<PAGE>
THE REGISTRANT REQUESTS THAT THIS REGISTRATION STATEMENT BECOME EFFECTIVE
IMMEDIATELY UPON FILING PURSUANT TO SECURITIES ACT RULE 462.
As filed with the Securities and Exchange Commission on June 28, 1995.
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
______________________
FIRST SECURITY CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 87-6118148
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2ND FLOOR, 79 SOUTH MAIN STREET
SALT LAKE CITY, UTAH 84111
(801) 246-6000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
______________________
SCOTT C. ULBRICH
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
FIRST SECURITY CORPORATION
2ND FLOOR
79 SOUTH MAIN STREET
SALT LAKE CITY, UTAH 84111
(801) 246-5706
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
______________________
Copies To:
A. ROBERT THORUP
RAY, QUINNEY & NEBEKER
7TH FLOOR
79 SOUTH MAIN STREET
SALT LAKE CITY, UTAH 84111
(801) 532-1500
______________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of each class of Amount to be registered Proposed Maximum Proposed Maximum Amount of
securities to be registered offering price per share aggregate offering price registration fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock ($1.25 1,000,000 shares (2) $29.00 (1) $29,000,000 $9,999.20
par value)
- -----------------------------------------------------------------------------------------------------------------------------------
Common Stock Rights (3) 1,000,000 rights None None None
- -----------------------------------------------------------------------------------------------------------------------------------
<FN>
(1) Share Price determined according to Rule 457(c) as of close of business on June 22, 1995.
(2) Plus, in accordance with Rule 416(a), such indeterminate number of shares as may be included in the First Security
Corporation Incentive Savings Plan and ESOP (the "Plan") as a result of stock splits or recapitalizations. In addition,
pursuant to rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an indeterminate amount
of beneficial interests in the Plan.
(3) Each share of Common Stock registered hereby includes one Right to purchase additional securities of the Company,
which Right will not be evidenced separately from the Common Stock prior to the occurrence of certain events. These
Rights will be triggered by a future acquisition of a certain percentage of the Company's outstanding Common Stock by a
stockholder or group of stockholders.
</TABLE>
THIS REGISTRATION STATEMENT CONSISTS OF ______ CONSECUTIVELY NUMBERED PAGES.
THE EXHIBIT INDEX IS ON CONSECUTIVELY NUMBERED PAGE 4.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
INFORMATION REQUIRED BY PART I TO BE CONTAINED IN THE SECTION
10(A) PROSPECTUS IS OMITTED FROM THE REGISTRATION STATEMENT IN ACCORDANCE WITH
RULE 428 UNDER THE SECURITIES ACT OF 1933 AND THE NOTE TO PART I OF FORM S-8.
THIS REGISTRATION STATEMENT IS FILED FOR THE PURPOSE OF INCREASING
THE NUMBER OF REGISTERED SHARES AVAILABLE UNDER THE FIRST SECURITY CORPORATION
INCENTIVE SAVINGS PLAN ("THE PLAN"), TO BE ACQUIRED AND HELD IN THE FIRST
SECURITY STOCK FUND AND /OR THE EMPLOYEE STOCK OWNERSHIP PLAN INCORPORATED
WITHIN THE PLAN. INTERESTS IN, AND SHARES AVAILABLE UNDER, THE PLAN WERE
EARLIER REGISTERED ON FORM S-8 FILED ON OCTOBER 20, 1986, FILE NUMBER 33-9501.
THE PROSPECTUS INCLUDED WITHIN SAID REGISTRATION STATEMENT IS HEREBY
INCORPORATED BY THIS REFERENCE IN ACCORDANCE WITH INSTRUCTION E. TO FORM S-8.
-2-
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Registrant with the Securities
and Exchange Commission are incorporated by reference in the Registration
Statement:
(1) Registrant's Annual Report on Form 10-K for its fiscal year
ended December 31, 1994;
(2) Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995; and
(3) Registrant's Proxy Statement dated March 15, 1995.
In addition, all documents subsequently filed by Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Counsel for Registrant, Ray Quinney & Nebeker PC, has rendered an
opinion to the effect that the shares of Registrant's common stock covered by
the Registration Statement will be duly and validly issued, fully paid and
non-assessable upon issuance. Alonzo W. Watson, who is Secretary of the
Company, and Brad D. Hardy, who is Assistant Secretary of the Company, are
members of the firm of Ray, Quinney & Nebeker. A daughter of the Chairman and
Chief Executive Officer of the Company is an associate attorney at Ray Quinney &
Nebeker. At March 31, 1995, attorneys at Ray Quinney & Nebeker, together with
their immediate families, beneficially owned less than 5% of the outstanding
shares of Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Registrant's Articles of Incorporation require the Registrant to
indemnify and hold harmless its directors and officers to the extent that
indemnifiable expenses or losses were not caused by the willful, bad faith or
grossly negligent conduct of the officer or director. Registrant
-3-
<PAGE>
maintained a policy of director's and officer's liability insurance to fund this
obligation.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of Registrant pursuant to the foregoing provisions, or otherwise,
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by Registrant of expenses
incurred or paid by a director, officer or controlling person of 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, 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 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following Exhibits are filed as a part of this Registration
Statement:
4.1 The Restated First Security Corporation Incentive Savings
Plan, as of December 31, 1994.
4.2 Amendment No. 1 to the Restated First Security Corporation
Incentive Savings Plan, including the Appendix creating the
ESOP.
5. Opinion of Ray Quinney & Nebeker, Professional Corporation.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Ray Quinney & Nebeker (included in Exhibit 5).
ITEM 9. UNDERTAKINGS
(A) Registrant hereby undertakes:
-4-
<PAGE>
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events
arising after the effective date of this registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
PROVIDED HOWEVER, that paragraphs (i) and (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 Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in this 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 remains
unsold at the termination of the offering.
(B) Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
-5-
<PAGE>
(C) (1) Registrant hereby undertakes to deliver or cause to be
delivered with the Prospectus to each employee to whom the
Prospectus is sent or given a copy of Registrant's annual
report to stockholders for its last fiscal year, unless such
employee otherwise has received a copy of such report, in
which case Registrant shall state in the Prospectus that it
will promptly furnish, without charge, a copy of such report
on written request of the employee. If the last fiscal year
of Registrant has ended within 120 days prior to the use of
the Prospectus, the annual report of Registrant for the
preceding fiscal year may be so delivered, but within such
120-day period the annual report for the last fiscal year will
be furnished to each such employee.
(2) Registrant hereby undertakes to transmit or cause to be
transmitted to all employees participating in the Plan who do
not otherwise receive such material as stockholders of
Registrant, at the time and in the manner such material is
sent to its stockholders, copies of all reports, proxy
statements and other communications distributed to its
stockholders generally.
[This space left blank intentionally.]
-6-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, First
Security Corporation has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in Salt Lake City,
Utah, on the 28th day of June, 1995.
FIRST SECURITY CORPORATION
By:/s/ Morgan J. Evans
------------------------
Morgan J. Evans
President and Chief Operating Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints A. Robert Thorup, Esq. and Brad D. Hardy, Esq. and each of them, his
true and lawful attorney-in-fact and agent, with full powers of substitution,
for him and in his name, place and stead, in any and all capacities, to sign and
to file any and all amendments, including pre- and/or post-effective amendments
to this Registration Statement, with the Securities and Exchange Commission,
granting to said attorney-in-fact full power and authority to perform any other
act on behalf of the undersigned required to be done in connection therewith.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the date or dates indicated.
Signature Title Date
/s/ Spencer F. Eccles Chairman and Chief
- ---------------------------
Spencer F. Eccles Executive Officer, Director June 28, 1995
/s/ Morgan J. Evans President and Chief
- ---------------------------
Morgan J. Evans Operating Officer, Director June 28, 1995
-7-
<PAGE>
/s/ Scott C. Ulbrich Executive Vice President and June 28, 1995
- ---------------------------
Scott C. Ulbrich Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ James C. Beardall
- ---------------------------
James C. Beardall Director June 28, 1995
/s/ Rodney H. Brady
- ---------------------------
Rodney H. Brady Director June 28, 1995
/s/ James E. Bruce
- ---------------------------
James E. Bruce Director June 28, 1995
/s/ Thomas D. Dee
- ---------------------------
Thomas D. Dee II Director June 28, 1995
/s/ Dr. David P. Gardner
- ---------------------------
Dr. David P. Gardner Director June 28, 1995
/s/ Kendall D. Garff
- ---------------------------
Kendall D. Garff Director June 28, 1995
/s/ U. Edwin Garrison
- ---------------------------
U. Edwin Garrison Director June 28, 1995
/s/ David B. Haight
- ---------------------------
David B. Haight Director June 28, 1995
-8-
<PAGE>
/s/ Jay Dee Harris
- ---------------------------
Jay Dee Harris Director June 28, 1995
/s/ Robert T. Heiner
- ---------------------------
Robert T. Heiner Director June 28, 1995
/s/ Karen H. Huntsman
- ---------------------------
Karen H. Huntsman Director June 28, 1995
- ---------------------------
G. Frank Joklik Director June 28, 1995
- ---------------------------
B. Z. Kastler Director June 28, 1995
/s/ Joseph G. Maloof
- ---------------------------
Joseph G. Maloof Director June 28, 1995
/s/ Scott S. Parker
- ---------------------------
Scott S. Parker Director June 28, 1995
/s/ Dr. Arthur K. Smith
- ---------------------------
Dr. Arthur K. Smith Director June 28, 1995
/s/ James L. Sorenson
- ---------------------------
James L. Sorenson Director June 28, 1995
/s/ Harold J. Steele
- ---------------------------
Harold J. Steele Director June 28, 1995
68066.02B
-9-
<PAGE>
EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT LOCATION
4.1 The First Security Corporation Incentive Savings
Plan, amended and restated as of December 31, 1994.
4.2 Amendment No. 1 to the Restated First Security
Corporation Incentive Savings Plan, including the
Appendix creating the ESOP.
5. Opinion of Ray Quinney & Nebeker, Professional
Corporation.
23.1 Consent of Deloitte & Touche LLP.
Included in
23.2 Consent of Ray Quinney & Nebeker. Exhibit 5.
-10-
<PAGE>
EXHIBIT 4.1
FIRST SECURITY CORPORATION INCENTIVE SAVINGS PLAN
AMENDED AND RESTATED AS OF DECEMBER 31, 1994
-11-
<PAGE>
FIRST SECURITY
INCENTIVE SAVINGS PLAN
AND TRUST AGREEMENT
TABLE OF CONTENTS
PAGE
Article I - Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 "Plan". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 "Employer". . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.03 "Trustee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.04 "Plan Administrator". . . . . . . . . . . . . . . . . . . . . . . 2
1.05 "Advisory Committee". . . . . . . . . . . . . . . . . . . . . . . 2
1.06 "Employee". . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.07 "Highly Compensated Employee" . . . . . . . . . . . . . . . . . . 2
1.08 "Participant" . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.09 "Beneficiary" . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.10 "Compensation". . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.11 "Account" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.12 "Accrued Benefit" . . . . . . . . . . . . . . . . . . . . . . . . 6
1.13 "Nonforfeitable". . . . . . . . . . . . . . . . . . . . . . . . . 6
1.14 "Plan Year" . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.15 "Effective Date". . . . . . . . . . . . . . . . . . . . . . . . . 7
1.16 "Plan Entry Date" . . . . . . . . . . . . . . . . . . . . . . . . 7
1.17 "Accounting Date" . . . . . . . . . . . . . . . . . . . . . . . . 7
1.18 "Trust" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.19 "Trust Fund". . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.20 "Nontransferable Annuity" . . . . . . . . . . . . . . . . . . . . 7
1.21 "ERISA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.22 "Code". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.23 "Service" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.24 "Hour of Service" . . . . . . . . . . . . . . . . . . . . . . . . 7
1.25 "Disability". . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.26 Service for Predecessor Employer. . . . . . . . . . . . . . . . . 9
1.27 Related Employers . . . . . . . . . . . . . . . . . . . . . . . . 9
1.28 Reserved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.29 Determination of Top Heavy Status . . . . . . . . . . . . . . . . 9
1.30 Plan Maintained by More Than One Employer . . . . . . . . . . . . 11
1.31 "Corporation" . . . . . . . . . . . . . . . . . . . . . . . . . . 12
<PAGE>
Article II - Employee Participants . . . . . . . . . . . . . . . . . . . . . 13
2.01 Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.02 Year of Service - Participation . . . . . . . . . . . . . . . . . 13
2.03 Break in Service - Participation. . . . . . . . . . . . . . . . . 13
2.04 Participation upon Re-Employment. . . . . . . . . . . . . . . . . 13
Article III - Employer Contributions and Forfeitures . . . . . . . . . . . . 15
3.01 Amount. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.02 Determination of Contribution . . . . . . . . . . . . . . . . . . 16
3.03 Time of Payment of Contribution . . . . . . . . . . . . . . . . . 16
3.04 Contribution Allocation . . . . . . . . . . . . . . . . . . . . . 16
3.05 Forfeiture Used to Reduce Employer Contribution . . . . . . . . . 18
3.06 Accrual of Benefit. . . . . . . . . . . . . . . . . . . . . . . . 18
3.07 Limitations on Allocations to Participants' Accounts. . . . . . . 20
3.08 Definitions - Article III . . . . . . . . . . . . . . . . . . . . 22
Article IV - Participant Contributions . . . . . . . . . . . . . . . . . . . 24
4.01 Participant Voluntary Contributions . . . . . . . . . . . . . . . 24
4.02 Participant Voluntary Contributions - Special Discrimination Test 24
4.03 Participant Rollover Contributions. . . . . . . . . . . . . . . . 24
4.04 Participant Contribution - Forfeitability . . . . . . . . . . . . 24
4.05 Participant Contribution - Withdrawal/Distribution. . . . . . . . 24
4.06 Participant Contribution - Accrued Benefit. . . . . . . . . . . . 25
Article V - Termination of Service - Participant Vesting . . . . . . . . . . 26
5.01 Normal Retirement Age . . . . . . . . . . . . . . . . . . . . . . 26
5.02 Participant Disability or Death . . . . . . . . . . . . . . . . . 26
5.03 Vesting Schedule. . . . . . . . . . . . . . . . . . . . . . . . . 26
5.04 Cash-out Distributions to Partially-vested
Participants/Restoration of Forfeited Accrued Benefit. . . . . . . 27
5.05 Segregated Account for Repaid Amount. . . . . . . . . . . . . . . 29
5.06 Year of Service - Vesting . . . . . . . . . . . . . . . . . . . . 29
5.07(A) Break in Service - Vesting . . . . . . . . . . . . . . . . . . 29
5.07(B) Period of Severance - Vesting. . . . . . . . . . . . . . . . . 29
5.08 Included Years of Service - Vesting . . . . . . . . . . . . . . . 30
5.09 Forfeiture Occurs . . . . . . . . . . . . . . . . . . . . . . . . 30
Article VI - Time and Method of Payment of Benefits. . . . . . . . . . . . . 32
6.01 Time of Payment of Accrued Benefit. . . . . . . . . . . . . . . . 32
6.02 Method of Payment of Accrued Benefit. . . . . . . . . . . . . . . 34
6.03 Benefit Payment Elections . . . . . . . . . . . . . . . . . . . . 37
-ii-
<PAGE>
6.04 Annuity Distributions to Participants and Surviving Spouses . . . 40
6.05 Waiver Election - Qualified Joint and Survivor Annuity. . . . . . 41
6.06 Waiver Election - Preretirement Survivor Annuity. . . . . . . . . 42
6.07 Distributions under Domestic Relations Orders . . . . . . . . . . 43
Article VII - Employer Administrative Provisions . . . . . . . . . . . . . . 45
7.01 Information to Committee. . . . . . . . . . . . . . . . . . . . . 45
7.02 No Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.03 Indemnity of Certain Fiduciaries. . . . . . . . . . . . . . . . . 45
7.04 Corporation Direction of Investment . . . . . . . . . . . . . . . 46
7.05 Amendment to Vesting Schedule . . . . . . . . . . . . . . . . . . 46
7.06 Delegation and Allocation of Fiduciary Duties . . . . . . . . . . 46
Article VIII - Participant Administrative Provisions . . . . . . . . . . . . 48
8.01 Beneficiary Designation . . . . . . . . . . . . . . . . . . . . . 48
8.02 No Beneficiary Designation/Death of Beneficiary . . . . . . . . . 48
8.03 Personal Data to Committee. . . . . . . . . . . . . . . . . . . . 48
8.04 Address for Notification. . . . . . . . . . . . . . . . . . . . . 49
8.05 Assignment or Alienation. . . . . . . . . . . . . . . . . . . . . 49
8.06 Notice of Change in Terms . . . . . . . . . . . . . . . . . . . . 49
8.07 Litigation Against the Trust. . . . . . . . . . . . . . . . . . . 49
8.08 Information Available . . . . . . . . . . . . . . . . . . . . . . 49
8.09 Appeal Procedure for Denial of Benefits . . . . . . . . . . . . . 49
8.10 Participant Direction of Investment . . . . . . . . . . . . . . . 50
8.11 Age 55 Segregation of Accounts. . . . . . . . . . . . . . . . . . 51
Article IX - Advisory Committee - Duties with Respect to
Participants' Accounts. . . . . . . . . . . . . 53
9.01 Members' Compensation, Expenses . . . . . . . . . . . . . . . . . 53
9.02 Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.03 Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.04 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
9.05 Funding Policy. . . . . . . . . . . . . . . . . . . . . . . . . . 55
9.06 Manner of Action. . . . . . . . . . . . . . . . . . . . . . . . . 55
9.07 Authorized Representative . . . . . . . . . . . . . . . . . . . . 55
9.08 Interested Member . . . . . . . . . . . . . . . . . . . . . . . . 55
9.09 Individual Accounts . . . . . . . . . . . . . . . . . . . . . . . 55
9.10 Value of Participant's Accrued Benefit. . . . . . . . . . . . . . 56
9.11 Allocation and Distribution of Net Income Gain or Loss. . . . . . 56
9.12 Individual Statement. . . . . . . . . . . . . . . . . . . . . . . 57
9.13 Account Charged . . . . . . . . . . . . . . . . . . . . . . . . . 57
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<PAGE>
9.14 Unclaimed Account Procedure . . . . . . . . . . . . . . . . . . . 57
Article X - Trustee, Powers and Duties . . . . . . . . . . . . . . . . . . . 59
10.01 Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.02 Receipt of Contributions . . . . . . . . . . . . . . . . . . . . 59
10.03 Investment Powers. . . . . . . . . . . . . . . . . . . . . . . . 59
10.04 Records and Statements . . . . . . . . . . . . . . . . . . . . . 62
10.05 Fees and Expenses from Fund. . . . . . . . . . . . . . . . . . . 62
10.06 Parties to Litigation. . . . . . . . . . . . . . . . . . . . . . 62
10.07 Professional Agents. . . . . . . . . . . . . . . . . . . . . . . 62
10.08 Distribution of Cash or Property . . . . . . . . . . . . . . . . 62
10.09 Distribution Directions. . . . . . . . . . . . . . . . . . . . . 63
10.10 Third Party/Multiple Trustees. . . . . . . . . . . . . . . . . . 63
10.11 Resignation. . . . . . . . . . . . . . . . . . . . . . . . . . . 63
10.12 Removal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
10.13 Interim Duties and Successor Trustee . . . . . . . . . . . . . . 63
10.14 Valuation of Trust . . . . . . . . . . . . . . . . . . . . . . . 64
10.15 Limitation on Liability - if Investment Manager, Ancillary
Trustee or Independent Fiduciary Appointed . . . . . . . . . . . . 64
10.16 Investment in Group Trust Fund . . . . . . . . . . . . . . . . . 64
10.17 Appointment of Ancillary Trustee or Independent Fiduciary. . . . 64
10.18 Employer Stock Fund Rules. . . . . . . . . . . . . . . . . . . . 65
10.19 Employer Securities--Authority to Hold and Acquire Certain
Employer Related Investments . . . . . . . . . . . . . . . . . . . 66
Article XI - Provisions Relating to Insurance and Insurance Company. . . . . 69
11.01 Insurance Benefit. . . . . . . . . . . . . . . . . . . . . . . . 69
Article XII - Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . 70
12.01 Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
12.02 No Responsibility for Employer Action. . . . . . . . . . . . . . 70
12.03 Fiduciaries not Insurers . . . . . . . . . . . . . . . . . . . . 70
12.04 Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . 70
12.05 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
12.06 Word Usage . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
12.07 State Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
12.08 Employment not Guaranteed. . . . . . . . . . . . . . . . . . . . 71
Article XIII - Exclusive Benefit, Amendment, Termination . . . . . . . . . . 72
13.01 Exclusive Benefit. . . . . . . . . . . . . . . . . . . . . . . . 72
13.02 Amendment by Corporation . . . . . . . . . . . . . . . . . . . . 72
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13.03 Discontinuance . . . . . . . . . . . . . . . . . . . . . . . . . 73
13.04 Full Vesting on Termination. . . . . . . . . . . . . . . . . . . 73
13.05 Merger/Direct Transfer . . . . . . . . . . . . . . . . . . . . . 73
13.06 Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . 74
13.07 Denial of Existence of Guarantee . . . . . . . . . . . . . . . . 75
Article XIV - Provisions Relating to Code Section 401(k) and
to Code Section 401(m) . . . . . . . . . . . . 76
14.01 401(k) Arrangement . . . . . . . . . . . . . . . . . . . . . . . 76
14.02 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . 76
14.03 Annual Elective Deferral Limitation. . . . . . . . . . . . . . . 79
14.04 Actual Deferral Percentage ("ADP") Test. . . . . . . . . . . . . 80
14.05 Nondiscrimination Rules for Employer Matching Contributions/
Employee Contributions . . . . . . . . . . . . . . . . . . . . . . 82
14.06 Multiple Use Limitation. . . . . . . . . . . . . . . . . . . . . 85
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<PAGE>
FIRST SECURITY
INCENTIVE SAVINGS PLAN
AND TRUST AGREEMENT
FIRST SECURITY CORPORATION, a corporation organized under the laws of the
State of UTAH ("CORPORATION"), makes this Agreement with FIRST SECURITY BANK OF
UTAH, NA, as Trustee.
WITNESSETH:
FIRST SECURITY CORPORATION ("CORPORATION") continues, within this Trust
Agreement, a Plan for the administration and distribution of contributions made
by the Employer for the purpose of providing retirement benefits for eligible
Employees. This Plan is an amended plan, in restated form, the original plan
being established UNDER THE NAME OF THE FIRST SECURITY DEFERRED PAYMENT PROFIT
SHARING PLAN EFFECTIVE AS OF JANUARY 1, 1960, AND ENTERED INTO A CERTAIN TRUST
AGREEMENT, DATED OCTOBER 17, 1960. The provisions of this Plan, as amended,
apply solely to an Employee whose employment with the Employer terminates on or
after the restated Effective Date of the Employer's Plan. If an Employee's
employment with the Employer terminates prior to the restated Effective Date,
that Employee is entitled to benefits under the Plan as the Plan existed on the
date of the Employee's termination of employment.
Now, therefore, in consideration of their mutual covenants, the Employer
and the Trustee agree as follows:
ARTICLE I - DEFINITIONS
1.01 "PLAN" means the retirement plan established and continued by the
Employer in the form of this Agreement, designated as the FIRST SECURITY
INCENTIVE SAVINGS PLAN.
1.02 "EMPLOYER" means FIRST SECURITY CORPORATION, FIRST SECURITY BANK OF
UTAH, NA, FIRST SECURITY BANK OF IDAHO, NA AND OTHER AFFILIATES OF THE
"CORPORATION". THE FIRST LISTED EMPLOYER (SOMETIMES HEREIN REFERRED TO AS THE
"CORPORATION") shall have the power to amend or terminate the Plan, appoint the
Trustee and Advisory Committee or other similar reserved powers (reserved to the
Corporation or an Employer), which shall be binding on the other Employers that
have adopted the Plan. The Corporation shall act through a resolution of its
Board of Directors or the Executive Committee of its Board of Directors, or, if
applicable, a delegatee of its Board or Executive Committee. A reference to
"Employer" shall be deemed to include the Corporation, provided that any power
reserved to the Employer may be exercised by the Corporation, acting alone,
without the necessity of further action by Employers other than the Corporation
acting alone.
<PAGE>
1.03 "TRUSTEE" means FIRST SECURITY BANK OF UTAH, NA, or any successor in
office who in writing accepts the position of Trustee.
1.04 "PLAN ADMINISTRATOR" is FIRST SECURITY SERVICE COMPANY unless the
Plan Administrator designates another person to hold the position of Plan
Administrator. In addition to his other duties, the Plan Administrator has full
responsibility for compliance with the reporting and disclosure rules under
ERISA as respects this Agreement.
1.05 "ADVISORY COMMITTEE" means the Corporation's Advisory Committee as
from time to time constituted.
1.06 "EMPLOYEE" means any employee of the Employer.
1.07 "HIGHLY COMPENSATED EMPLOYEE" means an Employee who, during the Plan
Year or during the preceding 12-month period:
(a) is a more than 5% owner of the Employer (applying the
constructive ownership rules of Code Section 318, and applying the
principles of Code Section 318, for an unincorporated entity);
(b) has Compensation in excess of $75,000 (as adjusted by the
Commissioner of Internal Revenue for the relevant year);
(c) has Compensation in excess of $50,000 (as adjusted by the
Commissioner of Internal Revenue for the relevant year) and is part of the
top-paid 20% group of employees (based on Compensation for the relevant
year); or
(d) has Compensation in excess of 50% of the dollar amount prescribed
in Code Section 415(b)(1)(A) (relating to defined benefit plans) and is an
officer of the Employer.
If the Employee satisfies the definition in clause (b), (c) or (d) in the
Plan Year but does not satisfy clause (b), (c) or (d) during the preceding
12-month period and does not satisfy clause (a) in either period, the Employee
is a Highly Compensated Employee only if he is one of the 100 most highly
compensated Employees for the Plan Year. The number of officers taken into
account under clause (d) will not exceed the greater of 3 or 10% of the total
number (after application of the Code Section 414(q) exclusions) of Employees,
but no more than 50 officers. If no Employee satisfies the Compensation
requirement in clause (d) for the relevant year, the Advisory Committee will
treat the highest paid officer as satisfying clause (d) for that year.
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For purposes of this Section 1.07, "Compensation" means Compensation as
defined in Section 1.10, except no exclusions from Compensation apply other than
the exclusions described in paragraphs (a), (b), (c) and (d) of Section 1.10,
and Compensation must include "elective contributions" (as defined in
Section 1.10). The Advisory Committee must make the determination of who is a
Highly Compensated Employee, including the determinations of the number and
identity of the top paid 20% group, the top 100 paid Employees, the number of
officers includible in clause (d) and the relevant Compensation, consistent
with Code Section 414(q) and regulations issued under that Code section. The
Employer may make a calendar year election to determine the Highly Compensated
Employees for the Plan Year, as prescribed by Treasury regulations. A calendar
year election must apply to all plans and arrangements of the Employer. For
purposes of applying any nondiscrimination test required under the Plan or under
the Code, in a manner consistent with applicable Treasury regulations, the
Advisory Committee will treat a Highly Compensated Employee and all family
members (a spouse, a lineal ascendant or descendant, or a spouse of a lineal
ascendant or descendant) as a single Highly Compensated Employee, but only if
the Highly Compensated Employee is a more than 5% owner or is one of the 10
Highly Compensated Employees with the greatest Compensation for the Plan Year.
This aggregation rule applies to a family member even if that family member is
a Highly Compensated Employee without family aggregation.
The term "Highly Compensated Employee" also includes any former Employee
who separated from Service (or has a deemed Separation from Service, as
determined under Treasury regulations) prior to the Plan Year, performs no
Service for the Employer during the Plan Year, and was a Highly Compensated
Employee either for the separation year or any Plan Year ending on or after his
55th birthday. If the former Employee's Separation from Service occurred prior
to January 1, 1987, he is a Highly Compensated Employee only if he satisfied
clause (a) of this Section 1.07 or received Compensation in excess of $50,000
during: (1) the year of his Separation from Service (or the prior year); or
(2) any year ending after his 54th birthday.
1.08 "PARTICIPANT" is an Employee who is eligible to be and becomes a
Participant in accordance with the provisions of Section 2.01.
1.09 "BENEFICIARY" is a person designated by a Participant who is or may
become entitled to a benefit under the Plan. A Beneficiary who becomes entitled
to a benefit under the Plan remains a Beneficiary under the Plan until the
Trustee has fully distributed his benefit to him. A Beneficiary's right to (and
the Plan Administrator's, the Advisory Committee's or a Trustee's duty to
provide to the Beneficiary) information or data concerning the Plan does not
arise until he first becomes entitled to receive a benefit under the Plan.
1.10 "COMPENSATION" means the Participant's wages, salaries, fees for
professional service and other amounts received for personal services actually
rendered in the course of employment with the Employer maintaining the plan
(including, but not limited to, commissions paid
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<PAGE>
salesmen, compensation for services on the basis of a percentage of profits,
commissions on insurance premiums, tips and bonuses), except Compensation does
not include reimbursements or other expense allowances, fringe benefits (cash
and noncash), moving expenses and welfare benefits. Compensation also includes
elective contributions made by the Employer on the Employee's behalf. "Elective
contributions" are amounts excludible from the Employee's gross income under
Code Sections 125, 402(a)(8), 402(h) or 403(b), and contributed by the
Employer, at the Employee's election, to a Code Section 401(k) arrangement, a
Simplified Employee Pension, cafeteria plan or tax-sheltered annuity. A
Compensation payment includes Compensation paid by the Employer to an Employee
through another person under the common paymaster provisions of Code Sections
3121(s) and 3306(p). The term "Compensation" does not include:
(a) Employer contributions (other than "elective contributions") to a
plan of deferred compensation to the extent the contributions are not
included in the gross income of the Employee for the taxable year in which
contributed, on behalf of an Employee to a Simplified Employee Pension Plan
to the extent such contributions are excludible from the Employee's gross
income, and any distributions from a plan of deferred compensation,
regardless of whether such amounts are includible in the gross income of
the Employee when distributed.
(b) Amounts realized from the exercise of a non-qualified 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.
(c) Amounts realized from the sale, exchange or other disposition of
stock acquired under a stock option described in Part II, Subchapter D,
Chapter 1 of the Code.
