary
to withhold any stock transfer of title, or by withholding
distribution of any stock or the value of any stock or other
assets, pending resolution of such ownership rights.
8.12 BENEFIT DISTRIBUTION.
Notwithstanding anything contained in this Plan to the
contrary, this Section 8.12 shall apply to all distributions
under this Plan.
(a) Form of Distribution
(i) A distribution shall be made entirely in cash with
respect to the Participant s Salary Deferral
Contribution Account, Matching Employer
Contribution Account and rollover contribution
account. With respect to a Participant s Company
Stock Account, a distribution may be made entirely
in cash, unless a Participant elects to receive
such Participant's distribution in the form of
Company Stock, in which case such distribution
will be made in the form of whole shares of
Company Stock with the value of any fractional
shares paid in cash.
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(ii) The Trustee(s) shall make distribution from the
Trust only on instructions from the Committee.
(iii) In connection with a distribution, the Committee
shall cause the shares of Company Stock credited
to the Participant's Company Stock Account and
units in each investment fund under such
Participant's Diversified Account, as defined in
Section 2.21 which are to be distributed to be
converted into cash at the Company Stock's current
fair market value, with the resulting cash being
paid to the Participant or such Participant's
Beneficiary, along with the portion of the
Participants Other Investments Account which is
being distributed. However, a Participant or such
Participant's Beneficiary, as the case may be,
shall have the right to request that the
Participant's benefits attributable to such
Participant's Accounts be paid in the form of
Company Stock (except for amounts held in the
Participant's Diversified Account), provided such
a request is made within sixty (60) days after the
Committee asks for a decision. In that event, the
Committee shall cause the portion of the
Participant's Other Investments Account which is
to be distributed to be converted into Company
Stock at its current fair market value, with the
resulting Company Stock being distributed to the
Participant or such Participant's Beneficiary,
along with the shares of Company Stock credited to
the to the Participant's Company Stock Account
which are being distributed, provided, that the
value of any fractional share of Company Stock
shall be paid in cash.
(b) Beneficiaries
(i) Designation
Distribution will be made to the Participant if
living, and if not, to such Participant's
Beneficiary. A Participant may designate such
Participant's Beneficiary upon becoming a
Participant and may change such designation at any
time by filing a written designation with the
Committee. Notwithstanding anything in this
Article VIII to the contrary, if a Participant is
married, a Participant shall not designate anyone
other than such Participant's spouse as primary
Beneficiary of such Participant's benefit unless
such spouse consents in writing to such
designation, such spouse acknowledges the effect
of such election, and such writing is witnessed by
a Plan representative or notary public and filed
with the Committee.
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(c) Absence of Valid Designation
If, upon the death of a Participant, former Participant
or Beneficiary, there is no valid designation of a
Beneficiary on file with the Company or the benefit is
not claimed by any Beneficiary within a reasonable
period of time after the death of the Participant, the
benefit shall be paid to the Participant's surviving
spouse. If the Participant is not married or if such
Participant's spouse does not survive the Participant,
the benefit shall be paid to the Participant's estate.
8.13 ROLLOVER TREATMENT.
(a) Rollovers Prior to January 1, 1993
For rollovers prior to January 1, 1993 the Committee
shall, when making any distribution which qualifies as
a qualifying rollover distribution under Section
402(a)(5)(E) of the Code applicable to rollovers prior
to January 1, 1993, provide a written statement to the
recipient which explains (i) the provisions under which
such distribution will not be subject to current tax if
transferred to an eligible individual retirement
account within sixty (60) days of receipt of the
distribution, and (ii) the circumstances under which
lump sum distributions may be taxed at favorable
capital gains rates and ten (10) 10-year forward
averaging rates.
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(b) Rollovers on or after January 1, 1993
(i) This subsection (b) shall apply to distributions
made on or after January 1, 1993, from the Plan.
Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a
Distributee's (as defined in subsection (b)(iii)
below) election under this subsection (b), a
Distributee may elect, at the time and in the
manner prescribed by the Committee to have any
portion of an Eligible Rollover Distribution (as
defined in subsection (b)(i) below) paid directly
to an Eligible Retirement Plan (as defined in
subsection (b)(ii) below) specified by the
Distributee in a Direct Rollover (as defined in
subsection (b)(iv) below).
(ii) For the purposes of this subsection (b), the
following definitions are applicable:
(1) "Eligible Rollover Distribution" shall mean
any distribution of all or any portion of the
balance to the credit of the Distributee,
except that an Eligible Rollover Distribution
shall not include:
(A) any distribution that is one of a series
of substantially equal periodic payments
(not less frequently than annually)
made:
(aa) for life (or life expectancy) of
the Distributee or the joint lives
(or joint life expectancies) of the
Distributee and the Distributee's
designated Beneficiary; or
(bb) for a specified period of ten (10)
years or more; and
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(B) any distribution to the extent such
distribution is required under Section
401(a)(9) of the Code.
(2) "Eligible Retirement Plan" shall
mean 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 the surviving
spouse, an Eligible Retirement Plan
is an individual retirement account
or individual retirement annuity.
(3) "Distributee" shall mean an
Employee or former Employee. It
shall also include 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, in regard to the interest of
the spouse or former spouse.
(4) "Direct Rollover" shall mean a
payment by the Plan to the Eligible
Retirement Plan specified by the
Distributee.
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8.14 DELAY IN BENEFIT DETERMINATION.
If the Committee is unable to determine the benefits payable
to a Participant or Beneficiary on or before the latest date
prescribed for payment pursuant to or in the event that an
appraisal of shares in respect to which a distribution is to
be made is not performed in a timely manner, the benefits
shall in any event be paid within sixty (60) days after they
can first be determined, with whatever additional payments
may be appropriate in view of the delay.
8.15 DESIGNATED BENEFICIARIES.
(a) Distribution of a Participant's Capital Accumulation
will be made to the Participant, if living, or if not
to the Beneficiary. In the event of a Participant's
death, such Participant's Beneficiary shall be such
Participant's surviving spouse, if living, or if none,
such Participant's estate unless the Participant, prior
to such Participant's death designated a Beneficiary
other than such Participant's surviving spouse or
estate. A Participant may designate a Beneficiary
and/or contingent Beneficiaries and may change such
designation from time to time.
