<PAGE> 1
As filed with the Securities and Exchange Commission on January 20, 1995
Registration No. 33-_____
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------
FIRST AMERICAN CORPORATION
(Exact name of registrant as specified in its charter)
Tennessee 62-0799975
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
FIRST AMERICAN CENTER
NASHVILLE, TENNESSEE 37237-0700
(615) 748-2000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
FIRST AMERICAN CORPORATION
FIRST INCENTIVE REWARD SAVINGS THRIFT PLAN
(Full Title of Plan)
MARTIN E. SIMMONS, ESQ.
EXECUTIVE VICE PRESIDENT-ADMINISTRATION, SECRETARY
AND GENERAL COUNSEL
FIRST AMERICAN CORPORATION
FIRST AMERICAN CENTER
NASHVILLE, TENNESSEE 37237-0606
(615) 748-2049
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================
Title of Securities Amount to be Proposed Proposed Amount of
to be Registered Maximum Maximum Registration
Registered (1) Offering Aggregate Fee
Price Unit (2) Offering Price (2)
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------
Common Stock, par 1,000,000 shares $29.00 $290,000,000 $10,000.00
value $5 share
===========================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the employee
benefit plan described herein.
(2) Estimated solely for the purpose of determining the amount of the
registration fee. Such estimates have been calculated in accordance
with Rule 457(h) under the Securities Act of 1933, as amended, and are
based upon the average of the high and low prices per share of the
Registrant's Common Stock as reported on the National Association of
Securities Dealers Automated Quotation National Market System on
January 18, 1995.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by First American Corporation (the
"Company") with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") are hereby incorporated by
reference as of their respective dates:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1993.
(2) The Plan's Annual Report on Form 11-K for the year ended
December 31, 1993.
(3) The Company's Quarterly Report on Form 10-Q for the quarters
ended March 31, 1994, June 30, 1994 and September 30, 1994.
(4) The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A dated April 24, 1972, as
amended January 31, 1983, November 29, 1985 and May 13, 1986,
filed by the Company to register such securities under the
Exchange Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 after the date hereof and
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 herein and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes hereof to the extent that a statement
contained herein (or in any other subsequently filed document which also is
incorporated by reference herein) modifies and supersedes such statement. Any
statement so modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Stock offered hereby has been passed upon
by Martin E. Simmons, Executive Vice President, General Counsel and
Secretary of the Company. At the time of his opinion, Mr. Simmons was
the beneficial owner of 20,620 shares of Common Stock (including
shares of Common Stock which may be acquired upon the exercise of
currently outstanding stock options).
The consolidated balance sheets of First American Corporation and its
subsidiaries as of December 31, 1993 and 1992, and the related
consolidated income statements, changes in shareholders'
equity and cash flows for each of the years in the three-year period
ended December 31, 1993, incorporated by reference in the
Corporation's 1993 Annual Report on Form 10-K and incorporated by
reference herein have been incorporated by reference herein in
reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting
II-1
<PAGE> 3
and auditing. The report of KPMG Peat Marwick LLP covering the
December 31, 1993 consolidated financial statements refers to the
Company's adoption in 1993 of the provisions of the Financial
Accounting Standards Board's Statements of Financial Accounting
Standards No. 109, Accounting for Income Taxes; No. 106, Employers'
Accounting for Postemployment Bendfits Other Than Pensions; No. 112,
Employers' Accounting for Postemployment Benefits; and No. 115,
Accounting for Certain Investments in Debt and Equity Securities.
With respect to the unaudited interim financial information for the
periods ended March 31, 1994, June 30, 1994 and September 30, 1994,
incorporated by reference herein, the independent certified public accountants
have reported that they applied limited procedures in accordance with
professional standards for reviews of such information. However, their
separate reports included in First American's Quarterly Reports on Forms 10-Q
for the quarters ended March 31, 1994, June 30, 1994 and September 30, 1994,
and incorporated by reference herein, state that they did not audit and they do
not express an opinion on that interim financial information. Accordingly, the
degree of reliance on their reports on such information should be restricted in
light of the limited nature of the review procedures applied. The accountants
are not subject to the liability provisions of Section 11 of the Securities Act
for their reports on the unaudited interim financial information because those
reports are not a "report" or a "part" of the Registration Statement prepared
or certified by the accountants within the meaning of Sections 7 and 11 of the
Securities Act.
The statements of net assets available for benefits of First American
Corporation First Incentive Reward Savings Thrift Plan as of December 31, 1993
and 1992, and the related statements of changes in net assets available for
benefits for each of the years in the three-year period ended December 31,
1993, incorporated by reference herein have been incorporated by reference
herein in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Tennessee Business Corporation Act ("TBCA") provides that a
corporation may indemnify any of its directors and officers against liability
incurred in connection with a proceeding if (i) such person acted in good
faith; (ii) in the case of conduct in an official capacity, he reasonably
believed such conduct was in the corporation's best interests; (iii) in all
other cases, he reasonably believed that his conduct was not opposed to the
best interests of the corporation; and (iv) in connection with any criminal
proceeding, such person had no reasonable cause to believe his conduct was
unlawful. In actions brought by or in the right of the corporation, however,
the TBCA provides that no indemnification may be made if the director or
officer was adjudged to be liable to the corporation. The TBCA also provides
that in connection with any proceedings charging improper personal benefit to
an officer or director, no indemnification may be made if such officer or
director is adjudged liable on the basis that personal benefit was improperly
received. Notwithstanding the foregoing, the TBCA provides that a court of
competent jurisdiction, upon application, may order that an officer or director
be indemnified for reasonable expenses if, in consideration of all relevant
circumstances, the court determines that such individual is fairly and
reasonably entitled to indemnification, notwithstanding the fact that (i) he
was adjudged liable to the corporation in a proceeding by or in the right of
the corporation; (ii) he was adjudged liable on the basis that personal benefit
was improperly received by him; or (iii) he breached his duty of care to the
corporation.
The registrant's Restated Charter, as amended, provides that to the
fullest extent permitted by law no director shall be personally liable to the
registrant or its shareholders for monetary damages for breach of any fiduciary
duty as a director. Under the TBCA, this charter provision relieves the
registrant's directors from personal liability to the registrant or its
shareholders for monetary damages for breach of fiduciary duty as a director,
except for liability arising from (i) any breach of the director's duty of
loyalty, (ii) acts or omissions to in good faith or which involved intentional
misconduct or a knowing violation of law, or (iii) any unlawful distributions.
Additionally, the registrant's Restated Charter provides that indemnification
for directors, officers, employees and agents of the registrant may be provided
either directly or through the purchase of insurance, by the registrant from
time to time to the fullest extent and in the manner permitted by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C> <C>
4 -- First American Corporation First Incentive Reward Savings Thrift Plan, as amended included herewith.
5(a) -- Opinion of Counsel, including Counsel's consent concerning the securities registered hereunder.
5(b) -- The Registrant undertakes that it will submit or has submitted the Plan and any amendment thereto to the Internal
Revenue Service ("IRS") in a timely manner, and has made or will make all changes required by the IRS in order to
qualify the Plan.
</TABLE>
II-2
<PAGE> 4
<TABLE>
<S> <C> <C>
15 -- Letter of KPMG Peat Marwick LLP, independent auditors, regarding unaudited interim financial information.
23.1 -- Consent of KPMG Peat Marwick LLP, independent auditors.
23.2 -- Consent of Martin E. Simmons (included as part of Exhibit 5).
</TABLE>
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change in such
information in the registration statement;
provided, however, that subparagraphs (i) and (ii) above, do
not apply if the registration statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be included
in a post-effective amendment by those subparagraphs is
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 5
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
II-4
<PAGE> 6
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Nashville, State of Tennessee, on
January 19, 1995.
FIRST AMERICAN CORPORATION
(Registrant)
By: /s/ DENNIS C. BOTTORFF
---------------------------------
Dennis C. Bottorff
President, Chairman and Chief
Executive Officer
FIRST AMERICAN CORPORATION FIRST
INCENTIVE REWARD SAVINGS THRIFT PLAN
BY: FIRST AMERICAN TRUST COMPANY, N.A.,
TRUSTEE
By: /s/ Barbara Shoulders
---------------------------------
Barbara Shoulders
Assistant Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ Dennis C. Bottorff President, Chairman and Chief January 19, 1995
- ---------------------------------- Executive Officer and Director
Dennis C. Bottorff
/s/ Dale W. Polley Vice Chairman, and January 19, 1995
- ---------------------------------- Principal Financial Officer and Director
Dale W. Polley
/s/ Marvin J. Vannatta Senior Vice President and January 19, 1995
- ---------------------------------- Treasurer (Principal Accounting Officer)
Marvin J. Vannatta
/s/ Samuel E. Beall, III Director January 19, 1995
- ----------------------------------
Samuel E. Beall, III
Director January , 1995
- ----------------------------------
Earnest W. Deavenport, Jr.
/s/ Reginald D. Dickson Director January 19, 1995
- ----------------------------------
Reginald D. Dickson
/s/ T. Scott Fillebrown, Jr. Director January 19, 1995
- -----------------------------------
T. Scott Fillebrown, Jr.
</TABLE>
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<PAGE> 7
<TABLE>
<S> <C> <C>
/s/ James A. Haslam Director January 19, 1995
- -----------------------------------
James A. Haslam
/s/ Martha R. Ingram Director January 19, 1995
- -----------------------------------
Martha R. Ingram
/s/ Walter G. Knestrick Director January 19, 1995
- -----------------------------------
Walter G. Knestrick
/s/ Gene C. Koonce Director January 19, 1995
- ------------------------------------
Gene C. Koonce
/s/ James R. Martin Director January 19, 1995
- -------------------------------------
James R. Martin
/s/ Robert A. McCabe, Jr. Director January 19, 1995
- -------------------------------------
Robert A. McCabe, Jr.
/s/ William O. McCoy Director January 19, 1995
- -------------------------------------
William O. McCoy
/s/ Roscoe R. Robinson Director January 19, 1995
- -------------------------------------
Roscoe R. Robinson
/s/ James F. Smith, Jr. Director January 19, 1995
- -------------------------------------
James F. Smith, Jr.
/s/ Cal Turner, Jr. Director January 19, 1995
- -------------------------------------
Cal Turner, Jr.
Director January , 1995
- -------------------------------------
Ted H. Welch
/s/ David K. Wilson Director January 19, 1995
- -------------------------------------
David K. Wilson
/s/ Toby S. Wilt Director January 19, 1995
- --------------------------------------
Toby S. Wilt
/s/ William S. Wire, II Director January 19, 1995
- -------------------------------------
William S. Wire, II
</TABLE>
II-6
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
INDEX
NUMBER DESCRIPTION
- ------ -----------
<S> <C>
4 Restated and Amended First American Corporation First Incentive Reward Savings Thrift Plan.
5 Opinion of Counsel, including Counsel's consent, concerning securities registered hereunder.
15 Letter of KPMG Peat Marwick LLP, independent auditors, regarding Unaudited Interim Financial Information.
23.1 Consent of KPMG Peat Marwick LLP, independent auditors.
23.2 Consent of Martin E. Simmons (included as part of Exhibit 5).
</TABLE>
<PAGE> 1
EXHIBIT 4
<PAGE> 2
FIRST AMERICAN CORPORATION
FIRST INCENTIVE REWARD
SAVINGS THRIFT PLAN
Amended and Restated Effective
January 1, 1994
(except as otherwise indicated)
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
INTRODUCTION i
DEFINITIONS 1-1
PARTICIPATION IN THE PLAN 2-1
2.01 Eligibility Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-1
2.02 Eligibility Determination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-1
2.03 Participation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-1
2.04 Participation Following Re-employment or Break in Service. . . . . . . . . . . . . . . . . . 2-2
2.05 Absence in the Armed Services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-2
2.06 Family and Medical Leave Act Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . 2-2
CONTRIBUTIONS TO THE PLAN 3-1
3.01 Employer Contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-1
3.02 Participant Contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-2
3.03 Tax Credit Employer Contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4
3.04 Deferred Income Contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-5
3.05 Coverage and Discrimination Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . 3-7
3.06 Discrimination Requirements for Other Contributions. . . . . . . . . . . . . . . . . . . . . 3-9
3.07 Multiple Use of Alternative Limitation. . . . . . . . . . . . . . . . . . . . . . . . . . . 3-10
3.08 Investment of Contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-11
3.09 Medium of Financing the Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-12
PARTICIPANTS' ACCOUNTS 4-1
4.01 Allocation of Employer Contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-1
4.02 Allocation of Income. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-2
4.03 Adjustment to Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-3
4.04 Maximum Annual Additions to Participants' Accounts. . . . . . . . . . . . . . . . . . . . . 4-3
4.05 Separation of Forfeitures and Accounts by Employer. . . . . . . . . . . . . . . . . . . . . 4-6
4.06 Interim Allocations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-7
4.07 Fair Market Value. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-7
WITHDRAWAL OF CONTRIBUTIONS 5-1
5.01 Withdrawal of Voluntary Participant Contributions and Rollover Contributions. . . . . . . . 5-1
5.02 Withdrawal of Mandatory Participant Contributions. . . . . . . . . . . . . . . . . . . . . . 5-1
5.03 Withdrawal of Matching Employer Contributions. . . . . . . . . . . . . . . . . . . . . . . . 5-1
5.04 Withdrawal of Basic Employer Contributions, Deferred Income Contributions and
Tax Credit Employer Contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-2
5.05 Application for Withdrawals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-4
GENERAL BENEFIT PROVISIONS 6-1
6.01 Form of Benefit Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-1
6.02 Segregated Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-2
6.03 Subsequent Election. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-2
6.04 Distributions of Common Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-2
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
6.05 Special Commencement and Distribution of Benefits Rules. . . . . . . . . . . . . . . . . . . 6-2
6.06 Limitations on Distribution of Deferred Income Contributions. . . . . . . . . . . . . . . . 6-4
6.07 Single Sum Distribution of Small Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . 6-5
6.08 Direct Rollover of Eligible Rollover Distributions. . . . . . . . . . . . . . . . . . . . . 6-5
RETIREMENT, DEATH AND DISABILITY BENEFITS 7-1
7.01 Benefits Upon Retirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-1
7.02 Early Retirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-1
7.03 Death Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-1
7.04 Payment of Death Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-1
7.05 Designation of Beneficiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-2
7.06 Disability Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-2
TERMINATION BENEFITS 8-1
8.01 Benefits Upon Termination of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-1
8.02 Forfeitures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-1
8.03 Payment of Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-2
8.04 Vested Interest in Separate Account. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-3
THE BENEFIT PLAN ADMINISTRATIVE COMMITTEE 9-1
9.01 Appointment of Committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-1
9.02 Powers and Duties of the Committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-1
9.03 Committee Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-2
9.04 Claims and Review Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-2
THE TRUSTEE 10-1
10.01 General Duties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-1
10.02 General Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-1
10.03 Reliance on Committee and Employer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-4
10.04 Accounts and Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-4
10.05 Disbursements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-4
10.06 Payment in Kind. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-5
10.07 Authority of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-5
10.08 Funding Policy; Parties in Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-5
AMENDMENT AND TERMINATION OF THE PLAN 11-1
11.01 Amendment of Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-1
11.02 Intent to Continue the Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-2
11.03 Removal or Resignation of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-2
11.04 Successor Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-2
11.05 Termination of the Plan by the Sponsor. . . . . . . . . . . . . . . . . . . . . . . . . . . 11-2
11.06 Distribution of Trust Fund Upon Termination. . . . . . . . . . . . . . . . . . . . . . . . . 11-3
11.07 Termination of Plan With Respect to an Adopting Company. . . . . . . . . . . . . . . . . . . 11-3
11.08 Transitional Rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-4
CERTAIN PROVISIONS AFFECTING THE EMPLOYER 12-1
12.01 Duties of the Employer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-1
12.02 Right of Employer to Discharge Employees. . . . . . . . . . . . . . . . . . . . . . . . . . 12-1
12.03 Information to be Furnished. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-1
</TABLE>
<PAGE> 5
<TABLE>
<S> <C>
12.04 Communications from Sponsor to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 12-1
12.05 No Reversion to Employer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-1
12.06 Indemnification by Sponsor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-2
MISCELLANEOUS PROVISIONS 13-1
13.01 Allocation of Responsibility among Fiduciaries for Plan and Trust Administration. . . . . . 13-1
13.02 Alienation or Assignment of Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-1
13.03 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-2
13.04 Construction of the Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-2
13.05 Correction of Errors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-2
13.06 Legally Incompetent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-2
13.07 Successor Organization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-3
13.08 Minimum Benefit in Successor Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-3
13.09 Application of Plan Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-3
13.10 Severability of Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-3
13.11 Qualification of the Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-3
PROVISIONS APPLICABLE TO A TOP HEAVY PLAN 14-1
14.01 Top Heavy Plans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-1
14.02 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-1
14.03 Minimum Allocations in Single Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-4
14.04 Minimum Vesting Schedules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-5
14.05 Special Limitations and Allocation in Multiple Plans. . . . . . . . . . . . . . . . . . . . 14-5
</TABLE>
<PAGE> 6
INTRODUCTION
Effective May 1, 1983, First American Corporation adopted a savings
accumulation Plan, the First Incentive Reward Savings Thrift Plan for its
eligible Employees. Such Plan has been amended from time to time.