(d) Other amounts which receive special tax benefits, such as
premiums for group term life insurance (but only to the extent that the
premiums are not includible in the gross income of the Employee), or
contributions made by an Employer (whether or not under a salary reduction
agreement) towards the purchase of an annuity contract described in Code
Section 403(b) (whether or not the contributions are excludible from the
gross income of the Employee), other than "elective contributions."
Effective for Plan Years beginning after December 31, 1992 (except as
otherwise expressly provided), any reference in this Plan to Compensation is a
reference to the definition in this Section 1.10, unless the Plan reference
specifies a modification to this definition. The Advisory Committee will take
into account only Compensation actually paid for the relevant period.
SPECIAL DEFINITION FOR SALARY REDUCTION CONTRIBUTIONS. For purposes of
determining the Employee's salary reduction contributions under a salary
reduction agreement, "Compensation" means Compensation as defined in this
Section 1.10, determined prior to the reduction authorized
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by that salary reduction agreement.
(A) LIMITATIONS ON COMPENSATION.
(1) COMPENSATION DOLLAR LIMITATION. For any Plan Year beginning after
December 31, 1988 and before January 1, 1994, the Advisory Committee must take
into account only the first $200,000 (or beginning January 1, 1990, such larger
amount as the Commissioner of Internal Revenue may prescribe) of any
Participant's Compensation. For any Plan Year beginning prior to January 1,
1989, this $200,000 limitation (but not the family aggregation requirement)
applies only if the Plan is top heavy for such Plan Year. The $200,000 limit is
intended to comply with the requirements of federal law, and shall not be deemed
to affect the lower limit of $100,000 limit set forth hereinbefore for purposes
of allocation of the Employer Contribution.
(2) APPLICATION OF COMPENSATION LIMITATION TO CERTAIN FAMILY MEMBERS.
The $200,000 Compensation limitation ($150,000 beginning January 1, 1994 under
the OBRA '93 limitations set forth in the preceding Subsection (1)) applies to
the combined Compensation of the Employee and of any family member aggregated
with the Employee under Section 1.07 who is either (i) the Employee's spouse; or
(ii) the Employee's lineal descendant under the age of 19. If, for a Plan Year,
the combined Compensation of the Employee and such family members who are
Participants entitled to an allocation for that Plan Year exceeds the $200,000
(or adjusted) limitation, "Compensation" for each such Participant, for purposes
of the contribution and allocation provisions of Article III, means his Adjusted
Compensation. Adjusted Compensation is the amount which bears the same ratio to
the $200,000 (or adjusted) limitation as the affected Participant's Compensation
(without regard to the $200,000 Compensation limitation) bears to the combined
Compensation of all the affected Participants in the family unit. If the Plan
uses permitted disparity, the Advisory Committee must determine the integration
level of each affected family member Participant prior to the proration of the
$200,000 Compensation limitation, but the combined integration level of the
affected Participants may not exceed $200,000 (or the adjusted limitation). The
combined Excess Compensation of the affected Participants in the family unit may
not exceed $200,000 (or the adjusted limitation) minus the affected
Participants' combined integration level (as determined under the preceding
sentence). If the combined Excess Compensation exceeds this limitation, the
Advisory Committee will prorate the Excess Compensation limitation among the
affected Participants in the family unit in proportion to each such individual's
Adjusted Compensation minus his integration level.
(B) NONDISCRIMINATION. For purposes of determining whether the Plan
discriminates in favor of Highly Compensated Employees, Compensation means
Compensation as defined in this Section 1.10 except any exclusions from
Compensation, other than the exclusions described in paragraphs (a), (b), (c)
and (d), do not apply. The Employer also may elect to use an alternate
nondiscriminatory definition, in accordance with the requirements of Code
Section 414(s) and the regulations issued under that Code section. In
determining Compensation under this Section
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<PAGE>
1.10(B), the Employer may elect to include all elective contributions made by
the Employer on behalf of the Employees. The Employer's election to include
elective contributions must be consistent and uniform with respect to Employees.
The Employer may make this election to include elective contributions for
nondiscrimination testing purposes, irrespective of whether this Section 1.10
includes elective contributions in the general Compensation definition
applicable to the Plan.
(C) OBRA'93. This Section "(D)" is necessary to comply with the Omnibus Budget
Reconciliation Act of 1993 (OBRA '93) and are an integral part of the Plan
document.
In addition to other applicable limitations set forth in the plan, and
notwithstanding any other provision of the plan to the contrary, for plan years
beginning on or after January 1, 1994, the annual compensation of each employee
taken into account under the plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner for increases in the cost of living in accordance
with Section 401(a)(17)(B) of the Internal Revenue Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not exceeding 12
months, over which compensation is determined (determination period) beginning
in such calendar year. If a determination period consists of fewer than 12
months, the OBRA '93 annual compensation limit will be multiplied by a fraction,
the numerator of which is the number of months in the determination period, and
the denominator of which is 12.
For plan years beginning on or after January 1, 1994, any reference in this
plan to the limitation under Section 401(a)(17) of the Code or shall mean the
OBRA '93 annual compensation limit set forth in this provision.
If compensation for any prior determination period is taken into account in
determining an employee's benefits accruing in the current plan year, the
compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period. For
this purpose, for determination periods beginning before the first day of the
first plan year beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is $150,000.
For plan years beginning on or after January 1, 1994, any reference in this
plan to the "$200,000 limitation" under Section 401(a)(17) of the Code or shall
mean the OBRA '93 annual compensation limit set forth in the above provisions,
and this Section "(D)" shall be construed to effectuate such purpose.
1.11 "ACCOUNT" means the separate account(s) which the Advisory Committee
or the Trustee maintains for a Participant under the Plan, and shall include the
Accounts set forth in Section 9.09.
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1.12 "ACCRUED BENEFIT" means the amount standing in a Participant's
Account(s) as of any date derived from both Employer contributions and Employee
contributions, if any.
1.13 "NONFORFEITABLE" means a Participant's or Beneficiary's unconditional
claim, legally enforceable against the Plan, to the Participant's Accrued
Benefit.
1.14 "PLAN YEAR" means the fiscal year of the Plan, a 12 consecutive month
period ending every DECEMBER 31.
1.15 "EFFECTIVE DATE" of this Plan, as restated, is generally January 1,
1989, except the effective date of the provision of the Plan that are required
by federal law to have an earlier effective date to comply with the Tax Reform
Act of 1986 and other recent federal laws shall have such earlier date as may be
required by federal law and except as otherwise expressly stated in the
provisions of this Plan.
1.16 "PLAN ENTRY DATE" means the date(s) prescribed by Section 2.01.
1.17 "ACCOUNTING DATE" is the last day of the Plan Year. Unless otherwise
specified in the Plan, the Advisory Committee will make all Plan allocations for
a particular Plan Year as of the Accounting Date of that Plan Year.
1.18 "TRUST" means the separate Trust created under the Plan.
1.19 "TRUST FUND" means all property of every kind held or acquired by the
Trustee under this Agreement, other than incidental benefit insurance contracts.
This Plan creates a single Trust for all Employers participating under THE FIRST
SECURITY INCENTIVE SAVINGS PLAN, and a separate Trust Document has been signed
by the Trustee and the Corporation.
1.20 "NONTRANSFERABLE ANNUITY" means an annuity which by its terms
provides that it may not be sold, assigned, discounted, pledged as collateral
for a loan or security for the performance of an obligation or for any purpose
to any person other than the insurance company. If the Plan distributes an
annuity contract, the contract must be a Nontransferable Annuity.
1.21 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
1.22 "CODE" means the Internal Revenue Code of 1986, as amended.
1.23 "SERVICE" means any period of time the Employee is in the employ of
the Employer, including any period the Employee is on an unpaid leave of absence
authorized by the Employer under a uniform, nondiscriminatory policy applicable
to all Employees. "Separation from Service" means the Employee no longer has an
employment relationship with the Employer
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maintaining this Plan.
1.24 "HOUR OF SERVICE" means:
(a) Each Hour of Service for which the Employer, either directly or
indirectly, pays an Employee, or for which the Employee is entitled to
payment, for the performance of duties. The Advisory Committee credits
Hours of Service under this paragraph (a) to the Employee for the
computation period in which the Employee performs the duties, irrespective
of when paid;
(b) Each Hour of Service for back pay, irrespective of mitigation of
damages, to which the Employer has agreed or for which the Employee has
received an award. The Advisory Committee credits Hours of Service under
this paragraph (b) to the Employee for the computation period(s) to which
the award or the agreement pertains rather than for the computation period
in which the award, agreement or payment is made; and
(c) Each Hour of Service for which the Employer, either directly or
indirectly, pays an Employee, or for which the Employee is entitled to
payment (irrespective of whether the employment relationship is
terminated), for reasons other than for the performance of duties during a
computation period, such as leave of absence, vacation, holiday, sick
leave, illness, incapacity (including disability), layoff, jury duty or
military duty. The Advisory Committee will credit no more than 501 Hours
of Service under this paragraph (c) to an Employee on account of any single
continuous period during which the Employee does not perform any duties
(whether or not such period occurs during a single computation period).
The Advisory Committee credits Hours of Service under this paragraph (c) in
accordance with the rules of paragraphs (b) and (c) of Labor Reg. Section
2530.200b-2, which the Plan, by this reference, specifically incorporates
in full within this paragraph (c).
The Advisory Committee will not credit an Hour of Service under more than
one of the above paragraphs. A computation period for purposes of this Section
1.24 is the Plan Year, Year of Service period, Break in Service period or other
period, as determined under the Plan provision for which the Advisory Committee
is measuring an Employee's Hours of Service. The Advisory Committee will
resolve any ambiguity with respect to the crediting of an Hour of Service in
favor of the Employee.
(A) METHOD OF CREDITING HOURS OF SERVICE. The Employer will credit every
Employee with Hours of Service on the basis of the "actual" method. For
purposes of the Plan, "actual" method means the determination of Hours of
Service from records of hours worked and hours for which the Employer makes
payment or for which payment is due from the Employer.
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(B) MATERNITY/PATERNITY LEAVE. Solely for purposes of determining whether the
Employee incurs a Break in Service under any provision of this Plan, the
Advisory Committee must credit Hours of Service during an Employee's unpaid
absence period due to maternity or paternity leave. The Advisory Committee
considers an Employee on maternity or paternity leave if the Employee's absence
is due to the Employee's pregnancy, the birth of the Employee's child, the
placement with the Employee of an adopted child, or the care of the Employee's
child immediately following the child's birth or placement. The Advisory
Committee credits Hours of Service under this paragraph on the basis of the
number of Hours of Service the Employee would receive if he were paid during the
absence period or, if the Advisory Committee cannot determine the number of
Hours of Service the Employee would receive, on the basis of 8 hours per day
during the absence period. The Advisory Committee will credit only the number
(not exceeding 501) of Hours of Service necessary to prevent an Employee's Break
in Service. The Advisory Committee credits all Hours of Service described in
this paragraph to the computation period in which the absence period begins or,
if the Employee does not need these Hours of Service to prevent a Break in
Service in the computation period in which his absence period begins, the
Advisory Committee credits these Hours of Service to the immediately following
computation period.
1.25 "DISABILITY" means the Participant, because of a physical or mental
disability, will be unable to engage in any substantial gainful activity for an
indefinite period which the Advisory Committee considers will be of long
continued duration. The Plan considers a Participant disabled on the date the
Advisory Committee determines the Participant satisfies the definition of
disability. The Advisory Committee may require a Participant to submit to a
physical examination in order to confirm disability. The Advisory Committee
will apply the provisions of this Section 1.25 in a nondiscriminatory,
consistent and uniform manner.
1.26 SERVICE FOR PREDECESSOR EMPLOYER. If the Employer maintains the plan
of a predecessor employer, the Plan treats service of the Employee with the
predecessor employer as service with the Employer. Plan Compensation does not
include Compensation received from a related employer that is not participating
in this Plan.
1.27 RELATED EMPLOYERS. A related group is a controlled group of
corporations (as defined in Code Section 414(b)), trades or businesses (whether
or not incorporated) which are under common control (as defined in Code Section
414(c)) or an affiliated service group (as defined in Code Section 414(m) or in
Code Section 414(o)). If the Employer is a member of a related group, the term
"Employer" includes the related group members for purposes of crediting Hours of
Service, determining Years of Service and Breaks in Service under Articles II
and V, applying the Participation Test and the Coverage Test under the
suspension of accrual requirements of Section 3.06(D), applying the limitations
on allocations in Part 2 of Article III, applying the top heavy rules and the
minimum allocation requirements of Article III, the definitions of Employee,
Highly Compensated Employee, Compensation and Leased Employee, and for any other
purpose
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required by the applicable Code section or by a Plan provision. However, only
an Employer described in Section 1.02 may contribute to the Plan and only an
Employee employed by an Employer described in Section 1.02 is eligible to
participate in this Plan. For Plan allocation purposes, "Compensation" does not
include Compensation received from a related employer that is not participating
in this Plan.
1.28 RESERVED.
1.29 DETERMINATION OF TOP HEAVY STATUS. If this Plan is the only
qualified plan maintained by the Employer, the Plan is top heavy for a Plan Year
if the top heavy ratio as of the Determination Date exceeds 60%. The top heavy
ratio is a fraction, the numerator of which is the sum of the present value of
Accrued Benefits of all Key Employees as of the Determination Date and the
denominator of which is a similar sum determined for all Employees. The
Advisory Committee must include in the top heavy ratio, as part of the present
value of Accrued Benefits, any contribution not made as of the Determination
Date but includible under Code Section 416 and the applicable Treasury
regulations, and distributions made within the Determination Period. The
Advisory Committee must calculate the top heavy ratio by disregarding the
Accrued Benefit (and distributions, if any, of the Accrued Benefit) of any
Non-Key Employee who was formerly a Key Employee, and by disregarding the
Accrued Benefit (including distributions, if any, of the Accrued Benefit) of an
individual who has not received credit for at least one Hour of Service with the
Employer during the Determination Period. The Advisory Committee must calculate
the top heavy ratio, including the extent to which it must take into account
distributions, rollovers and transfers, in accordance with Code Section 416 and
the regulations under that Code section.
If the Employer maintains other qualified plans (including a simplified
employee pension plan), or maintained another such plan which now is terminated,
this Plan is top heavy only if it is part of the Required Aggregation Group, and
the top heavy ratio for the Required Aggregation Group and for the Permissive
Aggregation Group, if any, each exceeds 60%. The Advisory Committee will
calculate the top heavy ratio in the same manner as required by the first
paragraph of this Section 1.29, taking into account all plans within the
Aggregation Group. To the extent the Advisory Committee must take into account
distributions to a Participant, the Advisory Committee must include
distributions from a terminated plan which would have been part of the Required
Aggregation Group if it were in existence on the Determination Date. The
Advisory Committee will calculate the present value of Accrued Benefits under
defined benefit plans or simplified employee pension plans included within the
group in accordance with the terms of those plans, Code Section 416 and the
regulations under that Code section. If a Participant in a defined benefit plan
is a Non-Key Employee, the Advisory Committee will determine his Accrued Benefit
under the accrual method, if any, which is applicable uniformly to all defined
benefit plans maintained by the Employer or, if there is no uniform method, in
accordance with the slowest accrual rate permitted under the fractional rule
accrual method described in Code Section 411(b)(1)(C). To calculate the present
value of benefits from a defined benefit plan, the
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Advisory Committee will use the actuarial assumptions (interest and mortality
only) prescribed by the defined benefit plan(s) to value benefits for top heavy
purposes. If an aggregated plan does not have a valuation date coinciding with
the Determination Date, the Advisory Committee must value the Accrued Benefits
in the aggregated plan as of the most recent valuation date falling within the
twelve-month period ending on the Determination Date, except as Code Section 416
and applicable Treasury regulations require for the first and second plan year
of a defined benefit plan. The Advisory Committee will calculate the top heavy
ratio with reference to the Determination Dates that fall within the same
calendar year.
DEFINITIONS. For purposes of applying the provisions of this Section 1.29:
(a) "Key Employee" means, as of any Determination Date, any Employee
or former Employee (or Beneficiary of such Employee) who, for any Plan Year
in the Determination Period: (i) has Compensation in excess of 50% of the
dollar amount prescribed in Code Section 415(b)(1)(A) (relating to defined
benefit plans) and is an officer of the Employer; (ii) has Compensation in
excess of the dollar amount prescribed in Code Section 415(c)(1)(A)
(relating to defined contribution plans) and is one of the Employees owning
the ten largest interests in the Employer; (iii) is a more than 5% owner of
the Employer; or (iv) is a more than 1% owner of the Employer and has
Compensation of more than $150,000. The constructive ownership rules of
Code Section 318 (or the principles of that section, in the case of an
unincorporated Employer,) will apply to determine ownership in the
Employer. The number of officers taken into account under clause (i) will
not exceed the greater of 3 or 10% of the total number (after application
of the Code Section 414(q) exclusions) of Employees, but no more than 50
officers. The Advisory Committee will make the determination of who is a
Key Employee in accordance with Code Section 416(i)(1) and the regulations
under that Code section.
(b) "Non-Key Employee" is an employee who does not meet the
definition of Key Employee.
(c) "Compensation" means Compensation as determined under Section
1.07 for purposes of identifying Highly Compensated Employees.
(d) "Required Aggregation Group" means: (1) each qualified plan of
the Employer in which at least one Key Employee participates at any time
during the Determination Period; and (2) any other qualified plan of the
Employer which enables a plan described in clause (1) to meet the
requirements of Code Section 401(a)(4) or of Code Section 410.
(e) "Permissive Aggregation Group" is the Required Aggregation Group
plus any other qualified plans maintained by the Employer, but only if such
group would satisfy in the aggregate the requirements of Code Section
401(a)(4) and of Code Section 410. The Advisory Committee will determine
the Permissive Aggregation Group.
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(f) "Employer" means the Employer that adopts this Plan and any
related employers described in Section 1.27.
(g) "Determination Date" for any Plan Year is the Accounting Date of
the preceding Plan Year or, in the case of the first Plan Year of the Plan,
the Accounting Date of that Plan Year. The "Determination Period" is the
5-year period ending on the Determination Date.
1.30 PLAN MAINTAINED BY MORE THAN ONE EMPLOYER.
(A) TREATMENT OF EMPLOYERS. If more than one employer maintains this Plan, then
for purposes of determining Service and Hours of Service, the Advisory Committee
will treat all Employers maintaining this Plan as a single employer.
(B) PLAN ALLOCATIONS. The Advisory Committee must allocate all Employer
contributions and forfeitures to each Participant in the Plan, in accordance
with Article III, without regard to which contributing Employer employs the
Participant. A Participant's Compensation includes Compensation from all
participating Employers, irrespective of which Employers are contributing to the
Plan.
1.31 "CORPORATION" means First Security Corporation, which shall act by a
resolution of its Board of Directors or the Executive Committee of such Board.
* * * * * * * * * * * * *
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ARTICLE II - EMPLOYEE PARTICIPANTS
2.01 ELIGIBILITY. Effective for Plan Years beginning on or after December
31, 1992, each Employee becomes a Participant in the Plan on the Plan Entry Date
(if employed on that date) immediately following the later of the date on which
he completes one Year of Service or attains age 21. "Plan Entry Date" means the
Effective Date and THE FIRST DAY OF EACH MONTH. Each Employee who was a
Participant in the Plan on the day before the Effective Date of this restated
Plan continues as a Participant in the Plan.
2.02 YEAR OF SERVICE - PARTICIPATION. For purposes of an Employee's
participation in the Plan under Section 2.01, the Plan takes into account all of
his Years of Service with the Employer, except as provided in Section 2.03.
"Year of Service" means an eligibility computation period during which the
Employee completes not less than 1,000 Hours of Service. The initial
eligibility computation period is the first 12 consecutive month period measured
from the Employment Commencement Date. The Plan measures subsequent periods by
reference to the Plan Year, beginning with the Plan Year which includes the
first anniversary of the Employee's Employment Commencement Date. "Employment
Commencement Date" means the date on which the Employee first performs an Hour
of Service for the Employer.
2.03 BREAK IN SERVICE - PARTICIPATION. An Employee incurs a "Break in
Service" if during any eligibility computation period he does not complete more
than 500 Hours of Service.
In the case of a Participant who does not have any nonforfeitable right to
the accrued benefit derived from employer contributions, years of service before
a period of consecutive 1-year breaks in Service will not be taken into account
in computing eligibility service if the number of consecutive 1-year breaks in
service in such period equals or exceeds the greater of 5 or the aggregate
number of years of service such aggregate number of years of service will not
include any years of service disregarded under the preceding sentence by reason
of prior breaks in service.
If a Participants's years of service are disregarded pursuant to the
preceding paragraph, such participant will be treated as a new employee for
eligibility purposes. If a Participant's years of service may not be
disregarded pursuant to the preceding paragraph, such participant shall continue
to participate in the plan, or, if terminated, shall participate immediately
upon reemployment. If a Participants's years of service are disregarded
pursuant to the preceding paragraph or provisions of the Prior Plan, such
participant will be treated as a new employee for eligibility purposes, provided
that notwithstanding anything in this Section 2.03 to the contrary, for Plan
Years beginning on or after January 1, 1995, for purposes of participation in
the Plan, the Plan does not apply any Break in Service rule.
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2.04 PARTICIPATION UPON RE-EMPLOYMENT. A Participant whose employment
with the Employer terminates will re-enter the Plan as a Participant on the date
of his reemployment. An Employee who satisfies the Plan's eligibility
conditions but who terminates employment with the Employer prior to becoming a
Participant will become a Participant on the later of the Plan Entry Date on
which he would have entered the Plan had he not terminated employment or the
date of his reemployment, subject to the Suspension of Years of Service rule
under Section 2.03(A). Any Employee who terminates employment prior to
satisfying the Plan's eligibility conditions becomes a Participant in accordance
with the provisions of Section 2.01. This Section 2.04 shall apply to Plan
Years beginning on or after January 1, 1995.
* * * * * * * * * * * * *
ARTICLE III - EMPLOYER CONTRIBUTIONS AND FORFEITURES
PART 1. AMOUNT OF EMPLOYER CONTRIBUTIONS AND PLAN ALLOCATIONS: SECTIONS 3.01
THROUGH 3.06
3.01 AMOUNT.
(A) CONTRIBUTION FORMULA. For each Plan Year, the Employer will contribute to
the Trust the following amounts:
DEFERRAL CONTRIBUTIONS. The amount by which the Participants have elected
to reduce their Compensation for the Plan Year under their salary reduction
agreements on file with the Advisory Committee.
MATCHING CONTRIBUTIONS. An amount equal to FIFTY PERCENT (50%) of each
Participant's eligible contributions. The matching contributions contributed on
behalf of any Participant may not exceed THREE PERCENT (3%) of the Participant's
Compensation for the "matching contributions allocation period". The Employer
will determine the amount of its matching contributions by disregarding
Participants not entitled to an allocation of matching contributions.
QUALIFIED NONELECTIVE CONTRIBUTIONS. The amount the Employer, in its sole
discretion, designates as qualified nonelective contributions.
RESTRICTIONS ON CONTRIBUTIONS. Although the Employer may contribute to
this Plan irrespective of whether it has net profits, the Employer intends the
Plan to be a profit sharing plan for all purposes of the Code. The Employer may
not make a contribution to the Trust for
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any Plan Year to the extent the contribution would exceed the Participants'
Maximum Permissible Amounts. See Part 2 of this Article III.
ELIGIBLE CONTRIBUTIONS. Under the matching contribution formula, a
Participant's "eligible contributions" are the deferral contributions allocated
to the Participant for the "matching contributions allocation period" not in
excess of SIX PERCENT (6%) of the Participant's Compensation for the "matching
contributions allocation period". Eligible contributions do not include
deferral contributions that are excess deferrals under Section 14.03. For this
purpose: (1) excess deferrals relate first to deferral contributions for the
Plan Year not otherwise eligible for a matching contribution; and (2) if the
Plan Year is not a calendar year, the excess deferrals for a Plan Year are the
last deferrals made for a calendar year.
(B) RETURN OF CONTRIBUTIONS. The Employer contributes to this Plan on the
condition its contribution is not due to a mistake of fact and the Revenue
Service will not disallow the deduction for its contribution. The Trustee, upon
written request from the Employer, must return to the Employer the amount of the
Employer's contribution made by the Employer by mistake of fact or the amount of
the employer's contribution disallowed as a deduction under Code Section 404.
The Trustee will not return any portion of the Employer's contribution under the
provisions of this paragraph more than one year after:
(a) The Employer made the contribution by mistake of fact; or
(b) The disallowance of the contribution as a deduction, and then,
only to the extent of the disallowance.
The Trustee will not increase the amount of the Employer contribution
returnable under this Section 3.01 for any earnings attributable to the
contribution, but the Trustee will decrease the Employer contribution returnable
for any losses attributable to it. The Trustee may require the Employer to
furnish it whatever evidence the Trustee deems necessary to enable the Trustee
to confirm the amount the Employer has requested be returned is properly
returnable under ERISA.
3.02 DETERMINATION OF CONTRIBUTION. The Employer, from its records,
determines the amount of any contributions to be made by it to the Trust under
the terms of the Plan.
3.03 TIME OF PAYMENT OF CONTRIBUTION. The Employer may pay its
contribution for each Plan Year in one or more installments without interest.
The Employer must make its contribution to the Plan within the time prescribed
by the Code or applicable federal regulations. Subject to the consent of the
Trustee, the Employer may make its contribution in property rather than cash,
provided the contribution of property is not a prohibited transaction under the
Code or under ERISA. Deferral contributions are Employer contributions for all
purposes under this
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Plan, except to the extent the Code or Treasury regulations prohibit the use of
these contributions to satisfy the qualification requirements of the Code.
3.04 CONTRIBUTION ALLOCATION.
(A) METHOD OF ALLOCATION. To make allocations under the Plan, the Advisory
Committee must establish an Incentive Savings Employee Account, Incentive
Savings Employer Matching Contributions Account, and Qualified Nonelective
Contributions Account.
DEFERRAL CONTRIBUTIONS. The Advisory Committee will allocate to each
Participant's Incentive Savings Employee Account the deferral contributions the
Employer makes to the Trust on behalf of the Participant. The Advisory
Committee will make this allocation as of the last day of each "matching
contributions allocation period".
MATCHING CONTRIBUTIONS. The Advisory Committee will allocate matching
contributions as of the last day of each payroll period (hereinafter "matching
contributions allocation period"). The Advisory Committee will allocate the
matching contributions to the Incentive Savings Employer Matching Account (also
herein referred to as the Matching Contributions Account) of the Participant on
whose behalf the Employer makes that contribution, and twenty five percent of
the amount so allocated shall be invested in the Employer Stock Fund.
QUALIFIED NONELECTIVE CONTRIBUTIONS. If the Employer, at the time of
contribution, designates a contribution to be a qualified nonelective
contribution for the Plan Year, the Advisory Committee will allocate that
qualified nonelective contribution to the Qualified Nonelective Contributions
Account of each Participant eligible for an allocation of qualified nonelective
contributions. The Advisory Committee will make the allocation to each eligible
Participant's Account in the same ratio that the Participant's Compensation for
the Plan Year bears to the total Compensation of all eligible Participants for
the Plan Year. For purposes of allocating qualified nonelective contributions,
the term "eligible Participant" means a Participant who is a Nonhighly
Compensated Employee and who satisfies the conditions of Section 3.06.
(B) TOP HEAVY MINIMUM ALLOCATION.
(1) MINIMUM ALLOCATION. If the Plan is top heavy in any Plan Year:
(a) Each Non-Key Employee who is a Participant and is employed by the
Employer on the last day of the Plan Year will receive a top heavy minimum
allocation for that Plan Year, irrespective of whether he satisfies the
Hours of Service condition under Section 3.06; and
(b) The top heavy minimum allocation is the lesser of 3% of the Non-
Key Employee's Compensation for the Plan Year or the highest contribution
rate for the Plan Year made on
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behalf of any Key Employee. However, if a defined benefit plan maintained
by the Employer which benefits a Key Employee depends on this Plan to
satisfy the antidiscrimination rules of Code Section 401(a)(4) or the
coverage rules of Code Section 410 (or another plan benefiting the Key
Employee so depends on such defined benefit plan), the top heavy minimum
allocation is 3% of the Non-Key Employee's Compensation regardless of the
contribution rate for the Key Employees.
(2) SPECIAL DEFINITIONS. For purposes of this Section 3.04(B), the term
"Participant" includes any Employee otherwise eligible to participate in the
Plan but who is not a Participant because of his failure to make elective
deferrals under a Code Section 401(k) arrangement or because of his failure to
make mandatory employee contributions. For purposes of clause (b),
"Compensation" means Compensation as defined in Section 1.10, except:
(i) Compensation does not include elective contributions; (ii) any exclusions
from Compensation (other than the exclusion of elective contributions and the
exclusions described in paragraphs (a), (b), (c) and (d) of Section 1.10) do not
apply; and (iii) any modification to the definition of Compensation in Section
3.06 does not apply.
(3) DETERMINING CONTRIBUTION RATES. For purposes of this Section 3.04(B),
a Participant's contribution rate is the sum of Employer contributions (not
including Employer contributions to Social Security) and forfeitures allocated
to the Participant's Account for the Plan Year divided by his Compensation for
the entire Plan Year. However, for purposes of satisfying a Participant's top
heavy minimum allocation in Plan Years beginning after December 31, 1988, a
Participant's contribution rate does not include any elective contributions
under a Code Section 401(k) arrangement nor any Employer matching contributions
necessary to satisfy the nondiscrimination requirements of Code Section 401(k)
or of Code Section 401(m). To determine a Participant's contribution rate, the
Advisory Committee must treat all qualified top heavy defined contribution plans
maintained by the Employer (or by any related Employers described in Section
1.27) as a single plan.
(4) NO ALLOCATIONS. If, for a Plan Year, there are no allocations of
Employer contributions or forfeitures for any Key Employee, the Plan does not
require any top heavy minimum allocation for the Plan Year, unless a top heavy
minimum allocation applies because of the maintenance by the Employer of more
than one plan.