(b) Notwithstanding any provision of this Plan to the
contrary, any Beneficiary designation or change by a
Participant which would result in the designation of a
Beneficiary other than the Participant's spouse shall
not be effective unless the Participant's spouse
consents. The spouse's consent must be witnessed by a
Plan representative or a notary public. If the
Participant establishes to the satisfaction of the
Committee that such written consent cannot be obtained
because there is no spouse or the spouse cannot be
located, the written consent of the Participant will
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be deemed sufficient, A consent will be valid only with
respect to the spouse who signs the consent, or in the
event of a deemed consent, the designated spouse. A
revocation of a prior non-spouse designation or change
may be made by the Participant without the consent of
the spouse at any time before the commencement of
benefits. The number of revocations shall not be
limited.
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ARTICLE IX -
RIGHTS AND OPTIONS ON DISTRIBUTED SHARES OF COMPANY STOCK
9.1 RIGHT OF FIRST REFUSAL
(a) If the distribution of a benefit is made in the form of
shares of Company Stock, such shares of Company Stock
distributed by the Trustee(s) may, as determined by the
Company or the Committee, be subject to a "right of
first refusal," until such time as such shares are
publicly traded. Such a "right" shall provide that
prior to any subsequent transfer, the shares must first
be offered by written offer, to the Trust, and then, if
refused by the Trust, to the Company. In the event
that the proposed transfer constitutes a gift or other
such transfer at less than fair market value, the price
per share shall be determined by an Independent
Appraiser (appointed by the Board of Directors) as of
the Anniversary Date coinciding with or immediately
preceding the date of exercise, except in the case of a
transfer to a Disqualified Person. In the event of a
proposed purchase by a prospective bona fide purchaser,
the offer to the Trust and the Company shall be at the
greater of fair market value, as determined by an
Independent Appraiser (appointed by the Board of
Directors) as of the Anniversary Date coinciding with
or immediately preceding the date of exercise (except
in the case of a purchase by a Disqualified Person), or
at the price offered by the prospective bona fide
purchaser. In the case of a purchase by or transfer to
a Disqualified Person, fair market value shall be
determined as of the actual date of the transaction.
Valuations must be made in good faith and based on all
relevant factors for determining the fair market value
of securities. The Trust may accept the offer at any
time during a period not exceeding fourteen (14) days
after receipt of such offer. In the event the Trust
does not accept such offer, the Company may accept such
offer at any time during said fourteen (14) day period.
(b) In the case of a purchase from a Disqualified Person
Participant, all purchases of Company Stock shall be
made at prices which, in the judgment of an Independent
Appraiser, do not exceed the fair market value of such
shares as of the date of the transaction.
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9.2 "PUT" OPTION
(a) If the distribution of a benefit is made in the form of
shares of Company Stock and such shares of Company
Stock are not readily tradable on an established
market, a Participant or a Beneficiary, or a donee or
heir of a Participant or Beneficiary, shall be granted
at the time that such shares are distributed to him, an
option to "put" the shares to the Company; provided,
however, that all such shares are so put; and provided,
further, that the Trust shall have the option to assume
the rights and obligations of the Company at the time
the "put" option is exercised. A "put" option shall
provide that, for a period of sixty (60) days after
such shares are distributed to a Participant or a
Beneficiary, or donee or heir of a Participant or
Beneficiary (and, if the "put" is not exercised within
such sixty (60) day period, for an additional period of
sixty (60) days in the following Plan Year), such
Participant would have the right to have the Company
purchase such shares at their fair market value. Such
"put" option shall be exercised by notifying the
Company in writing.
(b) In the case of a lump sum distribution, the terms of
payment for the purchase of such shares of stock shall
be as set forth in the "put" and may be either in a
lump sum or in up to five (5) equal annual installments
(with interest on the unpaid principal balance at a
reasonable rate of interest), as determined by the
Committee. However, if the Plan has incurred a
Securities Acquisition Loan, the term of payment under
the "put" may be extended for an additional five (5)
year period or until the Securities Acquisition Loan
has been repaid, whichever event occurs sooner.
Payment for the purchase of such shares must commence
within thirty (30) days after the "put" is exercised.
The period during which the put option is exercisable
does not include any time during which the distributee
is unable to exercise it because the party bound by the
put option is prohibited from honoring it by applicable
federal or state law. If payment is made in
installments, adequate security and a reasonable rate
of interest must be provided. In the case of an
installment distribution, payment must be made within
thirty (30) days after the put option is exercised with
respect to any installment distribution of Employer
Securities.
(c) In the case of a purchase from a Disqualified Person
Participant, all purchases of Company Stock shall be
made at prices which, in the judgment of an Independent
Appraiser, do not exceed the fair market value of such
shares as of the date of the transaction.
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9.3 OTHER OPTIONS
Except as otherwise provided in this Article IX, no security
acquired with the proceeds of a Securities Acquisition Loan
may be subject to a put, call, buy-sell or similar
arrangement while held by or when distributed from the Plan.
The protections and rights described in this Article IX are
nonterminable. Should this Plan cease to be an employee
stock ownership plan, or should the Securities Acquisition
Loan be repaid, Company Stock acquired with the proceeds of
a Securities Acquisition Loan will continue to be subject to
the provisions of this Article IX after the loan is paid.
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ARTICLE X - SPECIAL PROVISIONS
10.1 DIVERSIFICATION OF INVESTMENTS
(a) Within ninety (90) days after the close of each Plan
Year in the Qualified Election Period, each Qualified
Participant shall be permitted to direct the Plan as to
the investment of at least twenty-five percent (25%) of
the value of such Participant's benefit attributable to
Employer Securities contained in the Participant s
Company Stock Account which were acquired by the Plan
after December 31, 1986, to the extent such value
exceeds the amount to which a prior election, if any,
applies. In the case of the fifth year of the
Qualified Election Period, the preceding sentence shall
be applied by substituting "fifty percent (50%)" for
"twenty-five percent (25%)." The Participant's
direction shall be effective no later than one hundred
eighty (180) days after the close of the Plan Year.
(b) The Committee shall offer at least three (3) investment
options (not inconsistent with regulations under the
Code) to each Participant who makes an election under
this Section 10.1.