Now, in order to comply with changes in the law caused by the Tax
Reform Act of 1986, the Omnibus Budget Reconciliation Act of 1986, the Omnibus
Budget Reconciliation Act of 1987, the Technical and Miscellaneous Revenue Act
of 1988, the Omnibus Budget Reconciliation Act of 1989, the Unemployment
Compensation Amendments of 1992, the Omnibus Budget Reconciliation Act of 1993,
and various regulations, the Sponsor hereby amends, restates and continues the
Plan effective January 1, 1994 (except as otherwise indicated herein for
specified provisions or as required by applicable law or regulations).
The purposes of the Plan are to encourage savings on the part of
employees by providing an incentive through certain Employer matching
contributions and to provide an opportunity for ownership of common stock of
First American Corporation. The Plan is intended to enhance employees'
feelings of partnership and to encourage teamwork and productivity through the
opportunity to share directly in the success of the Sponsor. The Plan is
intended to be qualified under Section 401(a) of the Code as a profit sharing
plan, and its incorporated Trust is intended to qualify as a tax-exempt trust
under Section 501(a) of the Code.
Unless specifically otherwise provided in the Plan, the provisions of
the restated Plan shall apply only to Employees who have Service with the
Employer on or after January 1, 1994. The rights and benefits, if any, of
former Employees shall be determined in accordance with the provisions of the
Plan as in effect on the respective dates of termination of Service of such
former Employees.
i
<PAGE> 7
ARTICLE 1
DEFINITIONS
The following terms when used herein, unless the context clearly
indicates otherwise, shall have the meanings set forth below:
1.01 "ADOPTING COMPANY" shall mean any person, firm or corporation
affiliated with the Sponsor through complete or partial stock
ownership by the Sponsor which is authorized by the board of directors
of the Sponsor to adopt the Plan, and which adopts the Plan. The term
shall also include any person, firm or corporation into which the
Adopting Company may be merged or consolidated or by which it may be
succeeded.
1.02 "ALLOCATION DATE" shall mean the last day of each March, June,
September and December, or any special allocation date directed
pursuant to Section 4.06 hereof; provided, that, for purposes of the
allocation of matching Employer contributions in excess of twenty-five
cents ($0.25) and basic Employer contributions, pursuant to Section
3.01 hereof, only the last day of December each year shall be an
allocation date.
1.03 "BENEFICIARY" shall mean the person or persons or legal entity
designated in accordance with the provisions of Section 7.05 hereof to
receive any death benefits that may be payable under the Plan after
the death of a Participant or Retired Participant.
1.04 "BENEFIT PLAN ADMINISTRATIVE COMMITTEE" OR "COMMITTEE" shall mean the
committee as provided in Article 9 hereof appointed to administer the
Plan. In the absence of such a committee, whenever the term "Benefit
Plan Administrative Committee" or "Committee" is used in the Plan, it
shall be construed to mean the Sponsor.
1.05 "BREAK IN SERVICE" shall mean a consecutive twelve (12) month period,
commencing upon an Employee's Termination Date, or an anniversary
thereof, during which the Employee does not perform any Hours of
Service. Provided, however, that if an Employee is absent from work
for maternity or paternity reasons, as described in the following
paragraph, beyond the first anniversary of his first date of absence
for such cause, the period between the first and second anniversary of
such first date of absence shall not be considered to be a Break in
Service.
For purposes of this paragraph, an absence from work for maternity or
paternity reasons means an absence:
(a) by reason of the pregnancy of the Employee,
(b) by reason of the birth of a child of the Employee,
1-1
<PAGE> 8
(c) by reason of the placement of a child with the Employee in
connection with the adoption of such child by such Employee, or
(d) for purposes of caring for such child for a period beginning
immediately following such birth or placement.
1.06 "CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
1.07 "COMPENSATION" shall mean, except as otherwise provided, compensation
as defined in (a) or (b) below, subject to (c), (d) and (e), which is
paid to the Employee by the Employer.
(a) Compensation means the basic cash compensation paid to an
Employee by the Employer, including payments received pursuant to
the First American Corporation Short Term Disability Plan, but
excluding any commission and bonuses (other than commissions and
bonuses payable to duly licensed and registered securities sales
representatives who have passed the Series 7, General Securities
Representative Examination and are compensated solely by
commissions and bonuses), shift differential pay, overtime pay,
incentive pay and any other extraordinary compensation designated
by the Committee.
For each Plan Year, Compensation shall be determined only with
respect to the portion of the Plan Year in which the Employee is
a Participant in the Plan.
(b) For any Plan Year after December 31, 1988, for purposes of
Sections 1.17, 3.05 and 3.06 hereof, Compensation shall mean the
total compensation for Service by an Employee that is includable
in gross income as provided in Section 414(s) of the Code for the
period during the Plan Year in which he is a Participant or for
the entire Plan Year, as determined by the Committee.
(c) Compensation shall include any contributions made by the Employer
on behalf of an Employee to a plan qualified under Section 125 or
Section 401(k) of the Code, but shall not include any other
contribution made by the Employer under this Plan or under any
pension plan or other employee benefit plan or insurance plan
maintained by the Employer for the benefit of such Employee.
(d) For any Plan Year beginning after December 31, 1988 and before
January 1, 1994, the annual compensation of each Participant
taken into account for determining all benefits provided under
the Plan for any such year shall not exceed two hundred thousand
dollars ($200,000). This limitation shall be adjusted by the
Commissioner at the same time and in the same manner as under
Section 415(d) of the Code, except that the dollar increase on
January 1 of any calendar year is effective for Plan Years
beginning in such calendar year and the first adjustment to the
two hundred thousand dollar ($200,000) limitation is effective on
January 1, 1990. If the period for determining compensation used
in calculating an employee's allocation for a determination
period is a short Plan Year (i.e., shorter than twelve (12)
months), the annual compensation limit is an amount equal to the
otherwise applicable annual compensation limit multiplied by the
fraction, the numerator of which is the number of months in the
short Plan Year, and the denominator of which is twelve (12). In
1-2
<PAGE> 9
determining the compensation of a Participant for purposes of
this limitation, the rules of Section 414(q)(6) of the Code shall
apply, except in applying such rules, the term "family" shall
include only the spouse of the Participant and any lineal
descendants of the Participant who have not attained age nineteen
(19) before the close of the year. If, as a result of the
application of such rules, the adjusted two hundred thousand
dollars ($200,000) limitation is exceeded, then the limitation
shall be prorated among the affected individuals in proportion to
each such individual's compensation as determined under this
section prior to the application of this limitation. The
application of this provision shall be subject to such rules as
may be prescribed by the Secretary of the Treasury.
(e) 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 one hundred fifty thousand dollars ($150,000),
as adjusted by the Commissioner for increases in the cost of
living in accordance with Section 401(a)(17)(B) of the Code. The
cost-of-living adjustment in effect for a calendar year applies
to any period, not exceeding twelve (12) months, over which
compensation is determined (determination period) beginning in
such calendar year. If a determination period consists of fewer
than twelve (12) months, the 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 twelve (12).
1.08 "CONTROLLED GROUP" shall mean, except as modified by Section 415(h) of
the Code for purposes of determining limitations under Section 415 of
the Code pursuant to Section 4.04 hereof, the group of entities made
up of all corporations which are members of a controlled group of
corporations (as defined by Section 414(b) of the Code) of which the
Employer is a member, all other trades or businesses (whether or not
incorporated) which are under common control (as defined by Section
414(c) of the Code) with respect to the Employer and all organizations
which are members of an affiliated service group (as defined by
Section 414(m) of the Code) of which the Employer is a member and all
other entities required to be aggregated with the Employer pursuant to
regulations under Section 414(o) of the Code, but only for the period
during which such other corporations, trades or businesses or
organizations and the Employer are members of such controlled group of
corporations, are under such common control or are serving as members
of such an affiliated service group.
1.09 "DISABILITY" shall mean a physical or mental condition that results in
the Participant being disabled for purposes of long-term disability
benefits under Part III of the First American Corporation
Comprehensive Employee Benefit Plan.
1.10 "EFFECTIVE DATE" shall mean May 1, 1983, the date the Plan is
established; provided, however, that the term shall mean, for an
Employee, the effective date of adoption of the Plan by his Employer
if such date is later than May 1, 1983.
Solely for purposes of the Plan related to the tax credit Employer
contributions described in Section 3.03 hereof, the Effective Date
shall be deemed to be January 1, 1983.
1-3
<PAGE> 10
The effective date of this amendment, restatement and continuation of
the Plan shall be January 1, 1994, except as otherwise specifically
indicated for provisions herein or as otherwise required by applicable
law or regulation.
1.11 "EMPLOYEE" shall mean a person who is not (i) an independent
contractor or leased employee, (ii) a person paid by the hour other
than a person who works in a job classification that is expected to
require that he be scheduled to work twenty (20) or more hours per
week or (iii) a person classified by the Employer as a special
exempt salaried employee, who is receiving remuneration for services
rendered to, or labor performed for, the Employer (or who would be
receiving such remuneration except for an authorized leave of absence)
either in the United States, or if he is a United States citizen,
outside the United States, and who is not represented by a collective
bargaining unit, except as otherwise provided in any applicable
collective bargaining agreement.
1.12 "EMPLOYER" shall mean the Sponsor and/or an Adopting Company, as
required by the context; provided however, that if an Employee is
simultaneously employed by the Sponsor and one (1) or more Adopting
Companies or by two (2) or more Adopting Companies, the term shall
mean all such employers.
1.13 "EMPLOYER ACCOUNT" shall mean the account maintained on behalf of a
Participant to which shall be credited the Participant's shares of
common stock of the Sponsor and the value of other investments
attributable to Employer contributions and the Participant's share of
the Income allocable to this account.
For purposes of administrative convenience, each Participant's
Employer Account shall be divided into the following parts:
a) Part I shall be the portion of the Participant's account which is
attributable to basic Employer contributions pursuant to Section
3.01(a) hereof and deferred income contributions pursuant to
Section 3.04 hereof;
b) Part II shall be the portion of the Participant's account which
is attributable to matching Employer contributions pursuant to
Section 3.01(b) hereof;
c) Part III shall be the portion of the Participant's account which
is attributable to Employer contributions pursuant to Section
3.03 hereof (the tax credit employee stock ownership provision).
1.14 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and as in effect on the relevant
date to be interpreted hereunder.
1.15 "FIDUCIARY" shall mean the Employer, the Committee, the Trustee, and
any other person, firm or organization designated by such a fiduciary
to carry out fiduciary responsibilities under the Plan, which accepts
such designation, but only with respect to the specific
responsibilities for each described herein. Each such fiduciary shall
be deemed to be a "named fiduciary" for purposes of ERISA.
1-4
<PAGE> 11
1.16 "FORFEITURE" shall mean the portion of a Participant's Employer
Account which is forfeited before full vesting occurs or because of
the operation of Section 4.04 hereof.
1.17 "HIGHLY COMPENSATED EMPLOYEE" shall mean, effective January 1, 1989, a
person who is either a "highly compensated active employee" as defined
in subsection (a) hereof or a "highly compensated former employee" as
defined in subsection (b) hereof.
(a) A "highly compensated active employee" is any employee who
performs service for the Employer during the determination year
and who, during the look-back year:
(1) received compensation from the Employer in excess of
seventy-five thousand dollars ($75,000) (as adjusted
pursuant to Section 415(d) of the Code);
(2) received compensation from the Employer in excess of fifty
thousand dollars ($50,000) (as adjusted pursuant to Section
415(d) of the Code) and was a member of the top-paid group
for such year; or
(3) was an officer of the Employer and received compensation
during such year that is greater than fifty percent (50%)
of the dollar limitation in effect under Section
415(b)(1)(A) of the Code.
The term "highly compensated active employee" also includes:
(4) An employee (i) who is described in the preceding sentence
if the term "determination year" is substituted for the
term "look-back year" and (ii) who is one of the one
hundred (100) employees who received the most compensation
from the Employer during the determination year; and
(5) An employee who is a five percent (5%) owner at any time
during the look-back year or the determination year.
If no officer has satisfied the compensation requirement of (3)
above during either a determination year or look-back year, the
highest paid officer for such year shall be treated as a Highly
Compensated Employee.
For this purpose, the determination year shall be the Plan Year,
and the look-back year shall be the twelve (12)-month period
immediately preceding the determination year.
(b) A "highly compensated former employee" is any employee who
separated from service (or was deemed to have separated) prior to
the determination year, performs no service for the Employer
during the determination year, and was a highly compensated
active employee for either the separation year or any
determination year ending on or after the employee's fifty-fifth
(55th) birthday.
If an employee is, during a determination year or look-back year, a
family member of either a five percent (5%) owner who is an active or
former employee or a Highly
1-5
<PAGE> 12
Compensated Employee who is one of the ten (10) most highly
compensated employees ranked on the basis of compensation paid by the
Employer during such year, then the family member and five percent
(5%) owner or top ten (10) Highly Compensated Employee shall be
treated as a single employee receiving compensation and Plan
contributions or benefits equal to the sum of such compensation and
contributions or benefits of the family member and five (5%) percent
owner or top ten (10) Highly Compensated Employee. For purposes of
this section, family member includes the spouse, lineal ascendants and
descendants of the employee or former employee and the spouses of such
lineal ascendants and descendants.
In determining who is a Highly Compensated Employee, employees who are
non-resident aliens and who received no earned income (within the
meaning of Code Section 911(d)(2)) from the Employer constituting
United States source income within the meaning of Code Section
861(a)(3) shall not be treated as Employees. Additionally, all
employers in the Controlled Group shall be taken into account as a
single employer and leased employees, within the meaning of Section
414(n) of the Code shall be considered employees unless such leased
employees are covered by a plan described in Code Section 414(n)(5)
and are not covered in any qualified plan maintained by the Employer.
The exclusion of leased employees for this purpose shall be applied on
a uniform and consistent basis for all of the Employer's retirement
plans. Highly compensated former employees shall be treated as Highly
Compensated Employees without regard to whether they performed
services during the determination year. The determination of who is a
Highly Compensated Employee, including the determinations of the
number and identity of employees in the top-paid group, the top one
hundred (100) employees, the number of employees treated as officers
and the compensation that is considered, will be made in accordance
with Section 414(q) of the Code and the regulations thereunder.
1.18 "HOURS OF SERVICE" shall mean each hour for which an Employee is paid
or entitled to payment for the performance of duties for the Employer.
Hours of Service shall be credited for employment with other members
of a Controlled Group of which the Employer is a member. Hours of
Service shall also be credited for periods an individual is considered
a leased employee, within the meaning of Section 414(n) of the Code,
or would be considered a leased employee if Code Section 414(n) did
not require one year of full-time service, except for periods such
leased employee is covered by a plan described in Code Section
414(n)(5).
1.19 "INCOME" shall mean the net gain or loss of the Trust Fund from
investments, as reflected by interest payments, dividends, realized
and unrealized gains and losses on securities, other investment
transactions, and expenses paid from the Trust Fund. In determining
the Income of the Trust Fund for any period, assets shall be valued on
the basis of fair market value.
If any portion of the Trust Fund is segregated into one (1) or more
separate accounts on behalf of a Participant, Income shall be
determined with respect to each such account.
1-6
<PAGE> 13
1.20 "MARKET VALUE" on any day shall mean the closing price of common stock
of the Sponsor on a national securities exchange on such day, or if
such stock is not traded on a national securities exchange, the
average of the closing bid and asked prices of such stock as reported
in the Wall Street Journal.
If the day on which the Market Value is required is not a business day
for the national securities exchanges, determination of Market Value
shall be made on the last business day for the national securities
exchanges immediately preceding the day on which Market Value is
required.