(5) METHOD OF COMPLIANCE. The Plan will satisfy the top heavy minimum
allocation in accordance with this Section 3.04(B)(5). The Advisory Committee
first will allocate the Employer contributions (and Participant forfeitures, if
any) for the Plan Year in accordance with the allocation formula under Section
3.04(A). The Employer then will contribute an additional amount for the Account
of any Participant entitled under this Section 3.04(B) to a top heavy minimum
allocation and whose contribution rate for the Plan Year, under this Plan and
any other plan aggregated under paragraph (3), is less than the top heavy
minimum allocation. The
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additional amount is the amount necessary to increase the Participant's
contribution rate to the top heavy minimum allocation. The Advisory Committee
will allocate the additional contribution to the Account of the Participant on
whose behalf the Employer makes the contribution.
3.05 FORFEITURE USED TO REDUCE EMPLOYER CONTRIBUTION. The amount of a
Participant's Accrued Benefit forfeited under the Plan is a Participant
forfeiture. Subject to any restoration allocation required under Sections 5.04
or 9.14 and the special forfeiture allocation for certain excess aggregate
contributions described in Section 14.05, the Advisory Committee will allocate a
Participant forfeiture in accordance with Section 3.04, to reduce the Employer
matching contributions and nonelective contribution for the Plan Year in which
the forfeiture occurs. The Advisory Committee will continue to hold the
undistributed, non-vested portion of a terminated Participant's Accrued Benefit
in his Account solely for his benefit until a forfeiture occurs at the time
specified in Section 5.09 or, if applicable, until the time specified in Section
9.14.
3.06 ACCRUAL OF BENEFIT (QUALIFICATION TO SHARE IN QUALIFIED NONELECTIVE
CONTRIBUTION). The Advisory Committee will determine the accrual of benefit
(Employer qualified nonelective contribution) on the basis of the Plan Year.
(A) COMPENSATION TAKEN INTO ACCOUNT. In allocating an Employer qualified
nonelective contribution or nonelective contribution to a Participant's Account,
the Advisory Committee, except for purposes of determining the top heavy minimum
contribution under Section 3.04(B), will take into account only the Compensation
determined for the portion of the Plan Year in which the Employee actually is a
Participant.
(B) HOURS OF SERVICE REQUIREMENT. Subject to the top heavy minimum allocation
requirement of Section 3.04(B), the Advisory Committee will not allocate any
portion of an Employer contribution for a Plan Year to any Participant's Account
if the Participant does not complete a minimum of 1,000 Hours of Service during
the Plan Year, unless the Participant terminates employment during the Plan Year
because of death or disability or because of the attainment of Normal Retirement
Age in the current Plan Year or in a prior Plan Year. This Hours of Service
requirement does not apply to an allocation of deferral contributions.
(C) YEAR-END EMPLOYMENT REQUIREMENT. A Participant who, during a particular
Plan Year, completes the Hours of Service requirement under Section 3.06(B) will
not share in the allocation of Employer contributions and Participant
forfeitures, if any, for that Plan Year unless he is employed by the Employer on
the Accounting Date of that Plan Year. This employment requirement does not
apply if the Participant terminates employment during the Plan Year because of
death or disability or because of the attainment of Normal Retirement Age in the
current Plan Year or in a prior Plan Year. This employment requirement will not
apply to an allocation of deferral contributions.
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(D) SUSPENSION OF ACCRUAL REQUIREMENTS. The Plan suspends the accrual
requirements under Sections 3.06(B) and (C) if, for any Plan Year beginning
after December 31, 1989, the Plan fails to satisfy the Participation Test or the
Coverage Test. A Plan satisfies the Participation Test if, on each day of the
Plan Year, the number of Employees who benefit under the Plan is at least equal
to the lesser of 50 or 40% of the total number of Includible Employees as of
such day. A Plan satisfies the Coverage Test if, on the last day of each
quarter of the Plan Year, the number of Nonhighly Compensated Employees who
benefit under the Plan is at least equal to 70% of the total number of
Includible Nonhighly Compensated Employees as of such day. "Includible"
Employees are all Employees other than: (1) those Employees excluded from
participating in the Plan for the entire Plan Year by reason of the collective
bargaining unit exclusion or the nonresident alien exclusion described in the
Code or by reason of the age and service requirements of Article II; and (2) any
Employee who incurs a Separation from Service during the Plan Year and fails to
complete at least 501 Hours of Service for the Plan Year. A "Nonhighly
Compensated Employee" is an Employee who is not a Highly Compensated Employee
and who is not a family member aggregated with a Highly Compensated Employee
pursuant to Section 1.07 of the Plan. For purposes of the Participation Test
and the Coverage Test, an Employee is benefiting under the Plan on a particular
date if, under Section 3.04, he is entitled to an allocation for the Plan Year.
For any portion of the Plan subject to the discrimination test described in
Section 14.05, an Employee is benefiting if he is an Eligible Employee for
purposes of Section 14.05 and the Coverage Test applies separately to that
portion of the Plan.
If this Section 3.06(D) applies for a Plan Year, the Advisory Committee
will suspend the accrual requirements for the Includible Employees who are
Participants, beginning first with the Includible Employee(s) employed with the
Employer on the last day of the Plan Year, then the Includible Employee(s) who
have the latest Separation from Service during the Plan Year, and continuing to
suspend in descending order the accrual requirements for each Includible
Employee who incurred an earlier Separation from Service, from the latest to the
earliest Separation from Service date, until the Plan satisfies both the
Participation Test and the Coverage Test for the Plan Year. If two or more
Includible Employees have a Separation from Service on the same day, the
Advisory Committee will suspend the accrual requirements for all such Includible
Employees, irrespective of whether the Plan can satisfy the Participation Test
and the Coverage Test by accruing benefits for fewer than all such Includible
Employees. If the Plan suspends the accrual requirements for an Includible
Employee, that Employee will share in the allocation of Employer contributions
and Participant forfeitures, if any, without regard to the number of Hours of
Service he has earned for the Plan Year and without regard to whether he is
employed by the Employer on the last day of the Plan Year.
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PART 2. LIMITATIONS ON ALLOCATIONS: SECTIONS 3.07 AND 3.08
3.07 LIMITATIONS ON ALLOCATIONS TO PARTICIPANTS' ACCOUNTS. The
amount of Annual Additions which the Advisory Committee may allocate under this
Plan on a Participant's behalf for a Limitation Year may not exceed the Maximum
Permissible Amount. If the amount the Employer otherwise would contribute to
the Participant's Account would cause the Annual Additions for the Limitation
Year to exceed the Maximum Permissible Amount, the Employer will reduce the
amount of its contribution so the Annual Additions for the Limitation Year will
equal the Maximum Permissible Amount. If an allocation of Employer
contributions, pursuant to Section 3.04, would result in an Excess Amount (other
than an Excess Amount resulting from the circumstances described in
Section 3.07(B)) to the Participant's Account, the Advisory Committee will
reallocate the Excess Amount to the remaining Participants who are eligible for
an allocation of Employer contributions for the Plan Year in which the
Limitation Year ends. The Advisory Committee will make this reallocation on the
basis of the allocation method under the Plan as if the Participant whose
Account otherwise would receive the Excess Amount is not eligible for an
allocation of Employer contributions.
(A) ESTIMATION OF COMPENSATION. Prior to the determination of the
Participant's actual Compensation for a Limitation Year, the Advisory Committee
may determine the Maximum Permissible Amount on the basis of the Participant's
estimated annual Compensation for such Limitation Year. The Advisory
Committee must make this determination on a reasonable and uniform basis for all
Participants similarly situated. The Advisory Committee must reduce any
Employer contributions (including any allocation of forfeitures) based on
estimated annual Compensation by any Excess Amount carried over from prior
years. As soon as is administratively feasible after the end of the Limitation
Year, the Advisory Committee will determine the Maximum Permissible Amount for
such Limitation Year on the basis of the Participant's actual Compensation for
such Limitation Year.
(B) DISPOSITION OF EXCESS AMOUNT. If, pursuant to Section 3.07(A), or because
of the allocation of forfeitures, there is an Excess Amount with respect to a
Participant for a Limitation Year, the Advisory Committee will dispose of such
Excess Amount as follows:
(a) The Advisory Committee will return any nondeductible voluntary
Employee contributions to the Participant to the extent the return would
reduce the Excess Amount.
(b) If, after the application of paragraph (a), an Excess Amount
still exists, and the Plan covers the Participant at the end of the
Limitation Year, then the Advisory Committee will use the Excess Amount(s)
to reduce future Employer contributions (including any allocation of
forfeitures) under the Plan for the next Limitation Year and for each
succeeding Limitation Year, as is necessary, for the Participant. The
Participant may elect to limit his Compensation for allocation purposes to
the extent necessary to reduce his allocation for the
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Limitation Year to the Maximum Permissible Amount and eliminate the Excess
Amount.
(c) If, after the application of paragraph (a), an Excess Amount
still exists, and the Plan does not cover the Participant at the end of the
Limitation Year, then the Advisory Committee will hold the Excess Amount
unallocated in a suspense account. The Advisory Committee will apply the
suspense account to reduce Employer Contributions (including allocation of
forfeitures) for all remaining Participants in the next Limitation Year,
and in each succeeding Limitation Year if necessary. Neither the Employer
nor any Employee may contribute to the Plan for any Limitation Year in
which the Plan is unable to allocate fully a suspense account maintained
pursuant to this paragraph (c).
(d) The Advisory Committee will not distribute any Excess Amount(s)
to Participants or to former Participants.
(C) OBRA '93 $150,000. This Subsection "C" is necessary to comply with the
Omnibus Budget Reconciliation Act of 1993 (OBRA '93) and is an integral part of
the Plan document.
In addition to other applicable limitations set forth in the plan, and
notwithstanding any other provision of the plan to the contrary, for plan years
beginning on or after January 1, 1994, the annual compensation of each employee
taken into account under the plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the Commissioner for increases in the cost of living in accordance
with Section 401(a)(17)(B) of the Internal Revenue Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not exceeding 12
months, over which compensation is determined (determination period) beginning
in such calendar year. If a determination period consists of fewer than 12
months, the OBRA '93 annual compensation limit will be multiplied by a fraction,
the numerator of which is the number of months in the determination period, and
the denominator of which is 12.
For plan years beginning on or after January 1, 1994, any reference in this
plan to the limitation under Section 401(a)(17) of the Code shall mean the OBRA
'93 annual compensation limit set forth in this provision.
If compensation for any prior determination period is taken into account in
determining an employee's benefits accruing in the current plan year, the
compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period. For
this purpose, for determination periods beginning before the first day of the
first plan year beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is $150,000.
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3.08 DEFINITIONS - ARTICLE III. For purposes of Article III, the
following terms mean:
(a) "Annual Addition" - The sum of the following amounts allocated on
behalf of a Participant for a Limitation Year: (i) all Employer
contributions; (ii) all forfeitures; and (iii) all Employee contributions.
Except to the extent provided in Treasury regulations, Annual Additions
include excess contributions described in Code Section 401(k), excess
aggregate contributions described in Code Section 401(m) and excess
deferrals described in Code Section 402(g), irrespective of whether the
plan distributes or forfeits such excess amounts. Annual Additions also
include Excess Amounts reapplied to reduce Employer contributions under
Section 3.07. Amounts allocated after March 31, 1984, to an individual
medical account (as defined in Code Section 415(l)(2)) included as part of
a defined benefit plan maintained by the Employer are Annual Additions.
Furthermore, Annual Additions include contributions paid or accrued after
December 31, 1985, for taxable years ending after December 31, 1985,
attributable to post-retirement medical benefits allocated to the separate
account of a key employee (as defined in Code Section 419A(d)(3)) under a
welfare benefit fund (as defined in Code Section 419(e)) maintained by the
Employer, but only for purposes of the dollar limitation applicable to the
Maximum Permissible Amount.
(b) "Compensation" - For purposes of applying the limitations of
Part 2 of this Article III, "Compensation" means Compensation as defined in
Section 1.10, except Compensation does not include elective contributions
and any exclusion from Compensation (other than the exclusion of elective
contributions and the exclusions described in paragraphs (a), (b), (c) and
(d) of Section 1.10) does not apply.
(c) "Maximum Permissible Amount" - The lesser of (i) $30,000 (or, if
greater, one-fourth of the defined benefit dollar limitation under Code
Section 415(b)(1)(A)), or (ii) 25% of the Participant's Compensation for
the Limitation Year. If there is a short Limitation Year because of a
change in Limitation Year, the Advisory Committee will multiply the $30,000
(or adjusted) limitation by the following fraction:
Number of months in the Limitation Year
---------------------------------------
12
(d) "Employer" - The Employer that adopts this Plan and any related
employers described in Section 1.27. Solely for purposes of applying the
limitations of Part 2 of this Article III, the Advisory Committee will
determine related employers described in Section 1.27 by modifying Code
Sections 414(b) and (c) in accordance with Code Section 415(h).
(e) "Excess Amount" - The excess of the Participant's Annual
Additions for the Limitation Year over the Maximum Permissible Amount.
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(f) "Limitation Year" - The Plan Year. If the Employer amends the
Limitation Year to a different 12 consecutive month period, the new
Limitation Year must begin on a date within the Limitation Year for which
the Employer makes the amendment, creating a short Limitation Year.
(g) "Defined Contribution Plan" - A retirement plan which provides
for an individual account for each participant and for benefits based
solely on the amount contributed to the participant's account, and any
income, expenses, gains and losses, and any forfeitures of accounts of
other participants which the plan may allocate to such participant's
account. The Advisory Committee must treat all defined contribution plans
(whether or not terminated) maintained by the Employer as a single plan.
Solely for purposes of the limitations of Part 2 of this Article III, the
Advisory Committee will treat employee contributions made to a defined
benefit plan maintained by the Employer as a separate defined contribution
plan. The Advisory Committee also will treat as a defined contribution
plan an individual medical account (as defined in Code Section 415(l)(2))
included as part of a defined benefit plan maintained by the Employer and,
for taxable years ending after December 31, 1985, a welfare benefit fund
under Code Section 419(e) maintained by the Employer to the extent there
are post-retirement medical benefits allocated to the separate account of a
key employee (as defined in Code Section 419A(d)(3)).
(h) "Defined Benefit Plan" - A retirement plan which does not provide
for individual accounts for Employer contributions. The Advisory Committee
must treat all defined benefit plans (whether or not terminated) maintained
by the Employer as a single plan.
* * * * * * * * * * * * * * *
ARTICLE IV - PARTICIPANT CONTRIBUTIONS
4.01 PARTICIPANT VOLUNTARY CONTRIBUTIONS. The Plan does not permit
nor require Participant voluntary contributions.
4.02 PARTICIPANT VOLUNTARY CONTRIBUTIONS - SPECIAL DISCRIMINATION TEST.
See Section 14.05.
4.03 PARTICIPANT ROLLOVER CONTRIBUTIONS. Rollovers are permitted under
the limited circumstances prescribed and approved by the Advisory Committee or
the Corporation. Any Participant, after filing with the Trustee any form
prescribed by the Advisory Committee, may contribute cash or other property to
the Trust other than as a voluntary contribution if the
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contribution is a "rollover contribution" which the Code permits an employee to
transfer either directly or indirectly from one qualified plan to another
qualified plan. Before accepting a rollover contribution, the Trustee may
require an Employee to furnish satisfactory evidence that the proposed transfer
is in fact a "rollover contribution" which the Code permits an employee to make
to a qualified plan. A rollover contribution is not an Annual Addition under
Part 2 of Article III. The Trustee must approve the transfer of property other
than cash.
The Trustee will hold the rollover contribution in an Account for the
Participant's sole benefit (segregated for accounting purposes and subject to
limited investment directions by the Participant, if then permitted by the
Corporation, among limited investment choices in the manner then specified by
and limited by the Corporation and then rules of the Plan applicable to other
types of Accounts, which may change from time to time). The Trustee is not
liable nor responsible for any loss resulting to any Beneficiary, nor to any
Participant, by reason of any sale or investment made or other action taken
pursuant to and in accordance with the direction of the Participant. In all
other respects, the Trustee will hold, administer and distribute a rollover
contribution in the same manner as any Employer contribution made to the Trust.
4.04 PARTICIPANT CONTRIBUTION - FORFEITABILITY. A Participant's Accrued
Benefit is, at all times, 100% Nonforfeitable to the extent the value of his
Accrued Benefit is derived from Participant contributions described in this
Article IV.
4.05 PARTICIPANT CONTRIBUTION - WITHDRAWAL/DISTRIBUTION. A Participant,
by giving prior written notice to the Trustee and satisfaction of the hardship
provisions of Section 6.03(B)(2), may withdraw all or any part of the value of
his Accrued Benefit derived from his Participant contributions described in this
Article IV. The Trustee, in accordance with the direction of the Advisory
Committee, will distribute a Participant's unwithdrawn Accrued Benefit
attributable to his Participant contributions in accordance with the provisions
of Article VI applicable to the distribution of the Participant's Nonforfeitable
Accrued Benefit.
4.06 PARTICIPANT CONTRIBUTION - ACCRUED BENEFIT. The Advisory Committee
must maintain separate Account(s) in the name of each Participant to reflect the
Participant's Accrued Benefit under the Plan derived from his Participant
contributions. A Participant's Accrued Benefit derived from his Participant
contributions as of any applicable date is the balance of his separate
Participant contribution Account(s), and the Account shall be called the Profit
Sharing Employee Account.
* * * * * * * * * * * * * * *
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ARTICLE V - TERMINATION OF SERVICE - PARTICIPANT VESTING
5.01 NORMAL RETIREMENT AGE. A Participant's Normal Retirement Age is
SIXTY FIVE (65) years of age. A Participant's Accrued Benefit derived from
Employer contributions is 100% Nonforfeitable upon and after his attaining
Normal Retirement Age (if employed by the Employer on or after that date).
5.02 PARTICIPANT DISABILITY OR DEATH. If a Participant's employment with
the Employer terminates as a result of death or disability, the Participant's
Accrued Benefit derived from Employer contributions will be 100% Nonforfeitable.
5.03 VESTING SCHEDULE.
(A) VESTING SCHEDULE.
(1) DEFERRAL CONTRIBUTIONS ACCOUNT/QUALIFIED NONELECTIVE CONTRIBUTIONS
ACCOUNT. A Participant has a 100% Nonforfeitable interest at all times in his
Deferral Contributions Account and in his Qualified Nonelective Contributions
Account.
(2) MATCHING CONTRIBUTIONS ACCOUNT. Except as provided in Sections 5.01
and 5.02, for each Year of Service, a Participant's Nonforfeitable percentage of
his Incentive Savings Employer Matching Contributions Account and Employer
Profit Sharing Contributions Account equals the percentage in the following
vesting schedule:
Percent of
Years of Service Nonforfeitable
With the Employer Accrued Benefit
----------------- ---------------
Less than 5 . . . . . . . . . . . . . . . . . . . . . . .None
5 or more . . . . . . . . . . . . . . . . . . . . . . . .100%
Effective the first Plan Year for which the Plan is top heavy and then in
all subsequent Plan Years, the Advisory Committee will calculate a Participant's
Nonforfeitable Percentage under the following schedule:
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Percent of
Years of Service Nonforfeitable
With the Employer Accrued Benefit
----------------- ---------------
Less than 2. . . . . . . . . . . . . . . . . . . . . . . . . .None
2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20%
3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40%
4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60%
5 or more . . . . . . . . . . . . . . . . . . . . . . . .100%
The Advisory Committee will apply the top heavy schedule to Participants
who earn at least one Hour of Service after the top heavy schedule becomes
effective. A shift between vesting schedules under this Section 5.03 is an
amendment to the vesting schedule and the Advisory Committee must apply the
rules of Section 7.05 accordingly. A shift to a new vesting schedule under this
Section 5.03 is effective on the first day of the Plan Year for which the top
heavy status of the Plan changes.
(B) SPECIAL VESTING FORMULA. If the Trustee makes a distribution (other than a
cash-out distribution described in Section 5.04) to a partially-vested
Participant, and the Participant has not incurred a Forfeiture Break in Service
at the relevant time, the Advisory Committee will establish a separate Account
for the Participant's Accrued Benefit. At any relevant time following the
distribution, the Advisory Committee will determine the Participant's
Nonforfeitable Accrued Benefit derived from Employer contributions in
accordance with the following formula: P(AB + (R x D)) - (R x D).
To apply this formula, "P" is the Participant's current vesting percentage
at the relevant time, "AB" is the Participant's Employer-derived Accrued Benefit
at the relevant time, "R" is the ratio of "AB" to the Participant's Employer-
derived Accrued Benefit immediately following the earlier distribution and "D"
is the amount of the earlier distribution. If, under a restated Plan, the Plan
has made distribution to a partially-vested Participant prior to its restated
Effective Date and is unable to apply the cash-out provisions of Section 5.04 to
that prior distribution, this special vesting formula also applies to that
Participant's remaining Account.
5.04 CASH-OUT DISTRIBUTIONS TO PARTIALLY-VESTED PARTICIPANTS/RESTORATION
OF FORFEITED ACCRUED BENEFIT. If, pursuant to Article VI, a partially-vested
Participant receives a cash-out distribution before he incurs a Forfeiture
Break in Service (as defined in Section 5.08), the cash-out distribution will
result in an immediate forfeiture of the nonvested portion of the Participant's
Accrued Benefit derived from Employer contributions. See Section 5.09. A
partially-vested
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Participant is a Participant whose Nonforfeitable Percentage determined under
Section 5.03 is less than 100%. A cash-out distribution is a distribution of
the entire present value of the Participant's Nonforfeitable Accrued Benefit.
(A) RESTORATION AND CONDITIONS UPON RESTORATION. A partially-vested
Participant who is re-employed by the Employer after receiving a cash-out
distribution of the Nonforfeitable percentage of his Accrued Benefit may repay
the Trustee the amount of the cash-out distribution attributable to Employer
contributions, unless the Participant no longer has a right to restoration by
reason of the conditions of this Section 5.04(A). If a partially-vested
Participant makes the cash-out distribution repayment, the Advisory Committee,
subject to the conditions of this Section 5.04(A), must restore his Accrued
Benefit attributable to Employer contributions to the same dollar amount as the
dollar amount of his Accrued Benefit on the Accounting Date, or other valuation
date, immediately preceding the date of the cash-out distribution, unadjusted
for any gains or losses occurring subsequent to that Accounting Date, or other
valuation date. Restoration of the Participant's Accrued Benefit includes
restoration of all Code Section 411(d)(6) protected benefits with respect to
that restored Accrued Benefit, in accordance with applicable Treasury
regulations. The Advisory Committee will not restore a re-employed
Participant's Accrued Benefit under this paragraph if:
(1) 5 years have elapsed since the Participant's first re-employment
date with the Employer following the cash-out distribution; or
(2) The Participant incurred a Forfeiture Break in Service (as
defined in Section 5.08). This condition also applies if the Participant
makes repayment within the Plan Year in which he incurs the Forfeiture
Break in Service and that Forfeiture Break in Service would result in a
complete forfeiture of the amount the Advisory Committee otherwise would
restore.
(B) TIME AND METHOD OF RESTORATION. If neither of the two conditions
preventing restoration of the Participant's Accrued Benefit applies, the
Advisory Committee will restore the Participant's Accrued Benefit as of the Plan
Year Accounting Date coincident with or immediately following the repayment. To
restore the Participant's Accrued Benefit, the Advisory Committee, to the extent
necessary, will allocate to the Participant's Account:
(1) First, the amount, if any, of Participant forfeitures the
Advisory Committee would otherwise allocate under Section 3.05;
(2) Second, the amount, if any, of the Trust Fund net income or gain
for the Plan Year; and
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(3) Third, the Employer contribution for the Plan Year to the extent
made under a discretionary formula.
To the extent the amounts described in clauses (1), (2) and (3) are
insufficient to enable the Advisory Committee to make the required restoration,
the Employer must contribute, without regard to any requirement or condition of
Section 3.01, the additional amount necessary to enable the Advisory Committee
to make the required restoration. If, for a particular Plan Year, the Advisory
Committee must restore the Accrued Benefit of more than one re-employed
Participant, then the Advisory Committee will make the restoration allocation(s)
to each such Participant's Account in the same proportion that a Participant's
restored amount for the Plan Year bears to the restored amount for the Plan Year
of all re-employed Participants. The Advisory Committee will not take into
account the allocation under this Section 5.04 in applying the limitation on
allocations under Part 2 of Article III.
(C) 0% VESTED PARTICIPANT. The deemed cash-out rule applies to a 0% vested
Participant. A 0% vested Participant is a Participant whose Accrued Benefit
derived from Employer contributions is entirely forfeitable at the time of his
Separation from Service. Under the deemed cash-out rule, the Advisory Committee
will treat the 0% vested Participant as having received a cash-out distribution
on the date of the Participant's Separation from Service or, if the
Participant's Account is entitled to an allocation of Employer contributions for
the Plan Year in which he separates from Service, on the last day of that Plan
Year. For purposes of applying the restoration provisions of this Section 5.04,
the Advisory Committee will treat the 0% vested Participant as repaying his
cash-out "distribution" on the first date of his re-employment with the
Employer.
5.05 SEGREGATED ACCOUNT FOR REPAID AMOUNT. Until the Advisory Committee
restores the Participant's Accrued Benefit, as described in Section 5.04, the
Trustee will invest the cash-out amount the Participant has repaid in a
segregated Account maintained solely for that Participant. The Trustee must
invest the amount in the Participant's segregated Account in Federally insured
interest bearing savings account(s) or time deposit(s) (or a combination of
both), or in other fixed income investments. Until commingled with the balance
of the Trust Fund on the date the Advisory Committee restores the Participant's
Accrued Benefit, the Participant's segregated Account remains a part of the
Trust, but it alone shares in any income it earns and it alone bears any expense
or loss it incurs. Unless the repayment qualifies as a rollover contribution,
the Advisory Committee will direct the Trustee to repay to the Participant as
soon as is administratively practicable the full amount of the Participant's
segregated Account if the Advisory Committee determines either of the
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conditions of Section 5.04(A) prevents restoration as of the applicable
Accounting Date, notwithstanding the Participant's repayment.
5.06 YEAR OF SERVICE - VESTING. For purposes of vesting under Section
5.03, and for purposes of determining an employee's nonforfeitable interest in
the participant's account balance derived from employer contributions, (except
for periods of service which may be disregarded on account of the "rule of
parity" described in section 5.08(a)(2)), an employee will receive credit for
the aggregate of all time period(s) commencing with the employee's first day of
employment or reemployment and ending on the date a break in service begins.
The first day of employment or reemployment is the first day the employee
performs an hour of service. An employee will also receive credit for any
period of severance of less than 12 consecutive months. Fractional periods of a
year will be expressed in terms of days.
5.07(A) BREAK IN SERVICE - VESTING. For purposes of this Article V, Break
in service is a period of severance of at least 12 consecutive months.
5.07(B) PERIOD OF SEVERANCE - VESTING. Period of severance is a
continuous period of time during which the employee is not employed by the
employer. Such period begins on the date the employee retires, quits or is
discharged, or if earlier, the 12 month anniversary of the date on which the
employee was otherwise first absent from service.
In the case of an individual who is absent from work for maternity or
paternity reasons, the 12-consecutive month period beginning on the first
anniversary of the first date of such absence shall not constitute a break in
service. For purposes of this paragraph, an absence from work for maternity or
paternity reasons means an absence (1) by reason of the pregnancy of the
individual, (2) by reason of the birth of a child of the individual, (3) by
reason of the placement of a child with the individual in connection with the
adoption of such child by such individual, or (4) for purposes of caring for
such child for a period beginning immediately following such birth or placement.
5.08 INCLUDED YEARS OF SERVICE - VESTING.
(A) INCLUDED YEARS OF SERVICE. For purposes of determining "Years of Service"
under Section 5.06 the Plan takes into account all Years of Service an Employee
completes with the Employer, except:
(1) Any Year of Service before the Plan Year in which the Participant
attained the age of 18.
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(2) Any Year of Service before a Break in Service if the length of
Break in Service equals or exceeds the greater of 5 years or the aggregate
length of Service prior to the Break. This exception applies only if the
Participant is 0% vested in his Accrued Benefit derived from Employer
contributions at the time he has a Break in Service. Furthermore, the
aggregate number of Years of Service before a Break in Service does not
include any Years of Service not required to be taken into account under
this exception by reason of any prior Break in Service.
(3) Any Year of Service earned prior to the effective date of ERISA
if the Plan would have disregarded that Year of Service on account of an
Employee's Separation from Service under a Plan provision adopted and in
effect before January 1, 1974.
(B) FORFEITURE BREAK IN SERVICE. For the sole purpose of determining a
Participant's Nonforfeitable percentage of his Accrued Benefit derived from
Employer contributions which accrued for his benefit prior to a Forfeiture Break
in Service, the Plan disregards any Year of Service after the Participant first
incurs a Forfeiture Break in Service. The Participant incurs a Forfeiture Break
in Service when he incurs 5 consecutive Breaks in Service.
5.09 FORFEITURE OCCURS. A Participant's forfeiture, if any, of his
Accrued Benefit derived from Employer contributions occurs under the Plan on the
earlier of:
(a) The date on which the Participant first incurs a Forfeiture Break
in Service; or
(b) The date the Participant receives a cash-out distribution.
The Advisory Committee determines the percentage of a Participant's Accrued
Benefit forfeiture, if any, under this Section 5.09 solely by reference to the
vesting schedule of Section 5.03. A Participant will not forfeit any portion of
his Accrued Benefit for any other reason or cause except as expressly provided
by this Section 5.09 or as provided under Section 9.14.