(c) In lieu of offering such investment options, the
Committee may direct that all amounts subject to
Participant elections under this Section 10.1 be
distributed to Qualified Participants. All such
distributions shall be distributed within one hundred
eighty (180) days after the close of the Plan Year and
shall be subject to the requirements of Article IX of
this Plan.
(d) In lieu of receiving a cash distribution under this
Section 10.1, a Qualified Participant may direct the
Plan to transfer such Participant's distribution to
another qualified plan of the Company which accepts
such transfers, provided that such plan permits
employee directed investments and does not invest in
Employer Securities to a substantial degree. Such
transfer shall be made within one hundred eighty (180)
days after the close of the Plan Year.
(e) For purposes of determining the amount of Employer
Securities that are subject to the above-described
diversification provision, the portion of a
Participant's Account balance attributable to Employer
Securities which were acquired by the Plan subsequent
to December 31, 1986, shall be determined by
multiplying the number of shares of such securities
held in the account by a fraction, the numerator of
which is the number of shares acquired by the Plan
after December 31, 1986, and allocated to Participants'
Accounts, and the denominator of which is the total
number of shares held by the Plan at the date the
individual becomes a Qualified Participant.
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(f) For each Qualified Participant who has elected to
diversify amounts and has been permitted to elect an
alternative investment election, the Committee shall
establish a Diversified Account to hold and account for
the Qualified Participant's interest in the investment
option(s) so elected. Such Diversified Account shall
be separate from the Qualified Participant's other
Accounts under the Plan and shall be separately
credited or debited with a pro rata share of the income
or loss of such investments elected. The Diversified
Account shall be valued at the same times as the
Qualified Participant's other Accounts under the Plan.
All other rules of the Plan including but not limited
to those concerning distributions, shall apply to the
Diversified Account.
10.2 CASH DIVIDENDS
Cash dividends, if any, on shares of Company Stock allocated
to Participants' Accounts may be paid to Participants
currently as determined by the Employer in a uniform and
nondiscriminatory manner as applied to all Participants
similarly situated. Any such dividends not paid to
Participants under this Section 10.2 shall be accumulated in
the Trust. It is intended that the Company shall be allowed
a deduction with respect to any dividends paid on shares of
Company Stock of any class held by the Plan on the record
date to the extent such dividends are paid in cash directly
to the Participants, or their Beneficiaries, or are paid to
the Plan and are distributed from the Plan to the
Participants or their Beneficiaries not later than ninety
(90) days after the close of the Plan Year in which paid, or
are used to make payments on a Securities Acquisition Loan.
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10.3 HARDSHIP DISTRIBUTIONS
(a) Prior to January 1, 1996, this Section 10.3 applies to
all contributions under this Plan. Effective January
1, 1996, this Section 10.3 shall not apply to the
Participants Salary Deferral Contributions, rollover
contributions or Matching Employer Contributions.
Hardship withdrawals with respect to Salary Deferral
Contributions, rollover contributions and Matching
Employer Contributions shall be governed solely by
Section 4.9.
(b) At the request of a Participant who has terminated from
service, the Committee may, in its sole discretion
uniformly and consistently applied as to all
Participants, direct the Trustee(s) to advance to him
or to such Participant's Beneficiary a partial
distribution not to exceed fifty percent (50%) of such
Participant's vested benefit under the stock bonus plan
as then estimated by the Committee, for reason of
hardship.
(c) The Committee, in its sole discretion, exercised in a
uniform and nondiscriminatory manner, shall determine
whether hardship exists. "Hardship" shall include
serious financial need, affecting the Participant or
such Participant's dependents, for medical or dental
care, prevention of loss of home, education of children
and other financial emergencies threatening the welfare
of the Participant or such Participant's dependents.
(d) If any partial hardship distribution is made, the
Participant's benefit when computed will be reduced by
the amount of such hardship distribution.
(e) Notwithstanding the foregoing, except in the case of
death or Disability Retirement, a hardship distribution
shall not be made to any Participant who is or was an
Owner-Employee prior to the date such Employee reaches
age fifty-nine and one-half (59-1/2), unless such
Owner-Employee signs and delivers to the Committee a
statement in writing acknowledging such Participant's
willingness to incur the penalty tax imposed upon
distributions attributable to contributions paid on
such Participant's behalf while he/she was an
Owner-Employee.
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ARTICLE XI - ADMINISTRATION
11.1 NAMED FIDUCIARIES
(a) The Committee and the Company shall each be a "named
fiduciary" within the meaning of Section 402 of ERISA,
but each such party's role as a named fiduciary shall
be limited solely to the exercise of its own authority
and discretion, as defined under the terms of this Plan
to control and manage the operation and administration
of the Plan (other than authority and discretion
assigned under this Plan, or delegated pursuant
thereto, to the Trustee(s)). A named fiduciary may
designate other persons who are not named fiduciaries
to carry out its fiduciary responsibilities hereunder,
and any such person shall become a fiduciary under the
Plan with respect to such delegated responsibilities.
In the event of such a designation, the named fiduciary
shall not be liable for an act or omission of the
designee in carrying out his/her delegated
responsibilities, except to the extent provided in
Section 405 of ERISA.
(b) Fiduciary Limitations.
Named fiduciaries under the Plan, as well as the
Trustee(s) and any other person who may be a fiduciary
by virtue of Section 3(21) of ERISA, shall exercise and
discharge their respective powers and duties in the
following manner:
(i) by acting solely in the interest of the
Participants and their Beneficiaries;
(ii) by acting for the exclusive purpose of providing
benefits to Participants and their Beneficiaries
and defraying reasonable expenses of administering
the Trust Assets and Plan;
(iii) by acting with the care, skill, prudence and
diligence under the circumstances then prevailing
that a prudent man acting in a like capacity and
familiar with such matters. would use in the
conduct of an enterprise of a like character and
with like aims; and
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(iv) by otherwise acting in accordance with this Plan
and Trust Agreement to the extent consistent with
Title I of ERISA.
(c) Company Responsibilities.
The Company, acting through the Board of Directors,
shall have the authority to amend or terminate the Plan
to determine the amount of Employer Contributions to
the Plan and to appoint a Trustee(s) and Committee.
Whenever the Company is permitted or required to do or
perform any act under the terms of this Plan, it shall
be done and performed by any officer duly authorized by
the Board of Directors. To enable the Committee to
perform its duties, the Company shall supply completely
and timely all information which the Committee may from
time to time require.