1.21 "NET PROFITS" shall mean the current or accumulated profits of the
Employer determined according to generally accepted accounting
principles before any deduction for federal and state income taxes or
state franchise and excise taxes and without taking into consideration
a deduction for the contribution to the Plan or to another plan of the
Employer which is qualified under Section 401(a) of the Code.
1.22 "NON-HIGHLY COMPENSATED EMPLOYEE" shall mean, effective January 1,
1989, an Employee of the Employer who is neither a Highly Compensated
Employee nor "family" with respect to a Highly Compensated Employee
(as defined in Section 414(q)(6)(B) of the Code).
1.23 "NORMAL RETIREMENT AGE" shall mean for an Employee the later of (a)
the sixty-fifth (65th) birthday of the Employee, and (b) the fifth
(5th) anniversary of the first day of the Plan Year during which the
Employee commences participation in the Plan, disregarding any period
which may be disregarded pursuant to Section 1.30 hereof. Provided,
however, that for an Employee who was a Participant on December 31,
1993, the term shall mean the sixty-fifth (65th) birthday of the
Employee.
1.24 "PARTICIPANT" shall mean an Employee participating in the Plan in
accordance with the provisions of Article 2 hereof.
1.25 "PERSONAL ACCOUNT" shall mean the account maintained on behalf of a
Participant to which shall be credited the number of shares of common
stock of the Sponsor and the value of other investments attributable
to Participant contributions and the Participant's share of the Income
allocable to this account.
1.26 "PLAN" shall mean the First Incentive Reward Savings Thrift Plan, as
established effective April 1, 1983 and as amended from time to time.
1.27 "PLAN YEAR" shall mean an annual accounting period of twelve (12)
consecutive months from January 1 through the following December 31.
1.28 "RETIRED PARTICIPANT" shall mean a Participant whose participation in
the Plan has terminated and who is entitled to receive benefits
provided by the Plan.
1.30 "SERVICE" shall mean the period commencing on the Employee's date of
commencement of employment, or reemployment, as the case may be, with
the Employer and ending on
1-7
<PAGE> 14
the first day of the subsequent Break in Service. Service shall be
expressed in years and a decimal fraction of a year based on completed
months, and all non-successive periods of Service (including
fractional years) shall be aggregated.
Provided however, that Service before a Break in Service shall be
disregarded for purposes of the Plan in the following circumstances:
(a) Until the Employee shall have completed one (1) year of Service
after such Break in Service.
(b) If the Employee was not entitled to a benefit arising from
Employer contributions, pursuant to Article 7 or 8 hereof,
attributable to Service immediately preceding a Break in Service,
and if the number of consecutive Breaks in Service equals or
exceeds the greater of five (5) or the Employee's number of years
of Service prior to such consecutive Breaks in Service. The
number of years of Service prior to such consecutive Breaks in
Service shall be deemed to exclude any years of Service not
required to be taken into account by reason of any prior Breaks
in Service.
In determining Service for an Employee, the following periods shall be
considered employment with the Employer:
(c) The Employee's employment with any employers which are members of
the Controlled Group while such employers are members of the
Controlled Group; and
(d) To the extent resolved by the Board of Directors of the Sponsor,
any period of employment of the Employee by any predecessor
organization to the Employer which ended on the date the
predecessor organization is merged or consolidated into the
Employer or is acquired by the Employer; and
(e) Periods during which such Employee was considered a leased
employee, within the meaning of Section 414(n) of the Code, or
would be considered a leased employee if Code Section 414(n) did
not require one year of full-time service, except for periods
such leased employee is covered by a plan described in Code
Section 414(n)(5).
1.31 "SPONSOR" shall mean First American Corporation, a Tennessee
corporation with its principal location in Nashville, Tennessee, and
any person, firm or corporation into which First American Corporation
may be merged or consolidated or by which it may be succeeded.
1.32 "SPOUSE" shall mean the actual spouse or surviving spouse of a
Participant or a former spouse of a Participant, if and to the extent
such former spouse is to be treated as a spouse or surviving spouse of
the Participant under a qualified domestic relations order described
in Section 414(p) of the Code.
1.33 "TERMINATION DATE" shall mean for an Employee the earlier of:
1-8
<PAGE> 15
(a) the date on which the Employee dies or quits, retires, or is
discharged from the employ of the Employer;
(b) the first anniversary of the first date of a period in which the
Employee remains absent from employment with the Employer (with
or without pay) for any reason other than death or quit,
retirement or discharge from such employment.
1.34 "TRUST" shall mean the trust established by the Plan under which the
Employer's contributions and the contributions by Participants shall
be received, held, invested and disbursed by the Trustee to, or for
the benefit of, Participants, Retired Participants and their
Beneficiaries.
1.35 "TRUST FUND" or "FUND" shall mean any and all cash, securities, real
estate, insurance company contracts and other property held by the
Trustee pursuant to the terms of the Plan.
1.36 "TRUSTEE" shall mean such individual, individuals or financial
institution as shall have accepted the appointment by the Sponsor as
Trustee under the Plan.
1.37 "VESTING SERVICE" shall mean the period of an Employee's Service.
Provided, however, that the following periods of Service shall be
disregarded in computing a Participant's period of Vesting Service
under the Plan:
(a) Service before the date one (1) year before the Effective Date;
(b) Service before the Effective Date for all Employees who do not
become Participants on the Effective Date;
(c) Service after five (5) consecutive Breaks in Service, with
respect to determining the vested percentage applicable to any
benefit derived from Employer contributions before such Breaks in
Service; and
(d) Service during any period for which the Employee is eligible to
participate but does not make mandatory contributions required to
participate in the Plan.
Provided, further, that if a Participant becomes, or ceases to be, an
Employee as a result of a change in his classification of employment,
his prior, or continued, employment in an excluded class shall be
deemed Service for purposes of determining his Vesting Service.
Provided, further, that if a Participant was covered by a predecessor
plan qualified under Section 401(a) of the Code which plan was
maintained by the Employer and terminated within the five-year period
immediately preceding or following the Effective Date, Vesting Service
shall include the period preceding the Effective Date during which
such predecessor plan was maintained but only to the extent that (i)
such period was recognized as vesting service under such predecessor
plan and (ii) pursuant to such predecessor plan,
1-9
<PAGE> 16
the Participant made mandatory contributions (including salary
reductions under a cash or deferred plan) required to participate in
the plan for such period.
1-10
<PAGE> 17
ARTICLE 2
PARTICIPATION IN THE PLAN
2.01 ELIGIBILITY DATE.
Each Employee on December 31, 1993, who is a Participant in the Plan
on that date and who continues to be an Employee on January 1, 1994,
shall without further requirements, continue as a Participant
hereunder.
Each other Employee on January 1, 1994, and each person who becomes an
Employee after January 1, 1994, shall, subject to the overriding
provisions of the following paragraph, be eligible to become a
Participant on the date he first becomes an Employee.
Notwithstanding the foregoing, however, no Employee shall become a
Participant prior to the effective date of the adoption of the Plan by
his Employer.
2.02 ELIGIBILITY DETERMINATION.
Upon an Employee's becoming eligible to become a Participant, the
Committee shall forward to the Employee such application for
participation as the Committee shall require and shall notify him of
the requirements to become a Participant. Should any question arise
as to eligibility, the Committee shall decide such question, and such
determination, if made in good faith and in accordance with the terms
of the Plan, shall be final.
2.03 PARTICIPATION.
An Employee shall become a Participant on the first day he is eligible
to become a Participant or on the first day of any subsequent calendar
quarter, provided he has, within the first thirty (30) days following
his becoming an Employee or during the thirty (30) - day period
immediately preceding such January 1, April 1, July 1 or October 1,
filed with the Committee such written application as the Committee may
require for participation in the Plan agreeing to abide by all the
provisions hereof. Notwithstanding the foregoing, a Participant shall
be entitled to make contributions pursuant to Section 3.02 or
participate in deferred income contributions pursuant to Section 3.04
only with respect to Compensation the payment of which is processed
after the filing of such application.
If a Participant incurs a Break in Service because of a change in his
classification of employment, he shall be granted benefits, if any, in
accordance with Article 7 or 8 hereof.
In the event that a Participant's Service terminates, or that he
discontinues his contributions to the Plan, he shall thereupon cease
to be a Participant.
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<PAGE> 18
2.04 PARTICIPATION FOLLOWING RE-EMPLOYMENT OR BREAK IN SERVICE.
Any former participant who is re-employed following termination of
Service, or who has Service after a Break in Service, shall be
eligible to participate in the Plan on his date of re-employment or
the date of resumption of his Service, as the case may be.
2.05 ABSENCE IN THE ARMED SERVICES.
In the case of an Employee or a Participant who leaves Service to
enter the Armed Services of the United States of America and who
returns to Service on or before the expiration of ninety (90) days
after the date on which he is entitled to be released from active duty
in the Armed Services (or at such other date as the law may specify as
to re-employment), such Service of an Employee or Participant, to the
extent required by law, shall be treated as continuous despite such
absence, and such period of absence shall be included, to the extent
required by law, for purposes of eligibility to participate and
Vesting Service for purposes of the Plan.
2.06 FAMILY AND MEDICAL LEAVE ACT REQUIREMENTS.
Notwithstanding any other provisions of the Plan, in the case of an
Employee who takes family or medical leave as an eligible employee of
a covered employer under the provisions of the Family and Medical
Leave Act of 1993 (FMLA), any period of FMLA leave shall be treated as
continued service for purposes of eligibility to participate and
Vesting Service to the extent required by applicable law.
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<PAGE> 19
ARTICLE 3
CONTRIBUTIONS TO THE PLAN
3.01 EMPLOYER CONTRIBUTIONS.
Each Plan Year ending after the Effective Date and during the
continuance of the Plan, the Employer shall determine, pursuant to
this Article 3, the amount that the Employer shall contribute to the
Plan for the Plan Year. Contributions by the Employer shall be made
out of Net Profits, except that contributions on behalf of an Employer
may be made from Net Profits of the Sponsor or one or more Adopting
Companies which are members of an affiliated group, as defined in
Section 1504 of the Code, if such Employer is prevented from making a
contribution which it would otherwise have made under the Plan by
reason of having no Net Profits or because Net Profits are less than
the contributions which it would otherwise have made.
Subject to sufficient Net Profits, the Employer shall contribute the
following amounts to the Plan:
(a) Basic Employer Contribution - An amount determined by the
Employer which, except as may be required to provide the minimum
allocation to Non-Key Employees pursuant to Section 14.03 hereof,
shall be not less than zero percent (0%) nor more than two
percent (2%) of the Compensation for the Plan Year of those
Employees who are Participants on December 31 (or who (i)
terminated employment since the last December 31 as a result of
death, Disability or retirement at Normal Retirement Age or (ii)
were employed for at least six (6) months during the Plan Year
and terminated employment since the last December 31 as a result
of a reduction in force or retirement pursuant to Section 5.03
(or any successor early retirement provision) of the First
American Corporation Master Retirement Plan); and
(b) Matching Employer Contribution - An amount on behalf of each
Participant eligible to receive an allocation to Part II of his
Employer Account pursuant to Section 4.01 for each one dollar
($1.00) of mandatory contributions, pursuant to Section 3.02
hereof, contributed by the Participant since the last Allocation
Date. The amount of the matching Employer contribution shall be
twenty-five cents ($0.25), except that annually the Employer may
determine that a larger amount, not exceeding one dollar ($1.00),
shall be contributed on behalf of those Employees who are
Participants on December 31 (or who (i) terminated employment
since the last December 31 as a result of death, Disability or
retirement at Normal Retirement Age or (ii) were employed for at
least six (6) months during the Plan Year and terminated
employment since the last December 31 as a result of a reduction
in force or retirement pursuant to Section 5.03 (or any successor
early retirement provision) of the First American Corporation
Master Retirement Plan) for each one dollar ($1.00) of mandatory
contributions for the Plan Year.
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<PAGE> 20
Employer contributions shall be made as soon as practicable following
the date on which the mandatory contributions to which they relate are
made and on or before the due date (including extensions) for filing
the federal income tax return for the year for which such
contributions are made, except that such portion of said Employer
contributions as exceeds twenty-five cents ($0.25) for each one dollar
($1.00) of mandatory contributions shall be made as of the last day of
the Plan Year to which such Employer contributions relate.
Provided, however, that any Forfeitures arising since the last
Allocation Date or otherwise becoming available shall be applied to
reduce the Employer's contributions to the Plan for the current Plan
Year, or as soon thereafter as practicable.
In satisfaction of its contribution obligations under this Section
3.01, the Employer may, at its option, deliver or cause to be
delivered either cash or shares of common stock of the Sponsor valued
at the aggregate current Market Value thereof on the date of delivery.
3.02 PARTICIPANT CONTRIBUTIONS.
(a) After-Tax Contributions. Effective with the later of the first
day of the first full payroll period ending after the Effective
Date and the date on which he becomes a Participant entitled to
contribute pursuant to Section 2.03, a Participant may contribute
to the Plan an amount at his election equal to at least one
percent (1%) but not more than six percent (6%) (determined in
whole percentages) of such Participant's Compensation for the
Plan Year for which the contribution is made. Such Participant
contributions shall be designated as mandatory contributions and
shall be required for participation in the Plan.
A Participant may change the amount of his mandatory
contributions by prior notice to the Committee (in writing or
such other means as allowed by the Committee) given during the
fifteen (15) day period beginning on the first day of the month
immediately preceding the effective date of such change;
provided, however, that the amount of mandatory contributions may
not be changed except as of January 1, April 1, July 1, or
October 1, or as of the first day of any month following the date
on which the Participant becomes disabled under the terms of the
First American Corporation Short Term Disability Plan (but only
until recovery from such disability).
In addition to his mandatory contributions, any Participant may
voluntarily contribute to the Plan an additional percentage of
his Compensation (determined in whole percentages) not exceeding
ten percent (10%). Voluntary contributions may be made only
within the fifteen (15) day period immediately following January
1, April 1, July 1 or October 1, or by payroll deductions
commencing as of January 1, April 1, July 1 or October 1. The
amount of voluntary contributions made by payroll deductions may
not be changed except by prior notice to the Committee (in
writing or such other means as allowed by the Committee) given
during the fifteen (15) day period beginning on the first day of
the month immediately preceding the effective date of such
change; provided however that the amount of voluntary
contributions
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<PAGE> 21
made by payroll deductions may not be changed except as of
January 1, April 1, July 1 or October 1 or as of the first day of
any month following the date on which the Participant becomes
disabled under the terms of the First American Corporation Short
Term Disability Plan (but only until recovery from such
disability).
Contributions by a Participant shall be collected by the Employer
and remitted to the Trustee, and shall be credited to such
Participant's Personal Account and immediately become
nonforfeitable.
(b) Rollover Contributions. Rollover contributions by a Participant
to his Personal Account in cash or in other property acceptable
to the Trustee shall be allowed from individual retirement
accounts, within the meaning of Section 408(a) of the Code, which
have been established as conduits for other qualified plan
distributions pursuant to Section 402 or Section 403 of the Code
or from another qualified plan; provided that no portion of any
such rollover is attributable to nondeductible employee
contributions and provided further that acceptance of such
rollover contributions shall be subject to any procedures
governing acceptance of such rollover contributions which may be
established by the Committee or Trustee. Direct rollover of an
eligible rollover contribution as described in Code Sections
401(a)(31) and 402 and regulations thereunder elected by a
Participant shall be allowed from another qualified plan,
provided that such direct rollover shall be made only in cash or
its equivalent and provided further that acceptance of such
rollover contributions shall be subject to any procedures
governing acceptance of such rollover contributions which may be
established by the Committee or Trustee. Such rollover amounts:
(1) shall be nonforfeitable at all times;
(2) shall not be considered in determining the maximum
voluntary contributions which may be made by the
Participant;
(3) shall be treated in the same manner as voluntary
Participant contributions for purposes of investment and
allocation of Income; and
(4) shall be distributed or withdrawn in the same manner as the
distribution or withdrawal of benefits pursuant to Articles
6, 7 and 8 and Section 5.01 hereof.
(c) Prior Plan Accounts. A "prior plan account" shall be created for
any Participant for whose benefit a vested account balance has
been transferred from a plan for which the Plan serves as an
amendment, restatement and continuation, provided the sponsor of
such prior plan has become an Adopting Company. The amount held
in each such "prior plan account":
(1) shall be nonforfeitable at all times;
(2) shall not be considered in determining the maximum
voluntary contributions which may be made by the
Participant;
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<PAGE> 22
(3) shall be treated in the same manner as voluntary
Participant contributions for purposes of investment and
allocation of Income; and
(4) shall be distributed in the same manner as the distribution
of benefits pursuant to Articles 6, 7 and 8, but shall not
be subject to withdrawal pursuant to Article 5 hereof.