* * * * * * * * * * * * * * *
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ARTICLE VI - TIME AND METHOD OF PAYMENT OF BENEFITS
6.01 TIME OF PAYMENT OF ACCRUED BENEFIT. Unless, pursuant to Section
6.03, the Participant or the Beneficiary elects in writing to a different time
or method of payment, the Advisory Committee will direct the Trustee to commence
distribution of a Participant's Nonforfeitable Accrued Benefit in accordance
with this Section 6.01. A Participant must consent, in writing, to any
distribution required under this Section 6.01 if the present value of the
Participant's Nonforfeitable Accrued Benefit, at the time of the distribution to
the Participant, exceeds $3,500 and the Participant has not attained the later
of Normal Retirement Age or age 62. Furthermore, the Participant's spouse also
must consent, in writing, to any distribution, for which Section 6.04 requires
the spouse's consent. For all purposes of this Article VI, the term "annuity
starting date" means the first day of the first period for which the Plan pays
an amount as an annuity or in any other form. A distribution date under this
Article VI, unless otherwise specified within the Plan, is AN ADMINISTRATIVELY
REASONABLE TIME AFTER THE DATE, WHICH IS 30 DAYS AFTER THE END OF THE APPLICABLE
QUARTERLY OR OTHER VALUATION DATE (PROVIDED THAT THE PARTICIPANT SHALL HAVE THEN
MADE, COMPLETED AND RETURNED HIS OR HER ELECTIONS ON A DATE THAT MAKE
DISTRIBUTION FEASIBLE BY SUCH DATE) or as soon as administratively practicable
following a distribution date. For purposes of the consent requirements under
this Article VI, if the present value of the Participant's Nonforfeitable
Accrued Benefit, at the time of any distribution, exceeds $3,500, the Advisory
Committee must treat that present value as exceeding $3,500 for purposes of all
subsequent Plan distributions to the Participant.
(A) SEPARATION FROM SERVICE FOR A REASON OTHER THAN DEATH.
(1) PARTICIPANT'S NONFORFEITABLE ACCRUED BENEFIT NOT EXCEEDING $3,500. If
the Participant's Separation from Service is for any reason other than death,
the Advisory Committee will direct the Trustee to distribute the Participant's
Nonforfeitable Accrued Benefit in a lump sum as soon as administratively
practicable following the close of the CALENDAR YEAR QUARTER in which
Participant's Separation from Service occurs, but in no event later than the
60th day following the close of the Plan Year in which the Participant attains
Normal Retirement Age. If the Participant has attained Normal Retirement Age
when he separates from Service, the distribution under this paragraph will occur
no later than the 60th day following the close of the Plan Year in which the
Participant's Separation from Service occurs.
(2) PARTICIPANT'S NONFORFEITABLE ACCRUED BENEFIT EXCEEDS $3,500. If the
Participant's Separation from Service is for any reason other than death, the
Advisory Committee will direct the Trustee to distribute the Participant's
Nonforfeitable
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Accrued Benefit in a form and at the time elected by the Participant, pursuant
to Section 6.03. In the absence of an election by the Participant, the Advisory
Committee will direct the Trustee to distribute the Participant's Nonforfeitable
Accrued Benefit in a lump sum (or, if applicable, the normal annuity form of
distribution required under Section 6.04), on the 60th day following the close
of the Plan Year in which the latest of the following events occurs: (a) the
Participant attains Normal Retirement Age; (b) the Participant attains age 62;
or (c) the Participant's Separation from Service.
(3) DISABILITY. If the Participant's Separation from Service is because
of disability, the Advisory Committee will direct the Trustee to pay the
Participant's Nonforfeitable Accrued Benefit in lump sum, on THE DISTRIBUTION
DATE NEXT FOLLOWING THE CLOSE OF THE CALENDAR YEAR QUARTER DURING WHICH THE
DETERMINATION IS MADE THAT SEPARATION FROM SERVICE WAS DUE TO A DISABILITY,
subject to the notice and consent requirements of this Article VI and to the
applicable mandatory commencement dates described in Paragraph (1) or in
Paragraph (2).
(B) REQUIRED BEGINNING DATE. If any distribution commencement date described
under Paragraph (A) of this Section 6.01, either by Plan provision or by
Participant election (or nonelection), is later than the Participant's Required
Beginning Date, the Advisory Committee instead must direct the Trustee to make
distribution on the Participant's Required Beginning Date. A Participant's
Required Beginning Date is the April 1 following the close of the calendar year
in which the Participant attains age 70 1/2. However, if the Participant, prior
to incurring a Separation from Service, attained age 70 1/2 by January 1, 1988,
and, for the five Plan Year period ending in the calendar year in which he
attained age 70 1/2 and for all subsequent years, the Participant was not a more
than 5% owner, the Required Beginning Date is the April 1 following the close of
the calendar year in which the Participant separates from Service or, if
earlier, the April 1 following the close of the calendar year in which the
Participant becomes a more than 5% owner. Furthermore, if a Participant who was
not a more than 5% owner attained age 70 1/2 during 1988 and did not incur a
Separation from Service prior to January 1, 1989, his Required Beginning Date is
April 1, 1990. A mandatory distribution at the Participant's Required Beginning
Date will be in lump sum (or, if applicable, the normal annuity form of
distribution required under Section 6.04) unless the Participant, pursuant to
the provisions of this Article VI, makes a valid election to receive an
alternative form of payment.
(C) DEATH OF THE PARTICIPANT. The Advisory Committee will direct the Trustee,
in accordance with this Section 6.01(C), to distribute to the Participant's
Beneficiary the Participant's Nonforfeitable Accrued Benefit remaining in the
Trust at the time of the Participant's death. Subject to the requirements of
Section 6.04, the Advisory
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Committee will determine the death benefit by reducing the Participant's
Nonforfeitable Accrued Benefit by any security interest the Plan has against
that Nonforfeitable Accrued Benefit by reason of an outstanding Participant
loan.
(1) DECEASED PARTICIPANT'S NONFORFEITABLE ACCRUED BENEFIT DOES NOT EXCEED
$3,500. The Advisory Committee, subject to the requirements of Section 6.04,
must direct the Trustee to distribute the deceased Participant's Nonforfeitable
Accrued Benefit in a single cash sum, as soon as administratively practicable
following the Participant's death or, if later, the date on which the Advisory
Committee receives notification of or otherwise confirms the Participant's
death.
(2) DECEASED PARTICIPANT'S NONFORFEITABLE ACCRUED BENEFIT EXCEEDS $3,500.
The Advisory Committee will direct the Trustee to distribute the deceased
Participant's Nonforfeitable Accrued Benefit at the time and in the form elected
by the Participant or, if applicable by the Beneficiary, as permitted under this
Article VI. In the absence of an election, subject to the requirements of
Section 6.04, the Advisory Committee will direct the Trustee to distribute the
Participant's undistributed Nonforfeitable Accrued Benefit in a lump sum on the
first distribution date following the close of the Plan Year in which the
Participant's death occurs or, if later, the first distribution date following
the date the Advisory Committee receives notification of or otherwise confirms
the Participant's death.
If the death benefit is payable in full to the Participant's surviving
spouse, the surviving spouse, in addition to the distribution options provided
in this Section 6.01(C), may elect distribution at any time or in any form
(other than the joint and survivor annuity) this Article VI would permit for a
Participant.
(D) DEFAULT ON A LOAN. If a Participant or Beneficiary defaults on a loan made
pursuant to a loan policy adopted by the Advisory Committee pursuant to Section
9.04, the Plan does not treat the default as a distributable event. When an
otherwise distributable event first occurs pursuant to Section 6.01 or Section
6.03 of the Plan, the Trustee will reduce the Participant's Nonforfeitable
Accrued Benefit by the lesser of the amount in default (plus accrued interest)
or the Plan's security interest in that Nonforfeitable Accrued Benefit.
6.02 METHOD OF PAYMENT OF ACCRUED BENEFIT. Subject to the annuity
distribution requirements, if any, prescribed by Section 6.04, and any
restrictions prescribed by Section 6.03, a Participant or Beneficiary may elect
distribution only in a lump sum in cash (or to the extent that a Participants
Accounts are invested in the Stock Fund, in whole shares of Employer Stock,
provided that the Participant so elects under Section 6.03). However, the
Participant need not receive a lump sum distribution to satisfy
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the minimum distribution requirements of Section 6.02(A) prior to the
Participant's Separation from Service.
(A) MINIMUM DISTRIBUTION REQUIREMENTS FOR PARTICIPANTS AGE 70 1/2. The
Advisory Committee may not direct the Trustee to distribute the Participant's
Nonforfeitable Accrued Benefit, nor may the Participant elect to have the
Trustee distribute his Nonforfeitable Accrued Benefit, under a method of payment
which, as of the Required Beginning Date, does not satisfy the minimum
distribution requirements under Code Section 401(a)(9) and the applicable
Treasury regulations. The minimum distribution for a calendar year equals the
Participant's Nonforfeitable Accrued Benefit as of the latest valuation date
preceding the beginning of the calendar year divided by the Participant's life
expectancy or, if applicable, the joint and last survivor expectancy of the
Participant and his designated Beneficiary (as determined under Article VIII,
subject to the requirements of the Code Section 401(a)(9) regulations). The
Advisory Committee will increase the Participant's Nonforfeitable Accrued
Benefit, as determined on the relevant valuation date, for contributions or
forfeitures allocated after the valuation date and by December 31 of the
valuation calendar year, and will decrease the valuation by distributions made
after the valuation date and by December 31 of the valuation calendar year. For
purposes of this valuation, the Advisory Committee will treat any portion of the
minimum distribution for the first distribution calendar year made after the
close of that year as a distribution occurring in that first distribution
calendar year. In computing a minimum distribution, the Advisory Committee must
use the unisex life expectancy multiples under Treas. Reg. Section 1.72-9. The
Advisory Committee, only upon the Participant's written request, will compute
the minimum distribution for a calendar year subsequent to the first calendar
year for which the Plan requires a minimum distribution by redetermining the
applicable life expectancy. However, the Advisory Committee may not redetermine
the joint life and last survivor expectancy of the Participant and a nonspouse
designated Beneficiary in a manner which takes into account any adjustment to a
life expectancy other than the Participant's life expectancy.
If the Participant's spouse is not his designated Beneficiary, a method of
payment to the Participant (whether by Participant election or by Advisory
Committee direction) may not provide more than incidental benefits to the
Beneficiary. For Plan Years beginning after December 31, 1988, the Plan must
satisfy the minimum distribution incidental benefit ("MDIB") requirement in the
Treasury regulations issued under Code Section 401(a)(9) for distributions made
on or after the Participant's Required Beginning Date and before the
Participant's death. To satisfy the MDIB requirement, the Advisory Committee
will compute the minimum distribution required by this Section 6.02(A) by
substituting the applicable MDIB divisor for the applicable life expectancy
factor, if the MDIB divisor is a lesser number. Following the
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Participant's death, the Advisory Committee will compute the minimum
distribution required by this Section 6.02(A) solely on the basis of the
applicable life expectancy factor and will disregard the MDIB factor. For Plan
Years beginning prior to January 1, 1989, the Plan satisfies the incidental
benefits requirement if the distributions to the Participant satisfied the MDIB
requirement or if the present value of the retirement benefits payable solely to
the Participant is greater than 50% of the present value of the total benefits
payable to the Participant and his Beneficiaries. The Advisory Committee must
determine whether benefits to the Beneficiary are incidental as of the date the
Trustee is to commence payment of the retirement benefits to the Participant, or
as of any date the Trustee redetermines the payment period to the Participant.
The minimum distribution for the first distribution calendar year is due by
the Participant's Required Beginning Date. The minimum distribution for each
subsequent distribution calendar year, including the calendar year in which the
Participant's Required Beginning Date falls, is due by December 31 of that year.
(B) MINIMUM DISTRIBUTION REQUIREMENTS FOR BENEFICIARIES. The method of
distribution to the Participant's Beneficiary must satisfy Code Section
401(a)(9) and the applicable Treasury regulations. If the Participant's death
occurs after his Required Beginning Date or, if earlier, the date the
Participant commences an irrevocable annuity pursuant to Section 6.04, the
method of payment to the Beneficiary must provide for completion of payment over
a period which does not exceed the payment period which had commenced for the
Participant. If the Participant's death occurs prior to his Required Beginning
Date, and the Participant had not commenced an irrevocable annuity pursuant to
Section 6.04, the method of payment to the Beneficiary, subject to Section 6.04,
must provide for completion of payment to the Beneficiary over a period not
exceeding: (i) 5 years after the date of the Participant's death; or (ii) if
the Beneficiary is a designated Beneficiary, the designated Beneficiary's life
expectancy. The Advisory Committee may not direct payment of the Participant's
Nonforfeitable Accrued Benefit over a period described in clause (ii) unless the
Trustee will commence payment to the designated Beneficiary no later than the
December 31 following the close of the calendar year in which the Participant's
death occurred or, if later, and the designated Beneficiary is the Participant's
surviving spouse, December 31 of the calendar year in which the Participant
would have attained age 70 1/2. If the Trustee will make distribution in
accordance with clause (ii), the minimum distribution for a calendar year equals
the Participant's Nonforfeitable Accrued Benefit as of the latest valuation date
preceding the beginning of the calendar year divided by the designated
Beneficiary's life expectancy. The Advisory Committee must use the unisex life
expectancy multiples under Treas. Reg. Section 1.72-9 for purposes of applying
this paragraph. The Advisory
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Committee, only upon the written request of the Participant or of the
Participant's surviving spouse, will recalculate the life expectancy of the
Participant's surviving spouse not more frequently than annually, but may not
recalculate the life expectancy of a nonspouse designated Beneficiary after the
Trustee commences payment to the designated Beneficiary. The Advisory Committee
will apply this paragraph by treating any amount paid to the Participant's
child, which becomes payable to the Participant's surviving spouse upon the
child's attaining the age of majority, as paid to the Participant's surviving
spouse. Upon the Beneficiary's written request, the Advisory Committee must
direct the Trustee to accelerate payment of all, or any portion, of the
Participant's unpaid Accrued Benefit, as soon as administratively practicable
following the effective date of that request.
(C) DIRECT ROLLOVER. This Article applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to the contrary that
would otherwise limit a distributee's election under this Article, a distributee
may elect, at the time and in the manner prescribed by the Plan Administrator,
to have any portion of an eligible rollover distribution paid directly to an
eligible retirement plan specified by the distributee in a direct rollover.
(a) "Eligible Rollover Distribution." An eligible rollover
distribution is any distribution of all or any portion of the balance to
the credit of the distributee, except that an eligible rollover
distribution does not include: any distribution that is one of a series of
substantially equal periodic payments (not less frequently than annually)
made for the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of ten years or more; any
distribution to the extent such distribution is required under Code
401(a)(9); and the portion of any distribution that is not includible in
gross income (determined without regard to the exclusion of net unrealized
appreciation with respect to employer securities).
(b) "Eligible Retirement Plan." An eligible retirement plan is an
individual retirement account described in Code 408(a), an individual
retirement annuity described in Code 408(b), an annuity plan described in
Code 403(a), or a qualified trust described in Code 401(a), that accepts
the distributee's eligible rollover distribution. However, in the case of
an eligible rollover distribution to the surviving spouse, an eligible
retirement plan is an individual retirement account or individual
retirement annuity.
(c) "Distributee." A distributee includes an Employee or former
Employee. In addition, the Employee's or former Employee's surviving spouse and
the employee's or former Employee's spouse or former spouse who is the alternate
payee under a
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qualified domestic relations order, as defined in Code 414(p), are distributee
with regard to the interest of the spouse or former spouse.
(d) "Direct Rollover." A direct rollover is a payment by the Plan to
the eligible retirement plan specified by the distributee.
6.03 BENEFIT PAYMENT ELECTIONS. Not earlier than 90 days, but not later
than 30 days, before the Participant's annuity starting date, the Advisory
Committee must provide a benefit notice to a Participant who is eligible to make
an election under this Section 6.03. The benefit notice must explain the
optional forms of benefit in the Plan, including the material features and
relative values of those options, and the Participant's right to defer
distribution until he attains the later of Normal Retirement Age or age 62.
If a Participant or Beneficiary makes an election prescribed by this
Section 6.03, the Advisory Committee will direct the Trustee to distribute the
Participant's Nonforfeitable Accrued Benefit in accordance with that election.
Any election under this Section 6.03 is subject to the requirements of Section
6.02 and of Section 6.04. The Participant or Beneficiary must make an election
under this Section 6.03 by filing his election form with the Advisory Committee
at any time before the Trustee otherwise would commence to pay a Participant's
Accrued Benefit in accordance with the requirements of Article VI.
(A) PARTICIPANT ELECTIONS AFTER SEPARATION FROM SERVICE. If the present value
of a Participant's Nonforfeitable Accrued Benefit exceeds $3,500, he may elect
to have the Trustee commence distribution as of any distribution date, but not
earlier than AN ADMINISTRATIVELY REASONABLE TIME AFTER THE DATE, WHICH IS 30
DAYS AFTER THE END OF THE APPLICABLE QUARTERLY OR OTHER VALUATION DATE (PROVIDED
THAT THE PARTICIPANT SHALL HAVE THEN MADE, COMPLETED AND RETURNED HIS OR HER
ELECTIONS ON A DATE THAT MAKE DISTRIBUTION FEASIBLE BY SUCH DATE) in which the
Participant's Separation from Service OCCURRED. IN ADDITION, TO THE EXTENT THAT
THE PARTICIPANT'S ACCOUNT IS INVESTED IN THE STOCK FUND, THE PARTICIPANT MAY
ELECT DISTRIBUTION IN WHOLE SHARE OF EMPLOYER STOCK. The Participant may
reconsider an election at any time prior to the annuity starting date and elect
to commence distribution as of any other distribution date, but not earlier than
the date described in the first sentence of this Paragraph (A). Following his
attainment of Normal Retirement Age, a Participant who has separated from
Service may elect distribution as of any distribution date, irrespective of the
restrictions otherwise applicable under this Section 6.03(A). If the
Participant is partially-vested in his Accrued Benefit, an election under this
Paragraph (A) to distribute prior to the Participant's incurring a Forfeiture
Break in Service (as defined in Section 5.08), must be in the form of a cash-out
distribution (as defined in
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Article V). A Participant may not receive a cash-out distribution if, prior to
the time the Trustee actually makes the cash-out distribution, the Participant
returns to employment with the Employer.
(B) PARTICIPANT ELECTIONS PRIOR TO SEPARATION FROM SERVICE.
(1) WITHDRAWAL AFTER ATTAINMENT OF AGE 65. After a Participant attains
Normal Retirement Age, the Participant, until he retires, has a continuing
election to receive all his Accounts in the manner and time set forth
hereinbefore under Sections 6.01, 6.02 and 6.03.
(2) HARDSHIP DISTRIBUTION. With respect the Incentive Savings Employee
Account, to the extent and under the procedures set forth in paragraphs (3) and
(4) below, the Participant, if the Participant satisfies the conditions for a
hardship, as described in paragraph (4), may withdraw a portion of the Incentive
Savings Employee Account of the Participant, subject to the restrictions and
limitations below.
(3) PROCEDURE. Except for a Participant who has attained age 65 during
his employment with the Employer, and the above limited hardship withdrawal, the
Participant does not have any right to commence distribution of his
Nonforfeitable Accrued Benefit for any reason, unless required by Section
6.01(B).A Participant must make an election under this Section 6.03(B) on a form
prescribed by the Advisory Committee at any time during the Plan Year for which
his election is to be effective. In his written election, the Participant must
specify the percentage or dollar amount he wishes the Trustee to distribute to
him. The Participant's election relates solely to the percentage or dollar
amount specified in his election form and his right to elect to receive an
amount, if any, for a particular Plan Year greater than the dollar amount or
percentage specified in his election form terminates on the Accounting Date.
The Trustee must make a distribution to a Participant in accordance with his
election under this Section 6.03(B) within the 90-day period (or as soon as
administratively practicable) after the Participant files his written election
with the Trustee. The Trustee will distribute the balance of the Participant's
Accrued Benefit not distributed pursuant to his election(s) in accordance with
the other distribution provisions of this Plan.
(4) DEFINITION OF HARDSHIP. For purposes of this Section 6.03(B), a
hardship distribution must be on account of one or more of the following
immediate and heavy financial needs: (1) medical expenses described in Code
Section 213(d) incurred by the Participant, by the Participant's spouse, or by
any of the Participant's dependents; (2) the purchase (excluding mortgage
payments) of a principal residence for the Participant; (3) the payment of post-
secondary education tuition, for the next semester
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or for the next quarter, for the Participant, for the Participant's spouse, or
for any of the Participant's dependents; (4) to prevent the eviction of the
Participant from his principal residence or the foreclosure on the mortgage of
the Participant's principal residence; or (5) any other event designated by
Treasury regulations for the safe harbor definition of hardship.
RESTRICTIONS. The following restrictions apply to a Participant who
receives a hardship distribution: (a) the Participant may not make elective
deferrals or employee contributions to the Plan for the 12-month period
following the date of his hardship distribution; (b) the distribution is not in
excess of the amount of the immediate and heavy financial need; (c) the
Participant must have obtained all distributions, other than hardship
distributions, and all nontaxable loans currently available under this Plan and
all other qualified plans maintained by the Employer; and (d) the Participant
agrees to limit elective deferrals under this Plan and under any other qualified
plan maintained by the Employer, for the Participant's taxable year immediately
following the taxable year of the hardship distribution, to the 402(g)
limitation (as described in Section 14.03), reduced by the amount of the
Participant's elective deferrals made in the taxable year of the hardship
distribution. The suspension of elective deferrals and employee contributions
described in clause (a) also must apply to all other qualified plans and to all
nonqualified plans of deferred compensation maintained by the Employer, other
than any mandatory employee contribution portion of a defined benefit plan,
including stock option, stock purchase and other similar plans, but not
including health or welfare benefit plans (other than the cash or deferred
arrangement portion of a cafeteria plan).
EMPLOYEE REPRESENTATION. The restrictions in the prior paragraph do not
apply if the Participant represents, and the Advisory Committee determines under
the facts and circumstances it is reasonable to rely on that representation, he
is not able to relieve his immediate and heavy financial need: (a) through
reimbursement or compensation by insurance or otherwise; (b) by reasonable
liquidation of the Participant's assets (including the assets of the
Participant's spouse or of the Participant's minor children, if those assets are
reasonably available to the Participant); (c) by cessation of elective deferrals
or of employee contributions under the Plan; (d) by other distributions or
nontaxable loans from this Plan or from any other qualified Plan maintained by
the Employer or by any other employer; or (e) by borrowing from commercial
sources on reasonable commercial terms.
EARNINGS. For Plan Years beginning after December 31, 1988, a hardship
distribution may not include earnings on an Employee's elective deferrals
credited after December 31, 1988, and may not include qualified matching
contributions and qualified nonelective contributions, nor any earnings on such
contributions,
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irrespective of when credited.
(C) DEATH BENEFIT ELECTIONS. If the present value of the deceased
Participant's Nonforfeitable Accrued Benefit exceeds $3,500, the Participant's
Beneficiary may elect to have the Trustee distribute the Participant's
Nonforfeitable Accrued Benefit in a form and within a period permitted under
Section 6.02. The Beneficiary's election is subject to any restrictions
designated in writing by the Participant and not revoked as of his date of
death.
(D) DEFAULT ON A LOAN. If a Participant or Beneficiary defaults on a loan made
pursuant to a loan policy adopted by the Advisory Committee pursuant to Section
9.04, the Plan does not treat the default as a distributable event. When an
otherwise distributable event first occurs pursuant to Section 6.01 or Section
6.03 of the Plan, the Trustee will reduce the Participant's Nonforfeitable
Accrued Benefit by the lesser of the amount in default (plus accrued interest)
or the Plan's security interest in that Nonforfeitable Accrued Benefit.
6.04 ANNUITY DISTRIBUTIONS TO PARTICIPANTS AND SURVIVING SPOUSES. The
joint and survivor annuity requirements do not apply to this Plan. The Plan
does not provide any annuity distributions to Participants nor to surviving
spouses, provided, however, if this Plan is a direct or indirect transferee from
a plan subject to the provisions of Code Section 417 the following provisions
shall apply to such transfer accounts, unless the transfer is an elect transfer
described in Section 13.05.
(A) JOINT AND SURVIVOR ANNUITY. The Advisory Committee must direct the Trustee
to distribute a Participant's Nonforfeitable Accrued Benefit in the form of a
qualified joint and survivor annuity, unless the Participant makes a valid
waiver election (described in Section 6.05) within the 90-day period ending on
the annuity starting date. If, as of the annuity starting date, the Participant
is married, a qualified joint and survivor annuity is an immediate annuity which
is purchasable with the Participant's Nonforfeitable Accrued Benefit and which
provides a life annuity for the Participant and a survivor annuity payable for
the remaining life of the Participant's surviving spouse equal to 50% of the
amount of the annuity payable during the life of the Participant. If, as of the
annuity starting date, the Participant is not married, a qualified joint and
survivor annuity is an immediate life annuity for the Participant which is
purchasable with the Participant's Nonforfeitable Accrued Benefit. On or before
the annuity starting date, the Advisory Committee, without Participant or
spousal consent, must direct the Trustee to pay the Participant's Nonforfeitable
Accrued Benefit in a lump sum, in lieu of a qualified joint and survivor
annuity, in accordance with Section 6.01, if the Participant's Nonforfeitable
Accrued Benefit is not greater than $3,500.
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(B) PRERETIREMENT SURVIVOR ANNUITY. If a married Participant dies prior to his
annuity starting date, the Advisory Committee will direct the Trustee to
distribute a portion of the Participant's Nonforfeitable Accrued Benefit to the
Participant's surviving spouse in the form of a preretirement survivor annuity,
unless the Participant has a valid waiver election (as described in Section
6.06) in effect, or unless the Participant and his spouse were not married
throughout the one year period ending on the date of his death. A preretirement
survivor annuity is an annuity which is purchasable with 50% of the
Participant's Nonforfeitable Accrued Benefit (determined as of the date of the
Participant's death) and which is payable for the life of the Participant's
surviving spouse. The value of the preretirement survivor annuity is
attributable to Employer contributions and to Employee contributions in the same
proportion as the Participant's Nonforfeitable Accrued Benefit is attributable
to those contributions. The portion of the Participant's Nonforfeitable Accrued
Benefit not payable under this paragraph is payable to the Participant's
Beneficiary, in accordance with the other provisions of this Article VI. If the
present value of the preretirement survivor annuity does not exceed $3,500, the
Advisory Committee, on or before the annuity starting date, must direct the
Trustee to make a lump sum distribution to the Participant's surviving spouse,
in lieu of a preretirement survivor annuity.
(C) SURVIVING SPOUSE ELECTIONS. If the present value of the preretirement
survivor annuity exceeds $3,500, the Participant's surviving spouse may elect to
have the Trustee commence payment of the preretirement survivor annuity at any
time following the date of the Participant's death, but not later than the
mandatory distribution periods described in Section 6.02, and may elect any of
the forms of payment described in Section 6.02, in lieu of the preretirement
survivor annuity. In the absence of an election by the surviving spouse, the
Advisory Committee must direct the Trustee to distribute the preretirement
survivor annuity on the first distribution date following the close of the Plan
Year in which the latest of the following events occurs: (i) the Participant's
death; (ii) the date the Advisory Committee receives notification of or
otherwise confirms the Participant's death; (iii) the date the Participant would
have attained Normal Retirement Age; or (iv) the date the Participant would have
attained age 62.
(D) SPECIAL RULES. If the Participant has in effect a valid waiver election
regarding the qualified joint and survivor annuity or the preretirement survivor
annuity, the Advisory Committee must direct the Trustee to distribute the
Participant's Nonforfeitable Accrued Benefit in accordance with Sections 6.01,
6.02 and 6.03. The Advisory Committee will reduce the Participant's
Nonforfeitable Accrued Benefit by any security interest (pursuant to any offset
rights authorized by Section 10.03[B]) held by the Plan by reason of a
Participant loan to determine the value of the Participant's Nonforfeitable
Accrued Benefit distributable in the form of a qualified
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joint and survivor annuity or preretirement survivor annuity, provided any post-
August 18, 1985, loan satisfied the spousal consent requirement described in
Section 10.03[B] of the Plan. For purposes of applying this Article VI, the
Advisory Committee treats a former spouse as the Participant's spouse or
surviving spouse to the extent provided under a qualified domestic relations
order described in Section 6.07. The provisions of this Section 6.04, and of
Sections 6.05 and 6.06, apply separately to the portion of the Participant's
Nonforfeitable Accrued Benefit subject to the qualified domestic relations order
and to the portion of the Participant's Nonforfeitable Accrued Benefit not
subject to that order.
(E) LIMITED APPLICATION OF SECTION 6.04. The preceding provisions of this
Section 6.04 apply only to: (1) a Participant as respects whom the Plan is a
direct or indirect transferee from a plan subject to the Code Section 417
requirements and the Plan received the transfer after December 31, 1984, unless
the transfer is an elective transfer described in Section 13.05; (2) a
Participant who elects a life annuity distribution (if Section 13.02 of the Plan
requires the Plan to provide a life annuity distribution option); and (3) a
Participant whose benefits under a defined benefit plan maintained by the
Employer are offset by benefits provided under this Plan. Sections 6.05 and
6.06 only apply to Participants to whom the preceding provisions of this Section
6.04 apply.
6.05 WAIVER ELECTION - QUALIFIED JOINT AND SURVIVOR ANNUITY. Not earlier
than 90 days, but not later than 30 days, before the Participant's annuity
starting date, the Advisory Committee must provide the Participant a written
explanation of the terms and conditions of the qualified joint and survivor
annuity, the Participant's right to make, and the effect of, an election to
waive the joint and survivor form of benefit, the rights of the Participant's
spouse regarding the waiver election and the Participant's right to make, and
the effect of, a revocation of a waiver election. The Plan does not limit the
number of times the Participant may revoke a waiver of the qualified joint and
survivor annuity or make a new waiver during the election period.
A married Participant's waiver election is not valid unless (a) the
Participant's spouse (to whom the survivor annuity is payable under the
qualified joint and survivor annuity), after the Participant has received the
written explanation described in this Section 6.05, has consented in writing to
the waiver election, the spouse's consent acknowledges the effect of the
election, and a notary public or the Plan Administrator (or his representative)
witnesses the spouse's consent, (b) the spouse consents to the alternate form of
payment designated by the Participant or to any change in that designated form
of payment, and (c) unless the spouse is the Participant's sole primary
Beneficiary, the spouse consents to the Participant's Beneficiary designation or
to any change in the Participant's Beneficiary designation. The spouse's
consent to a waiver
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of the qualified joint and survivor annuity is irrevocable, unless the
Participant revokes the waiver election. The spouse may execute a blanket
consent to any form of payment designation or to any Beneficiary designation
made by the Participant, if the spouse acknowledges the right to limit that
consent to a specific designation but, in writing, waives that right. The
consent requirements of this Section 6.05 apply to a former spouse of the
Participant, to the extent required under a qualified domestic relations order
described in Section 6.07.