(d) Trustee(s) Responsibilities.
The Trustee(s) shall have, to the extent set forth in
the Trust Agreement, authority and discretion to
receive, hold and distribute Trust Assets, fiduciary
responsibilities in connection with the exercise of
such authority and discretion, and a duty to issue
reports and otherwise to account to the Company and the
Committee. All Employer Contributions shall be paid
over to the Trustee(s) and, together with accretions
thereto, shall be invested by the Trustee(s) in
accordance with the directions permitted in this Plan
and Trust Agreement.
(e) Appointment of Committee.
This Plan will be administered by a Committee
appointed by the Board of Directors of the Company to
serve at its pleasure and without compensation. A
member of the Committee may be removed by the Board of
Directors at any time with or without cause upon ten
(10) days' written notice from the Board of Directors,
and any member of the Committee may resign by
delivering such Participant's written resignation to
the Board of Directors.
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(f) Board of Directors or Committee
(i) The Company, through the action of the Board of
Directors or Committee (as determined by the
Company), shall have the following duties and
responsibilities in connection with the
administration of the Plan, including but not
limited to:
(1) the fiduciary power to construe and interpret
the terms of the Plan, and all questions,
including factual questions, arising under
the Plan;
(2) the power to interpret any ambiguities which
may arise under the Plan;
(3) making decisions with respect to amending or
terminating the Plan;
(4) making decisions with respect to the
selection, retention or removal of the
Trustee(s);
(5) periodically reviewing the performance of the
Trustee(s), the members of the Committee,
persons to whom duties have been allocated or
delegated and any advisers appointed for
purposes of a qualified Domestic Relations
Order;
(6) determining the form and amount of Employer
Contributions.
(ii) The Board of Directors may, by written resolution,
allocate its duties and responsibilities to one or
more of its members or delegate such duties and
responsibilities to any other persons; provided,
however, that any such allocation or delegation
shall be terminable upon such notice as the Board
of Directors deems reasonable and prudent under
the circumstances.
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(g) Committee
(i) Records and Reports.
The Committee shall be responsible for keeping a
record of all its proceedings and actions and
shall maintain all such books of account, records,
and other data as shall be necessary to administer
the Plan and to meet the disclosure and reporting
requirements of ERISA.
(ii) Compensation.
No member of the Committee shall receive any
compensation from the Company, Plan or Trust for
his services as a member of the Committee.
(iii) Committee Procedures.
The Committee may act at a meeting or in writing
without a meeting. The Committee shall elect one
of its members as chairman, who shall also be the
agent for service of legal process on behalf of
the Plan, and appoint a secretary, who may or may
not be a Committee member. The Committee may
adopt such regulations as it deems desirable for
the conduct of its affairs. All decisions of the
Committee shall be made by majority vote of the
number then constituting the Committee, including
actions taken without a meeting.
(iv) Distribution of Benefits.
(1) Direction to the Trustee(s). The Committee
shall issue directions to the Trustee(s)
concerning all benefits which are to be paid
from the Trust pursuant to the provisions of
the Plan, and shall warrant that all such
directions are in accordance with this Plan.
(2) Application by Participants. The Committee
may require a Participant to complete and
file with it an application for the payment
of benefits its under the Plan and any other
forms deemed necessary and desirable by the
Committee for the proper administration of
the Plan and furnish all pertinent
information requested by the Committee. The
Committee may rely upon all such information
so furnished it, including the Participant's
current mailing address.
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11.2 CLAIMS PROCEDURES
(a) Filing a Claim.
Any Participant or Beneficiary under the Plan may file
a written claim for a Plan Benefit with the Committee
or with a person named by the Committee to receive
claims under the Plan. The Committee shall have
complete discretion as to whether a claim shall be
allowed or denied. The Committee's decision shall be
final.
(b) Notice of Denial of Claim.
In the event of a denial or limitation of any benefit
or payment due to a Claimant, the Claimant shall be
given a written notification containing specific
reasons for the denial or limitation of such
Participant's benefit. The written notification shall
contain specific reference to the pertinent Plan
provisions on which the denial or limitation of such
Participant's benefit is based. In addition, it shall
contain a description of any other material or
information necessary for the Claimant to perfect a
claim and an explanation of why such material or
information is necessary. The notification shall
further provide appropriate information as to the steps
to be taken if the Claimant wishes to submit such
Participant's claim for review. This written
notification shall be given to a Claimant within ninety
(90) days after receipt of such Participant's claim by
the Committee unless special circumstances require an
extension of time for processing the claim. If such an
extension of time is required, written notice of the
extension shall be furnished to the Claimant prior to
the termination of said ninety (90) day period, and
such notice shall indicate the special circumstances
which make the postponement appropriate.
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(c) Right of Review.
In the event of a denial or limitation of such
Participant's benefit, the Claimant or such
Participant's duly authorized representative shall be
permitted to review pertinent documents and to submit
to the Committee issues and comments in writing. In
addition, the Claimant or such Participant's duly
authorized representative may make a written request
for a full and fair review of such Participant's claim
and its denial by the Committee, provided, however,
that such written request is received by the Committee
(or its delegate to receive such requests) within sixty
(60) days after receipt by the claimant of written
notification of the denial or limitation of the claim.
The sixty (60) day requirement may be waived by the
Committee in appropriate cases.
(d) Decision on Review.
A decision shall be rendered by the Committee within
sixty (60) days after the receipt of the request for
review, provided that where special circumstances
require an extension of time for processing the
decision, it may be postponed with written notice to
the Claimant (prior to the expiration of the initial
sixty (60) day period) for an additional sixty (60)
days, but in no event shall the decision be rendered
more than one hundred twenty (120) days after the
receipt of such request for review. Any decision by
the Committee shall be furnished to the Claimant in
writing and shall set forth the specific reason for the
decision and the specific Plan provisions on which the
decision is based.
(e) Court Action.
No Participant or Beneficiary shall have the right to
seek judicial review of a denial of benefits or to
bring any action in any court to enforce a claim for
benefits prior to filing a claim for benefits or
exhausting such Participant's rights to review under
this Section 11.2.
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(f) General
(i) The Board of Directors, the Committee or any
person to whom duties and responsibilities have
been allocated or delegated, may employ other
persons for advice in connection with their
respective responsibilities, including actuaries,
plan consultants, investment advisers, attorneys
and accountants.