The vested percentage of Part II of the Employer Account of a
Participant for whom a "prior plan account" has been created
shall be determined in accordance with the vesting schedule of
Section 8.01 based only upon Vesting Service credited pursuant to
Section 1.37. If any prior plan was an employee stock ownership
plan within the meaning of Section 4975(e)(7) of the Code which
held or had distributed securities acquired with the proceeds of
an exempt loan as defined in Treas. Reg. subsection 54.4975-7,
the protections and rights relating to put, call or other options
and to buy-sell or similar arrangements as required by Treas.
Reg. subsection 54.4975-11(a)(3), 54.4975-7(b)(4) and
54.4975-7(b)(10), (11) and (12) as set forth in such prior plan
shall continue and shall apply with respect to such "prior plan
account" balances. In addition, if any prior plan was an
employee stock ownership plan within the meaning of Section
4975(e)(7) of the Code, the assets of such prior plan
attributable to "prior plan accounts" shall be invested in common
stock of the Corporation or other employer securities as defined
in Section 409(l) of the Code.
3.03 TAX CREDIT EMPLOYER CONTRIBUTIONS.
Tax credit employer contributions were made to the Plan during periods
when they were allowed by law. Tax credit employer contributions are
not allowed with respect to compensation paid or accrued after
December 31, 1986.
Distributions from a Participant's Employer Account attributable to
Employer contributions pursuant to this Section 3.03 shall be made in
cash or in common stock of the Sponsor, at the direction of the
Committee; provided, however, that the Participant shall have the
right to require that such amounts be distributed in common stock of
the Sponsor and further provided that, if such stock is not readily
tradable on an established market, the Participant shall have the
right to require that such amounts be distributed in cash and, if such
amounts are not distributed in cash, such stock (except in the case of
a bank, as defined in Section 581 of the Code, which is prohibited by
law from redeeming or purchasing its own securities) shall be subject
to a put option which requires the Employer to repurchase such
securities under a fair valuation formula. The put option shall be
exercised by the holder by notifying the Employer in writing within
one of two option periods that the put option is being exercised. The
first such option period shall be a period of sixty (60) days
commencing on the date of distribution of the stock to the Participant
and the second option period shall be a period of sixty (60) days
commencing on the first day of the following Plan Year. Distributions
of stock shall be in full shares to the extent possible; the value of
any fractional shares shall be paid in cash at the Market
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<PAGE> 23
Value of such stock on the first day of the month next preceding the
date of such distribution.
3.04 DEFERRED INCOME CONTRIBUTIONS.
In lieu of all or any part of the mandatory Participant contributions
described in Section 3.02 hereof, each Participant may elect to enter
into a deferred income agreement with the Employer to reduce his
Compensation by a designated amount not less than one percent (1%) and
not more than six percent (6%) (determined in whole percentages) of
his Compensation. The agreement shall be executed prior to the end of
the pay period in which it becomes effective and shall be effective
and irrevocable until termination at the expiration of its term as of
any March 31, June 30, September 30 or December 31 or replacement by a
modified agreement; provided, that, in the event a Participant becomes
disabled under the terms of the First American Corporation Short Term
Disability Plan, the term of the agreement may be converted (until
recovery from such disability) to a term ending on the last day of the
calendar month.
The Committee can modify the deferred income agreements for Highly
Compensated Employees at any time in order to satisfy the restrictions
of this Section 3.04 and Section 3.05 hereof. The Committee, in its
sole discretion, may elect to limit the application of this paragraph
to Participants who constitute upper management or to such other
category whose membership constitutes the most highly compensated
Participants in the Plan.
The Employer shall contribute out of its Net Profits to Part I of the
Employer Account of each Participant an amount equal to the reduction
in such Participant's Compensation pursuant to his deferred income
agreement. The contribution to be made as a result of such reduction
in Compensation shall be paid to the Trustee during the month
following the month for which the reduction in Compensation was made
and shall be invested in the same manner as Participant contributions
described in Section 3.02 hereof; provided, however, that, where a
Participant has executed a deferred income agreement pending the
adoption of the Plan by the Employer or pending a determination by the
Committee whether contributions on his behalf under such agreement
would cause the Plan not to qualify under Section 401(k) of the Code,
such contributions may be paid to the Trustee during the month
following the month in which such adoption or determination is made,
whichever is applicable, but in no event later than thirty (30) days
after the end of the Plan Year.
Deferred income contributions made pursuant to this Section 3.04 shall
be treated as mandatory Participant contributions for purposes of the
matching Employer contributions described in Section 3.01(b) hereof.
For Plan Years beginning on and after January 1, 1987, a Participant's
aggregate deferred income contributions in any taxable year of the
Participant shall not be greater than seven thousand dollars ($7,000),
or such increased amount pursuant to Section 402(g) of the Code for
any taxable year as determined by the Commissioner of Internal Revenue
and effective on January 1 of the taxable year. Deferred income
contributions in excess of the
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<PAGE> 24
preceding limit occurring in any Plan Year (together with any Income
allocable to such amount) shall be distributed not later than the
first April 15th following the close of the Plan Year in which such
excess deferral contributions occurred, to the Participant on whose
behalf the excess was contributed.
If the Participant makes "elective deferrals," as defined in
regulations issued pursuant to Section 402(g) of the Code, to more
than one plan, which exceed the limit described above in the
aggregate, such Participant may elect a distribution of a part or all
of such excess amount which has been contributed to this Plan. An
election to receive a distribution of such excess deferrals must be in
writing and must include the Employee's certification that the
specified amount is an excess deferral. Such election must be made
not later than the first March 15th following the close of the Plan
Year in which such excess deferrals occurred. Upon such election, the
excess amount specified by the Participant shall be distributed to the
Participant not later than the first April 15th following the close of
the Plan Year in which such excess deferrals occurred. The amount of
such excess to be distributed shall be reduced by the amount of any
excess contributions previously distributed pursuant to Section 3.05
hereof for the Plan Year beginning within the taxable year for which
the excess under this Section 3.04 is distributed.
Such excess deferrals shall be adjusted for any Income allocable to
such excess deferrals. The Income allocable to excess deferrals
attributable to periods ending before January 1, 1994 is the sum of:
(i) Income allocable to the portion of the Participant's Employer
Account attributable to deferred income contributions for the taxable
year multiplied by a fraction, the numerator of which is such
Participant's excess deferred income contributions for the year and
the denominator of which is the Participant's account balance
attributable to deferred income contributions without regard to any
Income occurring during such taxable year; and (ii) ten percent (10%)
of the amount determined under (i) multiplied by the number of whole
calendar months between the end of the Participant's taxable year and
the date of distribution, counting the month of distribution if
distribution occurs after the fifteenth (15th) of such month. The
Income allocable to such excess deferred income contributions
attributable to periods beginning on or after January 1, 1994 shall be
equal to the Income allocable to the portion of the Participant's
Employer Account attributable to deferred income contributions for the
year multiplied by a fraction, the numerator of which is the excess
deferred income contributions for the Participant for the year and the
denominator of which is the total account balance of the Employee
attributable to deferred income contributions without regard to any
Income occurring during the taxable year.
The determination of whether a Participant's deferred income
contributions with respect to any taxable year shall exceed the
limitations of Code Section 402(g) shall be the sole responsibility of
the Participant, and neither the Employer, the Committee nor the
Trustee shall have any obligations with respect to such determination.
Contributions under this Section 3.04 and any Income thereon shall at
all times be nonforfeitable.
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<PAGE> 25
3.05 COVERAGE AND DISCRIMINATION REQUIREMENTS.
Deferred income contributions for any Plan Year after December 31,
1986 shall satisfy one of the following tests:
(a) the average deferral percentage for the Highly Compensated
Employees who are eligible to participate in the Plan for the
Plan Year shall not be more than the average deferral percentage
of the Non-highly Compensated Employees who are eligible to
participate in the Plan for the Plan Year multiplied by one and
twenty-five hundredths (1.25); or
(b) the excess of the average deferral percentage for the Highly
Compensated Employees who are eligible to participate in the Plan
for the Plan Year over that of the Non-highly Compensated
Employees who are eligible to participate in the Plan for the
Plan Year shall not be more than two percent (2%), nor shall the
average deferral percentage for such Highly Compensated Employees
be more than that of such Non-highly Compensated Employees
multiplied by two (2).
For purposes of this Section, the term "average deferral percentage"
for a group of Employees shall mean the average of the percentages,
calculated separately for each Employee in the group, of the amount of
deferred income contributions and basic Employer contributions made on
behalf of the Employee for a Plan Year, to the amount of the
Employee's Compensation for such Plan Year (the "deferral
percentage"). However, deferred income contributions and basic
Employer contributions shall not be included for purposes of
determining the deferral percentage to the extent they are taken into
account for purposes of determining the average contribution
percentage of Section 3.06 hereof. However, for purposes of
determining the deferral percentage of a Participant who is a five
percent (5%) owner of the Employer or one of the top ten (10) highest
paid Highly Compensated Employees, the amount of deferred income
contributions, basic Employer contributions and Compensation of such
Participant shall include the deferred income contributions, basic
Employer contributions and Compensation of family members (as
described in Code Section 414(q)(6)(B)) to the extent required by
regulations. Family members who are required to be aggregated with
respect to such Highly Compensated Employees shall be disregarded as
separate Employees in determining the average deferral percentage both
for eligible Employees who are Highly Compensated Employees and for
eligible Employees who are Non-highly Compensated Employees.
A deferred income contribution shall be considered to have been made
with respect to a Plan Year if it (i) is allocated to the account of a
Participant as of any date within that Plan Year and (ii) relates to
Compensation that either would have been received by the Participant
in the Plan Year but for the Participant's election to defer under the
arrangement, or is attributable to services performed by the
Participant in the Plan Year and, but for the Participant's election
to defer, would have been received by the Participant within two and
one-half (2-1/2) months after the close of the Plan Year. A
contribution shall be considered allocated as of any date within a
Plan Year if the following conditions are met:
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<PAGE> 26
(c) such allocation is not dependent upon participation in the Plan
as of any date subsequent to the allocation date,
(d) the Employer contributions in addition to those attributable to
deferred income contributions are actually made to the Plan no
later than the end of the period described in Code Section
404(a)(6) applicable to the taxable year with or within which the
Plan Year ends, and
(e) the Employer contributions attributable to deferred income
contributions are actually made to the Plan no later than the end
of the twelve (12) month period immediately following the end of
the Plan Year to which the contribution relates.
Excess contributions shall mean, with respect to any Plan Year, the
excess of:
(f) The aggregate amount of contributions actually taken into account
in computing the average deferral percentage of Highly
Compensated Employees for such Plan Year as described above, over
(g) The maximum amount of such contributions permitted by the average
deferral percentage test (determined by reducing contributions
made on behalf of Highly Compensated Employees in order of the
average deferral percentages, beginning with the highest of such
percentages).
Provided, that the amount of any such excess contributions to be
distributed pursuant to this Section 3.05 with respect to a
Participant for a Plan Year shall be reduced by any deferred income
contributions in excess of the dollar limit specified in Section 3.04
hereof which are previously distributed to such Participant for his
taxable year ending with or within such Plan Year. In addition, the
amount of such excess contribution of a Highly Compensated Employee
whose average deferral percentage is determined under the family
aggregation rules, shall be allocated among the family members in
proportion to the salary deferral contributions of each family member
that are combined to determine the combined average deferral
percentage.
Excess contributions shall be adjusted for any Income allocable to
excess contributions, determined in a manner analogous to the above
allocation of Income to excess deferrals, but basing the allocation on
excess contributions.
If, for any Plan Year, deferred income contributions are made with
respect to the Highly Compensated Employees in excess of that
permissible under subsections (a) and (b) of this Section 3.05, the
Committee shall, before the end of the Plan Year following the Plan
Year during which such excess contribution occurs
(i) distribute the amount of such excess to the Participant on whose
behalf the contribution was made, or
(ii) notify the Participant that he may elect to treat such excess as
having been distributed to him and then contributed pursuant to
Section 3.02(a) hereof.
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<PAGE> 27
Any distributions made hereunder shall be made to Highly Compensated
Employees on the basis of the respective portions of the excess
contributions attributable to each of such Employees.
3.06 DISCRIMINATION REQUIREMENTS FOR OTHER CONTRIBUTIONS.
For Plan Years after December 31, 1986, the Plan shall satisfy the
nondiscrimination requirements of Section 401(m) of the Code and the
regulations issued thereunder, which are incorporated herein by
reference. The Plan shall satisfy such requirements if, with respect
to any Plan Year, either of the following alternative conditions are
met:
(a) the average contribution percentage for eligible Highly
Compensated Employees is not greater than the average
contribution percentage for eligible Non-highly Compensated
Employees, multiplied by one and twenty-five hundredths (1.25).
(b) the excess of the average contribution percentage for eligible
Highly Compensated Employees over that of eligible Non-highly
Compensated Employees is not more than two percent (2%), nor is
the average contribution percentage for such Highly Compensated
Employees more than that of such Non-highly Compensated
Employees, multiplied by two (2).
"Eligible Employee" shall mean any Employee who is directly or
indirectly eligible to make mandatory or voluntary after-tax
contributions, or a deferred income contribution (if the Employer
takes such contributions into account in the calculation of the
average contribution percentage) or to receive basic Employer
contributions or matching Employer contributions. The term "average
contribution percentage" for a group of Employees shall mean the
average of the percentages, calculated separately for each Employee in
the group, of the amount of mandatory and voluntary after-tax
contributions and matching Employer contributions made on behalf of an
Employee during the Plan Year to that Employee's Compensation for such
Plan Year (the "contribution percentage"). Provided, that the
Employer may elect to include deferred income contributions and basic
Employer contributions made pursuant to Section 3.01(a) hereof to the
extent such contributions are not included in the calculation of the
tests specified in Section 3.05 hereof, in the calculation of an
average contribution percentage. However, for purposes of determining
the contribution percentage of a Participant who is a five percent
(5%) owner of the Employer or one of the top ten (10) highest paid
Highly Compensated Employees, the amount of mandatory or voluntary
after- tax contributions, matching Employer contributions and
Compensation of such Participant shall include the mandatory or
voluntary after-tax contributions, matching Employer contributions and
Compensation of family members (as described in Code Section
414(q)(6)(B)). Family members, with respect to Highly Compensated
Employees, shall be disregarded as separate Employees in determining
the contribution percentage both for eligible Employees who are
Non-highly Compensated Employees and for eligible Employees who are
Highly Compensated Employees.
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<PAGE> 28
"Excess aggregate contributions", plus any Income allocable thereto,
shall be forfeited, if forfeitable, or if not forfeitable, distributed
no later than the last day of each Plan Year to Participants to whose
accounts such excess aggregate contributions were allocated for the
preceding Plan Year. Excess aggregate contributions shall be
allocated to Participants who are subject to the family member
aggregation rules of Section 414(q)(6) of the Code in proportion to
the mandatory and voluntary after-tax contributions and matching
Employer contributions of each family member that are combined to
determine the combined average contribution percentage. Excess
aggregate contributions shall be treated as annual additions, as
defined in Section 4.04 hereof.
"Excess aggregate contributions" shall mean, with respect to any Plan
Year, the excess of:
(i) The aggregate contribution percentage amounts taken into account
in computing the numerator of the contribution percentage
actually made on behalf of Highly Compensated Employees for such
Plan Year, over
(ii) The maximum contribution percentage amounts permitted by the
average contribution percentage test (determined by reducing
contributions made on behalf of Highly Compensated Employees in
order of their contribution percentages beginning with the
highest of such percentages).
Such determination shall be made after first determining excess
deferred income contributions pursuant to Section 3.04 hereof and then
determining excess contributions pursuant to Section 3.05 hereof.
Excess aggregate contributions shall be adjusted for any Income
allocable to excess aggregate contributions, determined in a manner
analogous to the above allocation of Income to excess deferrals, but
basing the allocation on excess aggregate contributions.
Any adjustments made hereunder shall be made to Highly Compensated
Employees on the basis of the respective portions of the excess
aggregate contributions attributable to each of such Employees.
Forfeitures of excess aggregate contributions shall be applied to
reduce Employer contributions.