The Advisory Committee will accept as valid a waiver election which does
not satisfy the spousal consent requirements if the Advisory Committee
establishes the Participant does not have a spouse, the Advisory Committee is
not able to locate the Participant's spouse, the Participant is legally
separated or has been abandoned (within the meaning of State law) and the
Participant has a court order to that effect, or other circumstances exist under
which the Secretary of the Treasury will excuse the consent requirement. If the
Participant's spouse is legally incompetent to give consent, the spouse's legal
guardian (even if the guardian is the Participant) may give consent.
6.06 WAIVER ELECTION - PRERETIREMENT SURVIVOR ANNUITY. The Advisory
Committee must provide a written explanation of the preretirement survivor
annuity to each married Participant, within the following period which ends
last: (1) the period beginning on the first day of the Plan Year in which the
Participant attains age 32 and ending on the last day of the Plan Year in which
the Participant attains age 34; (2) a reasonable period after an Employee
becomes a Participant; (3) a reasonable period after the joint and survivor
rules become applicable to the Participant; or (4) a reasonable period after a
fully subsidized preretirement survivor annuity no longer satisfies the
requirements for a fully subsidized benefit. A reasonable period described in
clauses (2), (3) and (4) is the period beginning one year before and ending one
year after the applicable event. If the Participant separates from Service
before attaining age 35, clauses (1), (2), (3) and (4) do not apply and the
Advisory Committee must provide the written explanation within the period
beginning one year before and ending one year after the Separation from Service.
The written explanation must describe, in a manner consistent with Treasury
regulations, the terms and conditions of the preretirement survivor annuity
comparable to the explanation of the qualified joint and survivor annuity
required under Section 6.05. The Plan does not limit the number of times the
Participant may revoke a waiver of the preretirement survivor annuity or make a
new waiver during the election period.
A Participant's waiver election of the preretirement survivor annuity is
not valid unless (a) the Participant makes the waiver election no earlier than
the first day of the Plan Year in which he attains age 35 and (b) the
Participant's spouse (to whom the preretirement survivor annuity is payable)
satisfies the consent requirements described
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in Section 6.05, except the spouse need not consent to the form of benefit
payable to the designated Beneficiary. The spouse's consent to the waiver of
the preretirement survivor annuity is irrevocable, unless the Participant
revokes the waiver election. Irrespective of the time of election requirement
described in clause (a), if the Participant separates from Service prior to the
first day of the Plan Year in which he attains age 35, the Advisory Committee
will accept a waiver election as respects the Participant's Accrued Benefit
attributable to his Service prior to his Separation from Service. Furthermore,
if a Participant who has not separated from Service makes a valid waiver
election, except for the timing requirement of clause (a), the Advisory
Committee will accept that election as valid, but only until the first day of
the Plan Year in which the Participant attains age 35. A waiver election
described in this paragraph is not valid unless made after the Participant has
received the written explanation described in this Section 6.06.
6.07 DISTRIBUTIONS UNDER DOMESTIC RELATIONS ORDERS. Nothing contained
in this Plan prevents the Trustee, in accordance with the direction of the
Advisory Committee, from complying with the provisions of a qualified domestic
relations order (as defined in Code Section 414(p)). This Plan specifically
permits distribution to an alternate payee under a qualified domestic relations
order at any time, irrespective of whether the Participant has attained his
earliest retirement age (as defined under Code Section 414(p)) under the Plan.
A distribution to an alternate payee prior to the Participant's attainment of
earliest retirement age is available only if: (1) the order specifies
distribution at that time or permits an agreement between the Plan and the
alternate payee to authorize an earlier distribution; and (2) if the present
value of the alternate payee's benefits under the Plan exceeds $3,500, and the
order requires, the alternate payee consents to any distribution occurring prior
to the Participant's attainment of earliest retirement age. Nothing in this
Section 6.07 gives a Participant a right to receive distribution at a time
otherwise not permitted under the Plan nor does it permit the alternate payee to
receive a form of payment not otherwise permitted under the Plan.
The Advisory Committee must establish reasonable procedures to determine
the qualified status of a domestic relations order. Upon receiving a domestic
relations order, the Advisory Committee promptly will notify the Participant and
any alternate payee named in the order, in writing, of the receipt of the order
and the Plan's procedures for determining the qualified status of the order.
Within a reasonable period of time after receiving the domestic relations order,
the Advisory Committee must determine the qualified status of the order and must
notify the Participant and each alternate payee, in writing, of its
determination. The Advisory Committee must provide notice under this paragraph
by mailing to the individual's address specified in the domestic relations
order, or in a manner consistent with Department of Labor
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regulations.
If any portion of the Participant's Nonforfeitable Accrued Benefit is
payable during the period the Advisory Committee is making its determination of
the qualified status of the domestic relations order, the Advisory Committee
must make a separate accounting of the amounts payable. If the Advisory
Committee determines the order is a qualified domestic relations order within 18
months of the date amounts first are payable following receipt of the order, the
Advisory Committee will direct the Trustee to distribute the payable amounts in
accordance with the order. If the Advisory Committee does not make its
determination of the qualified status of the order within the 18 month
determination period, the Advisory Committee will direct the Trustee to
distribute the payable amounts in the manner the Plan would distribute if the
order did not exist and will apply the order prospectively if the Advisory
Committee later determines the order is a qualified domestic relations order.
To the extent it is not inconsistent with the provisions of the qualified
domestic relations order, the Advisory Committee may direct the Trustee to
invest any partitioned amount in a segregated subaccount or separate account and
to invest the account in Federally insured, interest-bearing savings account(s)
or time deposit(s) (or a combination of both), or in other fixed income
investments. A segregated subaccount remains a part of the Trust, but it alone
shares in any income it earns, and it alone bears any expense or loss it incurs.
The Trustee will make any payments or distributions required under this Section
6.07 by separate benefit checks or other separate distribution to the alternate
payee(s).
* * * * * * * * * * * * * * *
ARTICLE VII - EMPLOYER ADMINISTRATIVE PROVISIONS
7.01 INFORMATION TO COMMITTEE. The Employer must supply current
information to the Advisory Committee as to the name, date of birth, date of
employment, annual compensation, leaves of absence, Years of Service and date of
termination of employment of each Employee who is, or who will be eligible to
become, a Participant under the Plan, together with any other information which
the Advisory Committee considers necessary. The Employer's records as to the
current information the Employer furnishes to the Advisory Committee are
conclusive as to all persons.
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7.02 NO LIABILITY. It is a condition of this Plan and Trust and each
Participant by participating herein expressly agrees to look solely to the
assets of the Trust for the payment of any benefit to which the Participant is
entitled under the Plan. Neither First Security Corporation, the Employer, the
Trustee, the Administrator, the Advisory Committee nor any other person
guarantees in any manner or to any extent the assets of the Plan against loss or
depreciation. Neither First Security Corporation, any participating Employer,
nor any other person or entity shall have any liability or responsibility for a
failure to effect any of the objects and purposes of this Plan by reason of the
validity or effectiveness of the Plan or Trust, or for the failure of any
person, corporation, individual or any person indebted or becoming indebted to
the Trust to pay such indebtedness on the due date, or for any delay or adverse
tax consequence occasioned by reason of any applicable law, order or regulation
or by reason of any restriction or provision contained in or applicable to any
security or other asset by applicable law, regulation or otherwise.
7.03 INDEMNITY OF CERTAIN FIDUCIARIES. The Corporation and the Employer
shall indemnify and hold harmless the Plan Administrator, the Trustee and the
members of the Advisory Committee, the Board and Executive Committee of the
Corporation and employees of the Corporation or its subsidiaries (including
employees who assist the Corporation in the performance of its duties), and each
of them, from and against any and all loss resulting from liability to which the
Plan each of them may be subjected by reason of any act or conduct (except
willful misconduct or gross negligence) in their official capacities in the
administration of this Trust or Plan or both, including all expenses reasonably
incurred in their defense, in case the Employer fails to provide such defense.
The indemnification provisions of this Section 7.03 shall apply even though such
provisions do not relieve the Plan Administrator, the Trustee and the members of
the Advisory Committee, the Board and Executive Committee of the Corporation and
employees of the Corporation or its subsidiaries (including employees who assist
the Corporation in the performance of its duties), from any liability he may
have under ERISA for breach of a fiduciary duty. Furthermore, the Plan
Administrator, the Trustee and the members of the Advisory Committee, the Board
and Executive Committee of the Corporation and employees of the Corporation or
its subsidiaries (including employees who assist the Corporation in the
performance of its duties) may be indemnified pursuant to other provisions of
articles, bylaws, or other agreements that further expand the indemnification
agreement of this Section 7.03, provided such provisions are consistent with and
do not violate ERISA.
7.04 CORPORATION DIRECTION OF INVESTMENT. The Corporation has the right
to direct the Trustee with respect to the investment and re-investment of assets
comprising the Trust Fund only if the Trustee consents in writing to permit such
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direction or this Plan provides for such investment. However, the Corporation
shall be deemed to have directed, and the Trustee shall be deemed to have
consented, to the investment in Employer Stock with respect to investments in
Employer Stock in the Stock Fund as of the date of this agreement and future
investments of Employer Stock under Section 9.09. If the Trustee consents to
Corporation direction of investment, the Trustee and the Corporation must
execute an agreement as a part of this Plan containing such conditions,
limitations and other provisions they deem appropriate before the Trustee will
follow any Corporation direction as respects the investment or re-investment of
any part of the Trust Fund.
7.05 AMENDMENT TO VESTING SCHEDULE. Though the Corporation reserves the
right to amend the vesting schedule at any time, the Advisory Committee will
not apply the amended vesting schedule to reduce the Nonforfeitable percentage
of any Participant's Accrued Benefit derived from Employer contributions
(determined as of the later of the date the Employer adopts the amendment, or
the date the amendment becomes effective) to a percentage less than the
Nonforfeitable percentage computed under the Plan without regard to the
amendment. An amended vesting schedule will apply to a Participant only if the
Participant receives credit for at least one Hour of Service after the new
schedule becomes effective.
If the Corporation makes a permissible amendment to the vesting schedule,
each Participant having at least 3 Years of Service with the Employer may elect
to have the percentage of his Nonforfeitable Accrued Benefit computed under the
Plan without regard to the amendment. For Plan Years beginning prior to
January 1, 1989, the election described in the preceding sentence applies only
to Participants having at least 5 Years of Service with the Employer. The
Participant must file his election with the Advisory Committee within 60 days of
the latest of (a) the Corporation's adoption of the amendment; (b) the effective
date of the amendment; or (c) his receipt of a copy of the amendment. The
Advisory Committee, as soon as practicable, must forward a true copy of any
amendment to the vesting schedule to each affected Participant, together with an
explanation of the effect of the amendment, the appropriate form upon which the
Participant may make an election to remain under the vesting schedule provided
under the Plan prior to the amendment and notice of the time within which the
Participant must make an election to remain under the prior vesting schedule.
The election described in this Section 7.05 does not apply to a Participant if
the amended vesting schedule provides for vesting at least as rapid at all times
as the vesting schedule in effect prior to the amendment. For purposes of this
Section 7.05, an amendment to the vesting schedule includes any Plan amendment
which directly or indirectly affects the computation of the Nonforfeitable
percentage of an Employee's rights to his Employer derived Accrued Benefit.
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7.06 DELEGATION AND ALLOCATION OF FIDUCIARY DUTIES. Fiduciaries may
allocate fiduciary responsibilities (other than the responsibility for the
management and control of Plan assets) among themselves, and fiduciaries may
designate persons other than fiduciaries to carry out fiduciary responsibilities
(other than the responsibility for the management and control of Plan assets)
under the Plan. Any person or group of persons may serve in more than one
fiduciary capacity with respect to the Plan (including service as both Trustee
and Administrator). Any such allocation, designation or delegation shall be
made pursuant to a written instrument executed by the fiduciary or a person
authorized to act on behalf of the fiduciary. Any such allocation, designation
or delegation to or from any fiduciary (other than the responsibility for the
management and control of Plan assets) duly recorded or reflected in the Minutes
of the Board, Executive Committee or Advisory Committee shall be deemed to be
made by a written instrument meeting all the requirements of the foregoing
sentence. In the event such procedure is followed, such fiduciary, or other
person, will not be liable for the acts and omissions of another person in
carrying out fiduciary responsibilities which have been so designated, allocated
or delegated except as may be otherwise provided in express provisions of
applicable federal law.
* * * * * * * * * * * * * * *
ARTICLE VIII - PARTICIPANT ADMINISTRATIVE PROVISIONS
8.01 BENEFICIARY DESIGNATION. Any Participant may from time to time
designate, in writing, any person or persons, contingently or successively, to
whom the Trustee will pay his Accrued Benefit (including any life insurance
proceeds payable to the Participant's Account) in the event of his death and the
Participant may designate the form and method of payment. The Advisory
Committee will prescribe the form for the written designation of Beneficiary
and, upon the Participant's filing the form with the Advisory Committee, the
form effectively revokes all designations filed prior to that date by the same
Participant.
A married Participant's Beneficiary designation is not valid unless the
Participant's spouse consents, in writing, to the Beneficiary designation. The
spouse's consent must acknowledge the effect of that consent and a notary public
or the Plan Administrator (or his representative) must witness that consent.
The spousal consent requirements of this paragraph do not apply if: (1) the
Participant and his spouse are not married throughout the one year period ending
on the date of the Participant's
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death; (2) the Participant's spouse is the Participant's sole primary
beneficiary; (3) the Plan Administrator is not able to locate the Participant's
spouse; (4) the Participant is legally separated or has been abandoned (within
the meaning of State law) and the Participant has a court order to that effect;
or (5) other circumstances exist under which the Secretary of the Treasury will
excuse the consent requirement. If the Participant's spouse is legally
incompetent to give consent, the spouse's legal guardian (even if the guardian
is the Participant) may give consent.
8.02 NO BENEFICIARY DESIGNATION/DEATH OF BENEFICIARY. If a Participant
fails to name a Beneficiary in accordance with Section 8.01, or if the
Beneficiary named by a Participant predeceases him, then the Trustee will pay
the Participant's Nonforfeitable Accrued Benefit in accordance with Section 6.02
in the following order of priority to:
(a) The Participant's surviving spouse; or
(b) The Participant's estate.
If the Beneficiary does not predecease the Participant, but dies prior to
distribution of the Participant's entire Nonforfeitable Accrued Benefit, the
Trustee will pay the remaining Nonforfeitable Accrued Benefit to the
Beneficiary's estate unless the Participant's Beneficiary designation provides
otherwise. The Advisory Committee will direct the Trustee as to the method and
to whom the Trustee will make payment under this Section 8.02.
8.03 PERSONAL DATA TO COMMITTEE. Each Participant and each Beneficiary of
a deceased Participant must furnish to the Advisory Committee such evidence,
data or information as the Advisory Committee considers necessary or desirable
for the purpose of administering the Plan. The provisions of this Plan are
effective for the benefit of each Participant upon the condition precedent that
each Participant will furnish promptly full, true and complete evidence, data
and information when requested by the Advisory Committee, provided the Advisory
Committee advises each Participant of the effect of his failure to comply with
its request.
8.04 ADDRESS FOR NOTIFICATION. Each Participant and each Beneficiary of a
deceased Participant must file with the Advisory Committee from time to time, in
writing, his post office address and any change of post office address. Any
communication, statement or notice addressed to a Participant, or Beneficiary,
at his last post office address filed with the Advisory Committee, or as shown
on the records of the Employer, binds the Participant, or Beneficiary, for all
purposes of this Plan.
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8.05 ASSIGNMENT OR ALIENATION. Subject to Code Section 414(p) relating to
qualified domestic relations orders, neither a Participant nor a Beneficiary may
anticipate, assign or alienate (either at law or in equity) any benefit provided
under the Plan, and the Trustee will not recognize any such anticipation,
assignment or alienation. Furthermore, a benefit under the Plan is not subject
to attachment, garnishment, levy, execution or other legal or equitable process.
8.06 NOTICE OF CHANGE IN TERMS. The Plan Administrator, within the time
prescribed by ERISA and the applicable regulations, must furnish all
Participants and Beneficiaries a summary description of any material amendment
to the Plan or notice of discontinuance of the Plan and all other information
required by ERISA to be furnished without charge.
8.07 LITIGATION AGAINST THE TRUST. A court of competent jurisdiction may
authorize any appropriate equitable relief to redress violations of ERISA or to
enforce any provisions of ERISA or the terms of the Plan. A fiduciary may
receive reimbursement of expenses properly and actually incurred in the
performance of his duties with the Plan.
8.08 INFORMATION AVAILABLE. Any Participant in the Plan or any
Beneficiary may examine copies of the Plan description, latest annual report,
any bargaining agreement, this Plan and Trust, contract or any other instrument
under which the Plan was established or is operated. The Plan Administrator
will maintain all of the items listed in this Section 8.08 in his office, or in
such other place or places as he may designate from time to time in order to
comply with the regulations issued under ERISA, for examination during
reasonable business hours. Upon the written request of a Participant or
Beneficiary the Plan Administrator will furnish him with a copy of any item
listed in this Section 8.08. The Plan Administrator may make a reasonable
charge to the requesting person for the copy so furnished.
8.09 APPEAL PROCEDURE FOR DENIAL OF BENEFITS. A Participant or a
Beneficiary ("Claimant") may file with the Advisory Committee a written claim
for benefits, if the Participant or Beneficiary determines the distribution
procedures of the Plan have not provided him his proper Nonforfeitable Accrued
Benefit. The Advisory Committee must render a decision on the claim within 60
days of the Claimant's written claim for benefits. The Plan Administrator must
provide adequate notice in writing to the Claimant whose claim for benefits
under the Plan the Advisory Committee has denied. The Plan Administrator's
notice to the Claimant must set forth:
(a) The specific reason for the denial;
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(b) Specific references to pertinent Plan provisions on which the
Advisory Committee based its denial;
(c) A description of any additional material and information needed
for the Claimant to perfect his claim and an explanation of why the
material or information is needed; and
(d) That any appeal the Claimant wishes to make of the adverse
determination must be in writing to the Advisory Committee within 75 days
after receipt of the Plan Administrator's notice of denial of benefits.
The Plan Administrator's notice must further advise the Claimant that his
failure to appeal the action to the Advisory Committee in writing within
the 75 day period will render the Advisory Committee's determination final,
binding and conclusive.
If the Claimant should appeal to the Advisory Committee, he, or his duly
authorized representative, may submit, in writing, whatever issues and comments
he, or his duly authorized representative, feels are pertinent. The Claimant,
or his duly authorized representative, may review pertinent Plan documents. The
Advisory Committee will re-examine all facts related to the appeal and make a
final determination as to whether the denial of benefits is justified under the
circumstances. The Advisory Committee must advise the Claimant of its decision
within 60 days of the Claimant's written request for review, unless special
circumstances (such as a hearing) would make the rendering of a decision within
the 60-day limit unfeasible, but in no event may the Advisory Committee render a
decision respecting a denial for a claim for benefits later than 120 days after
its receipt of a request for review.
The Plan Administrator's notice of denial of benefits must identify the
name of each member of the Advisory Committee and the name and address of the
Advisory Committee member to whom the Claimant may forward his appeal.
8.10 PARTICIPANT DIRECTION OF INVESTMENT. A Participant has the right to
direct the Trustee with respect to the investment or re-investment of the assets
comprising the Participant's individual Account only if the Trustee consents in
writing to permit such direction, provided that Participants who have not
severed employment shall have right to direct the Trustee with respect to the
investment or re-investment of the assets comprising the Participant's Incentive
Savings Employee Account, and Participants, who have attained age 55 and
completed 10 or more years of Service, may elect to segregated their account in
accordance with Section 8.11 hereof. If the Trustee consents to Participant
direction of investment (i.e., beyond the above referenced right to self direct
investments), the Trustee will accept direction from each Participant on a
written election for (or other written agreement), as a part of this Plan
containing such
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conditions, limitations and other provisions the parties deem appropriate. The
Trustee or, with the Trustee's consent, the Advisory Committee, may establish
written procedures, incorporated specifically as part of this Plan, relating to
Participant direction of investment under this Section 8.10. The Trustee will
maintain a segregated investment Account to the extent a Participant's Account
is subject to Participant self-direction. The Trustee is not liable for any
loss, nor is liable for any breach, resulting from a Participant's direction of
the investment of any part of his directed Account.
The Advisory Committee, to the extent provided in a written loan policy
adopted under Section 9.04, will treat a loan made to a Participant as a
Participant direction of investment under this Section 8.10. To the extent of
the loan outstanding at any time, the borrowing Participant's Account alone
shares in any interest paid on the loan, and it alone bears any expense or loss
it incurs in connection with the loan. The Trustee may retain any principal or
interest paid on the borrowing Participant's loan in an interest bearing
segregated Account on behalf of the borrowing Participant until the Trustee
deems it appropriate to add the amount paid to the Participant's separate
Account under the Plan.
If the Trustee consents to Participant direction of investment of his
Account, the Plan treats any post-December 31, 1981, investment by a
Participant's Account in collectibles (as defined by Code Section 408(m)) as a
deemed distribution under the Plan to the Participant for Federal income tax
purposes.
8.11 AGE 55 SEGREGATION OF ACCOUNTS. A Participant, who has attained 55
years of age or more and completed 10 years of Service or more may in accordance
with the rule of the Advisory Committee make an election to segregate such
Participant's Accounts (including such Participant's Employer Contribution
Accounts) for the remainder of such Participant's employment with an Employer
and until the time for distribution in accordance with the following. Unless
otherwise provided in the rules of the Advisory Committee, the following
provision shall apply to such election:
(a) Such election shall be made available on forms furnished by the
Advisory Committee, which forms shall limit and define such election.
(b) The Advisory Committee may make an election available to transfer
50% or 100% of the balance of the Accounts invested in the Stock Fund at
the time of the election to alternative Funds made available by the
Trustee. If a Participant elects to transfer 50% of such Accounts, future
Employer Contributions shall continue to be invested in the same manner as
before the election, and the Advisory Committee may make an election
available to the Participant thereafter to segregate the entire remaining
balance in the Participant's Account.
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(c) The Advisory Committee may make an election available to transfer
50% to 100% of the Accounts invested in commingled or other investments of
the Trust at the time of the election to alternative investment Funds. If
the Participant has transferred less than 100% of such Accounts, future
Employer Contributions shall continue to be invested in the same manner as
before the election, and the Advisory Committee may make an election
available to the Participant thereafter to segregate the entire remaining
balance in the Participant's Account.
* * * * * * * * * * * * * * *
ARTICLE IX - ADVISORY COMMITTEE - DUTIES WITH RESPECT TO
PARTICIPANTS' ACCOUNTS
9.01 MEMBERS' COMPENSATION, EXPENSES. The Corporation must appoint an
Advisory Committee to administer the Plan, the members of which may or may not
be Participants in the Plan, or which may be the Plan Administrator acting
alone. In the absence of an Advisory Committee appointment, the Plan
Administrator assumes the powers, duties and responsibilities of the Advisory
Committee. The members of the Advisory Committee will serve without
compensation for services as such, but the Employer will pay all expenses of the
Advisory Committee, except to the extent the Trust properly pays for such
expenses, pursuant to Article X.
In addition to the Advisory Committee, the Corporation may appoint another
group of persons or a committee (which is not the same persons as members of the
Advisory Committee) to assist the Corporation in the exercise of any powers or
authority reserved to the Corporation or subject to delegation by the
Corporation, and in such event, the Advisory Committee shall have no authority,
responsibility or liability for such area as are a responsibility of the
Corporation or are assigned to another Committee by the Corporation. If a group
of persons or a committee other than the Advisory Committee is appointed to
assist the Corporation with respect to such matters, such other committee shall,
unless otherwise specified by the Corporation, act through a vote of a majority
of such persons in a manner similar to the rules set forth below for the
Advisory Committee.
9.02 TERM. Each member of the Advisory Committee serves until the
appointment of his successor.
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9.03 POWERS. In case of a vacancy in the membership of the Advisory
Committee, the remaining members of the Advisory Committee may exercise any and
all of the powers, authority, duties and discretion conferred upon the Advisory
Committee pending the filling of the vacancy.
9.04 GENERAL. The Advisory Committee has the following powers and duties:
(a) To select a Secretary, who need not be a member of the Advisory
Committee;
(b) To determine the rights of eligibility of an Employee to
participate in the Plan, the value of a Participant's Accrued Benefit and
the Nonforfeitable percentage of each Participant's Accrued Benefit;
(c) To adopt rules of procedure and regulations necessary for the
proper and efficient administration of the Plan provided the rules are not
inconsistent with the terms of this Agreement;
(d) To construe and enforce the terms of the Plan and the rules and
regulations it adopts, including interpretation of the Plan documents and
documents related to the Plan's operation;
(e) To direct the Trustee as respects the crediting and distribution
of the Trust;
(f) To review and render decisions respecting a claim for (or denial
of a claim for) a benefit under the Plan;
(g) To furnish the Employer with information which the Employer may
require for tax or other purposes;
(h) To engage the service of agents whom it may deem advisable to
assist it with the performance of its duties;
(i) To establish, in its sole discretion, a nondiscriminatory policy
(see Section 9.04(A)) which the Trustee must observe in making loans, if
any, to Participants and Beneficiaries; and
The Advisory Committee must exercise all of its powers, duties and discretion
under the Plan in a uniform and nondiscriminatory manner. Any authority or
power not specifically granted to the Advisory Committee by this Section 9.04
shall be deem to
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reside in the Corporation, and the Corporation shall specifically have the
authority to do the following: engage the services of an Investment Manager or
Managers (as defined in ERISA Section 3(38)), each of whom will have full power
and authority to manage, acquire or dispose (or direct the Trustee with respect
to acquisition or disposition) of Employer Stock or of any other Plan asset
under its control; to establish and maintain a funding standard account and to
make credits and charges to the account to the extent required by and in
accordance with the provisions of the Code. The Advisory Committee shall have
no authority or responsibility with such matters as are reserved to the
Corporation by the foregoing or other provisions of this Plan, and if the
Corporation desire a committee to assist the Corporation in the exercise of such
reserved powers the Corporation shall appoint a group of persons other than the
Advisory Committee to assist the Corporation.
(A) LOAN POLICY. If the Advisory Committee adopts a loan policy, pursuant to
paragraph (j), the loan policy must be a written document and must include:
(1) the identity of the person or positions authorized to administer the
participant loan program; (2) a procedure for applying for the loan; (3) the
criteria for approving or denying a loan; (4) the limitations, if any, on the
types and amounts of loans available; (5) the procedure for determining a
reasonable rate of interest; (6) the types of collateral which may secure the
loan; and (7) the events constituting default and the steps the Plan will take
to preserve plan assets in the event of default. This Section 9.04 specifically
incorporates a written loan policy as part of the Employer's Plan.
9.05 FUNDING POLICY. The Corporation (or a committee (other than the
Advisory Committee) appointed to assist the Corporation) will review, not less
often than annually, all pertinent Employee information and Plan data in order
to establish the funding policy of the Plan and to determine the appropriate
methods of carrying out the Plan's objectives. The Corporation (or a committee
(other than the Advisory Committee) appointed to assist the Corporation) must
communicate periodically, as it deems appropriate, to the Trustee and to any
Plan Investment Manager the Plan's short-term and long-term financial needs so
investment policy can be coordinated with Plan financial requirements. It is
contemplated that the Corporation will appoint a committee to assist the
Corporation in the fulfillment of its duties under this Section 9.05, and in the
absence of an appointment by the Corporation to the contrary by the Corporation,
the committee so appointed to assist the Corporation shall be the same committee
appointed to establish the funding policy under Section 15.05 of the First
Security Retirement Plan.
9.06 MANNER OF ACTION. The decision of a majority of the members
appointed and qualified controls.
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9.07 AUTHORIZED REPRESENTATIVE. The Advisory Committee may authorize
any one of its members, or its Secretary, to sign on its behalf any notices,
directions, applications, certificates, consents, approvals, waivers, letters or
other documents. The Advisory Committee must evidence this authority by an
instrument signed by all members and filed with the Trustee.
9.08 INTERESTED MEMBER. No member of the Advisory Committee may decide or
determine any matter concerning the distribution, nature or method of settlement
of his own benefits under the Plan, except in exercising an election available
to that member in his capacity as a Participant, unless the Plan Administrator
is acting alone in the capacity of the Advisory Committee.
9.09 INDIVIDUAL ACCOUNTS. The Advisory Committee will maintain, or direct
the Trustee to maintain, a separate Account, or multiple Accounts, in the name
of each Participant to reflect the Participant's Accrued Benefit under the Plan,
including the following Accounts:
(a) Incentive Savings Employee Account to which the deferral
contributions of a Participant are allocated pursuant to Section 3.04.
(b) Profit Sharing Employee Account to which voluntary ("after-tax")
contributions made by a Member before January 1, 1985 were allocated.
(c) Employer Contribution Accounts, including:
(i) Incentive Savings Employer Accounts to which Matching
Contribution of the Participant pursuant to Section 3.04 are
allocated.
(ii) Profit Sharing Employer Account to which contributions
made by the Employer for Plan Years ending before January 1, 1985 were
allocated.
(d) Transfer Accounts to which funds received from the trustee of
another tax qualified plan are allocated, including:
(i) PAYSOP Account which included funds received from the
trustee of the First Security Employee Stock Ownership Plan.
(ii) Accounts which are transferred from the trustee of a
qualified plan in a trustee to trustee transfer or a merger.
The Advisory Committee will make its allocations, or request the Trustee to make
its
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allocations, to the Accounts of the Participants in accordance with the
provisions of Section 9.11. The Advisory Committee may direct the Trustee to
maintain a temporary segregated investment Account in the name of a Participant
to prevent a distortion of income, gain or loss allocations under Section 9.11.
The Advisory Committee must maintain records of its activities.
9.10 VALUE OF PARTICIPANT'S ACCRUED BENEFIT. The value of each
Participant's Accrued Benefit consists of that proportion of the net worth (at
fair market value) of the Employer's Trust Fund which the net credit balance in
his Account (exclusive of the cash value of incidental benefit insurance
contracts) bears to the total net credit balance in the Accounts (exclusive of
the cash value of the incidental benefit insurance contracts) of all
Participants plus the cash surrender value of any incidental benefit insurance
contracts held by the Trustee on the Participant's life.