(ii) Any person may serve in more than one capacity
with respect to the Plan.
(iii) The Board of Directors, the Committee or any
person to whom duties and responsibilities have
been allocated or delegated shall be indemnified
and held harmless by the Company from any expense
or liability hereunder unless due to or arising
from fraud, dishonesty, gross negligence, or
misconduct of the Board of Directors, the
Committee, or such person, as the case may be.
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ARTICLE XII - AMENDMENT AND TERMINATION
12.1 AMENDMENT
To provide for contingencies which may require or make
advisable the clarification, modification or amendment of
this Agreement, the Company reserves the right to amend the
Plan, through the action of the Board of Directors, at any
time and from time to time, in whole or in part, including
without limitation, retroactive amendments necessary or
advisable to qualify the Plan and Trust under the provisions
of Section 401(a) of the Code or any successor or similar
statute hereafter enacted. However, no such amendment
shall:
(a) cause any part of the assets of the Plan and Trust to
revert to or be recoverable by the Company or be used
for or diverted to purposes other than the exclusive
benefit of Participants, former Participants and
Beneficiaries;
(b) deprive any Participant, former Participant or
Beneficiary of any benefit already vested, except to
the extent that such amendment may be necessary to
permit the Plan or the Trust to qualify or continue to
qualify as tax-exempt;
(c) terminate the protections and rights described in
Section 9.1 alter, change or modify the duties, powers
or liabilities of the Trustee(s) hereunder without its
written consent; or
(d) with respect to any benefit previously accrued,
eliminate or reduce any early retirement benefit or
retirement type subsidy, or eliminate any optional form
of benefit.
12.2 CHANGES IN THE CODE
Notwithstanding any other provision of this Plan to the
contrary, if any amendment to the Code requires that a
conforming plan amendment must be adopted effective as of a
stated effective date in order for this Plan to continue to
be a qualified plan, this Plan shall be operated in
accordance with the requirement of such amendment to that
law 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.
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12.3 TERMINATION, PARTIAL TERMINATION OR COMPLETE DISCONTINUANCE
OF CONTRIBUTIONS
Although the Company has established the Plan with the bona
fide intention and expectation that it will be able to make
contributions indefinitely, nevertheless, the Company shall
not be under any obligation or liability to continue its
contributions or to maintain the Plan for any given length
of time. The Company, may in its sole discretion, through
the action of the Board Directors, discontinue such
contributions or terminate the Plan in whole or in part in
accordance with its provisions at any time without any
liability for such discontinuance or termination. In the
event of such termination, if the Plan is not replaced by a
comparable plan qualified under Section 401(a) of the Code,
then the Accounts of all Participants affected by the
termination, partial termination or discontinuance of
contributions will become nonforfeitable. After termination
of the Plan, the Committee and the Trust will continue until
the Plan Benefit of each Participant has been distributed.
Plan Benefits may be distributed promptly after they are
computed or distribution may be deferred as provided in
Article X, as the Committee may direct.
12.4 DETERMINATION BY INTERNAL REVENUE SERVICE
Notwithstanding any other provision of the Plan to the
contrary, if the Internal Revenue Service shall fail or
refuse to issue a favorable written determination or ruling
with respect to the initial qualification of the Plan and
exemption of the Trust from tax under Section 401(a) of the
Code, all Employer Contributions under Section 401(a),
together with any income received or accrued thereon less
any benefits or expenses paid shall, upon the written
direction of the Company, be deemed held by the Trustee(s)
under the WesBanco Employee Stock Ownership Plan as it
existed prior to the adoption of this Plan and this Plan and
the Trust shall terminate.
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12.5 DISTRIBUTION UPON TERMINATION.
In the event of termination of the Plan, the assets then
held in Trust under the Plan shall be distributed to the
Participants as provided in this Plan.
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ARTICLE XIII - TOP HEAVY PROVISIONS
13.1 EFFECTS OF BEING TOP-HEAVY.
For any Plan Year in which the Plan is a Top-heavy Plan:
(a) For Plan Years beginning before January 1, 1989, only
the first two hundred thousand dollars ($200,000) or
such larger amount as may be prescribed by the
Secretary of the Treasury or such Participant's
delegate pursuant to Section 416(d)(2) of the Code of
each Participant's Covered Compensation will be taken
into account for purposes of determining benefits under
the Plan.
(b) This subsection (b) shall become effective only upon
the amendment of the vesting schedule in Section 9.1.
If the vesting schedule provided in Section 9.1 is
amended to a schedule which is more restrictive or less
advantageous than as provided in Section 9.1, the
following vesting schedule shall be substituted for the
vesting schedule in Section 9.1:
Year Nonforfeitable
of Credited Service Percentage
------------------- --------------
Less than 3 0%
Three or More 100%
If a Participant does not have an Hour of Service after
the Plan has initially become Top-heavy, such
Participant's vested interest will be determined
without regard to this subsection.
(c) (i) In any Plan Year in which the Plan is considered a
Top-heavy Plan, if any Affiliated Company does not
maintain any qualified defined benefit plan in
addition to this Plan, except as provided in
subsection (e) below, the Employer Contributions
allocated on behalf of any Participant who is a
Non-Key Employee shall not be less than the lesser
of three percent (3%) of such Participant's "415
compensation" (as defined in Section 5.5(a)(iii),
subject to Section 2.15) or the largest percentage
of Employer Contributions, as a percentage of the
Key Employee's "415 compensation" (as defined in
Section 5.5(a)(iii), subject to Section 2.15),
allocated on behalf of any Key Employee for that
year. The minimum allocation is determined
without regard to any Social Security
contribution. This minimum allocation shall be
made even though, under other provisions of this
Plan, the Participant would not otherwise be
entitled to receive an
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allocation or would have received a lesser
allocation for the year because of the
Participant's failure to complete a Year of
Service. The amount of the minimum allocation and
the number of Participants entitled to receive
such minimum allocation shall be determined
pursuant to Section 416(c)(2)(A) of the Code and
regulations thereunder.
(ii) The provisions in subsection (i) above shall not
apply to any Participant to the extent that the
Participant is covered under any other plan(s) of
any Affiliated Company and the minimum allocation
or benefit requirement applicable to Top-heavy
Plans will be met in the other plan(s).