3.07 MULTIPLE USE OF ALTERNATIVE LIMITATION.
Compliance with Section 3.05 and Section 3.06 shall not be achieved by
the use of both the limitation in Section 3.05(b) and the limitation
in Section 3.06(b) for the same Plan Year. The determination and
correction of such a multiple use shall be governed by the rules set
forth in Section 401(m) of the Code and in regulations interpreting
such section, which are incorporated herein by reference; provided,
however, that the multiple use shall be corrected through reduction of
the average contribution percentage of all Highly Compensated
Employees, reducing voluntary after-tax contributions first.
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<PAGE> 29
3.08 INVESTMENT OF CONTRIBUTIONS.
For purposes of the investment of contributions to the Plan, the
Trustee shall establish and maintain the following funds:
Fund A shall be fully invested, to the extent practicable, in
shares of common stock of the Sponsor. The Trustee may,
in its sole discretion, temporarily maintain such part of
the assets of Fund A in cash, or in such demand or
short-term time deposits bearing a reasonable rate of
interest (including demand or short-term time deposits
with the Trustee), as may be deemed necessary or
appropriate by it.
Fund B shall be invested by the Trustee only in fixed income-type
securities, including units of participation in any fixed
income type fund maintained by the Trustee for
tax-qualified plans, commercial bank savings accounts or
certificates of deposit bearing a reasonable rate of
interest, short-term money market instruments and United
States Treasury obligations, and including, as may be
directed from time to time by the Committee, insurance
company contracts that provide a guaranteed rate of
return, in which case the Trustee is expressly authorized
to the extent allowed by law to invest in a single class
of assets without any requirement to diversify the class
of assets held in Fund B. No more than ten percent (10%)
of Fund B may be invested in securities of the Sponsor or
any Adopting Company.
Fund C shall be invested by the Trustee in a diversified
portfolio of corporate common stocks, including units of
participation in any equity-type fund maintained by the
Trustee for tax-qualified plans, whether or not the same
be authorized by law for the investment of trust funds.
The Trustee may, in its sole discretion, temporarily
maintain such part of the assets of Fund C in such demand
or short-term time deposits and commercial paper bearing a
reasonable rate of interest (including demand or
short-term time deposits with the Trustee) as may be
deemed necessary or appropriate by the Trustee if the
Trustee determines it to be imprudent to invest entirely
in common stocks. No more than ten percent (10%) of Fund
C may be invested in securities of the Sponsor or any
Adopting Company.
Fund D shall be invested by the Trustee only in short-term money
market type securities, including units of participation
in any short-term fund maintained by the Trustee for
tax-qualified plans, commercial bank savings accounts or
certificates of deposit bearing a reasonable rate of
interest, short-term money market instruments and United
States Treasury obligations. No more than ten percent
(10%) of Fund D may be invested in securities of the
Sponsor or any Adopting Company.
Employer contributions pursuant to Sections 3.01 and 3.03 hereof shall
be invested in Fund A.
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Participant contributions, including deferred income contributions
pursuant to Section 3.04 hereof, shall be invested in Fund A, Fund B,
Fund C and Fund D, in ratios as elected by the Participant. Any such
investment vehicle elected by the Participant must be designated for
twenty-five percent (25%) or more of the Participant's contributions,
in multiples of twenty-five percent (25%). A Participant may elect to
have all of his contributions invested in a single investment vehicle
or to exclude one or more investment vehicles entirely from receiving
any portion of his contributions. A Participant may also elect to
change the investment vehicle for the balances in his Personal Account
and in Part I of his Employer Account attributable to deferred income
contributions as of any particular Allocation Date. Such election
shall be independent of the Participant's election of an investment
vehicle for his current Participant contributions, but any election of
an investment vehicle for such account balances must be designated in
multiples of twenty-five percent (25%) of such account balances on the
Allocation Date as of which such election is made. Investment
vehicles and ratios shall be elected by prior notice to the Committee
in writing or such other means as allowed by the Committee. Such
elections may be made during any fifteen (15) day period beginning on
the first day of March, June, September or December. The transfer of
assets among investment vehicles for existing account balances
resulting from such elections shall be effected on the effective date
specified in such elections or as soon as administratively practicable
thereafter.
The Plan shall be an "ERISA Section 404(c) Plan" which means that the
Plan shall be operated in compliance with Department of Labor
Regulations Section 2550.404c-1.
3.09 MEDIUM OF FINANCING THE PLAN.
Investment of all contributions made in accordance with the Plan and
provision for payment of benefits to Retired Participants and
Beneficiaries shall be accomplished by a Trust, as it may be amended
from time to time, which shall constitute a part of the Plan.
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<PAGE> 31
ARTICLE 4
PARTICIPANTS' ACCOUNTS
4.01 ALLOCATION OF EMPLOYER CONTRIBUTIONS.
As soon as practicable after each Allocation Date, Employer
contributions and deferred income contributions shall be allocated to
Participants' Employer Accounts as follows:
Part I Deferred income contributions pursuant to Section 3.04
hereof shall be allocated to the respective Participants'
accounts.
Part II Matching Employer contributions pursuant to Section
3.01(b) hereof not in excess of twenty-five cents ($0.25)
for each one dollar ($1.00) of mandatory Participant
contributions shall be allocated to the respective
Participants' accounts.
Except for deferred income contributions, only those persons who are
Participants on an Allocation Date or who (i) terminated employment
since the last Allocation Date as a result of death, Disability or
retirement at Normal Retirement Age or (ii) were employed for at least
six (6) months during the Plan Year and terminated employment since
the last Allocation Date as a result of a reduction in force or
retirement pursuant to Section 5.03 (or any successor early retirement
provision) of the First American Corporation Master Retirement Plan
shall be eligible to share in the allocation for that Allocation Date.
In addition, as soon as practicable after each December 31, Employer
contributions shall be allocated to Participants' Employer Accounts as
follows:
Part I Basic Employer contributions pursuant to Section 3.01(a)
hereof shall be allocated to each Participant's account;
each Participant's share in such basic Employer
contributions shall be that amount which bears the same
ratio to such basic Employer contributions as the
Participant's Compensation for the Plan Year bears to the
total Compensation for the Plan Year for all Participants
entitled to share in the allocation. Provided, however,
that the Committee may direct, in its discretion, that all
or any portion of the basic Employer contributions for any
Plan Year shall be contributed on behalf of, and allocated
to, only those Participants who are not Highly Compensated
Employees for such Plan Year. Any such committee-directed
basic Employer contributions shall be allocated in
proportion to mandatory contributions made by or on behalf
of Participants, pursuant to Sections 3.02 and 3.04
hereof, who are not Highly Compensated Employees for such
Plan Year.
Part II Matching Employer contributions pursuant to Section
3.01(b) hereof in excess of twenty-five cents ($0.25) for
each one dollar ($1.00) of mandatory
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<PAGE> 32
Participant contributions shall be allocated to the
respective Participants' accounts; provided, however, that
no matching Employer contribution shall be allocated with
respect to any Participant contribution or deferred income
contribution that is returned or distributed to the
Participant in accordance with Section 3.04, Section 3.05,
Section 3.06 or Section 4.04. In the event that such a
matching Employer contribution is allocated to the account
of a Participant, such matching Employer contribution
shall be forfeited as of the last day of the Plan Year in
which it was allocated. Any matching Employer
contributions forfeited in accordance with the preceding
sentence shall not be included in the average contribution
percentage test in Section 3.06
In the case of Employer contributions, including deferred income
contributions pursuant to Section 3.04, invested in common stock of
the Sponsor since the last Allocation Date, a Participant's account
shall be credited with the number of shares of such stock equal to
that portion of such contributions on behalf of the Participant
divided by the price per share of such stock acquired for the
Participant. Only those persons who are Participants on December 31
of a Plan Year or who (i) terminated employment since the last
December 31 as a result of death, Disability or retirement at Normal
Retirement Age or (ii) were employed for at least six (6) months
during the Plan Year and terminated employment since the last December
31 as a result of a reduction in force or retirement pursuant to
Section 5.03 (or any successor provision of the First American
Corporation Master Retirement Plan) shall be eligible to share in the
allocation of basic Employer contributions or matching Employer
contributions in excess of twenty-five cents ($0.25) for each one
dollar ($1.00) of mandatory contributions for that December 31.
4.02 ALLOCATION OF INCOME.
As of each Allocation Date, dividends and other distributions received
on common stock of the Sponsor in Fund A and Income received on other
investments held by the Trustee shall be allocated to each
Participant's Employer Account and Personal Account.
The Income of Funds A, B, C, and D of the Trust Fund for the period
ending with such Allocation Date shall be determined as the changes in
the fair market values of the respective Funds since the last
Allocation Date, after eliminating the effect of all non-investment
transactions. In determining such Income, the common stock of the
Sponsor in Fund A shall not be taken into account.
Dividends and other distributions on common stock of the Sponsor in
Fund A shall be allocated to each Participant's Employer Account and
Personal Account in the ratio that the number of shares of common
stock of the Sponsor in Fund A in such account bears to the total
number of shares of common stock of the Sponsor in Fund A in all such
accounts. All other Income credited to Funds A, B, C and D shall be
allocated to such accounts invested in the respective Funds in the
ratio that the value of each such account as of the last Allocation
Date bears to the total value of the Employer Accounts and Personal
Accounts invested in the respective Funds for all such persons as of
the last Allocation Date; common stock of the Sponsor in Fund A held
in such accounts shall be
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<PAGE> 33
disregarded for this purpose. These account values shall not include
any accounts terminated or amounts withdrawn or segregated (pursuant
to Section 6.02 hereof) since the last Allocation Date.
For purposes of allocating Income in the case of contributions made by
or on behalf of a new Participant, any equitable and nondiscriminatory
method approved by the Committee shall be used.
4.03 ADJUSTMENT TO ACCOUNTS.
As soon as practicable after each Allocation Date, the status of each
Employer Account and each Personal Account shall be determined as
follows:
(a) Each Employer Account shall consist of the shares of common stock
of the Sponsor and the value of other investments in such account
as of the last Allocation Date, less any withdrawals or payments
from the account since the last Allocation Date to or on behalf
of such Participant, plus the shares of common stock of the
Sponsor and the value of other investments attributable to
allocations of Employer contributions and deferred income
contributions and Income specified in this Article 4.
(b) Each Personal Account shall consist of the shares of common stock
of the Sponsor and the value of other investments in such account
as of the last Allocation Date, less any withdrawals or payments
from the account since the last Allocation Date to or on behalf
of such Participant, plus the shares of common stock of the
Sponsor and the value of other investments attributable to
contributions by the Participant to the Plan since the last
Allocation Date and allocations of Income specified in this
Article 4.
4.04 MAXIMUM ANNUAL ADDITIONS TO PARTICIPANTS' ACCOUNTS.
Effective for Plan Years beginning on or after January 1, 1987, the
annual addition to any Participant's accounts for any Plan Year shall
not exceed the lesser of (i) thirty thousand dollars ($30,000), or, if
greater, one-fourth of the defined benefit dollar limitation set forth
in Section 415(b)(1) of the Code as in effect for the limitation year,
and (ii) twenty-five percent (25%) of such Participant's total cash
compensation for the Plan Year.
For purposes of this section and of Article 14 hereof, the term
"compensation" shall mean a Participant's earned income, wages,
salaries, and fees for professional services and other amounts
received (without regard to whether or not an amount is paid in cash)
for personal services actually rendered in the course of employment
with the Employer to the extent that the amounts are includible in
gross income (including, but not limited to, commissions paid
salesmen, compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, bonuses, fringe
benefits, and reimbursements or other expense allowances under a
nonaccountable plan (as described in Section 1.62-2(c) of the Treasury
Regulations)), and excluding the following:
(i) Employer contributions to a plan of deferred compensation which
are not includible in the Employee's gross income for the taxable
year in which contributed, or Employer
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contributions under a simplified employee pension plan under
Section 408(k) of the Code to the extent such contributions are
deductible by the Employee, or any distributions from a plan of
deferred compensation;
(ii) amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by the
Employee either becomes freely transferable or is no longer
subject to a substantial risk of forfeiture;
(iii)amounts realized from the sale, exchange or other disposition of
stock acquired under a qualified stock option; and
(iv) other amounts which received special tax benefits, or
contributions made by the Employer (whether or not under a salary
reduction agreement) towards the purchase of an annuity contract
described in Section 403(b) of the Code (whether or not the
contributions are actually excludible from the gross income of
the Employee).
For purposes of applying the limitations of this section, compensation
for a limitation year is the compensation actually paid or made
available during such limitation year. The term annual addition for a
Participant means the sum of the following for the Plan Year:
(a) contributions made directly or indirectly by the Employer on
behalf of the Participant (including deferred income
contributions pursuant to Section 3.04 hereof);
(b) the Participant's contributions to the Plan;
(c) amounts allocated to an individual medical account which is part
of a defined benefit plan, as described in Code Section
415(l)(2); and
(d) amounts attributable to post-retirement medical benefits
allocated to a separate account of a key employee under a welfare
benefit fund as described in Code Section 419A(d)(2).
Any rollover contribution made pursuant to Section 3.02 shall be
disregarded in applying the limitations of this Section 4.04.
If a Participant is a participant at any time in both a defined
benefit plan and a defined contribution plan ever maintained by the
same employer, the sum of the defined benefit fraction and the defined
contribution fraction for any limitation year may not exceed one (1).
The defined benefit fraction for any Plan Year is a fraction the
numerator of which is the projected annual benefit of the Participant
under the defined benefit plans maintained by the Employer (determined
as of the close of the Plan Year) and the denominator of which is the
lesser of:
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(i) 1.4 multiplied by one hundred percent (100%) of the Participant's
average total cash compensation for the three (3) consecutive
limitation years in which he received the highest aggregate total
cash compensation; or
(ii) 1.25 multiplied by $90,000 (or such greater amount as may be
determined by the Secretary of the Treasury).
The defined contribution fraction for any Plan Year is a fraction the
numerator of which is the sum of the annual additions to the
Participant's accounts under all defined contribution plans maintained
by the Employer (determined as of the close of the Plan Year) and the
denominator of which is the sum of the lesser of the following amounts
determined for such year and for each prior year of service with the
Employer:
(i) 1.25 multiplied by the dollar limitation in effect under Code
Section 415(c)(1)(A) for such year (determined without regard to
Code Section 415(c)(6)); or
(ii) 1.4 multiplied by the amount which may be taken into account
under Code Section 415(c)(1)(B) (or Code Section 415(c)(7), if
applicable) with respect to such individual under such plan for
such year.
The Committee shall advise affected Participants of any reduction in
the accrual of benefits required by the preceding combined limitation.
For purposes of determining "annual additions," the limitation year
shall be the Plan Year.
All qualified defined benefit plans (whether or not terminated) of an
employer shall be treated as one defined benefit plan for purposes of
applying the limitations of Section 415(b), (c) and (e) of the Code.
All qualified defined contribution plans (whether or not terminated)
of an employer shall be treated as one defined contribution plan for
purposes of applying the limitations of Section 415(b), (c) and (e) of
the Code.
In the case of a group of employers which constitutes a Controlled
Group, all such employers shall be considered a single employer for
purposes of applying the limitations of Section 415 of the Code.
If as a result of the allocation of Forfeitures, a reasonable error in
estimating the compensation of a Participant, a reasonable error in
determining the amount of elective deferral contributions (within the
meaning of Code Section 402(g)(3)) that may be made with respect to
any individual under the limits of Code Section 415, or other facts
and circumstances allowed by regulation, the annual additions
limitation is exceeded in any Plan Year, the excess annual addition
shall be charged against the Participant's accounts in the following
order of priority by the amount required to insure compliance with
this Section:
(i) voluntary after-tax contributions;
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<PAGE> 36
(ii) deferred income contributions which are not matched by matching
Employer contributions;
(iii)mandatory after-tax contributions and matching Employer
contributions, on a pro rata basis;
(iv) mandatory deferred income contributions and matching Employer
contributions, on a pro rata basis;
(v) all other Employer contributions.
The portion of such excess which consists of after-tax contributions
and deferred income contributions shall be returned to the
Participant. The portion of such excess attributable to Employer
contributions shall be treated as a Forfeiture for the Plan Year and
shall be allocated to, and maintained as, a suspense account under the
Plan to which Income is not allocated and which will be used to reduce
Employer contributions along with other Plan Forfeitures as soon as
practicable. In addition, no Employer or Employee contributions may
be made to the Plan until any excess maintained in a suspense account
is exhausted.