For purposes of a distribution under the Plan, the value of a Participant's
Accrued Benefit is its value as of the valuation date immediately preceding the
date of the distribution.
9.11 ALLOCATION AND DISTRIBUTION OF NET INCOME GAIN OR LOSS. A
"valuation date" under this Plan is each Accounting Date and each interim
valuation date determined under Section 10.14. As of each valuation date the
Advisory Committee must adjust Accounts to reflect net income, gain or loss
since the last valuation date. The valuation period is the period beginning the
day after the last valuation date and ending on the current valuation date.
(A) TRUST FUND ACCOUNTS. The allocation provisions of this paragraph apply to
all Participant Accounts other than segregated investment Accounts. The
Advisory Committee first will adjust the Participant Accounts, as those Accounts
stood at the beginning of the current valuation period, by reducing the Accounts
for any forfeitures arising under Section 5.09 or under Section 9.14, for
amounts charged during the valuation period to the Accounts in accordance with
Section 9.13 (relating to distributions) and Section 11.01 (relating to
insurance premiums) and for the cash value of incidental benefit insurance
contracts. The Advisory Committee then, subject to the restoration allocation
requirements of Section 5.04 or of Section 9.14, will allocate the net income,
gain or loss pro rata to the adjusted Participant Accounts. The allocable net
income, gain or loss is the net income (or net loss), including the increase or
decrease in the fair market value of assets, since the last valuation date.
(B) SEGREGATED INVESTMENT ACCOUNTS. A segregated investment Account receives
all income it earns and bears all expense or loss it incurs. The Advisory
Committee will adopt uniform and nondiscriminatory procedures for determining
income or loss of a
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segregated investment Account in a manner which reasonably reflects investment
directions relating to pooled investments and investment directions occurring
during a valuation period. As of the valuation date, the Advisory Committee
must reduce a segregated Account for any forfeiture arising under Section 5.09
after the Advisory Committee has made all other allocations, changes or
adjustments to the Account for the Plan Year.
(C) ADDITIONAL RULES. An Excess Amount or suspense account described in Part 2
of Article III does not share in the allocation of net income, gain or loss
described in this Section 9.11. This Section 9.11 applies solely to the
allocation of net income, gain or loss of the Trust. The Advisory Committee
will allocate the Employer contributions and Participant forfeitures, if any, in
accordance with Article III.
9.12 INDIVIDUAL STATEMENT. As soon as practicable after the Accounting
Date of each Plan Year, but within the time prescribed by ERISA and the
regulations under ERISA, the Plan Administrator will deliver to each Participant
(and to each Beneficiary) a statement reflecting the condition of his Accrued
Benefit in the Trust as of that date and such other information ERISA requires
be furnished the Participant or Beneficiary. No Participant, except a member of
the Advisory Committee, has the right to inspect the records reflecting the
Account of any other Participant.
9.13 ACCOUNT CHARGED. The Advisory Committee will charge a Participant's
Account for all distributions made from that Account to the Participant, or to
his Beneficiary or to an alternate payee. The Advisory Committee also will
charge a Participant's Account for any administrative expenses incurred by the
Plan directly related to that Account.
9.14 UNCLAIMED ACCOUNT PROCEDURE. The Plan does not require either the
Trustee or the Advisory Committee to search for, or to ascertain the whereabouts
of, any Participant or Beneficiary. At the time the Participant's or
Beneficiary's benefit becomes distributable under Article VI, the Advisory
Committee, by certified or registered mail addressed to his last known address
of record with the Advisory Committee or the Employer, must notify any
Participant, or Beneficiary, that he is entitled to a distribution under this
Plan. The notice must quote the provisions of this Section 9.14 and otherwise
must comply with the notice requirements of Article VI. If the Participant, or
Beneficiary, fails to claim his distributive share or make his whereabouts known
in writing to the Advisory Committee within 6 months from the date of mailing of
the notice, the Advisory Committee will treat the Participant's or Beneficiary's
unclaimed payable Accrued Benefit as forfeited and will reallocate the unclaimed
payable Accrued Benefit in accordance with Section 3.05. A forfeiture under
this paragraph will occur at the end of the notice period or, if later, the
earliest
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date applicable Treasury regulations would permit the forfeiture. Pending
forfeiture, the Advisory Committee, following the expiration of the notice
period, may direct the Trustee to segregate the Nonforfeitable Accrued Benefit
in a segregated Account and to invest that segregated Account in Federally
insured interest bearing savings accounts or time deposits (or in a combination
of both), or in other fixed income investments.
If a Participant or Beneficiary who has incurred a forfeiture of his
Accrued Benefit under the provisions of the first paragraph of this Section 9.14
makes a claim, at any time, for his forfeited Accrued Benefit, the Advisory
Committee must restore the Participant's or Beneficiary's forfeited Accrued
Benefit to the same dollar amount as the dollar amount of the Accrued Benefit
forfeited, unadjusted for any gains or losses occurring subsequent to the date
of the forfeiture. The Advisory Committee will make the restoration during the
Plan Year in which the Participant or Beneficiary makes the claim, first from
the amount, if any, of Participant forfeitures the Advisory Committee otherwise
would allocate for the Plan Year, then from the amount, if any, of the Trust
Fund net income or gain for the Plan Year and then from the amount, or
additional amount, the Employer contributes to enable the Advisory Committee to
make the required restoration. The Advisory Committee must direct the Trustee
to distribute the Participant's or Beneficiary's restored Accrued Benefit to him
not later than 60 days after the close of the Plan Year in which the Advisory
Committee restores the forfeited Accrued Benefit. The forfeiture provisions of
this Section 9.14 apply solely to the Participant's or to the Beneficiary's
Accrued Benefit derived from Employer contributions.
* * * * * * * * * * * * * * *
ARTICLE X - TRUSTEE, POWERS AND DUTIES
10.01 ACCEPTANCE. The Trustee accepts the Trust created under the Plan
and agrees to perform the obligations imposed. The Trustee must provide bond
for the faithful performance of its duties under the Trust to the extent
required by ERISA.
10.02 RECEIPT OF CONTRIBUTIONS. The Trustee is accountable to the
Employer for the funds contributed to it by the Employer, but does not have any
duty to see that the contributions received comply with the provisions of the
Plan. The Trustee is not obliged to collect any contributions from the
Employer, nor is obliged to see that funds deposited with it are deposited
according to the provisions of the Plan.
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10.03 INVESTMENT POWERS.
[A] TRUSTEE POWERS. The Trustee has full discretion and authority with
regard to the investment of the Trust Fund, except with respect to a Plan asset
under the control or direction of a properly appointed Investment Manager or
with respect to a Plan asset properly subject to Corporation, Participant or
Advisory Committee direction of investment. The Trustee must coordinate its
investment policy with Plan financial needs as communicated to it by the
Advisory Committee. The Trustee is authorized and empowered, but not by way of
limitation, with the following powers, rights and duties:
(a) To invest any part or all of the Trust Fund in any common or
preferred stocks, open-end or closed-end mutual funds, put and call options
traded on a national exchange, United States retirement plan bonds,
corporate bonds, debentures, convertible debentures, commercial paper, U.S.
Treasury bills, U.S. Treasury notes and other direct or indirect
obligations of the United States Government or its agencies, improved or
unimproved real estate situated in the United States, limited partnerships,
insurance contracts of any type, mortgages, notes or other property of any
kind, real or personal, and to buy or sell options on common stock on a
nationally recognized exchange with or without holding the underlying
common stock, to buy and sell commodities, commodity options and contracts
for the future delivery of commodities, and to make any other investments
the Trustee deems appropriate, as a prudent man would do under like
circumstances with due regard for the purposes of this Plan. Any
investment made or retained by the Trustee in good faith is proper but must
be of a kind constituting a diversification considered by law suitable for
trust investments.
(b) To retain in cash so much of the Trust Fund as it may deem
advisable to satisfy liquidity needs of the Plan and to deposit any cash
held in the Trust Fund in a bank account at reasonable interest.
(c) To invest, if the Trustee is a bank or similar financial
institution supervised by the United States or by a State, in any type of
deposit of the Trustee (or of a bank related to the Trustee within the
meaning of Code Section 414(b)) at a reasonable rate of interest or in a
common trust fund, as described in Code Section 584, or in a collective
investment fund, the provisions of which govern the investment of such
assets and which the Plan incorporates by this reference, which the Trustee
(or its affiliate, as defined in Code Section 1504) maintains exclusively
for the collective investment of money contributed by the bank (or the
affiliate) in its capacity as trustee and which conforms to the rules of
the Comptroller of the Currency.
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(d) To manage, sell, contract to sell, grant options to purchase,
convey, exchange, transfer, abandon, improve, repair, insure, lease for any
term even though commencing in the future or extending beyond the term of
the Trust, and otherwise deal with all property, real or personal, in such
manner, for such considerations and on such terms and conditions as the
Trustee decides.
(e) To credit and distribute the Trust as directed by the Advisory
Committee. The Trustee is not obliged to inquire as to whether any payee
or distributee is entitled to any payment or whether the distribution is
proper or within the terms of the Plan, or as to the manner of making any
payment or distribution. The Trustee is accountable only to the Advisory
Committee for any payment or distribution made by it in good faith on the
order or direction of the Advisory Committee.
(f) To borrow money, to assume indebtedness, extend mortgages and
encumber by mortgage or pledge.
(g) To compromise, contest, arbitrate or abandon claims and demands,
in its discretion.
(h) To have with respect to the Trust all of the rights of an
individual owner, including the power to give proxies, to participate in
any voting trusts, mergers, consolidations or liquidations, and to exercise
or sell stock subscriptions or conversion rights.
(i) To lease for oil, gas and other mineral purposes and to create
mineral severances by grant or reservation; to pool or unitize interests in
oil, gas and other minerals; and to enter into operating agreements and to
execute division and transfer orders.
(j) To hold any securities or other property in the name of the
Trustee or its nominee, with depositories or agent depositories or in
another form as it may deem best, with or without disclosing the trust
relationship.
(k) To perform any and all other acts in its judgment necessary or
appropriate for the proper and advantageous management, investment and
distribution of the Trust.
(l) To retain any funds or property subject to any dispute without
liability for the payment of interest, and to decline to make payment or
delivery of the funds or property until final adjudication is made by a
court of competent jurisdiction.
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(m) To file all tax returns required of the Trustee.
(n) To furnish to the Employer, the Plan Administrator and the
Advisory Committee an annual statement of account showing the condition of
the Trust Fund and all investments, receipts, disbursements and other
transactions effected by the Trustee during the Plan Year covered by the
statement and also stating the assets of the Trust held at the end of the
Plan Year, which accounts are conclusive on all persons, including the
Employer, the Plan Administrator and the Advisory Committee, except as to
any act or transaction concerning which the Employer, the Plan
Administrator or the Advisory Committee files with the Trustee written
exceptions or objections within 90 days after the receipt of the accounts
or for which ERISA authorizes a longer period within which to object.
(o) To begin, maintain or defend any litigation necessary in
connection with the administration of the Plan, except that the Trustee is
not obliged or required to do so unless indemnified to its satisfaction.
[B] PARTICIPANT LOANS. This Section 10.03[B] specifically authorizes the
Trustee to make loans on a nondiscriminatory basis to a Participant or to a
Beneficiary in accordance with the loan policy established by the Advisory
Committee, provided: (1) the loan policy satisfies the requirements of
Section 9.04; (2) loans are available to all Participants and Beneficiaries on
a reasonably equivalent basis and are not available in a greater amount for
Highly Compensated Employees than for other Employees; (3) any loan is
adequately secured and bears a reasonable rate of interest; (4) the loan
provides for repayment within a specified time; (5) the default provisions of
the note prohibit offset of the Participant's Nonforfeitable Accrued Benefit
prior to the time the Trustee otherwise would distribute the Participant's
Nonforfeitable Accrued Benefit; (6) the amount of the loan does not exceed (at
the time the Plan extends the loan) the present value of the Participant's
Nonforfeitable Accrued Benefit; and (7) the loan otherwise conforms to the
exemption provided by Code Section 4975(d)(1). If the joint and survivor
requirements of Article VI apply to the Participant, the Participant may not
pledge any portion of his Accrued Benefit as security for a loan made after
August 18, 1985, unless, within the 90-day period ending on the date the pledge
becomes effective, the Participant's spouse, if any, consents (in a manner
described in Section 6.05 other than the requirement relating to the consent of
a subsequent spouse) to the security or, by separate consent, to an increase in
the amount of security. If the Employer is an unincorporated trade or
business, a Participant who is an Owner-Employee may not receive a loan from
the Plan, unless he has obtained a prohibited transaction exemption from the
Department of Labor. If the Employer is an "S Corporation," a Participant who
is a shareholder-employee (an employee or an officer) who, at any time during
the Employer's taxable year, owns more than 5%,
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either directly or by attribution under Code Section 318(a)(1), of the
Employer's outstanding stock may not receive a loan from the Plan. If the
Employer is not an unincorporated trade or business nor an "S Corporation," this
Section 10.03[B] does not impose any restrictions on the class of Participants
eligible for a loan from the Plan.
[C] INVESTMENT IN QUALIFYING EMPLOYER SECURITIES AND QUALIFYING EMPLOYER REAL
PROPERTY. The Trustee may invest in qualifying Employer securities or
qualifying Employer real property, as defined in and as limited by ERISA. The
aggregate investments in qualifying Employer securities and in qualifying
Employer real property may not exceed 100% of the value of Plan assets.
10.04 RECORDS AND STATEMENTS. The records of the Trustee pertaining to
the Plan must be open to the inspection of the Plan Administrator, Advisory
Committee and the Employer at all reasonable times and may be audited from time
to time by any person or persons as the Employer, Plan Administrator or Advisory
Committee may specify in writing. The Trustee must furnish the Plan
Administrator or Advisory Committee with whatever information relating to the
Trust Fund the Plan Administrator or Advisory Committee considers necessary.
10.05 FEES AND EXPENSES FROM FUND. The Trustee will receive reasonable
annual compensation as may be agreed upon from time to time between the
Corporation and the Trustee. No person who is receiving full pay from the
Employer may receive compensation for services as Trustee. The Trustee will pay
from the Trust Fund all fees and expenses reasonably incurred by the Plan, to
the extent such fees and expenses are for the ordinary and necessary
administration and operation of the Plan, unless the Employer pays the fees and
expenses. Any fee or expense paid, directly or indirectly, by the Employer is
not an Employer contribution to the Plan, provided the fee or expense relates to
the ordinary and necessary administration of the Fund.
10.06 PARTIES TO LITIGATION. Except as otherwise provided by ERISA, no
Participant or Beneficiary is a necessary party or is required to receive notice
of process in any court proceeding involving the Plan, the Trust Fund or any
fiduciary of the Plan. Any final judgment entered in any proceeding will be
conclusive upon the Employer, the Plan Administrator, the Advisory Committee,
the Trustee, Participants and Beneficiaries.
10.07 PROFESSIONAL AGENTS. The Trustee may employ and pay from the Trust
Fund reasonable compensation to agents, attorneys, accountants and other persons
to advise the Trustee as in its opinion may be necessary. The Trustee may
delegate to any agent, attorney, accountant or other person selected by it any
non-Trustee power or duty vested in it by the Plan, and the Trustee may act or
refrain from acting on the
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advice or opinion of any agent, attorney, accountant or other person so
selected.
10.08 DISTRIBUTION OF CASH OR PROPERTY. The Trustee may make distribution
under the Plan in cash or property, or partly in each, at its fair market value
as determined by the Trustee. For purposes of a distribution to a Participant
or to a Participant's designated Beneficiary or surviving spouse, "property"
includes a Nontransferable Annuity contract, provided the contract satisfies the
requirements of this Plan.
10.09 DISTRIBUTION DIRECTIONS. If no one claims a payment or distribution
made from the Trust, the Trustee must promptly notify the Advisory Committee and
then dispose of the payment in accordance with the subsequent direction of the
Advisory Committee.
10.10 THIRD PARTY/MULTIPLE TRUSTEES. No person dealing with the Trustee
is obligated to see to the proper application of any money paid or property
delivered to the Trustee, or to inquire whether the Trustee has acted pursuant
to any of the terms of the Plan. Each person dealing with the Trustee may act
upon any notice, request or representation in writing by the Trustee, or by the
Trustee's duly authorized agent, and is not liable to any person in so acting.
The certificate of the Trustee that it is acting in accordance with the Plan
will be conclusive in favor of any person relying on the certificate. If more
than two persons act as Trustee, a decision of the majority of such persons
controls with respect to any decision regarding the administration or investment
of the Trust Fund or any portion of the Trust Fund with respect to which such
persons act as Trustee. However, the signature of only one Trustee is necessary
to effect any transaction on behalf of the Trust.
10.11 RESIGNATION. The Trustee may resign its position at any time by
giving 30 days' written notice in advance to the Corporation and to the Advisory
Committee. If the Corporation fails to appoint a successor Trustee within
60 days of its receipt of the Trustee's written notice of resignation, the
Trustee will treat the Corporation as having appointed itself as Trustee and as
having filed its acceptance of appointment with the former Trustee.
10.12 REMOVAL. The Corporation, by giving 30 days' written notice in
advance to the Trustee, may remove any Trustee. In the event of the resignation
or removal of a Trustee, the Corporation must appoint a successor Trustee if it
intends to continue the Plan. If two or more persons hold the position of
Trustee, in the event of the removal of one such person, during any period the
selection of a replacement is pending, or during any period such person is
unable to serve for any reason, the remaining person or persons will act as the
Trustee.
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10.13 INTERIM DUTIES AND SUCCESSOR TRUSTEE. Each successor Trustee
succeeds to the title to the Trust vested in his predecessor by accepting in
writing his appointment as successor Trustee and filing the acceptance with the
former Trustee and the Advisory Committee without the signing or filing of any
further statement. The resigning or removed Trustee, upon receipt of acceptance
in writing of the Trust by the successor Trustee, must execute all documents and
do all acts necessary to vest the title of record in any successor Trustee.
Each successor Trustee has and enjoys all of the powers, both discretionary and
ministerial, conferred under this Agreement upon his predecessor. A successor
Trustee is not personally liable for any act or failure to act of any
predecessor Trustee, except as required under ERISA. With the approval of the
Corporation and the Advisory Committee, a successor Trustee, with respect to the
Plan, may accept the account rendered and the property delivered to it by a
predecessor Trustee without incurring any liability or responsibility for so
doing.
10.14 VALUATION OF TRUST. The Trustee must value the Trust Fund as of
each Accounting Date to determine the fair market value of each Participant's
Accrued Benefit in the Trust. The Trustee also must value the Trust Fund on
such other valuation dates as directed in writing by the Advisory Committee.
10.15 LIMITATION ON LIABILITY - IF INVESTMENT MANAGER, ANCILLARY
TRUSTEE OR INDEPENDENT FIDUCIARY APPOINTED. The Trustee is not liable for
the acts or omissions of any Investment Manager the Advisory Committee may
appoint, nor is the Trustee under any obligation to invest or otherwise manage
any asset of the Plan which is subject to the management of a properly appointed
Investment Manager. The Advisory Committee, the Trustee and any properly
appointed Investment Manager may execute a letter agreement as a part of this
Plan delineating the duties, responsibilities and liabilities of the Investment
Manager with respect to any part of the Trust Fund under the control of the
Investment Manager.
The limitation on liability described in this Section 10.15 also applies to
the acts or omissions of any ancillary trustee or independent fiduciary properly
appointed under Section 10.17 of the Plan. However, if a Trustee, pursuant to
the delegation described in Section 10.17 of the Plan, appoints an ancillary
trustee, the Trustee is responsible for the periodic review of the ancillary
trustee's actions and must exercise its delegated authority in accordance with
the terms of the Plan and in a manner consistent with ERISA. The Employer, the
Trustee and an ancillary trustee may execute a letter agreement as a part of
this Plan delineating any indemnification agreement between the parties.
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10.16 INVESTMENT IN GROUP TRUST FUND. The Trustee, for collective
investment purposes, may combine into one trust fund the Trust created under
this Plan with the Trust created under any other qualified retirement plan the
Employer maintains. However, the Trustee must maintain separate records of
account for the assets of each Trust in order to reflect properly each
Participant's Accrued Benefit under the plan(s) in which he is a Participant.
The Employer specifically authorizes the Trustee to invest all or any
portion of the assets comprising the Trust Fund in any group trust fund which at
the time of the investment provides for the pooling of the assets of plans
qualified under Code Section 401(a). This authorization applies solely to a
group trust fund exempt from taxation under Code Section 501(a) and the trust
agreement of which satisfies the requirements of Revenue Ruling 81-100. The
provisions of the group trust fund agreement, as amended from time to time, are
by this reference incorporated within this Plan and Trust. The group trust
funds to which this authorization applies are POOLED FUNDS OF OR MUTUAL FUNDS
SPONSORED BY FIRST SECURITY BANK OF UTAH, N.A., FIRST SECURITY CORPORATION OR A
SUBSIDIARY OR AFFILIATE OF FIRST SECURITY CORPORATION.
10.17 APPOINTMENT OF ANCILLARY TRUSTEE OR INDEPENDENT FIDUCIARY.
The Corporation, in writing, may appoint any person in any State to act as
ancillary trustee with respect to a designated portion of the Trust Fund. An
ancillary trustee must acknowledge in writing its acceptance of the terms and
conditions of its appointment as ancillary trustee and its fiduciary status
under ERISA. The ancillary trustee has the rights, powers, duties and
discretion as the Corporation may delegate, subject to any limitations or
directions specified in the instrument evidencing appointment of the ancillary
trustee and to the terms of the Plan or of ERISA. The investment powers
delegated to the ancillary trustee may include any investment powers available
under Section 10.03 of the Plan including the right to invest any portion of the
assets of the Trust Fund in a common trust fund, as described in Code Section
584, or in any collective investment fund, the provisions of which govern the
investment of such assets and which the Plan incorporates by this reference, but
only if the ancillary trustee is a bank or similar financial institution
supervised by the United States or by a State and the ancillary trustee (or its
affiliate, as defined in Code Section 1504) maintains the common trust fund or
collective investment fund exclusively for the collective investment of money
contributed by the ancillary trustee (or its affiliate) in a trustee capacity
and which conforms to the rules of the Comptroller of the Currency. The
Corporation also may appoint as an ancillary trustee, the trustee of any group
trust fund designated for investment pursuant to the provisions of Section 10.16
of the Plan.
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The ancillary trustee may resign its position at any time by providing at
least 30 days' advance written notice to the Corporation, unless the Corporation
waives this notice requirement. The Corporation, in writing, may remove an
ancillary trustee at any time. In the event of resignation or removal, the
Corporation may appoint another ancillary trustee, return the assets to the
control and management of the Trustee or receive such assets in the capacity of
ancillary trustee. The Corporation may delegate its responsibilities under this
Section 10.17 to a Trustee under the Plan.
If the U.S. Department of Labor ("the Department") requires engagement of
an independent fiduciary to have control or management of all or a portion of
the Trust Fund, the Corporation will appoint such independent fiduciary, as
directed by the Department. The independent fiduciary will have the duties,
responsibilities and powers prescribed by the Department and will exercise those
duties, responsibilities and powers in accordance with the terms, restrictions
and conditions established by the Department and, to the extent not inconsistent
with ERISA, the terms of the Plan. The independent fiduciary must accept its
appointment in writing and must acknowledge its status as a fiduciary of the
Plan.
10.18 EMPLOYER STOCK FUND RULES. The following special rules shall apply
to the First Security Stock Fund:
(a) STOCK FUND INVESTMENT. It is contemplated that the Stock Fund
will be invested to the fullest extent possible by the Trustee in Employer
Securities (hereinafter called "stock") in accordance with the following
provisions:
(1) STOCK PURCHASES. Whenever there is a cash balance in the
Stock Fund, the Trustee shall make a determination of whether the
amount of cash in the Stock Fund is in excess of the amount of cash
necessary for purposes of the Plan, taking into account anticipated
cash distributions from the Stock Fund. If the Trustee determines at
any time during the calendar quarter that the cash portion of the
Stock Fund is in excess of such cash needs of the Plan, purchases of
stock shall be made by the Trustee (A) from First Security Corporation
or a participating Employer, or (B) in the open market.
(2) STOCK SALES. As soon as practicable after the Trustee
determines that the cash portion of the Stock Fund is insufficient to
meet the cash needs of the Plan, sales of stock shall be made by the
Trustee (A) to First Security Corporation or a participating Employer,
or (B) in the open market.
(3) TERMS OF SALES AND PURCHASES. The price or fair market
value for purchases or sales of First Security Corporation common
stock shall be
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determined as follows:
(A) The acquisition price of purchases not made on the open
market shall be not more than the average of the closing bid and
asked prices for such shares on the date of the transaction as
determined through NASDAQ. The sale price of shares sold
otherwise than on the open market shall be for a price which is
not less than the average of such closing bid and asked prices on
the date of the transaction. No commission shall be charged on
such sales or purchases not on the open market.
(B) The price of sales or purchases on the open market
shall be the net amount received or paid on trades made on the
open market.
Notwithstanding the foregoing, the Trustee shall have the authority to invest
any cash held in the Stock Fund in investments other than Employer Stock if no
such Stock is currently available or the Trustee determines in its sole
discretion that the purchase of Employer Stock will distort the market for the
Employer Stock at a particular time. The Trustee shall also have the authority
and discretion to maintain cash reserves or other liquid investments in the
Stock Fund in such amounts as the Trustee determines is necessary or appropriate
in view of the objectives of the Plan. Notwithstanding anything in the
foregoing to the contrary, the Trustee may invest all or any portion of the
Stock Fund in Employer Securities.
10.19 EMPLOYER SECURITIES--AUTHORITY TO HOLD AND ACQUIRE CERTAIN EMPLOYER
RELATED INVESTMENTS. The term "Employer Securities" shall mean a security
issued by the Employer or by an "affiliate" of the Employer, (as defined in
subparagraph (d) below) which is either:
(a) Stock (including without limitation common stock, preferred
stock, convertible preferred stock, or other stock); or
(b) A "marketable obligation" within the meaning of subparagraph (c)
below.
(c) The term "marketable obligation" means a bond, debenture, note or
certificate, or other evidence of indebtedness (hereinafter in this
subsection referred to as "obligation") if -
(1) such obligation is acquired -
(A) on the market, either (i) at the price of the
obligation prevailing on a national securities exchange which is
registered with the Securities and
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Exchange Commission, or (ii) if the obligation is not traded on
such a national securities exchange, at a price not less
favorable to the Plan than the offering price for the obligation
as established by current bid and asked prices quoted by persons
independent of the issuer;
(B) from an underwriter, at a price (i) not in excess of
the public offering price for the obligation as set forth in a
prospectus or offering circular filed with the Securities and
Exchange Commission, and (ii) at which a substantial portion of
the same issue is acquired by persons independent of the issuer;
or
(C) directly from the issuer, at a price not less favorable
to the Plan than the price paid currently for a substantial
portion of the same issue by persons independent of the issuer;
(2) immediately following acquisition of such obligation -
(A) not more than twenty-five percent (25%) of the
aggregate amount of obligations issued in such issue and
outstanding at the time of acquisition is held by the Plan, and
(B) at least fifty percent (50%) of the aggregate amount
referred to in (A) is held by persons independent of the issuer;
and
(3) immediately following acquisition of the obligation, not
more than twenty-five percent (25%) of the assets of the Plan is
invested in obligations of the Employer or an affiliate of the
Employer.
(d) A corporation is an "affiliate" of the Employer if it is a member
of any controlled group of corporations (as defined in Section 1563(a) of
the Code, except that "applicable percentage" shall be substituted for "80
percent" wherever the latter percentage appears in such section) of which
the Employer who maintains the Plan is a Member. For purposes of the
preceding sentence, the term "applicable percentage" means fifty percent
(50%), or such lower percentage as the Secretary of Labor may prescribe by
regulation.
With regard to the proper construction of the term "Employer
Securities" as set forth hereinabove, the Trustee, in order to further the
general purposes of ERISA and the general purposes of this Plan, shall have
discretion to consider and shall be entitled to rely on any liberalizing
administrative interpretations placed upon said term by appropriate governmental
authorities, or any exemption granted by such authorities
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pertaining to permissible acquisitions or holdings of Employer Securities.
The Trustee shall have authority to acquire and hold Employer Securities as
set forth and defined hereinafter in the Stock Fund. Pursuant to the authority
herein, all (100 percent), or any portion of Plan assets may be invested in
Employer Securities in the First Security Stock Fund. This provision is
intended to comply with the provisions for eligible individual account plans
under Section 401(d)(3) of ERISA, and other provisions of Section 407 of ERISA
and with the Code, and this paragraph shall be construed to effectuate this
purpose.
The provisions of this paragraph are intended to specifically authorize
the acquisition and retention of Employer Securities and as such, shall not be
deemed a limitation on the investment authority of the Trustee.
* * * * * * * * * * * * * * *
ARTICLE XI - PROVISIONS RELATING TO INSURANCE AND INSURANCE COMPANY
11.01 INSURANCE BENEFIT. The Plan does not provide incidental life
insurance benefits for Participants.
* * * * * * * * * * * * * * *
ARTICLE XII - MISCELLANEOUS
12.01 EVIDENCE. Anyone required to give evidence under the terms of the
Plan may do so by certificate, affidavit, document or other information which
the person to act in reliance may consider pertinent, reliable and genuine, and
to have been signed, made or presented by the proper party or parties. Both the
Advisory Committee and the Trustee are fully protected in acting and relying
upon any evidence described under the immediately preceding sentence.
12.02 NO RESPONSIBILITY FOR EMPLOYER ACTION. Neither the Trustee nor
the Advisory Committee has any obligation or responsibility with respect to any
action required by the Plan to be taken by the Corporation or Employer, any
Participant or
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eligible Employee, or for the failure of any of the above persons to act or make
any payment or contribution, or to otherwise provide any benefit contemplated
under this Plan. Furthermore, the Plan does not require the Trustee or the
Advisory Committee to collect any contribution required under the Plan, or to
determine the correctness of the amount of any Employer contribution. Neither
the Trustee nor the Advisory Committee need inquire into or be responsible for
any action or failure to act on the part of the others, or on the part of any
other person who has any responsibility regarding the management, administration
or operation of the Plan, whether by the express terms of the Plan or by a
separate agreement authorized by the Plan or by the applicable provisions of
ERISA. Any action required of a corporate Employer or the Corporation must be
by its Board of Directors or its designate.