(d) The definitions of Defined Contribution Fraction and
Defined Benefit Fraction appearing in Sections 5.5
shall be read substituting the number "1.00" for the
number "1.25" wherever it appears therein unless:
(i) the Plan provides a minimum accrual with "3
percent" being substituted for "2 percent", and by
increasing (by not more than ten (10) percentage
points) "20 percent" by one (1) percentage point
for each year for which the Plan was Top-heavy;
and
(ii) if the Top-heavy Ratio, does not exceed ninety
percent (90%).
(e) (i) In the event any Affiliated Company maintains a
qualified defined benefit plan in addition to this
Plan, any Affiliated Company may provide a minimum
allocation equal to five percent (5%) of "415
compensation" (as defined in Section 5.5(a)(iii))
to each Non-Key Employee entitled under (a) above
to receive a minimum allocation.
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(ii) The provisions in subsections (c)(i) and (e)(i)
above shall be limited to:
(1) Participants who were employed by any
Affiliated Company on the last day of the
Plan Year or, effective August 5, 1993, who
were on a leave pursuant to the FMLA on the
last day of the Plan Year; or
(2) Participants who died, retired or incurred a
Total and Permanent Disability during the
Plan Year.
13.2 PARTICIPANT'S TOP-HEAVY ACCOUNT.
An additional separate account shall be established for each
Participant to be known as the Participant's Top-heavy
Account to which shall be posted such Participant's share of
any Affiliated Company's Employer Contributions, Forfeitures
and net earnings and valuation adjustments for each Plan
Year to which this Article XIII is applicable. Such
Participant's share of the Employer Contributions,
Forfeitures and net earnings and valuation adjustments that
have been posted to such Participant's Accounts for all
prior Plan Years shall be transferred to such Participant's
Top-heavy Account.
13.3 SIMPLIFIED EMPLOYEE PENSIONS.
For purposes of this Article XIII, a simplified employee
pension shall be treated as a defined contribution plan. At
any Affiliated Company's election, the aggregate employee
contributions to a simplified employee pension may be taken
into account in lieu of the aggregate of the accounts of the
Employees for the purpose of determining whether the Plan is
a Top-heavy Plan.
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13.4 CONTRIBUTIONS OR BENEFITS NOT TAKEN INTO ACCOUNT.
The Plan must meet the requirements of this Article XIII
without taking into account:
(a) contributions or benefits relating to tax on
self-employment income;
(b) relating to Federal Insurance Contributions Act;
(c) Title II of the Social Security Act; or
(d) any other federal or state law.
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ARTICLE XIV - MISCELLANEOUS PROVISIONS
14.1 PARTICIPATION BY ANY AFFILIATED COMPANY
(a) Any Affiliated Company presently existing or hereafter
acquired may, with the consent of the Company, adopt
the Plan and Trust and thereby enable its employees to
participate herein.
(b) In the event any Participant is transferred to an
Affiliated Company which is a participating employer,
he shall continue to participate hereunder in the
allocation of Employer Contributions and such
Participant's Accounts shall continue to vest in
accordance with Article VII. Any Participant who is
transferred to an Affiliated Company which is not a
participating employer shall be treated as a suspended
Participant in accordance with Section 3.4.
14.2 MERGER OR TRANSFER OF ASSETS
(a) General Provision
In no event shall this Plan be merged or consolidated
with any other employee benefit plan, nor shall there
be any transfer of assets or liabilities from this Plan
to any other such plan, unless immediately after such
merger, consolidation or transfer, each Participant's
benefits, determined as if this Plan had terminated,
are at least equal to or greater than the benefits
which the Participant would have been entitled to had
this Plan been terminated immediately before such
merger, consolidation or transfer.
(b) Merger of Bank Sissonville Employee Stock Ownership
Plan into this Plan
The provisions of this subsection (b) are effective
January 1, 1989. Subsection (a) above shall govern and
be operative with respect to the provisions of this
subsection (b).
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(i) The Bank of Sissonville Employee Stock Ownership
Plan shall be merged into this Plan. At such
time, the account balance of the participants in
the Bank of Sissonville Employee Stock Ownership
Plan shall be transferred into this Plan; and all
participants in the Bank of Sissonville Employee
Stock Ownership Plan shall become Participants in
this Plan.
(ii) Pursuant to subsection (i) above, the amount which
each such participant in the Bank of Sissonville
Employee Stock Ownership Plan would receive if
this Plan were terminated immediately after the
merger or transfer shall be equal to or greater
than the amount each such participant would have
received if the Bank of Sissonville Employee Stock
Ownership Plan had been terminated immediately
preceding the merger or transfer.
(iii) All affiliated banks of the Bank of Sissonville
hereby adopt this Plan and the Company hereby
approves and accepts such adoptions.
(iv) The Company hereby approves and accepts the merger
and transfer of account balances of the Bank of
Sissonville Employee Stock Ownership Plan into
this Plan.
14.3 EXCLUSIVE BENEFIT OF PARTICIPANTS AND BENEFICIARIES
(a) All assets of the Trust shall be retained for the
exclusive benefit of Participants and their
Beneficiaries and shall be used only to pay benefits to
such persons or to pay the fees and expenses of the
Trust. The assets of the Trust shall not revert to the
benefit of the Employer or any Affiliated Company,
except as otherwise specifically provided in this Plan.
(b) To the extent permitted or required by ERISA and the
Code, contributions to the Trust under this Plan are
subject to the following conditions:
(i) if a contribution or any part thereof is made to
the Trust by the Employer or any Affiliated
Company under a mistake of fact, such contribution
or part thereof shall be returned to the Employer
or any Affiliated Company, whichever is
appropriate, within one (1) year after the date
the contribution is made;
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(ii) contributions to the Trust are specifically
conditioned on their deductibility under the Code
and, to the extent a deduction is disallowed for
any such contribution, such amount shall be
returned to the Employer or any Affiliated
Company, whichever is appropriate, within one (1)
year after the date of the disallowance of the
deduction.
14.4 NON-GUARANTEE OF EMPLOYMENT
Nothing contained in this Plan shall be construed as a
contract of employment between the Employer or any
Affiliated Company and any Employee, or as a right of any
Employee to be continued in the employment of the Employer
or any Affiliated Company, or as a limitation of the right
of the Employer or any Affiliated Company to discharge any
of its Employees, with or without cause.