Notwithstanding any provision of the Plan to the contrary, the rate of
benefit accrual in the case of a defined benefit plan for any
Participant shall be automatically reduced to the level necessary to
prevent the limitations of this Section 4.04 from being exceeded with
respect to such Participant.
4.05 SEPARATION OF FORFEITURES AND ACCOUNTS BY EMPLOYER.
The accounts of Participants who are Employees of each Employer shall
be administered separately from those of any other Employer for
purposes of allocating Employer contributions and applying
Forfeitures, except that Forfeitures attributable to an Employer which
is unable to apply such Forfeitures shall be allocated among the
Employers which are members of the Controlled Group, for application
in proportion to such Employers' contributions to the Plan for the
most recent Plan Year.
Any Forfeitures consisting of common stock of the Sponsor shall be
applied to reduce subsequent Employer contributions required under the
Plan on a share for share basis if such Employer contributions are
made in common stock of the Employer, or, if such Employer
contributions are made other than in such common stock, at the Market
Value of such shares on the last day of the calendar month preceding
the day on which such forfeited shares are applied, or, if the Plan
should be terminated, any amount not previously so applied shall be
credited on a prorata basis to the accounts of all Participants at the
time of such termination who are Participants or Retired Participants
of the terminating Employer.
Provided, however, that a single Trust Fund may be used for the
investment of the funds of the Plan.
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<PAGE> 37
4.06 INTERIM ALLOCATIONS.
The Committee may direct a special allocation date in order to avoid
prejudice either to continuing Participants or terminating
Participants. Such special allocation date shall be deemed equivalent
to a regular Allocation Date, except that the allocations under
Section 4.01 of this Article 4 shall not be made. Interim
allocations, if any, shall be made on a nondiscriminatory basis.
4.07 FAIR MARKET VALUE.
The Committee shall cause to be determined the fair market value of
all assets held by the Trustee in the Trust hereunder as of each
Allocation Date.
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<PAGE> 38
ARTICLE 5
WITHDRAWAL OF CONTRIBUTIONS
5.01 WITHDRAWAL OF VOLUNTARY PARTICIPANT CONTRIBUTIONS AND ROLLOVER
CONTRIBUTIONS.
A Participant who is in Service may withdraw (i) from his Personal
Account an amount not in excess of the portion of his Personal Account
attributable to his voluntary Participant contributions to the Plan
and (ii) an amount not in excess of the amount of his rollover
contributions to the Plan and Income thereon. If a Participant shall
have made a withdrawal pursuant to this Section 5.01 during the Plan
Year, no further withdrawals may be made under this Section during the
remainder of the Plan Year.
5.02 WITHDRAWAL OF MANDATORY PARTICIPANT CONTRIBUTIONS.
A Participant who is in Service may, not more frequently than once in
every two (2) year period (based upon anniversary dates of his initial
participation in the Plan), withdraw from his Personal Account an
amount not in excess of the portion of his Personal Account
attributable to his mandatory Participant contributions to the Plan.
If a Participant shall have made a withdrawal pursuant to this Section
5.02, the Participant shall not be permitted to make further
contributions to the Plan (including deferred income contributions
pursuant to Section 3.04 hereof) during the period of six (6) complete
calendar months immediately following the date of the withdrawal.
5.03 WITHDRAWAL OF MATCHING EMPLOYER CONTRIBUTIONS.
Upon completion of each period of five (5) full years of participation
in the Plan (based upon his initial date of participation in the
Plan), a Participant may withdraw all or any portion of Part II of his
Employer Account, to the extent vested pursuant to the schedule in
Section 8.01 hereof. For purposes of this Section 5.03, the portion
of Part II of the Participant's Employer Account subject to withdrawal
shall be the number of shares and the cash value of other investments
determined on the Allocation Date next preceding the date the
Participant completes each such period of five (5) years of Plan
participation. Upon completion of such five (5) years of
participation, the Participant may exercise his right of withdrawal at
any time, but only once, until his completion of the next five (5)
years of participation; provided, however, that the amount of the
withdrawal attributable to the cash value of other investments, as
described above, shall not exceed the cash value of other investments
as of the Allocation Date next preceding the date of the withdrawal.
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<PAGE> 39
5.04 WITHDRAWAL OF BASIC EMPLOYER CONTRIBUTIONS, DEFERRED INCOME
CONTRIBUTIONS AND TAX CREDIT EMPLOYER CONTRIBUTIONS.
(a) A Participant who is in Service may withdraw from Part I or Part
III of his Employer Account in the case of hardship, as
determined by the Committee, an amount necessary to satisfy the
hardship including any amounts necessary to pay any federal,
state or local income taxes or penalties reasonably anticipated
to result from the withdrawal; provided, however, that any
withdrawal from Part I of his Employer Account shall be subject
to the restrictions of (i) one withdrawal per two (2) year period
and (ii) a six (6) month prohibition on further contributions to
the Plan, as set forth in Section 5.02, as if the Participant had
made a withdrawal of mandatory Participant contributions (except
that (a) one withdrawal each of mandatory Participant
contributions and deferred income contributions shall be
permitted for each two (2) year period, and (b) simultaneous
withdrawals of both mandatory Participant contributions and
deferred income contributions shall result in only a single six
(6) month prohibition on contributions); and provided further
that, as a further restriction, only the portion of Part III of
his Employer Account which has been a part of such account for at
least seven (7) years may be withdrawn, except in the cases of
(a) a transfer of a Participant to the employment of an acquiring
employer from the employment of the Employer in the case of a
sale to the acquiring employer of substantially all the assets
used by the Employer in a trade or business conducted by it or
the sale of substantially all of the stock of a subsidiary of the
Employer, or (b) a disposition of the interest of the Sponsor in
an Employer when the Participant continues employment with the
Employer.
(b) A hardship withdrawal request from Part I of a Participant's
Employer Account shall be granted only if the Participant has
demonstrated an immediate and heavy financial need arising from a
hardship situation. The Committee shall determine whether an
emergency financial hardship has been proven by the Participant
in accordance with regulations issued by the Secretary of the
Treasury pursuant to Section 401(k) of the Code and the Secretary
of the U.S. Department of Labor pursuant to ERISA Section 408.
The determination of whether a Participant or a former
Participant has an immediate and heavy financial need and no
other resources available to satisfy such need shall be made in
accordance with the following conditions.
(1) The immediate and heavy financial needs for which a
hardship withdrawal may be granted shall be limited to the
following:
(A) Expenses for medical care described in Code Section
213(d) previously incurred by the Participant, the
Participant's Spouse, or any dependents of the
Participant (as defined in Code Section 152) or
necessary for these persons to obtain medical care
described in Code Section 213(d);
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<PAGE> 40
(B) Costs directly related to the purchase of a principal
residence for the Participant (excluding mortgage
payments);
(C) Payment of tuition and related education fees for the
next twelve (12) months of post-secondary education
for the Participant, or the Participant's Spouse,
children, or dependents (as defined in Code Section
152);
(D) Payments necessary to prevent the eviction of the
Participant from the Participant's principal
residence or foreclosure on the mortgage on that
residence; or
(E) Other expenses that the Commissioner of the Internal
Revenue Service indicates will be deemed to be made
on account of such need.
The amount of any hardship withdrawal granted pursuant to
this Section 5.04(b) shall be limited to the lesser of:
(F) the actual amount of the deferred income and basic
employer contributions made on behalf of the
Participant or former Participant, plus Income
allocable thereto as of December 31, 1988, less the
amount of deferred income and basic employer
contributions previously withdrawn; and
(G) the amount required to relieve the financial need
plus amounts necessary to pay any federal, state, or
local income taxes or penalties reasonably
anticipated to result from the hardship distribution.
(2) Safe Harbor Requirements. To qualify for a hardship
withdrawal pursuant to Section 5.04(b), the Participant or
former Participant must satisfy the following requirements.
(A) The Participant or former Participant must have
obtained all distributions, other than hardship
distributions, and all nontaxable loans available
under all plans maintained by the Employer.
(B) The Participant's or former Participant's deferred
income contributions under the Plan, and all other
plans maintained by the Employer, will be suspended
for twelve (12) months after receipt of the hardship
distribution. The Participant may elect to resume
deferred income contributions as of any January 1,
April 1, July 1 or October 1 following the end of the
suspension period.
(C) The Participant may not make deferred income
contributions under the Plan, and all other plans
maintained by the Employer, for the taxable year
immediately following the taxable year of the
hardship distribution in excess of the applicable
limit under Code Section 402(g) for such next taxable
year less the amount of such Participant's deferred
income contributions for the taxable year of the
hardship distribution.
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<PAGE> 41
5.05 APPLICATION FOR WITHDRAWALS.
Applications by Participants for withdrawals shall be in writing in
such form as the Committee shall require. The Committee shall adopt
and apply uniform rules in administering withdrawals from the Plan.
Applications by a Participant for withdrawals pursuant to Sections
5.01, 5.02 and 5.03 hereof shall be made within the thirty (30) day
period immediately following the date the Participant is furnished a
certificate notifying him of the status of his accounts as of the most
recent Allocation Date. Any withdrawals shall be made in the
following order:
(a) withdrawal of voluntary Participant contributions pursuant to
Section 5.01;
(b) withdrawal of rollover contributions and Income thereon pursuant
to Section 5.01;
(c) withdrawal of mandatory Participant contributions pursuant to
Section 5.02;
(d) withdrawal of deferred income contributions pursuant to Section
5.04;
(e) withdrawal of other Employer contributions pursuant to Sections
5.03 and 5.04.
No withdrawal of any amounts in any lower category shall be permitted
until all the available withdrawals in each higher category have been
exhausted.
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<PAGE> 42
ARTICLE 6
GENERAL BENEFIT PROVISIONS
6.01 FORM OF BENEFIT PAYMENT.
The Retired Participant may elect to receive the value of his Personal
Account in a single sum. If no such election is made, the value of
his Personal Account shall be paid or applied in the same manner as
his Employer Account.
The Employer Account of a Retired Participant shall be paid in a
single sum except as provided below.
If the Participant's Service terminates due to Disability or on or
after he has attained age fifty-five (55), in lieu of receiving a
single sum payment, he may elect to have his Employer Account paid or
applied in monthly installments as nearly equal as practicable for a
period not to exceed sixty (60) months or the life expectancy of the
Retired Participant, whichever is less; such installments shall be
made either from a segregated account set aside on behalf of the
Retired Participant or, at the direction of the Committee, from the
Trust Fund without such segregation.
In no event shall a method of benefit payment be effective which
provides, except for premature death, that the benefits would inure
primarily to the Beneficiary designated by the Retired Participant.
In the event of the death of a Retired Participant to whom periodic
payments are being made in accordance with the installment option
described above prior to the receipt of his full interest, payment of
the remaining balance of his accounts shall be made as provided in
Article 7 hereof.
The election of a form of payment must be in writing, in such form as
the Committee shall uniformly and nondiscriminatorily require, and may
be submitted at any time during the ninety (90) day period preceding
the first day of the first period for which an amount is paid as a
benefit and following the date on which the Participant is provided
with information concerning the optional forms of benefit and the
Participant's right, if any, to defer payment of his benefit. Such
notice shall be provided at least thirty (30) and no more than ninety
(90) days before the first day of the period for which an amount is
paid as a benefit. Such distribution may commence less than thirty
(30) days after the notice required under section 1.411(a)-11(c) of
the Income Tax Regulations is given, provided that:
(1) the Committee clearly informs the Participant that the
Participant has a right to a period of at least thirty (30) days
after receiving the notice to consider the decision of
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<PAGE> 43
whether or not to elect a distribution (and, if applicable, a
particular distribution option), and
(2) the Participant, after receiving the notice, affirmatively elects
a distribution.
If the Retired Participant does not elect an option, such benefit
shall be paid in a single sum.
6.02 SEGREGATED ACCOUNTS.
Any segregated account of a Retired Participant established pursuant
to Section 6.01 hereof shall remain a part of the Trust Fund, but
shall be separately invested in common stock of the Sponsor,
government obligations, time deposits or other short-term quality
investments, as may be determined by the Trustee, with all Income on
such investments credited to the segregated account and all
disbursements on behalf of the Retired Participant charged thereto.
6.03 SUBSEQUENT ELECTION.
If distribution of the accounts of a Retired Participant is being made
from the Trust Fund in monthly installments, the Retired Participant
may nevertheless, as of any subsequent date, elect that the amount
then credited to the accounts of the Retired Participant shall be
applied in accordance with the provisions of Section 6.01 hereof
providing for payment of the balance of the Retired Participant's
accounts in a single sum.
6.04 DISTRIBUTIONS OF COMMON STOCK.
Except as provided in Section 3.03, distributions from Fund A shall be
made in cash or in common stock of the Sponsor, as elected by the
Retired Participant. Distributions from the Plan other than from Fund
A shall be made in cash. Distributions from the Plan of common stock
of the Sponsor shall be made in full shares to the extent possible.
The value of any shares, including fractional shares, distributed in
cash, shall be paid in cash at the Market Value of such stock on the
first day of the calendar month during which such distribution occurs.
6.05 SPECIAL COMMENCEMENT AND DISTRIBUTION OF BENEFITS RULES.
(a) General Rules.
(1) The requirements of this section shall apply to any
distribution of a Participant's interest and will take
precedence over any inconsistent provisions of this Plan.
Unless otherwise specified, the provisions of this section
apply to calendar years beginning after December 31, 1984.
(2) All distributions required under this section shall be
determined and made in accordance with the proposed
regulations under Section 401(a)(9) of the Code,
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<PAGE> 44
including the minimum distribution incidental benefit
requirement of section 1.401(a)(9)-2 of the proposed
regulations.
(b) Required Beginning Date. The entire interest of a Participant
must be distributed or begin to be distributed no later than the
Participant's required beginning date. The consent of the
Participant or of the Participant's Spouse or Beneficiary shall
not be required to make a distribution required under this
section.
"Required beginning date" shall mean the first day of April of
the calendar year following the calendar year in which the
Participant attains age seventy and one-half (70-1/2) subject,
however, to the following transition rules.
(1) Transition rules. The required beginning date of a
Participant who attains age seventy and one-half (70-1/2)
before January 1, 1988, shall be determined in accordance
with (i) and (ii) below:
(i) Non-five-percent (5%) owners. The required beginning
date of a Participant who is not a "five-percent (5%)
owner" (as defined in (2) below) is the first day of
April of the calendar year following the calendar
year in which the later of retirement and attainment
of age seventy and one-half (70-1/2) occurs.
(ii) Five-percent (5%) owners. The required beginning
date of a Participant who is a five-percent (5%)
owner during any year beginning after December 31,
1979, is the first day of April following the later
of:
(A) the calendar year in which the Participant
attains age seventy and one-half (70-1/2), and
(B) the earlier of the calendar year with or within
which ends the Plan Year in which the
Participant becomes a five-percent (5%) owner,
and the calendar year in which the Participant
retires.
The required beginning date of a Participant who is
not a five-percent (5%) owner who attains age seventy
and one-half (70-1/2) during 1988 and who has not
retired as of January 1, 1989, is April 1, 1990.
(2) Five-percent (5%) owner. A Participant is treated as a
five-percent (5%) owner for purposes of this subsection (b)
if such Participant is a five-percent (5%) owner as defined
in Section 416(i) of the Code (determined in accordance
with Section 416 but without regard to whether the Plan is
top-heavy) at any time during the Plan Year ending with or
within the calendar year in which such owner attains age
sixty-six and one-half (66-1/2) or any subsequent Plan
Year.
(3) Once distributions have begun to a five-percent (5%) owner
under this section, those distributions must continue even
if the Participant ceases to be a five-percent (5%) owner
in a subsequent year.
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<PAGE> 45
(c) Duration of Benefits. Benefits to a Participant shall be
distributed, beginning not later than the required beginning date
set forth in subsection (b) in accordance with regulations, for a
period equal to the life expectancy of such Participant or, if
applicable, the joint life expectancies of the Participant and
his Beneficiary. For purposes of this section, "life expectancy"
shall mean the life expectancy (or joint and last survivor
expectancy) calculated using the attained age of the Participant
(or designated Beneficiary) as of the Participant's (or
designated Beneficiary's) birthday in the applicable calendar
year. The applicable calendar year shall be the first
distribution calendar year, and each succeeding calendar year.
Life expectancy and joint and last survivor expectancy are
computed by use of the expected return multiples in Tables V and
VI of section 1.72-9 of the Treasury Regulations.
(d) Minimum Amount to be Distributed Each Year. If the Participant's
interest is to be distributed in other than a single sum, the
following distribution rules shall apply on or after the required
beginning date.