12.03 FIDUCIARIES NOT INSURERS. The Trustee, the Advisory Committee, the
Plan Administrator and the Employer in no way guarantee the Trust Fund from loss
or depreciation. The Employer does not guarantee the payment of any money which
may be or becomes due to any person from the Trust Fund. The liability of the
Advisory Committee and the Trustee to make any payment from the Trust Fund at
any time and all times is limited to the then available assets of the Trust.
12.04 WAIVER OF NOTICE. Any person entitled to notice under the Plan may
waive the notice, unless the Code or Treasury regulations prescribe the notice
or ERISA specifically or impliedly prohibits such a waiver.
12.05 SUCCESSORS. The Plan is binding upon all persons entitled to
benefits under the Plan, their respective heirs and legal representatives, upon
the Employer, its successors and assigns, and upon the Trustee, the Advisory
Committee, the Plan Administrator and their successors.
12.06 WORD USAGE. Words used in the masculine also apply to the feminine
where applicable, and wherever the context of the Plan dictates, the plural
includes the singular and the singular includes the plural.
12.07 STATE LAW. UTAH law will determine all questions arising with
respect to the provisions of this Agreement except to the extent superseded by
Federal law.
12.08 EMPLOYMENT NOT GUARANTEED. Nothing contained in this Plan, or with
respect to the establishment of the Trust, or any modification or amendment to
the Plan or Trust, or in the creation of any Account, or the payment of any
benefit, gives any Employee, Employee-Participant or any Beneficiary any right
to continue employment, any legal or equitable right against the Employer, or
Employee of the Employer, or against the Trustee, or its agents or employees, or
against the Plan
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Administrator, except as expressly provided by the Plan, the Trust, ERISA or by
a separate agreement.
* * * * * * * * * * * * * * *
ARTICLE XIII - EXCLUSIVE BENEFIT, AMENDMENT, TERMINATION
13.01 EXCLUSIVE BENEFIT. Except as provided under Article III, the
Employer has no beneficial interest in any asset of the Trust and no part of any
asset in the Trust may ever revert to or be repaid to an Employer, either
directly or indirectly; nor, prior to the satisfaction of all liabilities with
respect to the Participants and their Beneficiaries under the Plan, may any part
of the corpus or income of the Trust Fund, or any asset of the Trust, be (at any
time) used for, or diverted to, purposes other than the exclusive benefit of the
Participants or their Beneficiaries. However, if the Commissioner of Internal
Revenue, upon the Employer's request for initial approval of this Plan,
determines that the Trust created under the Plan is not a qualified trust exempt
from Federal income tax, then (and only then) the Trustee, upon written notice
from the Employer, will return the Employer's contributions (and increment
attributable to the contributions) to the Employer. The Trustee must make the
return of the Employer contribution under this Section 13.01 within one year of
a final disposition of the Employer's request for initial approval of the Plan.
The Employer's Plan and Trust will terminate upon the Trustee's return of the
Employer's contributions.
13.02 AMENDMENT BY CORPORATION. The Corporation has the right at any time
and from time to time:
(a) To amend this Agreement in any manner it deems necessary or
advisable in order to qualify (or maintain qualification of) this Plan and
the Trust created under it under the appropriate provisions of Code Section
401(a); and
(b) To amend this Agreement in any other manner.
No amendment may authorize or permit any of the Trust Fund (other than the
part which is required to pay taxes and administration expenses) to be used for
or diverted to purposes other than for the exclusive benefit of the Participants
or their Beneficiaries or estates. No amendment may cause or permit any portion
of the Trust Fund to revert to or become a property of the Employer. The
Corporation also may
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not make any amendment which affects the rights, duties or responsibilities of
the Trustee, the Plan Administrator or the Advisory Committee without the
written consent of the affected Trustee, the Plan Administrator or the affected
member of the Advisory Committee. The Corporation must make all amendments in
writing. Each amendment must state the date to which it is either retroactively
or prospectively effective.
(A) CODE SECTION 411(D)(6) PROTECTED BENEFITS. An amendment (including the
adoption of this Plan as a restatement of an existing plan) may not decrease a
Participant's Accrued Benefit, except to the extent permitted under Code Section
412(c)(8), and may not reduce or eliminate Code Section 411(d)(6) protected
benefits determined immediately prior to the adoption date (or, if later, the
effective date) of the amendment. An amendment reduces or eliminates Code
Section 411(d)(6) protected benefits if the amendment has the effect of either
(1) eliminating or reducing an early retirement benefit or a retirement-type
subsidy (as defined in Treasury regulations), or (2) except as provided by
Treasury regulations, eliminating an optional form of benefit. The Advisory
Committee must disregard an amendment to the extent application of the amendment
would fail to satisfy this paragraph. If the Advisory Committee must disregard
an amendment because the amendment would violate clause (1) or clause (2), the
Advisory Committee must maintain a schedule of the early retirement option or
other optional forms of benefit the Plan must continue for the affected
Participants.
13.03 DISCONTINUANCE. The Corporation has the right, at any time, to
suspend or discontinue its contributions under the Plan, and to terminate, at
any time, this Plan and the Trust created under this Agreement. The Plan will
terminate upon the first to occur of the following:
(a) The date terminated by action of the Corporation;
(b) The dissolution or merger of the Employer, unless the successor
makes provision to continue the Plan, in which event the successor must
substitute itself as the Employer under this Plan. Any termination of the
Plan resulting from this paragraph (b) is not effective until compliance
with any applicable notice requirements under ERISA.
13.04 FULL VESTING ON TERMINATION. Upon either full or partial
termination of the Plan, or, if applicable, upon complete discontinuance of
profit sharing plan contributions to the Plan, an affected Participant's right
to his Accrued Benefit is 100% Nonforfeitable, irrespective of the
Nonforfeitable percentage which otherwise would apply under Article V.
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13.05 MERGER/DIRECT TRANSFER. The Trustee may not consent to, or be a
party to, any merger or consolidation with another plan, or to a transfer of
assets or liabilities to another plan, unless immediately after the merger,
consolidation or transfer, the surviving Plan provides each Participant a
benefit equal to or greater than the benefit each Participant would have
received had the Plan terminated immediately before the merger or consolidation
or transfer. The Trustee possesses the specific authority to enter into merger
agreements or direct transfer of assets agreements with the trustees of other
retirement plans described in Code Section 401(a), including an elective
transfer, and to accept the direct transfer of plan assets, or to transfer plan
assets, as a party to any such agreement.
The Trustee may accept a direct transfer of plan assets on behalf of an
Employee prior to the date the Employee satisfies the Plan's eligibility
conditions. If the Trustee accepts a direct transfer of plan assets, the
Advisory Committee and Trustee must treat the Employee as a Participant for all
purposes of the Plan except the Employee is not a Participant for purposes of
sharing in Employer contributions or Participant forfeitures under the Plan
until he actually becomes a Participant in the Plan.
(A) ELECTIVE TRANSFERS. The Trustee, after August 9, 1988, may not consent to,
or be a party to a merger, consolidation or transfer of assets with a defined
benefit plan, except with respect to an elective transfer, or unless the
transferred benefits are in the form of paid-up individual annuity contracts
guaranteeing the payment of the transferred benefits in accordance with the
terms of the transferor plan and in a manner consistent with the Code and with
ERISA. The Trustee will hold, administer and distribute the transferred assets
as a part of the Trust Fund and the Trustee must maintain a separate Employer
contribution Account for the benefit of the Employee on whose behalf the Trustee
accepted the transfer in order to reflect the value of the transferred assets.
Unless a transfer of assets to this Plan is an elective transfer, the Plan will
preserve all Code Section 411(d)(6) protected benefits with respect to those
transferred assets, in the manner described in Section 13.02. A transfer is an
elective transfer if: (1) the transfer satisfies the first paragraph of this
Section 13.05; (2) the transfer is voluntary, under a fully informed election by
the Participant; (3) the Participant has an alternative that retains his Code
Section 411(d)(6) protected benefits (including an option to leave his benefit
in the transferor plan, if that plan is not terminating); (4) the transfer
satisfies the applicable spousal consent requirements of the Code; (5) the
transferor plan satisfies the joint and survivor notice requirements of the
Code, if the Participant's transferred benefit is subject to those requirements;
(6) the Participant has a right to immediate distribution from the transferor
plan, in lieu of the elective transfer; (7) the transferred benefit is at least
the greater of the single sum distribution provided by the transferor plan for
which the Participant is eligible or the present value of the Participant's
accrued benefit under the transferor
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plan payable at that plan's normal retirement age; (8) the Participant has a
100% Nonforfeitable interest in the transferred benefit; and (9) the transfer
otherwise satisfies applicable Treasury regulations. An elective transfer may
occur between qualified plans of any type.
(B) DISTRIBUTION RESTRICTIONS UNDER CODE SECTION 401(k). If the Plan receives
a direct transfer (by merger or otherwise) of elective contributions (or amounts
treated as elective contributions) under a Plan with a Code Section 401(k)
arrangement, the distribution restrictions of Code Sections 401(k)(2) and (10)
continue to apply to those transferred elective contributions.
13.06 TERMINATION. Upon termination of the Plan, the distribution
provisions of Article VI remain operative, with the following exceptions:
(1) if the present value of the Participant's Nonforfeitable Accrued
Benefit does not exceed $3,500, the Advisory Committee will direct the
Trustee to distribute the Participant's Nonforfeitable Accrued Benefit to
him in lump sum as soon as administratively practicable after the Plan
terminates; and
(2) if the present value of the Participant's Nonforfeitable Accrued
Benefit exceeds $3,500, the Participant or the Beneficiary, in addition to
the distribution events permitted under Article VI, may elect to have the
Trustee commence distribution of his Nonforfeitable Accrued Benefit as soon
as administratively practicable after the Plan terminates.
To liquidate the Trust, the Advisory Committee will purchase a deferred
annuity contract for each Participant which protects the Participant's
distribution rights under the Plan, if the Participant's Nonforfeitable Accrued
Benefit exceeds $3,500 and the Participant does not elect an immediate
distribution pursuant to Paragraph (2).
The Trust will continue until the Trustee in accordance with the direction
of the Advisory Committee has distributed all of the benefits under the Plan.
On each valuation date, the Advisory Committee will credit any part of a
Participant's Accrued Benefit retained in the Trust with its proportionate share
of the Trust's income, expenses, gains and losses, both realized and unrealized.
Upon termination of the Plan, the amount, if any, in a suspense account under
Article III will revert to the Employer, subject to the conditions of the
Treasury regulations permitting such a reversion. A resolution or amendment to
freeze all future benefit accrual but otherwise to continue maintenance of this
Plan, is not a termination for purposes of this Section 13.06.
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13.07 DENIAL OF EXISTENCE OF GUARANTEE. It is a condition of this
Plan and Trust and each Participant by participating herein expressly agrees to
look solely to the assets of the Trust for the payment of any benefit to which
the Participant is entitled under the Plan. Neither First Security Corporation,
the Employer, the Trustee, the Administrator, the Advisory Committee nor any
other person guarantees in any manner or to any extent the assets of the Plan
against loss or depreciation. Neither First Security Corporation, any
participating Employer, nor any other person or entity shall have any liability
or responsibility for a failure to effect any of the objects and purposes of
this Plan by reason of the validity or effectiveness of the Plan or Trust, or
for the failure of any person, corporation, individual or any person indebted or
becoming indebted to the Trust to pay such indebtedness on the due date, or for
any delay or adverse tax consequence occasioned by reason of any applicable law,
order or regulation or by reason of any restriction or provision contained in or
applicable to any security or other asset by applicable law, regulation or
otherwise.
* * * * * * * * * * * * * * *
ARTICLE XIV - PROVISIONS RELATING TO CODE SECTION 401(K) AND
TO CODE SECTION 401(M)
14.01 401(k) ARRANGEMENT. The Employer makes the deferral contributions
described in Section 3.01 pursuant to a 401(k) arrangement. An Employee who is
eligible to participate in the 401(k) arrangement may file a salary reduction
agreement with the Advisory Committee. The salary reduction agreement may not
be effective earlier than the following date which occurs last: (i) the
Employee's Plan Entry Date (or, in the case of a reemployed Employee, his
reparticipation date under Article II); (ii) the execution date of the
Employee's salary reduction agreement; (iii) the date the Employer adopts the
Code Section 401(k) arrangement by executing the Adoption Agreement; or (iv) the
effective date of the Code Section 401(k) arrangement. Regarding clause (i), an
Employee subject to the Suspension of Years of Service rule of Section 2.03(A)
of the Plan may not enter into a salary reduction agreement until the Employee
has completed a sufficient number of Hours of Service to receive credit for a
Year of Service (as defined in Section 2.02) following his reemployment
commencement date. A salary reduction agreement must specify the amount of
Compensation (as defined in Section 1.10) or percentage of Compensation the
Employee wishes to defer. The salary reduction agreement will apply only to
Compensation which becomes currently available to the Employee after the
effective date of the salary reduction agreement. The Employer will apply a
reduction election
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to all Compensation (and to increases in such Compensation) unless the Employee
specifies in his salary reduction agreement to limit the election to certain
Compensation.
An Employee's salary reduction contributions for the Plan Year, subject to
the elective deferral limitation of Section 14.03, may not exceed 17% (AND MUST
BE MADE IN PERCENTAGES FROM 0% TO 17% IN ACCORDANCE WITH RULES OF THE ADVISORY
COMMITTEE) of his Compensation for the entire Plan Year. An Employee may modify
his salary reduction agreement, either to reduce or to increase the amount of
deferral contributions, as of FIRST DAY OF ANY QUARTER OR AS OTHERWISE PROVIDED
BY THE RULES OF THE ADVISORY COMMITTEE. The Employee will make this
modification by filing a new salary reduction agreement with the Advisory
Committee. An Employee may revoke a salary reduction agreement as of any
PAYROLL PERIOD THAT HAS NOT YET COMMENCED OR AS OTHERWISE PERMITTED BY THE RULES
OF THE ADVISORY COMMITTEE. An Employee who revokes his salary reduction
agreement may file a new salary reduction agreement effective as of FIRST DAY OF
ANY CALENDAR QUARTER.
14.02 DEFINITIONS.
(a) "Highly Compensated Employee" means an Eligible Employee who
satisfies the definition in Section 1.07 of the Plan. Family members
aggregated as a single Employee under Section 1.07 constitute a single
Highly Compensated Employee, whether a particular family member is a Highly
Compensated Employee or a Nonhighly Compensated Employee without the
application of family aggregation.
(b) "Nonhighly Compensated Employee" means an Eligible Employee who
is not a Highly Compensated Employee and who is not a family member treated
as a Highly Compensated Employee.
(c) "Eligible Employee" means, for purposes of the ADP test described
in Section 14.04, an Employee who is eligible to participate in the Code
Section 401(k) arrangement, irrespective of whether the Employer actually
makes deferral contributions on behalf of the Employee. For purposes of
the ACP test described in Section 14.05, an "Eligible Employee" means a
Participant who is eligible to receive an allocation of matching
contributions (or would be eligible if he made the type of contributions
necessary to receive an allocation of matching contributions) and a
Participant who is eligible to make employee contributions, irrespective of
whether he actually makes employee contributions. An Employee continues to
be an Eligible Employee during a period the Plan suspends the Employee's
right to make elective deferrals or nondeductible contributions following a
hardship
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distribution.
(d) "Highly Compensated Group" means the group of Eligible Employees
who are Highly Compensated Employees for the Plan Year.
(e) "Nonhighly Compensated Group" means the group of Eligible
Employees who are Nonhighly Compensated Employees for the Plan Year.
(f) "Compensation" means, except as specifically provided under this
Article XIV, Compensation as defined for nondiscrimination purposes in
Section 1.10(B) of the Plan. For Plan Years beginning prior to the later
of January 1, 1992, or 60 days after the Treasury issues final regulations
under Code Sections 401(k) and 401(m), the Plan may limit Compensation
taken into account to Compensation received only for the portion of the
Plan Year in which the Employee was an Eligible Employee and only for the
portion of the Plan Year in which the Plan or the Code Section 401(k)
arrangement was in effect. For subsequent Plan Years, Compensation must
include Compensation for the entire Plan Year, irrespective of whether the
Plan or the Code Section 401(k) arrangement was in effect for the entire
Plan Year or whether the Employee begins, resumes or ceases to be an
Eligible Employee during the Plan Year.
(g) "Deferral Contributions" means the sum of the deferral
contributions the Employer contributes to the Trust on behalf of an
Eligible Employee, pursuant to Section 3.01.
(h) "Elective Deferrals" are the deferral contributions the Employer
contributes to the Trust at the election of an Eligible Employee. If the
Code Section 401(k) arrangement includes a cash or deferred feature, any
portion of a cash or deferred contribution contributed to the Trust because
of the Employee's failure to make a cash election is an elective deferral,
but any portion of a cash or deferred contribution over which the Employee
does not have a cash election is not an elective deferral. Elective
deferrals do not include amounts which have become currently available to
the Employee prior to the election nor amounts designated as employee
contributions at the time of deferral or contribution.
(i) "Matching Contributions" are contributions made by the Employer
on account of elective deferrals under a Code Section 401(k) arrangement or
on account of employee contributions. Matching contributions also include
Participant forfeitures allocated on account of such elective deferrals or
employee contributions.
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(j) "Nonelective Contributions" are contributions made by the
Employer which are not subject to a deferral election by an Employee and
which are not matching contributions.
(k) "Qualified Matching Contributions" are matching contributions
which are 100% Nonforfeitable at all times and which are subject to the
distribution restrictions described in paragraph (m). Matching
contributions are not 100% Nonforfeitable at all times if the Employee has
a 100% Nonforfeitable interest because of his Years of Service taken into
account under a vesting schedule.
(l) "Qualified Nonelective Contributions" are nonelective
contributions which are 100% Nonforfeitable at all times and which are
subject to the distribution restrictions described in paragraph (m).
Nonelective contributions are not 100% Nonforfeitable at all times if the
Employee has a 100% Nonforfeitable interest because of his Years of Service
taken into account under a vesting schedule. Any nonelective contributions
allocated to a Participant's Qualified Nonelective Contributions Account
under the Plan automatically satisfy the definition of qualified
nonelective contributions.
(m) "Distribution Restrictions" means the Employee may not receive a
distribution of the specified contributions (nor earnings on those
contributions) except in the event of (1) the Participant's death,
disability, termination of employment, attainment of age 59 1/2,
(2) financial hardship satisfying the requirements of Code Section 401(k)
and the applicable Treasury regulations, (3) plan termination, without
establishment of a successor defined contribution plan (other than an
ESOP), (4) a sale of substantially all of the assets (within the meaning of
Code Section 409(d)(2)) used in a trade or business, but only to an
employee who continues employment with the corporation acquiring those
assets, or (5) a sale by a corporation of its interest in a subsidiary
(within the meaning of Code Section 409(d)(3)), but only to an employee who
continues employment with the subsidiary. For Plan Years beginning after
December 31, 1988, a distribution on account of financial hardship, as
described in clause (2), may not include earnings on elective deferrals
credited as of a date later than December 31, 1988, and may not include
qualified matching contributions and qualified nonelective contributions,
nor any earnings on such contributions, irrespective of when credited. A
distribution described in clauses (3), (4) or (5), if made after March 31,
1988, must be a lump sum distribution, as required under Code Section
401(k)(10).
(n) "Employee Contributions" are contributions made by a Participant
on an after-tax basis, whether voluntary or mandatory, and designated, at
the time of
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contribution, as an employee (or nondeductible) contribution. Elective
deferrals and deferral contributions are not employee contributions.
Participant nondeductible contributions, made pursuant to Section 4.01 of
the Plan, are employee contributions.
14.03 ANNUAL ELECTIVE DEFERRAL LIMITATION.
(A) ANNUAL ELECTIVE DEFERRAL LIMITATION. An Employee's elective deferrals for
a calendar year beginning after December 31, 1986, may not exceed the 402(g)
limitation. The 402(g) limitation is the greater of $7,000 or the adjusted
amount determined by the Secretary of the Treasury. If the Employer determines
the Employee's elective deferrals to the Plan for a calendar year would exceed
the 402(g) limitation, the Employer will not make any additional elective
deferrals with respect to that Employee for the remainder of that calendar year,
paying in cash to the Employee any amounts which would result in the Employee's
elective deferrals for the calendar year exceeding the 402(g) limitation. If
the Advisory Committee determines an Employee's elective deferrals already
contributed to the Plan for a calendar year exceed the 402(g) limitation, the
Advisory Committee will distribute the amount in excess of the 402(g) limitation
(the "excess deferral"), as adjusted for allocable income, no later than
April 15 of the following calendar year. If the Advisory Committee distributes
the excess deferral by the appropriate April 15, it may make the distribution
irrespective of any other provision under this Plan or under the Code. The
Advisory Committee will reduce the amount of excess deferrals for a calendar
year distributable to the Employee by the amount of excess contributions (as
determined in Section 14.04), if any, previously distributed to the Employee for
the Plan Year beginning in that calendar year.
If an Employee participates in another plan under which he makes elective
deferrals pursuant to a Code Section 401(k) arrangement, elective deferrals
under a Simplified Employee Pension, or salary reduction contributions to a tax-
sheltered annuity, irrespective of whether the Employer maintains the other
plan, he may provide the Advisory Committee a written claim for excess deferrals
made for a calendar year. The Employee must submit the claim no later than the
March 1 following the close of the particular calendar year and the claim must
specify the amount of the Employee's elective deferrals under this Plan which
are excess deferrals. If the Advisory Committee receives a timely claim, it
will distribute the excess deferral (as adjusted for allocable income) the
Employee has assigned to this Plan, in accordance with the distribution
procedure described in the immediately preceding paragraph.
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(B) ALLOCABLE INCOME. For purposes of making a distribution of excess
deferrals, allocable income means net income or net loss allocable to the excess
deferrals for the calendar year in which the Employee made the excess deferral
and for the "gap period" measured from the beginning of the next calendar year
to the date of the distribution. If the distribution of the excess deferral
occurs during the calendar year in which the Employee made the excess deferral,
the Advisory Committee will treat as a "gap period" the period from the first
day of that calendar year to the date of the distribution. The Advisory
Committee will determine allocable income in the same manner as described in
Section 14.04(F) for excess contributions, except the numerator of the
allocation fraction will be the amount of the Employee's excess deferrals and
the denominator of the allocation fraction will be the Employee's Accrued
Benefit attributable to his elective deferrals.
14.04 ACTUAL DEFERRAL PERCENTAGE ("ADP") TEST. For each Plan Year, the
Advisory Committee must determine whether the Plan's Code Section 401(k)
arrangement satisfies either of the following ADP tests:
(i) The average ADP for the Highly Compensated Group does not
exceed 1.25 times the average ADP of the Nonhighly Compensated Group; or
(ii) The average ADP for the Highly Compensated Group does not
exceed the average ADP for the Nonhighly Compensated Group by more than two
percentage points (or the lesser percentage permitted by the multiple use
limitation in Section 14.06) and the average ADP for the Highly Compensated
Group is not more than twice the average ADP for the Nonhighly Compensated
Group.
(A) CALCULATION OF ADP. The average ADP for a group is the average of the
separate ADPs calculated for each Eligible Employee who is a member of that
group. An Eligible Employee's ADP for a Plan Year is the ratio of the Eligible
Employee's deferral contributions for the Plan Year to the Employee's
Compensation for the Plan Year. For aggregated family members treated as a
single Highly Compensated Employee, the ADP of the family unit is the ADP
determined by combining the deferral contributions and Compensation of all
aggregated family members. A Nonhighly Compensated Employee's ADP does not
include elective deferrals made to this Plan or to any other Plan maintained by
the Employer, to the extent such elective deferrals exceed the 402(g) limitation
described in Section 14.03.
The Advisory Committee may determine (in a manner consistent with Treasury
regulations) the ADPs of the Eligible Employees by taking into account qualified
nonelective contributions or qualified matching contributions, or both, made to
this Plan or to any other qualified Plan maintained by the Employer. The
Advisory
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Committee may not include qualified nonelective contributions in the ADP test
unless the allocation of nonelective contributions is nondiscriminatory when the
Advisory Committee takes into account all nonelective contributions (including
the qualified nonelective contributions) and also when the Advisory Committee
takes into account only the nonelective contributions not used in either the ADP
test or the ACP test described in Section 14.05. For Plan Years beginning after
December 31, 1989, the Advisory Committee may not include in the ADP test any
qualified nonelective contributions or qualified matching contributions under
another qualified plan unless that plan has the same plan year as this Plan.
The Advisory Committee must maintain records to demonstrate compliance with the
ADP test, including the extent to which the Plan used qualified nonelective
contributions or qualified matching contributions to satisfy the test.
(B) SPECIAL AGGREGATION RULE FOR HIGHLY COMPENSATED EMPLOYEES. To determine
the ADP of any Highly Compensated Employee, the deferral contributions taken
into account must include any elective deferrals made by the Highly Compensated
Employee under any other Code Section 401(k) arrangement maintained by the
Employer, unless the elective deferrals are to an ESOP. If the plans containing
the Code Section 401(k) arrangements have different plan years, the Advisory
Committee will determine the combined deferral contributions on the basis of the
plan years ending in the same calendar year.
(C) AGGREGATION OF CERTAIN CODE SECTION 401(k) ARRANGEMENTS. If the Employer
treats two plans as a unit for coverage or nondiscrimination purposes, the
Employer must combine the Code Section 401(k) arrangements under such plans to
determine whether either plan satisfies the ADP test. This aggregation rule
applies to the ADP determination for all Eligible Employees, irrespective of
whether an Eligible Employee is a Highly Compensated Employee or a Nonhighly
Compensated Employee. The Advisory Committee also may elect to aggregate the
Code Section 401(k) arrangements under plans which the Employer does not treat
as a unit for coverage or nondiscrimination purposes. For Plan Years beginning
after December 31, 1989, an aggregation of Code Section 401(k) arrangements
under this paragraph does not apply to plans which have different plan years
and, for Plan Years beginning after December 31, 1988, the Advisory Committee
may not aggregate an ESOP (or the ESOP portion of a plan) with a non-ESOP plan
(or non-ESOP portion of a plan).
(D) CHARACTERIZATION OF EXCESS CONTRIBUTIONS. If, pursuant to this Section
14.04, the Advisory Committee has elected to include qualified matching
contributions in the average ADP, the Advisory Committee will treat excess
contributions as attributable proportionately to deferral contributions and to
qualified matching contributions allocated on the basis of those deferral
contributions. If the total amount of a Highly
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Compensated Employee's excess contributions for the Plan Year exceeds his
deferral contributions or qualified matching contributions for the Plan Year,
the Advisory Committee will treat the remaining portion of his excess
contributions as attributable to qualified nonelective contributions. The
Advisory Committee will reduce the amount of excess contributions for a Plan
Year distributable to a Highly Compensated Employee by the amount of excess
deferrals (as defined in Section 14.03), if any, previously distributed to that
Employee for the Employee's taxable year ending in that Plan Year.
(E) DISTRIBUTION OF EXCESS CONTRIBUTIONS. If the Advisory Committee determines
the Plan fails to satisfy the ADP test for a Plan Year, it must distribute the
excess contributions, as adjusted for allocable income, during the next Plan
Year. However, the Employer will incur an excise tax equal to 10% of the amount
of excess contributions for a Plan Year not distributed to the appropriate
Highly Compensated Employees during the first 2 1/2 months of that next Plan
Year. The excess contributions are the amount of deferral contributions made by
the Highly Compensated Employees which causes the Plan to fail to satisfy the
ADP test. The Advisory Committee will distribute to each Highly Compensated
Employee his respective share of the excess contributions. The Advisory
Committee will determine the respective shares of excess contributions by
starting with the Highly Compensated Employee(s) who has the greatest ADP,
reducing his ADP to the next highest ADP, then, if necessary, reducing the ADP
of the Highly Compensated Employee(s) at the next highest ADP level (including
the ADP of the Highly Compensated Employee(s) whose ADP the Advisory Committee
already has reduced), and continuing in this manner until the average ADP for
the Highly Compensated Group satisfies the ADP test. If the Highly Compensated
Employee is part of an aggregated family group, the Advisory Committee, in
accordance with the applicable Treasury regulations, will determine each
aggregated family member's allocable share of the excess contributions assigned
to the family unit.
(F) ALLOCABLE INCOME. To determine the amount of the corrective distribution
required under this Section 14.04, the Advisory Committee must calculate the
allocable income for the Plan Year in which the excess contributions arose and
for the "gap period" measured from the beginning of the next Plan Year to the
date of the distribution. "Allocable income" means net income or net loss. To
calculate allocable income for the Plan Year, the Advisory Committee: (1) first
will determine the net income or net loss for the Plan Year on the Highly
Compensated Employee's Accrued Benefit attributable to deferral contributions;
and (2) then will multiply this net income or net loss by the following
fraction:
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Amount of the Highly Compensated Employee's excess contributions
----------------------------------------------------------------
Accrued Benefit attributable to deferral contributions
The Accrued Benefit attributable to deferral contributions includes the Accrued
Benefit attributable to qualified matching contributions and qualified
nonelective contributions taken into account in the ADP test for the Plan Year
or for any prior Plan Year. For purposes of the denominator of the fraction,
the Advisory Committee will calculate the Accrued Benefit attributable to
deferral contributions as of the last day of the Plan Year (without regard to
the net income or net loss for the Plan Year on that Accrued Benefit).
To calculate allocable income for the "gap period," the Advisory Committee
will perform the same calculation as described in the preceding paragraph,
except in clause (1) the Advisory Committee will determine, as of the last day
of the month preceding the date of distribution, the net income or net loss for
the "gap period" and in clause (2) will calculate the Accrued Benefit
attributable to deferral contributions as of the day before the distribution.
If the Plan does not perform a valuation on the last day of the month preceding
the date of distribution, the Advisory Committee, in lieu of the calculation
described in this paragraph, will calculate allocable income for each month in
the "gap period" as equal to 10% of the allocable income for the Plan Year.
Under this alternate calculation, the Advisory Committee will disregard the
month in which the distribution occurs, if the Plan makes the distribution no
later than the 15th day of that month.