14.5 RIGHTS TO TRUST ASSETS
No Employee, Participant or Beneficiary shall have any right
to, or interest in, any assets of the Trust upon termination
of employment or otherwise, except as provided under the
Plan. All payments of benefits under the Plan shall be made
solely out of the assets of the Trust.
14.6 NON-ALIENATION OF BENEFITS
Except as provided under Section 9.1, benefits payable under
the Plan shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance,
charge, garnishment execution or levy of any kind, voluntary
or involuntary. Any attempt to anticipate, alienate, sell,
transfer, assign, pledge, encumber, charge or otherwise
dispose of any right to benefits payable hereunder shall be
void. The Trust shall not in any manner be liable for, or
subject to, the debts, contracts, liabilities, engagements
or torts of any person entitled to benefit hereunder.
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14.7 PAYMENTS PURSUANT TO A QUALIFIED DOMESTIC RELATIONS ORDER
(a) Notwithstanding the provisions of Section 14.6, the
Plan will recognize a "qualified domestic relations
order" which shall be a judgment, decree or order
(including approval of a property settlement agreement)
that meets the requirements of subsections (i), (ii)
and (iii) below:
(i) the order relates to child support, alimony, or
property rights of a spouse, former spouse, child
or dependent of a Participant and is issued
pursuant to a state domestic relations law;
(ii) the order includes:
(1) the name and address of the Participant and
alternative payee;
(2) the amount or percentage of benefits payable
to the alternate payee (or the manner in
which the amount or percentage is to be
determined);
(3) the period or number of payments involved;
and
(4) the exact name of the plan to which the order
applies; and
(iii) the order does not require a type or form of
benefit or option not otherwise offered under the
Plan, does not require the Plan to provide
increased benefits (determined on an actuarial
basis), and does not affect benefits already the
subject of a previous qualified domestic relations
order.
(b) Subsection (a)(iii) above shall be interpreted to mean
that an order can require a distribution of the portion
of a Participant's Account(s) that could be immediately
withdrawn upon proper application.
(c) Notwithstanding subsection (a)(iii) above, a qualified
domestic relations order can order the Plan to commence
payments to an alternate payee as of or following a
date which is not more than ten (10) years prior to the
Participant's Normal Retirement Date even though the
Participant is still employed by the Employer or the
Affiliated Employers. If the Participant dies before
the above-mentioned date, benefits are payable to the
alternate payee only if the order specifically provides
for such benefits.
96
<PAGE>
(d) Notwithstanding subsection (a)(iii) above, an alternate
payee may elect any form of payment to which the
Participant would be entitled at the time of the
alternate payee's benefit commencement, provided,
however, that an alternate payee cannot elect to
receive payment under any joint and survivor form of
payment for such alternate payee and such Participant's
or her subsequent spouse.
(e) The Committee shall notify any Participant and
alternate payee of the receipt of any order by the Plan
and shall inform such Participant and alternate payee
of the Plan's procedures for determining whether the
order meets the requirements described above in this
Section 14.7. Such procedures shall comply with the
requirements set forth in Section 414(p) of the Code
and Section 206(d) of ERISA.
14.8 AGGREGATION RULES
Except as otherwise provided by applicable law, all
employees of the Employer or any Affiliated Employers will
be treated as employed by a single employer.
14.9 UNCLAIMED BENEFITS
(a) If any benefit due to a Participant or Beneficiary is
not claimed within a reasonable time after the later
of:
(i) the date the benefit is payable under this Plan;
or
(ii) the date that the Participant would attain Normal
Retirement Age;
such benefit shall be forfeited. Such Forfeitures
shall be used to reduce the cost of the Plan.
Should the Participant or Beneficiary subsequently
file a claim for benefits, the Committee shall
restore the benefit and make benefit payments as
required under the terms of this Plan.
97
<PAGE>
(b) In an effort to prevent such Forfeitures, the
Participant or Beneficiary shall inform the Committee
of such Participant's current address at least once
every two (2) years. In the event of any benefits
remaining unclaimed according to the terms of this
section, and prior to any Forfeiture of such benefits,
the Trustee(s) shall send a written notice to the last
known address of the Participant or Beneficiary who is
entitled to benefits under this Plan. Such notice
shall indicate the action necessary to prevent
Forfeitures of any unclaimed benefits under this Plan.
In the event of the Participant's failure to respond
within a reasonable period of time, not to exceed three
(3) months, the Trustee(s) is under no further
obligation to locate the Participant or Beneficiary,
and all further liability relating to unclaimed
benefits is discharged.
14.10 SEVERABILITY
If any provision of this Plan is held to be illegal, invalid
or unenforceable, such provision shall be deemed to have
been deleted from this Plan effective on the Effective Date,
and such provision or deletion shall not affect the
legality, validity or enforceability of any other provision
of this Plan.
14.11 HEADINGS
The headings and subheadings of this Plan have been inserted
for convenience of reference only and in no way affect the
interpretation of the Plan.
14.12 BONDING
The Committee shall arrange for such bonding as is required
by law, but no bonding in excess of the amount required by
law shall be considered required by this Plan.
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<PAGE>
14.13 INDEMNIFICATION
To the extent permitted by the laws of the State of West
Virginia and ERISA, the Company shall indemnify the members
of the Committee, any present or former member of the Board
of Directors, the Trustee(s) or any other officer or
Employee of the Company or an Affiliated Company, against
any and all claims, losses, damages, expenses (including
legal fees), fines penalties, and liabilities arising out of
acts, omissions, and conduct as a Fiduciary with respect to
the Plan, except to the extent that such person shall be
determined to be liable by a court of competent jurisdiction
for such Participant's own willful misconduct. The
foregoing rights of indemnification shall be in addition to
such other rights as the above person may enjoy whether as a
matter of law or by reason of insurance coverage of any kind
or otherwise.
14.14 APPLICABLE LAW
Except to the extent otherwise required by ERISA, this Plan
shall be construed and enforced in accordance with the laws
of the State of West Virginia.
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IN WITNESS WHEREOF, to record the adoption of this Plan, to be
effective as first set forth above, the Company has caused its
appropriate officers to affix its corporate name and seal hereto
this 21 day of December 1996.