(1) The amount to be distributed each year, beginning with
distributions for the first distribution calendar year
shall not be less than the quotient obtained by dividing
the Participant's benefit by the lesser of (i) the
applicable life expectancy as described in Section 6.05(c)
or (ii) if the Participant's spouse is not the designated
Beneficiary, the applicable divisor determined from the
table set forth in Q&A-4 of section 1.401(a)(9)-2 of the
proposed regulations.
(2) The minimum distribution required for the Participant's
first distribution calendar year must be made on or before
the Participant's required beginning date. The minimum
distribution for other calendar years, including the
minimum distribution for the distribution calendar year in
which the employee's required beginning date occurs, must
be made on or before December 31 of that distribution
calendar year.
(3) Distribution calendar year. For purposes of this section,
the term "distribution calendar year" means a calendar year
for which a minimum distribution is required. For
distributions beginning before the Participant's death, the
first distribution calendar year is the calendar year
immediately preceding the calendar year that contains the
Participant's required beginning date.
6.06 LIMITATIONS ON DISTRIBUTION OF DEFERRED INCOME CONTRIBUTIONS.
Except as otherwise provided in this section, amounts attributable to
deferred income contributions pursuant to Section 3.04 hereof shall
not be distributed earlier than upon the occurrence of one of the
following events:
(a) the employee's retirement, death, Disability or termination of
Service;
(b) the termination of the Plan without the establishment of a
successor plan;
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<PAGE> 46
(c) the date of the sale or other disposition by the Employer of
substantially all of the assets used by the Employer in a trade
or business of the Employer with respect to an Employee who
continues employment with the corporation acquiring such assets;
(d) the date of the sale or other disposition by the Employer of the
Employer's interest in a subsidiary with regard to an Employee
who continues employment with such subsidiary;
(e) with regard to distributions of deferred income contributions
plus Income allocated as of December 31, 1987 only, the
Participant's or former Participant's hardship, as defined in
Section 5.04(b) hereof.
This Section 6.06 shall be interpreted in accordance with section
1.401(k)-1(d) of the Treasury Regulations.
6.07 SINGLE SUM DISTRIBUTION OF SMALL BENEFITS.
In the event that a Retired Participant or Beneficiary shall become
entitled to receive any benefit under the Plan, and the value of the
nonforfeitable benefit is not greater than (or at the time of any
prior distribution was not greater than) three thousand five hundred
dollars ($3,500), the benefit shall be paid to such person in a single
sum before the end of the second Plan Year following the Plan Year
during which the Participant ceases to participate in the Plan.
Provided, however, that for distributions made on or after January 1,
1993, the foregoing shall be subject to the provisions of Section 6.08
hereof regarding direct rollover of eligible rollover distributions as
provided therein.
Payment under this section shall be in lieu of the form of benefit
otherwise payable under any provision of this Plan.
6.08 DIRECT ROLLOVER OF ELIGIBLE ROLLOVER DISTRIBUTIONS.
(a) This Section applies to distributions made on or after January 1,
1993. Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a distributee's election under this
Section, a distributee may elect, at the time and in the manner
prescribed by the Committee, to have any portion of an eligible
rollover distribution paid directly to an eligible retirement
plan specified by the distributee in a direct rollover.
(b) Definitions
(1) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of
the balance to the credit of the distributee, except that
an eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal
periodic payments (not less frequently than 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
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<PAGE> 47
distribution to the extent such distribution is required
under Section 401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross income
(determined without regard to the exclusion for net
unrealized appreciation with respect to employer
securities).
(2) Eligible retirement plan: An eligible retirement plan is
an individual retirement account described in Section
408(a) of the Code, an individual retirement annuity
described in Section 408(b) of the Code, an annuity plan
described in Section 403(a) of the Code, or a qualified
trust described in Section 401(a) of the Code, that accepts
the distributee's eligible rollover distribution. However,
in the case of an eligible rollover distribution to the
surviving Spouse, an eligible retirement plan is an
individual retirement account or individual retirement
annuity.
(3) Distributee: A distributee includes an Employee or former
Employee. In addition, the Employee's or former Employee's
surviving Spouse and the Employee's or former Employee's
Spouse or former Spouse who is the alternate payee under a
qualified domestic relations order, as defined in Section
414(p) of the Code, are distributees with regard to the
interest of the Spouse or former Spouse.
(4) Direct rollover: A direct rollover is a payment by the
Plan to the eligible retirement plan specified by the
distributee.
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<PAGE> 48
ARTICLE 7
RETIREMENT, DEATH AND DISABILITY BENEFITS
7.01 BENEFITS UPON RETIREMENT.
As of his Normal Retirement Age or such later date as the
Participant's Service shall terminate, the Participant shall retire.
Upon his retirement, a Retired Participant shall be entitled to one
hundred percent (100%) of the value of his Employer Account and his
Personal Account determined on the Allocation Date immediately
preceding or coincident with his retirement, increased by any Employer
and Participant contributions allocated after such Allocation Date and
reduced by any payments or withdrawals made from such accounts since
such Allocation Date.
Such amount shall be paid to the Retired Participant or applied for
his benefit within sixty (60) days following the close of the Plan
Year during which he ceases to be a Participant, unless the Retired
Participant elects in writing to defer the receipt of such benefits.
7.02 EARLY RETIREMENT.
A Participant who has attained age fifty-five (55) years may retire
early upon termination of Service before his Normal Retirement Age.
Upon such early retirement, the Retired Participant shall be entitled
to benefits determined pursuant to Article 8 hereof.
7.03 DEATH BENEFITS.
In the event of the death of a Participant or Retired Participant
prior to complete distribution of his accounts, the amount of the
death benefit on his behalf shall be one hundred percent (100%) of his
Employer Account and Personal Account, determined on the Allocation
Date immediately preceding the date of his death, increased by any
Employer and Participant contributions allocated after such Allocation
Date and reduced by any payments or withdrawals made from such
accounts since such preceding Allocation Date. Provided, however,
that the portion of Part II of the Employer Account for a Retired
Participant whose participation in the Plan terminated before the date
of his death (other than a disabled Participant pursuant to Section
7.06 hereof) shall be determined by application of the vested
percentage described in Section 8.01 hereof.
7.04 PAYMENT OF DEATH BENEFITS.
In the event of the death of a Retired Participant to whom periodic
payments are being made in accordance with the installment payment
option of Section 6.01 hereof, the remaining balance of his accounts
shall be paid to the Beneficiary at least as rapidly as under the
method of benefit payments in effect as of such Retired Participant's
death.
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<PAGE> 49
In the event of the death of a Participant or Retired
Participant before any payment of benefits has occurred, the death
benefit shall be paid in a single sum to the Beneficiary of the
deceased Participant or Retired Participant within sixty (60) days
following the close of the Plan Year during which such death occurred.
7.05 DESIGNATION OF BENEFICIARY.
Subject to the rights of a surviving Spouse described herein, each
Participant or Retired Participant shall have the right to designate
the Beneficiary to receive the death benefit on his behalf, and to
revoke any such designation. Each such designation, or revocation
thereof, shall be evidenced by a written instrument filed with the
Committee and signed by the Participant or Retired Participant.
Unless the conditions which follow for the designation of a
Beneficiary other than the Spouse are satisfied, the Beneficiary of a
Participant or Retired Participant who is married on the date of his
death shall be the surviving Spouse, whether or not so designated in
the written instrument filed with the Committee and even if no such
instrument is filed. Designation of a Beneficiary other than the
Spouse shall be valid only if either (i) the Spouse consents in
writing to such designation, acknowledging the effect thereof,
witnessed by a notary public or Plan representative; (ii) the Retired
Participant or Participant, although married at the time of the
designation, is ultimately not survived by a Spouse; or (iii) the
surviving Spouse cannot be located. Such spousal consent obtained
pursuant to (i) shall be irrevocable. If the Participant or Retired
Participant is survived by a Spouse other than the Spouse who
consented to designation of another as Beneficiary, the consent of the
former Spouse shall be ineffective.
If no designation of Beneficiary is on file with the Committee at the
time of the death of a Participant or Retired Participant (or if such
designation is not effective for any reason) and if there is no
surviving Spouse, the death benefit shall be payable to a Beneficiary
deemed to have been designated as follows:
(i) equally to the children (including adopted children) of the
Participant or Retired Participant, with the issue of any
deceased child representing his or her parent, per stirpes;
(ii) if there are no survivors pursuant to (i), to the estate of the
Participant or Retired Participant.
7.06 DISABILITY BENEFITS.
In the event the Committee determines that a Participant who is in
Service incurs Disability, such Participant shall be entitled to one
hundred percent (100%) of his Employer Account and Personal Account,
determined on the Allocation Date immediately preceding the date of
his Disability, increased by any Employer and Participant
contributions allocated after such Allocation Date, reduced by any
payments or withdrawals made from his accounts since such preceding
Allocation Date and adjusted for any Income allocated after such
Allocation Date.
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<PAGE> 50
Any benefits due a disabled Participant from his Employer Account and
his Personal Account shall be paid or applied for his benefit subject
to the general benefit provisions of Article 6 hereof; provided,
however, that the commencement date of any benefits payable to a
Participant shall, if elected by the Participant, be within sixty (60)
days following the close of the Plan Year during which such Disability
occurred.
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<PAGE> 51
ARTICLE 8
TERMINATION BENEFITS
8.01 BENEFITS UPON TERMINATION OF SERVICE.
A Participant whose Service terminates for reasons other than death,
Disability or retirement on or after his Normal Retirement Age shall
be entitled to:
a) one hundred percent (100%) of Parts I and III of his Employer
Account,
b) the vested percentage, determined at the date his Service
terminates, of Part II of his Employer Account, and
c) one hundred percent (100%) of his Personal Account.
Such accounts will be determined as of the Allocation Date coincident
with or immediately preceding the date the Participant's Service
terminates, increased by any Participant and Employer contributions
allocated to such accounts after such Allocation Date and reduced by
any payments or withdrawals from the accounts since such preceding
Allocation Date.
The vested percentage shall be determined from the following schedule:
<TABLE>
<CAPTION>
YEARS OF
VESTING SERVICE VESTED PERCENTAGE
--------------- -----------------
<S> <C>
Less than 1 0%
1 25
2 50
3 75
4 or more 100
</TABLE>
Provided, however, that the vested percentage shall be one hundred
percent (100%) for a Participant who has attained his Normal
Retirement Age.
8.02 FORFEITURES.
The portion of Part II of a Participant's Employer Account which is
not payable to him as provided in Section 8.01 hereof shall be a
Forfeiture as of the earlier of the following dates:
(a) the date the former Participant is paid the entire vested amount
of such account, provided that the former Participant receives a
distribution no later than the close of
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<PAGE> 52
the second Plan Year following the Plan Year during which he
ceases to be a Participant, and
(b) the date the former Participant incurs five (5) consecutive
Breaks in Service.
For purposes of this Section, if the value of an Employee's vested
account balance is zero, the former Participant shall be deemed to
have received a distribution of such vested account balance and the
Employer Account shall be treated as a Forfeiture as of the date such
Employee terminates Service.
If a former Participant receives or is deemed to have received a
distribution from his Employer Account due to termination of
participation in the Plan, which distribution is:
(a) equal to his vested Employer Account, but less than one hundred
percent (100%) of such account, and
(b) in an amount not exceeding thirty-five hundred dollars ($3,500)
or, if greater, which the Participant elected to receive,
and he subsequently resumes Service before he incurs five (5)
consecutive Breaks in Service, he may repay the full amount of such
distribution to the Plan (including amounts derived from his Personal
Account). Such repayment must be made before the earlier of the date
the Participant incurs five (5) consecutive Breaks in Service and the
fifth anniversary of the date of the Participant's resumption of
Service. In the event of such repayment, the amount of the
Participant's Employer and Personal Accounts at the date of the
distribution shall be reestablished, with no adjustment for Income,
and all Vesting Service, whether before or after the distribution
date, shall be counted for purposes of determining the Participant's
vested percentage in the restored benefits. The amount in excess of
the Participant's repayment to the Plan which is required to restore
the full account balances shall be paid to the Plan by the Employer as
a special contribution, which contribution shall not be considered as
part of the annual addition for that Participant in connection with
the limitations of Section 4.04 hereof.
8.03 PAYMENT OF BENEFITS.
Any amounts due the Participant pursuant to this Article 8 shall be
paid or applied for his benefit within sixty (60) days following the
close of the Plan Year during which he terminates his employment with
the Employer and the Controlled Group or during which his Normal
Retirement Age occurs or during which occurs the tenth anniversary of
the year in which the Participant commenced participation in the plan,
whichever occurs the latest. Payment shall be made in accordance with
Section 6.01 hereof for the payment of retirement benefits.
Provided, however, that the Participant may elect that the
commencement date of any amounts payable to a Participant shall be as
soon as practicable following the date his Service terminates,
provided that such election is made, in the manner required by the
Committee, before the end of the calendar quarter immediately
following the calendar
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<PAGE> 53
quarter in which his Service terminates. Provided, further, that the
Participant may elect in writing to defer the receipt of such benefits
beyond his Normal Retirement Age, pursuant to the rules of Section
6.01 hereof, and subject further to the requirements as to
commencement of distributions of benefits set forth in Sections 6.05
and 6.07 hereof.
In the event of the death or Disability of the Participant subsequent
to the date his Service terminates and prior to the complete payment
of his benefits, the amount payable to or on behalf of such
Participant shall be paid as provided in Article 7 hereof.
Any amount to which a Participant is entitled pursuant to this Article
8, but which has not been paid to such Participant, shall share in the
allocation of Income for each Allocation Date on which it remains
unpaid; provided however, that if a segregated account is established
for the Participant, the provisions of Section 6.02 hereof shall
apply.
8.04 VESTED INTEREST IN SEPARATE ACCOUNT.
If a Participant receives a distribution of a portion of Part II of
his Employer Account as a result of withdrawal in accordance with
Section 5.03 hereof at a time when his vested percentage is less than
one hundred percent (100%) of such account, then a "separate account"
shall be established for the portion which he did not receive, and
shall be kept separate from any Personal Account or Employer Account
which may continue in existence or which may be established on his
behalf in the event of a resumption of Service. This separate account
shall share in each allocation of Income until it may become available
as a Forfeiture in accordance with Section 8.02 hereof. If a
subsequent withdrawal is made under Section 5.03 hereof, or if the
former Participant resumes Service and later becomes entitled to a
payment of benefits in accordance with Article 7 or 8 hereof, the
amount to which he shall then be entitled from the "separate account"
shall be computed as of the date when he ceases to be a Participant or
when he makes a withdrawal by -
(1) multiplying (a) the Participant's vested percentage as of such
date by (b) Part II of his Employer Account as of the time of the
prior distribution,
(2) subtracting the amount of the prior distribution from the result
of step (1), and
(3) multiplying the result of step (2) by the ratio of (a) the amount
of the "separate account" as of such date to (b) the original
amount of the "separate account".
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<PAGE> 54
ARTICLE 9
THE BENEFIT PLAN ADMINISTRATIVE COMMITTEE
9.01 APPOINTMENT OF COMMITTEE.
The Board of Directors of the Sponsor, or an Executive Committee of
the Board, shall appoint a Benefit Plan Administrative Committee
consisting of not less than three (3) persons. Any member of the
Committee may at any time be removed, with or without cause, and his
successor appointed by the Board of Directors, and any vacancy caused
by death, resignation, or otherwise shall be filled by the Board of
Directors of the Sponsor.
Members of the Committee shall serve without compensation, but the
reasonable expenses of the Committee in discharging its
responsibilities shall be borne by the Sponsor.
The Sponsor will notify the Trustee in writing of the names of the
members of the Committee and of any changes in Committee membership
that may transpire from time to time.
9.02 POWERS AND DUTIES OF THE COMMITTEE.
The Committee shall administer and supervise the operation of the Plan
in accordance with the terms and provisions of the Plan.