14.05 NONDISCRIMINATION RULES FOR EMPLOYER MATCHING CONTRIBUTIONS/EMPLOYEE
CONTRIBUTIONS. For Plan Years beginning after December 31, 1986, the Advisory
Committee must determine whether the annual matching contributions (other than
qualified matching contributions used in the ADP test), if any, and the employee
contributions, if any, satisfy one of the following average contribution
percentage ("ACP") tests:
(i) The ACP for the Highly Compensated Group does not exceed 1.25
times the ACP of the Nonhighly Compensated Group; or
(ii) The ACP for the Highly Compensated Group does not exceed the
ACP for the Nonhighly Compensated Group by more than two percentage points
(or the lesser percentage permitted by the multiple use limitation in
Section 14.06) and the ACP for the Highly Compensated Group is not more
than twice the ACP for the Nonhighly Compensated Group.
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(A) CALCULATION OF ACP. The average contribution percentage for a group is the
average of the separate contribution percentages calculated for each Eligible
Employee who is a member of that group. An Eligible Employee's contribution
percentage for a Plan Year is the ratio of the Eligible Employee's aggregate
contributions for the Plan Year to the Employee's Compensation for the Plan
Year. "Aggregate contributions" are matching contributions (other than
qualified matching contributions used in the ADP test) and employee
contributions. For aggregated family members treated as a single Highly
Compensated Employee, the contribution percentage of the family unit is the
contribution percentage determined by combining the aggregate contributions and
Compensation of all aggregated family members.
The Advisory Committee, in a manner consistent with Treasury regulations,
may determine the contribution percentages of the Eligible Employees by taking
into account qualified nonelective contributions (other than qualified
nonelective contributions used in the ADP test) or elective deferrals, or both,
made to this Plan or to any other qualified plan maintained by the Employer.
The Advisory Committee may not include qualified nonelective contributions in
the ACP test unless the allocation of nonelective contributions is
nondiscriminatory when the Advisory Committee takes into account all nonelective
contributions (including the qualified nonelective contributions) and also when
the Advisory Committee takes into account only the nonelective contributions not
used in either the ADP test or the ACP test. The Advisory Committee may not
include elective deferrals in the ACP test, unless the plan which includes the
elective deferrals satisfies the ADP test both with and without the elective
deferrals included in this ACP test. For Plan Years beginning after
December 31, 1989, the Advisory Committee may not include in the ACP test any
qualified nonelective contributions or elective deferrals under another
qualified plan unless that plan has the same plan year as this Plan. The
Advisory Committee must maintain records to demonstrate compliance with the ACP
test, including the extent to which the Plan used qualified nonelective
contributions or elective deferrals to satisfy the test.
(B) SPECIAL AGGREGATION RULE FOR HIGHLY COMPENSATED EMPLOYEES. To determine
the contribution percentage of any Highly Compensated Employee, the aggregate
contributions taken into account must include any matching contributions (other
than qualified matching contributions used in the ADP test) and any employee
contributions made on his behalf to any other plan maintained by the Employer,
unless the other plan is an ESOP. If the plans have different plan years, the
Advisory Committee will determine the combined aggregate contributions on the
basis of the plan years ending in the same calendar year.
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(C) AGGREGATION OF CERTAIN PLANS. If the Employer treats two plans as a unit
for coverage or nondiscrimination purposes, the Employer must combine the plans
to determine whether either plan satisfies the ACP test. This aggregation rule
applies to the contribution percentage determination for all Eligible Employees,
irrespective of whether an Eligible Employee is a Highly Compensated Employee or
a Nonhighly Compensated Employee. The Advisory Committee also may elect to
aggregate plans which the Employer does not treat as a unit for coverage or
nondiscrimination purposes. For Plan Years beginning after December 31, 1989,
an aggregation of plans under this paragraph does not apply to plans which have
different plan years and, for Plan Years beginning after December 31, 1988, the
Advisory Committee may not aggregate an ESOP (or the ESOP portion of a plan)
with a non-ESOP plan (or non-ESOP portion of a plan).
(D) DISTRIBUTION OF EXCESS AGGREGATE CONTRIBUTIONS. The Advisory Committee
will determine excess aggregate contributions after determining excess deferrals
under Section 14.03 and excess contributions under Section 14.04. If the
Advisory Committee determines the Plan fails to satisfy the ACP test for a Plan
Year, it must distribute the excess aggregate contributions, as adjusted for
allocable income, during the next Plan Year. However, the Employer will incur
an excise tax equal to 10% of the amount of excess aggregate contributions for a
Plan Year not distributed to the appropriate Highly Compensated Employees during
the first 2 1/2 months of that next Plan Year. The excess aggregate
contributions are the amount of the aggregate contributions allocated on behalf
of the Highly Compensated Employees which causes the Plan to fail to satisfy the
ACP test. The Advisory Committee will distribute to each Highly Compensated
Employee his respective share of the excess aggregate contributions. The
Advisory Committee will determine the respective shares of excess aggregate
contributions by starting with the Highly Compensated Employee(s) who has the
greatest contribution percentage, reducing his contribution percentage to the
next highest contribution percentage then, if necessary, reducing the
contribution percentage of the Highly Compensated Employee(s) at the next
highest contribution percentage level (including the contribution percentage of
the Highly Compensated Employee(s) whose contribution percentage the Advisory
Committee already has reduced), and continuing in this manner until the ACP
for the Highly Compensated Group satisfies the ACP test. If the Highly
Compensated Employee is part of an aggregated family group, the Advisory
Committee, in accordance with the applicable Treasury regulations, will
determine each aggregated family member's allocable share of the excess
aggregate contributions assigned to the family unit.
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(E) ALLOCABLE INCOME. To determine the amount of the corrective distribution
required under this Section 14.05, the Advisory Committee must calculate the
allocable income for the Plan Year in which the excess aggregate contributions
arose and for the "gap period" measured from the beginning of the next Plan Year
to the date of the distribution. "Allocable income" means net income or net
loss. The Advisory Committee will determine allocable income in the same manner
as described in Section 14.04(F) for excess contributions, except the numerator
of the allocation fraction will be the Highly Compensated Employee's excess
aggregate contributions and the denominator of the allocation fraction will be
the Employee's Accrued Benefit attributable to aggregate contributions and, if
applicable, to qualified nonelective contributions and elective deferrals
included in the ACP test for the Plan Year or for any prior Plan Year.
(F) CHARACTERIZATION OF EXCESS AGGREGATE CONTRIBUTIONS. The Advisory Committee
will treat a Highly Compensated Employee's allocable share of excess aggregate
contributions in the following priority: (1) first as attributable to his
employee contributions which are voluntary contributions, if any; (2) then as
matching contributions allocable with respect to excess contributions determined
under the ADP test; (3) then on a pro rata basis to matching contributions and
to the deferral contributions relating to those matching contributions which the
Advisory Committee has included in the ACP test; (4) then on a pro rata basis to
Employee contributions which are mandatory contributions, if any, and to the
matching contributions allocated on the basis of those mandatory contributions;
and (5) last to qualified nonelective contributions used in the ACP test. To
the extent the Highly Compensated Employee's excess aggregate contributions are
attributable to matching contributions, and he is not 100% vested in his Accrued
Benefit attributable to matching contributions, the Advisory Committee will
distribute only the vested portion and forfeit the nonvested portion. The
vested portion of the Highly Compensated Employee's excess aggregate
contributions attributable to employer matching contributions is the total
amount of such excess aggregate contributions (as adjusted for allocable income)
multiplied by his vested percentage (determined as of the last day of the Plan
Year for which the Employer made the matching contribution). The Plan will
allocate forfeited excess aggregate contributions to reduce Employer matching
contributions for the Plan Year in which the forfeiture occurs.
14.06 MULTIPLE USE LIMITATION. For Plan Years beginning after
December 31, 1988, if at least one Highly Compensated Employee is includible in
the ADP test and in the ACP test, the sum of the Highly Compensated Group's ADP
and ACP may not exceed the multiple use limitation.
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The multiple use limitation is the sum of (i) and (ii):
(i) 125% of the greater of: (a) the ADP of the Nonhighly
Compensated Group under the Code Section 401(k) arrangement; or (b) the ACP
of the Nonhighly Compensated Group for the Plan Year beginning with or
within the Plan Year of the Code Section 401(k) arrangement.
(ii) 2% plus the lesser of (i)(a) or (i)(b), but no more than twice
the lesser of (i)(a) or (i)(b).
The Advisory Committee, in lieu of determining the multiple use limitation
as the sum of (i) and (ii), may elect to determine the multiple use limitation
as the sum of (iii) and (iv):
(iii) 125% of the lesser of: (a) the ADP of the Nonhighly
Compensated Group under the Code Section 401(k) arrangement; or (b) the ACP
of the Nonhighly Compensated Group for the Plan Year beginning with or
within the Plan Year of the Code Section 401(k) arrangement.
(iv) 2% plus the greater of (iii)(a) or (iii)(b), but no more than
twice the greater of (iii)(a) or (iii)(b).
The Advisory Committee will determine whether the Plan satisfies the
multiple use limitation after applying the ADP test under Section 14.04 and the
ACP test under Section 14.05 and after making any corrective distributions
required by those Sections. If, after applying this Section 14.06, the Advisory
Committee determines the Plan has failed to satisfy the multiple use limitation,
the Advisory Committee will correct the failure by treating the excess amount as
excess aggregate contributions under Section 14.05. This Section 14.06 does not
apply unless, prior to application of the multiple use limitation, the ADP and
the ACP of the Highly Compensated Group each exceeds 125% of the respective
percentages for the Nonhighly Compensated Group.
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EXHIBIT 4.2
AMENDMENT NO. 1
TO THE
FIRST SECURITY CORPORATION INCENTIVE SAVINGS PLAN
AND TRUST AGREEMENT
AMENDMENT NO. 1 to the First Security Incentive Savings Plan, as amended
and restated, dated December 30, 1994, between FIRST SECURITY CORPORATION, a
corporation organized under the laws of the State of DELAWARE ("CORPORATION"),
makes this Agreement with FIRST SECURITY BANK OF UTAH, NA, as Trustee.
I. Article I is amended by the deletion of Sections 1.31, entitled
"Corporation", and 1.15, entitled "Effective Date" in their entirety and the
substitution of the following in place thereof:
1.31 "CORPORATION" means First Security Corporation, a Delaware
Corporation, which shall act by a resolution of its Board of Directors or
the Executive Committee of such Board. The Corporation may delegate certain
powers reserved to the Corporation to a person or group of persons
authorized to act for the Corporation.
1.15 "EFFECTIVE DATE" of this Plan, as restated, is generally
January 1, 1989, except the effective date of the provision of the Plan
that are required by federal law to have an earlier effective date to
comply with the Tax Reform Act of 1986 and other recent federal laws shall
have such earlier date as may be required by federal law and except as
otherwise expressly stated in the provisions of this Plan. ESOP Effective
Date shall have the meaning set forth in Appendix A.
II. Article I is further amended by the addition of a new Section 1.32 at
the end thereof, entitled "Employee Stock Ownership Plan (ESOP)", to provide as
follows:
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1.32 "EMPLOYEE STOCK OWNERSHIP PLAN (ESOP)" the portion of the Plan
designated as an "employee stock ownership plan" ("ESOP") with the meaning
of section 4975(e)(7) of the Code by Appendix A, attached hereto and by
reference made a part of the Plan as if the provisions of said Appendix A
were set forth fully herein.
III. Effective for amounts allocated after the effective date of July 1,
1995 Section 3.04, entitled "Contribution Allocation", is amended by the
deletion of subsection 3.04(A), entitled "Method of Allocation", in its entirety
and the substitution of the following in its place:
3.04 CONTRIBUTION ALLOCATION.
(A) METHOD OF ALLOCATION. To make allocations under the Plan, the
Advisory Committee must establish an Incentive Savings Employee Account,
Incentive Savings Employer Matching Contributions Account, and Qualified
Nonelective Contributions Account.
DEFERRAL CONTRIBUTIONS. The Advisory Committee will allocate to each
Participant's Incentive Savings Employee Account the deferral contributions
the Employer makes to the Trust on behalf of the Participant. The Advisory
Committee will make this allocation as of the last day of each "matching
contributions allocation period".
MATCHING CONTRIBUTIONS. The Advisory Committee will allocate matching
contributions as of the last day of each payroll period (hereinafter
"matching contributions allocation period"). The Advisory Committee will
allocate the matching contributions to the Employer Contribution Accounts
of the Participant on whose behalf the Employer makes that contribution as
follows: fifty percent (50%) to the Incentive Saving Employer Account of
the Participant and the remaining fifty percent (50%) to the Incentive
Savings Employer ESOP Account of the Participant. It is contemplated that
the Employer will make the portion of its contribution to be invested in
the Incentive Savings Employer ESOP Account in the form of Employer Stock.
QUALIFIED NONELECTIVE CONTRIBUTIONS. If the Employer, at the time of
contribution, designates a contribution to be a qualified nonelective
contribution for the Plan Year, the Advisory Committee will allocate that
qualified nonelective contribution to the Qualified Nonelective
Contributions Account of each Participant eligible for an allocation of
qualified nonelective contributions. The Advisory
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Committee will make the allocation to each eligible Participant's Account
in the same ratio that the Participant's Compensation for the Plan Year
bears to the total Compensation of all eligible Participants for the Plan
Year. For purposes of allocating qualified nonelective contributions, the
term "eligible Participant" means a Participant who is a Nonhighly
Compensated Employee and who satisfies the conditions of Section 3.06.
The remaining provisions of Section 3.04(B) shall remain unchanged.
IV. Section 8.10, entitled "PARTICIPANT DIRECTION OF INVESTMENT", is
amended to provide as follows:
8.10 PARTICIPANT DIRECTION OF INVESTMENT. A Participant has the
right to direct the Trustee with respect to the investment or re-investment
of the assets comprising the Participant's individual Account only if the
Corporation with the consent of the Trustee permit such direction in
accordance with the following:
(a) A Participant has the right to direct the Trustee with
respect to the investment or re-investment of the assets comprising
the Participant's individual Accounts, which are not a part of the
ESOP, as of the effective date as of which the Corporation directs and
the Trustee consents, to and among funds approved by the Corporation
with the consent of the Trustee, including the Income Fund, the
Diversified Fund, the Growth Fund, the First Security Stock Fund, and
such other Funds as determined from time to time by the Corporation
with the consent of the Trustee.
(b) A Participant, who has attained age 55 and completed 10 or
more years of Service, has the right to direct the Trustee with
respect to the investment or re-investment of the assets comprising
the Participant's individual Accounts, which are invested as a part of
the ESOP, only to the extent permitted in accordance with the
provisions of Appendix A (attached to the Plan and incorporated herein
by reference) and Section 8.11.
The Corporation with the consent of the Trustee shall have authority to
establish or cause to be established, and change from time to time the
Funds from and among which a Participant may self-direct for purpose of the
above, and to adopt and modify rules from time to time with respect to the
self direction of Accounts. If the Trustee consents to Participant
direction of investment with respect to an Account, the Trustee will accept
direction from each Participant on a written election form (or other
writing), as a part of this Plan containing such conditions,
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limitations and other provisions the Corporation and the Trustee deem
appropriate. The Corporation and the Trustee may establish written
procedures relating to Participant direction of investments under this
Section 8.10. The Trustee will maintain a segregated investment Account to
the extent a Participant's Account is subject to Participant self-
direction. The Trustee is not liable for any loss, nor is liable for any
breach, resulting from a Participant's direction of the investment of any
part of his directed Account.
The Advisory Committee, to the extent provided in a written loan
policy adopted under Section 9.04, will treat a loan made to a Participant
as a Participant direction of investment under this Section 8.10. To the
extent of the loan outstanding at any time, the borrowing Participant's
Account alone shares in any interest paid on the loan, and it alone bears
any expense or loss it incurs in connection with the loan. The Trustee may
retain any principal or interest paid on the borrowing Participant's loan
in an interest bearing segregated Account on behalf of the borrowing
Participant until the Trustee deems it appropriate to add the amount paid
to the Participant's separate Account under the Plan.
If the Trustee consents to Participant direction of investment of his
Account, the Plan treats any post-December 31, 1981, investment by a
Participant's Account in collectibles (as defined by Code Section 408(m))
as a deemed distribution under the Plan to the Participant for Federal
income tax purposes.
V. Section 8.11, entitled "AGE 55 SEGREGATION OF ACCOUNTS", is hereby
amended, effective July 1, 1995, in its entirety to provide as follows:
8.11 AGE 55 DIVERSIFICATION OF ACCOUNTS. A Participant may elect to
diversify his Accounts held as a part of the ESOP in accordance with this
Section, if, as of the last day of any Plan Year (or at more frequent intervals
as permitted by the rules of the Advisory Committee), the Participant is an
Employee, has completed at least ten (10) years of Service, and is at least
fifty-five (55) years old. An election with respect to a Plan Year may be made
under this Section at any time after the Participant
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satisfies the foregoing requirement upon notice and election by the Participant
to the Plan in accordance with rules prescribed by the Advisory Committee.
A Participant may elect to diversify his interest in the Accounts held
as a part of the ESOP as follows:
(a) If a Participant makes an election under this section to
diversify his interest in the Participants Accounts held under the ESOP,
the portion of his or her Accounts invested in the First Security Stock
Fund for which an election is made will be liquidated and invested in
alternative Funds made available by the Trustee, as the Participant
directs.
(b) If a Participant makes an election under this section to
diversify his or her Accounts held under the ESOP, the Funds made available
by the Trustee shall be the same Funds made available for Participant
direction of investments in accordance with Section 8.10 hereof.
The trustee must carry out a Participant's election to diversify no later than
ninety (90) days after the election is delivered by the Participant to an
authorized representative of the Plan. With respect to any Plan Year for which
the election is made, the Participant may elect to diversify all or any portion
of his Accounts which are held by the Trustee as a part of the ESOP.
VI. Paragraph 9.09, entitled "INDIVIDUAL ACCOUNTS", is hereby amended to
provide as follows:
9.09 INDIVIDUAL ACCOUNTS. The Advisory Committee will maintain, or direct
the Trustee to maintain, a separate Account, or multiple Accounts, in the name
of each Participant to reflect the Participant's Accrued Benefit under the Plan,
including the following Accounts:
(a) Incentive Savings Employee Account to which the deferral
contributions of a Participant are allocated pursuant to Section 3.04.
(b) Profit Sharing Employee Account to which voluntary ("after-tax")
contributions made by a Member before January 1, 1985 were allocated.
(c) Employer Contribution Accounts, including:
(i) Incentive Savings Employer Matching Account, which shall
include
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both the Incentive Savings Employer Account and Incentive Savings
Employer ESOP Account to which Matching Contributions of the
Participant pursuant to Section 3.04 are allocated.
(ii) Profit Sharing Employer Account and Profit Sharing
Employer ESOP Account to which contributions made by the Employer for
Plan Years ending before January 1, 1985 were allocated.
(d) Transfer Accounts to which funds received from the trustee of
another tax qualified plan are allocated, including:
(i) PAYSOP Account which included funds received from the
trustee of the First Security Employee Stock Ownership Plan.
(ii) Accounts which are transferred from the trustee of a
qualified plan in a trustee to trustee transfer or a merger.
It is intended that the Incentive Savings Employer ESOP Account, the Profit
Sharing Employer ESOP Account, and the PAYSOP Account shall be held as a part of
the ESOP in accordance with Appendix A attached hereto. The Advisory Committee
will make its allocations, or request the Trustee to make its allocations, to
the Accounts of the Participants in accordance with the provisions of Section
9.11. The Advisory Committee may direct the Trustee to maintain a temporary
segregated investment Account in the name of a Participant to prevent a
distortion of income, gain or loss allocations under Section 9.11. The Advisory
Committee must maintain records of its activities.
IN WITNESS WHEREOF, the Trustee has executed this amendment to the Plan and
Trust in SALT LAKE CITY, UTAH, this _____ day of _______________, 1995.
FIRST SECURITY BANK OF UTAH, N.A. FIRST SECURITY CORPORATION
"TRUSTEE" "CORPORATION"
By: ________________________________ By:______________________________
Title:_______________________________ Title:___________________________
115604
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<PAGE>
FIRST SECURITY CORPORATION INCENTIVE SAVINGS PLAN
APPENDIX A
EMPLOYEE STOCK OWNERSHIP PLAN PROVISIONS
This Appendix A to the First Security Incentive Savings Plan (Plan)
designates a portion of the Plan as an "employee stock ownership plan" ("ESOP"),
within the meaning of section 4975(e)(7) of the Code, and governs the operation
of the ESOP portion, with respect to which its provisions supersede any contrary
provisions of the Plan. The ESOP designation is not intended to create a
separate Plan, and assets attributable to the ESOP portion will continue to be
held as part of the assets of the Plan and will be available for the payment of
all benefits under the Plan.
1.1 "ESOP ACCOUNT" means a Participant's Incentive Savings Employer ESOP
Account, Profit-Sharing Employer ESOP Account, PAYSOP Account or any of those
Accounts.
1.2 "ESOP EFFECTIVE DATE" means , 1995, provided that the
provisions of section 6. hereof shall be as of a date, established by the
Corporation, which is not earlier than the first day of the month beginning
after receipt of a favorable private letter ruling from the Internal Revenue
Service with respect to the terms and provisions of this Appendix A, including
Section 6 hereof. Subject to the foregoing, it is intended that the Corporation
shall have sole discretion with respect to the establishment of an effective
date of Section 6. hereof.
1.3 "INCENTIVE SAVINGS EMPLOYER ESOP ACCOUNT" means an Account established
in accordance with Section 2(a) of this Appendix.
1.4 "NON-ESOP ACCOUNT" means an Account that is not an ESOP Account.
1.5 "PROFIT-SHARING EMPLOYER ESOP ACCOUNT" means an Account established in
accordance with Section 2(b) of this Appendix.
2. DESIGNATION OF ESOP PORTION AND ESTABLISHMENT OF ESOP ACCOUNTS. As of
the ESOP Effective Date, the portion of the First Security Stock Fund which
consists of the sum of the ESOP Accounts is designated as an "employee stock
ownership plan" that will invest primarily in stock of the Corporation which
meets the definition of an "employer security" under Code section 409(l).
Thereafter, the Trustee will establish as of the ESOP Effective Date and
maintain for each participant:
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(a) Incentive Savings Employer ESOP Account, initially consisting of
that portion of the Participant's Incentive Savings Employer Matching
Account that is invested in the First Security Stock Fund and any earnings
or losses attributable thereto, and
(b) Profit-Sharing Employer ESOP Account, consisting of that portion
of the Participant's Profit-Sharing Employer Account that is invested in
the First Security Stock Fund and any earnings or losses attributable
thereto.
(c) PAYSOP Account, consisting of funds received from the trustee of
the First Security Employee Stock Ownership Plan.
These Accounts are established for bookkeeping purposes only and need not be
segregated from other assets of the Plan.
3. ALLOCATION OF EMPLOYER CONTRIBUTIONS BETWEEN ESOP AND NON-ESOP
ACCOUNTS. On and after the ESOP Effective Date, Employer contributions will be
allocated to Participants' Accounts in accordance with Section 3.04 of the Plan,
provided that fifty percent (50%) of the matching contributions that the
Employer makes on behalf of a Participant will be made in the form of Employer
Stock and allocated to the Incentive Savings Employer ESOP Account of a
Participant and held and invested as a part of the First Security Stock Fund.
4. TRANSFERS BETWEEN ESOP AND NON-ESOP ACCOUNTS. Except as provided in
Section 7 of this Appendix, a Participant may not elect to have any portion of
an ESOP Account invested in assets other than the First Security Stock Fund.
If, in accordance with the provisions of Section 7, a Participant elects to have
any portion of an ESOP Account invested in assets other than the First Security
Employer Stock Fund, that portion will continue to form part of his ESOP
Account.
5. DISTRIBUTION RULES FOR ESOP ACCOUNTS. Distributions from ESOP
Accounts are made in accordance with Article VI of the Plan, except that the
distributee may elect to receive shares of Employer stock, plus cash in lieu of
fractional shares, equal in value to the amounts of the distributions to which
he is entitled. This Section 5 does not apply to distributions of dividends
made in accordance with Section 6 of this Appendix.
6. PASS-THROUGH OF DIVIDENDS PAID ON EMPLOYER STOCK HELD IN ESOP
ACCOUNTS. The Trustee will, as soon as practicable after each date on which
dividends are paid on Employer stock, either distribute to Participants all
dividends attributable to the interests in Employer stock held by their ESOP
Accounts or arrange to have such
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dividends distributed directly to Participants by the Employer or the Employer's
dividend disbursement agent. A Participant may elect, in accordance with rules
established by the Advisory Committee and subject to all limitations on deferral
contributions set forth in the Plan, to have deferral contributions made by the
Employer on his behalf equal to the dividends passed through to him. For the
purpose of determining matching contributions to be made in accordance with
Section 3.01(A) of the Plan, deferral contributions under this Section are
disregarded.
7. ELECTIVE DIVERSIFICATION OF INVESTMENTS. A Participant who satisfies
the requirements of Section 7.1 may elect to have all or a portion of his ESOP
Accounts invested in assets other than Employer Stock. Any portion of an ESOP
Account that is so invested remains part of that Account.
7.1 ELIGIBILITY TO ELECT DIVERSIFICATION. A participant may elect to
diversify the investment of his interest in his ESOP Accounts in accordance with
this Section if, as of the last day of any Plan Year, he
(a) is an Employee,
(b) has completed at least ten (10) years of Service, and
(c) is at least fifty-five (55) years old.
7.2 TIME OF ELECTION. An election with respect to a Plan Year may be made
under this Section at any time within ninety (90) days after the last day of
that Plan Year, in accordance with rules prescribed by the Advisory Committee.
7.3 EFFECT OF ELECTION. In accordance with a Participant's election under
this section, the portion of his ESOP Accounts' interest in the First Security
Stock Fund for which an election is made will be liquidated and invested in
assets other than Employer stock, as he directs. The trustee must provide at
least three investment options for this purpose, each of which must be
consistent with any requirements promulgated by the Secretary of the Treasury
under Section 401(a)(28) of the Code, and must carry out the Participant's
election no later than ninety (90) days after it is made. With respect to any
Plan Year for which the election is made, the Participant may elect to diversify
all or any portion of his ESOP Accounts invested in Employer Stock.
8. PASS-THROUGH OF VOTING RIGHTS WITH RESPECT TO EMPLOYER STOCK. The
Trustee exercises all voting rights with respect to Employer stock held by the
Plan but must exercise those rights in accordance with the instructions of Plan
participants to the
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extent of their ESOP Accounts' interests in the First Security Stock Fund. The
Trustee will establish procedures for distributing proxy material to, and
soliciting voting instructions from, Participants on all corporate matters that
are subject to vote of the Employer's shareholders. The trustee must vote the
Plan's stock in accordance with the Participant's instructions. Any shares with
respect to which no instructions are received must be voted in the same
proportion as shares with respect to which the Trustee does receive
instructions.
9. SECTION 401(M) NONDISCRIMINATION TESTING. The provisions of Article
XIV will be applied separately to Matching Contributions that are invested in
the First Security Stock Fund, as if those contributions are made under a
separate plan, except that, for the purpose of applying the multiple use
limitation described in Section 14.06, all Matching Contributions under the ESOP
and Non-ESOP portions of the Plan will be aggregated.
IN WITNESS WHEREOF, the Corporation and Trustee have executed this Appendix
to the First Security Incentive Savings Plan in Salt Lake City, Utah, this _____
day of _______________, 1995.
FIRST SECURITY BANK OF UTAH, N.A. FIRST SECURITY CORPORATION
"TRUSTEE" "CORPORATION"
By: ________________________________ By:______________________________
Title:_______________________________ Title:___________________________
115604
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EXHIBIT 5
[RAY QUINNEY & NEBEKER STATIONERY]
June 28, 1995
Scott C. Ulbrich
Executive Vice President and Chief Financial Officer
First Security Corporation
2nd Floor
79 South Main Street
Salt Lake City, Utah 84111
Re: REGISTRATION AND ISSUANCE OF 1,000,000 SHARES OF FIRST
SECURITY CORPORATION COMMON STOCK TO PARTICIPANTS IN THE
FIRST SECURITY CORPORATION RESTATED INCENTIVE SAVINGS PLAN,
INCLUDING AN EMPLOYEE STOCK OWNERSHIP PLAN APPENDIX.
Dear Mr. Ulbrich:
This Firm has acted as counsel to First Security Corporation, a
Delaware corporation ("the Company), in connection with its registration of
1,000,000 shares of its common stock, par value $1.25 ("the Shares") for use in
the First Security Corporation Restated Incentive Savings Plan with Employee
Stock Ownership Plan Appendix, a copy of which is filed as an exhibit to the
Company's Registration Statement on Form S-8 as filed with the Securities and
Exchange Commission on June 28, 1995.
In connection with this representation, we have examined the
originals, or copies identified to our satisfaction, of such minutes,
agreements, corporate records and filings and other documents necessary to our
opinion contained in this letter. We have also relied as to certain matters of
fact upon representations made to us by officers and agents of the Company.
Based upon and in reliance on the foregoing, it is our opinion that:
<PAGE>
Mr. Scott C. Ulbrich
June 28, 1995
Page 2
1. The Company has been duly incorporated and is validly existing and in
good standing as a corporation under the laws of the State of
Delaware;and has full corporate power and authority to own its
properties and conduct its business as described in the Prospectus
referred to above.
2. When issued and distributed under the terms of the Plan, the
Shares will be duly and validly issued and will be fully paid and
nonassessable.
3. The shareholders of the Company have no pre-emptive rights to acquire
additional shares of First Security Corporation Common Stock in
respect of the Shares.
We hereby consent to the use of our name in the Prospectus and
Registration Statement, and therein being disclosed as counsel to the Company in
this matter.
Very truly yours,
RAY, QUINNEY & NEBEKER
/s/ A. Robert Thorup
----------------------
A. Robert Thorup
5668.08D
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EXHIBIT 23.1
CONSENT OF DELOITTE & TOUCHE LLP
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
First Security Corporation on Form S-8 of our report dated February 17, 1995,
appearing in the Annual report on Form 10-K of First Security Corporation for
the year ended December 31, 1994.
DELOITTE & TOUCHE LLP
Salt Lake City, Utah
June 21, 1995
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