WESBANCO, INC.
(SEAL)
By:/s/ Edward M. George
----------------------------
Edward M. George
Title: President and CEO
Wesbanco, Inc.
------------------------------
KIRKPATRICK & LOCKHART LLP
------------------------------
1500 OLIVER BUILDING
PITTSBURGH, PENNSYLVANIA 15222-2312
TELEPHONE (412) 355-6500
FACSIMILE (412) 355-6501 Exhibit 5.1
June 21, 1996
WesBanco, Inc.
1 Bank Plaza
Wheeling, WV 26003
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We are counsel to WesBanco, Inc., a West Virginia
corporation (the "Company"), in connection with the Company's
Registration Statement on Form S-8 (the "Registration Statement")
to be filed with the Securities and Exchange Commission relating
to the registration under the Securities Act of 1933, as amended,
of an aggregate of 25,000 shares (the "Shares") of the Company's
Common Stock, par value $2.0833 per share, which may be issued by
the Company pursuant to the WesBanco, Inc. KSOP (the "Plan").
We are familiar with the Registration Statement and the
Plan, and have examined the Company's Restated Articles of
Incorporation and Amended and Restated By-laws. We have also
examined such other public and corporate documents, certificates,
instruments and corporate records, and such questions of law, as
we have deemed necessary or appropriate for the purposes of this
opinion.
Based on the foregoing, we are of the opinion that:
1. The Shares have been duly authorized and, when issued
in accordance with the provisions of the Plan, will be validly
issued, fully paid and nonassessable, and
2. The provisions of the written documents constituting
the Plan comply with the requirements of the Internal Revenue
Code of 1986, as amended (the "Code"), and the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"),
pertaining to such provisions. This opinion assumes that the
Company has applied for a determination letter from the Internal
Revenue Service in a timely manner, the Plan qualifies and is
exempt from tax under the pertinent provisions of the Code and
<PAGE>
--------------------------
KIRKPATRICK & LOCKHART LLP
--------------------------
WesBanco, Inc.
June 21, 1996
Page 2
ERISA and the Plan will be amended in any way necessary to obtain
a favorable determination.
We hereby consent to the filing of this opinion as Exhibit
5.1 to the Registration Statement.
Yours truly,
/s/ Kirkpatrick & Lockhart LLP
Exhibit 23.1
[PRICE WATERHOUSE LLP LETTERHEAD]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
Registration Statement on Form S-8 (the "Registration Statement")
with regard to the WesBanco, Inc. KSOP of our report dated
January 25, 1996 on our audits of the consolidated financial
statements and the financial statement schedules of WesBanco,
Inc. (the "Company") and affiliates as of December 31, 1995 and
1994 and for each of the three years in the period ended
December 31, 1995, which report is incorporated by reference in
the Company's annual report on Form 10-K for the year ended
December 31, 1995.
We also consent to the reference to our Firm as experts
under Item 3 to the Registration Statement.
Yours truly,
PRICE WATERHOUSE LLP
June __, 1996
Exhibit 24.1
POWER OF ATTORNEY FOR EXECUTION OF FORM S-8
TO BE FILED WITH THE SECURITIES & EXCHANGE COMMISSION
We, the undersigned Directors of WesBanco, Inc. (the
"Company"), hereby severally constitute and appoint James C.
Gardill and/or Edward M. George, and each of them singly, our
true and lawful attorneys with full power to them, and each of
them singly, to sign for us and in our names and in the
capacities indicated below, the Form S-8 for the Company KSOP to
be filed with the Securities & Exchange Commission and any and
all amendments thereto in our names and behalf in our capacities
as Directors of the Company to enable the Company to comply with
the provisions of the Securities Act of 1933, as amended (the
"Securities Act"), and all requirements of the Securities Act,
hereby ratifying and conforming our signatures as they may be
signed by our attorneys, or either of them, to said Form S-8 and
any and all amendments thereto.
Pursuant to the requirements of the Securities Act,
this Power of Attorney for purposes of executing the Form S-8 has
been signed by the following persons in the capacities and on the
dates indicated:
SIGNATURE TITLE DATE
--------- ----- ----
------------------------ Director June __, 1996
Frank K. Arbruzzino
/s/ James E. Altmeyer Director June 21, 1996
------------------------
James E. Altmeyer
------------------------ Director June __, 1996
Earl C. Atkins
------------------------ Director June __, 1996
Gilbert S. Bachmann
/s/ Charles J. Bradfield Director June 21, 1996
------------------------
Charles J. Bradfield
<PAGE>
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Ray A. Byrd Director June 21, 1996
------------------------
Ray A. Byrd
------------------------ Director June __, 1996
H. Thomas Corrie
/s/ Christopher V. Criss Director June 21, 1996
------------------------
Christopher V. Criss
/s/ Stephen F. Decker Director June 21, 1996
------------------------
Stephen F. Decker
------------------------ Director June __, 1996
James D. Entress
/s/ James C. Gardill Director June 21, 1996
------------------------
James C. Gardill
/s/ Edward M. George Director June 21, 1996
------------------------
Edward M. George
/s/ Roland L. Hobbs Director June 21, 1996
------------------------
Roland L. Hobbs
/s/ John W. Kepner Director June 21, 1996
------------------------
John W. Kepner
/s/ Frank R. Kerekes Director June 21, 1996
------------------------
Frank R. Kerekes
------------------------ Director June __, 1996
John D. Kirk
<PAGE>
SIGNATURE TITLE DATE
--------- ----- ----
------------------------ Director June __, 1996
Walter Knauss, Jr.
/s/ Robert H. Martin Director June 21, 1996
------------------------
Robert H. Martin
------------------------ Director June __, 1996
Eric Nelson
------------------------ Director June __, 1996
Melvin C. Snyder, Jr.
/s/ Joan C. Stamp Director June 21, 1996
------------------------
Joan C. Stamp
------------------------ Director June __, 1996
Carter W. Strauss
/s/ Thomas L. Thomas Director June 21, 1996
------------------------
Thomas L. Thomas
------------------------ Director June __, 1996
James L. Wareham
/s/ John A. Welty Director June 21, 1996
------------------------
John A. Welty
/s/ William E. Witschey Director June 21, 1996
------------------------
William E. Witschey