The Committee shall have all power and authority (including discretion
with respect to the exercise of that power and authority) necessary or
appropriate for the performance of its duties, which duties shall be
as follows:
(a) to construe the Plan in good faith;
(b) to determine eligibility of Employees for participation in the
Plan, and to notify Employees of their eligibility and the
requirements for such participation;
(c) to determine and certify eligibility for benefits under the Plan,
and to direct the Trustee concerning the amount, manner and time
of the payment of such benefits;
(d) to prepare and distribute, in such manner as the Committee
determines to be appropriate, information explaining the Plan;
(e) to require a Participant to complete and file with the Committee
an application for a benefit and all other forms approved by the
Committee, and to require that the Participant furnish all
pertinent information requested by the Committee, which
information may be relied upon by the Committee;
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<PAGE> 55
(f) to cause the allocations of contributions to the Plan and Income
and the application of Forfeitures to be made as of each
Allocation Date;
(g) to adopt such rules as it deems necessary, desirable or
appropriate for the administration of the Plan, provided such
rules are consistent with the terms and provisions of the Plan;
all rules and decisions of the Committee shall be uniformly and
consistently applied to all Participants in similar
circumstances;
(h) to appoint such agents as it may need in the performance of its
duties, with the consent of the Sponsor; and
(i) to receive and review the reports from the Trustee and other
agents.
9.03 COMMITTEE PROCEDURES.
The Committee may act at a meeting or in writing without a meeting.
The Committee shall elect one of its members as chairman, appoint a
secretary, who may or may not be a Committee member, and the Trustee
shall be advised in writing of such actions. The secretary shall
forward all necessary communications to the Sponsor and the Trustee.
The Committee may adopt such bylaws and regulations as it deems
desirable for the conduct of its affairs. All decisions of the
Committee shall be made by majority vote.
A dissenting Committee member who, within a reasonable time after he
has knowledge of any action or failure to act by the majority,
registers his dissent in writing delivered to the other Committee
members, the Sponsor and the Trustee, shall not be responsible for any
such action or failure to act.
9.04 CLAIMS AND REVIEW PROCEDURES.
The Committee shall establish reasonable procedures concerning the
filing of claims for benefits hereunder, and shall administer such
procedures uniformly. If a claim is wholly or partially denied, the
Committee shall furnish the claimant, within a reasonable period of
time after receipt of the claim by the Committee, a notice of such
denial, setting forth at least the following information in language
calculated to be understood by the claimant:
(a) the specific reason or reasons for the denial;
(b) specific reference to pertinent Plan provisions on which the
denial is based;
(c) a description of any additional material or information necessary
for the claimant to perfect the claim and an explanation of why
such material or information is necessary; and
(d) an explanation of the claims review procedure in the Plan.
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<PAGE> 56
Upon receipt of such a notice of denial, or if such a notice is not
furnished but the claim has not been granted within sixty (60) days of
its filing, the claimant or his duly authorized representative may
appeal to the Committee for a full and fair review.
In submitting a request for review, the claimant or his duly
authorized representative may request a review upon written
application to the Committee, may review pertinent documents, and may
submit comments in writing. Such request for review must be made
within sixty (60) days of the receipt by the claimant of the notice of
denial (or within sixty (60) days of the expiry of the sixty (60)-day
period beginning with the date of the filing of the claim, if no such
notice is received during such period).
The Committee shall respond promptly to a request for review and shall
deliver a written decision which shall include, in a manner calculated
to be understood by the claimant, the decision itself, specific
reasons therefor and specific references to the pertinent Plan
provisions on which the decision is based. The decision shall be made
not later than one hundred twenty (120) days after receipt of a
request for review.
In the event the Committee holds regularly scheduled meetings at least
quarterly, a decision on review shall be made by no later than the
date of the meeting of the Committee that immediately follows the
receipt of a request for review, unless the request for review is
received within 30 days preceding the date of such meeting, in which
case a decision shall be made by no later than the date of the second
meeting following the receipt of the request for review. If special
circumstances require a further extension of time for processing, a
decision shall be rendered not later than the third meeting of the
Committee following the receipt of the request for review. If such an
extension of time for review is required because of special
circumstances, written notice of the extension shall be furnished to
the claimant prior to the commencement of the extension.
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<PAGE> 57
ARTICLE 10
THE TRUSTEE
10.01 GENERAL DUTIES.
The Sponsor hereby continues the Trust previously established with the
Trustee pursuant to the terms of the Plan. The Trustee shall hold all
property received by it hereunder and shall manage, invest and
reinvest the Trust Fund, collect the income thereof, and make payments
therefrom, all as provided in the Plan.
The Trustee shall be responsible only for the property actually
received by it hereunder. It shall have no duty or authority to
compute any amount to be paid to it by the Employer or to bring any
action or proceeding to enforce the collection from the Employer of
any contribution to the Trust Fund.
Title to the Trust Fund, including all funds and investments held
hereunder by the Trustee, shall be and remain in the Trustee, and no
Participant, Retired Participant or Beneficiary shall have any legal
or equitable right or interest in the Trust Fund except to the extent
that such rights or interests are expressly granted under the
provisions of the Plan.
The Trust Fund may not be used or diverted for purposes other than the
exclusive benefit of Participants, Retired Participants and
Beneficiaries for the proper satisfaction of liabilities to such
persons covered by the Trust.
10.02 GENERAL POWERS.
The Trustee shall have all the powers necessary for the performance of
its duties as Trustee. The Trustee shall have the following powers
and immunities and be subject to the following duties:
(a) The Trustee shall receive all contributions hereunder and apply
such contributions as hereinafter set forth. The Trustee shall
have the custody of and safely keep all cash, securities,
property and investments, including any insurance company
contracts, received or purchased in accordance with the terms
hereof.
(b) Subject to any limitations that may be contained elsewhere in the
Plan, the Trustee shall take control and management of the Trust
Fund and shall hold, sell, buy, exchange, invest and reinvest the
corpus and income of the Trust Fund. All contributions paid to
the Trustee under the Plan shall be held and administered by the
Trustee as a single Trust Fund, and the Trustee shall not be
required to segregate and invest separately any part of the Trust
Fund representing accruals or interests of individual
Participants in the Plan, except as provided in Article 6,
Section 6.02 hereof.
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<PAGE> 58
(c) Except to the extent that Employer contributions and certain
designated Participant contributions are required by the Plan to
be invested in shares of common stock of the Sponsor, fixed
income investments, corporate common stocks, or short-term money
market type securities, the Trustee may invest and reinvest the
funds of the Trust Fund in any property, real, personal or mixed,
wherever situate, and whether or not productive of income or
consisting of wasting assets, including, without limitation,
common and preferred stock, bonds, mutual funds, notes,
debenture, leaseholds, mortgages (including without limitation,
any collective or part interest in any bond and mortgage or note
and mortgage), certificates of deposit, and oil, mineral or gas
properties, royalties, interests or rights (including equipment
pertaining thereto), without being limited to the classes of
property in which trustees are authorized by law or any rule of
court to invest trust funds and without regard to the proportion
any such property may bear to the entire amount of the Trust
Fund.
The Trustee shall have the power to invest and reinvest all or
any portion of the Trust Fund collectively with funds of other
retirement plan trusts exempt from tax under Section 501(a) of
the Code, including, without limitation, the power to invest
collectively with such other funds through the medium of one or
more common, collective or commingled trust funds or mutual funds
which have been or may hereafter be established and maintained by
the Trustee, the instrument or instruments establishing such
trust fund or funds, as amended from time to time, being made
part of this Trust and incorporated herein by reference so long
as any portion of the Trust Fund shall be invested through the
medium thereof.
(d) The Trustee may sell or exchange any property or asset of the
Trust Fund at public or private sale, with or without
advertisement, upon terms acceptable to the Trustee and in such
manner as the Trustee may deem wise and proper. The proceeds of
any such sale or exchange may be reinvested as is provided
hereunder. The purchaser of any such property from the Trustee
shall not be required to look to the application of the proceeds
of any such sale or exchange by the Trustee.
(e) The Trustee shall have full power to mortgage, pledge, lease or
otherwise dispose of the property of the Trust Fund without
securing any order of court therefore, without advertisement, and
to execute any instrument containing any provisions which the
Trustee may deem proper in order to carry out such actions. Any
such lease so made by the Trustee shall be binding,
notwithstanding the fact that the term of the lease may extend
beyond the termination of the Plan.
(f) The Trustee shall have the power to borrow money upon terms
agreeable to the Trustee and pay interest thereon at rates
agreeable to the Trustee, and to repay any debts so created.
(g) The Trustee may participate in the reorganization,
recapitalization, merger or consolidation of any corporation
wherein the Trustee may own stock or securities and may deposit
such stock or other securities in any voting trust or protective
committee or like committee or trustee, or with the depositaries
designated thereby, and may
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exercise any subscription rights or conversion privileges, and
generally may exercise any of the powers of any owner with
respect to any stock or other securities or property comprising
the Trust Fund.
(h) Each Participant shall be entitled to direct the Trustee as to
the manner in which the shares of common stock of the Sponsor
allocated to his Employer Account and his Personal Account are to
be voted. The Committee shall be entitled to direct the Trustee
as to the manner in which shares of common stock of the Sponsor
which are not allocated to the Employer Account or Personal
Account of any Participant are to be voted. The Committee and
Participants shall be furnished with appropriate notices and
information concerning the exercise of such voting rights, and
the management of the Sponsor may solicit and exercise proxies
for such voting rights.
(i) The Trustee shall retain in cash and keep unproductive of income
such funds as from time to time it may deem advisable. The
Trustee shall not be required to pay interest on any such cash in
its hands pending investment, nor shall the Trustee be
responsible for the adequacy of the Trust Fund to discharge any
and all payments under the Plan. All persons dealing with the
Trustee are released from inquiry into the decision or authority
of the Trustee to act.
(j) The Trustee may hold stocks, bonds, or other securities in its
own name as Trustee, with or without the designation of said
trust estate, or in the name of a nominee selected by it for the
purpose, but said Trustee shall nevertheless be obligated to
account for all securities received by it as part of the corpus
of the trust estate herein created, notwithstanding the name in
which the same may be held.
(k) The Trustee may consult with legal counsel (who may be of counsel
to the Employer or the Committee) concerning any questions which
may arise with reference to the construction of this Plan, its
duties hereunder, or any action which it proposes to take or
omit.
(l) The Trustee may employ such counsel, accountants and other agents
as it shall deem advisable. The Trustee may charge the
compensation of such counsel, accountants and other agents and
the Trustee's compensation for its services in such amounts as
may be agreed upon from time to time by the Employer and the
Trustee, and any other expenses necessary in the administration
of this Plan against the Trust Fund to the extent they are not
paid by the Employer.
(m) The Trustee shall have the power to designate a bank or trust
company as depositary of the funds or property of the Trust and
also to retain investment counsel, and the Trustee may deposit
funds in its commercial banking department without making bond.
(n) Without diminution or restriction of the powers vested by law or
elsewhere in this Plan, and subject to all the provisions of the
Plan, the Trustee, without the necessity of procuring any
judicial authorization therefor or approval thereof, shall be
vested
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with and, in the application of its best judgment and discretion
on behalf of the beneficiaries of this Plan, shall be authorized
to exercise all or any of the powers specifically permitted by
statute or judicial decision in the State of Tennessee.
10.03 RELIANCE ON COMMITTEE AND EMPLOYER.
Until notified pursuant to Article 9 hereof that any Committee member
or other person authorized to act for the Committee has ceased to act
or is no longer authorized to act for the Committee, the Trustee may
continue to rely on the authority of such member or other person. The
Trustee may rely upon any certificate, notice or direction purporting
to have been signed on behalf of the Committee which the Trustee
believes to have been signed by the Committee or the person or persons
authorized to act for the Committee. The Trustee may rely upon any
certificate, notice or direction of the Employer which the Trustee
believes to have been signed by a duly authorized officer or agent of
the Employer. The Trustee may request instructions in writing from
the Committee on other matters and may rely and act thereon.
10.04 ACCOUNTS AND REPORTS.
The Trustee shall keep an accurate record of its administration of the
Trust Fund, including a detailed account of all investments, receipts
and disbursements, and other transactions hereunder. All accounts,
books and records relating hereto shall be open for inspection to any
person designated by the Committee or the Sponsor at all reasonable
times. Within sixty (60) days following the close of each Plan Year,
the Trustee shall file with the Committee a written report setting
forth all investments, receipts and disbursements and other
transactions during the Plan Year, and such report shall contain an
exact description of all securities purchased, exchanged or sold, the
cost or net proceeds of sale, and shall show the securities and
investments held at the end of such Plan Year, and the cost and fair
market value of each item thereof, as carried on the books of the
Trustee.
The Trustee shall also provide the Sponsor and the Plan administrator,
if other than the Sponsor, with such other information in is
possession as may be necessary for the Plan administrator to comply
with the reporting and disclosure requirements of ERISA.
Upon the expiration of ninety (90) days from the date of filing such
report, the Trustee shall be forever released and discharged from all
liability and accountability to anyone with respect to the recording
of its acts and transactions shown in such statement, except with
respect to any such acts or transactions as to which the Sponsor or
Committee shall file with the Trustee written objections within such
ninety (90)-day period.
10.05 DISBURSEMENTS.
The Trustee, upon written instructions from the Committee, shall make
distributions and/or payments, including monthly payments, to the
Participants, Retired Participants, and Beneficiaries who qualify for
such benefits. The Trustee shall have no liability to the
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Employer, the Committee or any other person in making such
distributions and/or payments. The Trustee shall not be required to
determine or make any investigation to determine the identity or
mailing address of any person entitled to benefits under the Plan and
shall have discharged its obligation in that respect when it shall
have sent checks and other papers by ordinary mail to such person or
persons at such addresses as may be certified to it in writing by the
Committee.
10.06 PAYMENT IN KIND.
Whenever the Trustee is empowered hereunder to make any payment or
distribution, the Trustee shall have the power, in its sole
discretion, to make such payment in cash or in kind, or partly in cash
and partly in kind; provided, however, that in no event shall any
payment or distribution be made in the form of a life annuity. The
assets of the Trust Fund shall be valued, for the purposes of making,
or of computing the amount of, such payment or distribution, at their
fair market value at the dates of such payment or distributions.
10.07 AUTHORITY OF TRUSTEE.
At no time during the administration of the Trust Fund shall the
Trustee be required to obtain any court approval of any act required
of it in connection with the performance of its duties or in the
performance of any act required of it in the administration of its
duties as Trustee. The Trustee shall have full authority to exercise
its judgment in all matters and at all times without court approval of
such decisions; provided, however, that if any application to, or
proceeding or action in, the courts is made, only the Sponsor and the
Trustee shall be necessary parties, and no Participant in the Plan or
other person having an interest in the Trust Fund shall be entitled to
any notice or service of process. Any judgment entered in such
proceeding or action shall be conclusive upon all persons claiming an
interest under the Trust Fund.
10.08 FUNDING POLICY; PARTIES IN INTEREST.
From time to time the Committee shall communicate to the Trustee the
current funding policy and method that have been established to carry
out the objectives of the Plan.
Upon the written request of the Trustee, the Sponsor shall file with
the Trustee a roster of the names of all persons, corporations,
partnerships, organizations and entities which are "parties in
interest" with respect to the Plan, as that term is defined in ERISA.
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ARTICLE 11
AMENDMENT AND TERMINATION OF THE PLAN
11.01 AMENDMENT OF PLAN.
The Board of Directors of the Sponsor shall have the right at any
time, and without the consent of the Trustee or any Participant,
Adopting Company, or any other person, to modify, alter or amend the
Plan in whole or in part by instrument in writing duly executed.
Provided, however, that the Plan shall not be amended in the following
respects:
(a) the duties, powers and responsibilities of the Trustee shall not
be increased without the written consent of the Trustee;
(b) subject to Section 12.05 hereof, no amendment may be made to
permit any part of the funds of the Trust to be used for or
diverted to purposes other than for the exclusive benefit of
Participants, Retired Participants and their Beneficiaries or for
administration expenses of the Plan;
(c) no amendment may be made, unless it is necessary to meet the
requirements of any federal law or regulation, which shall
operate to deprive any Participant, Retired Participant or
Beneficiary of any benefits which have accrued to him prior to
the later of the date of adoption or the effective date of such
amendment; and
(d) no amendment to the vesting provision in Section 8.01 hereof
shall reduce the nonforfeitable percentage of any Participants'
Employer Account determined as of the date the amendment is
adopted (or the date the amendment is effective, if later), and
no such amendment shall become effective with respect to a
Participant who has completed three (3) or more years of Service
at the date of adoption of such amendment unless such Participant
is given a period of sixty (60) days after the latest of:
(i) the date of adoption of the amendment,
(ii) the effective date of the amendment, and
(iii) the date written notification of the amendment is
furnished such Participant
to elect irrevocably to have his nonforfeitable benefits computed
without regard to such amendment.
An executed copy of any amendment to the Plan shall be furnished the
Trustee as soon as practicable after the date of adoption thereof.
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11.02 INTENT TO CONTINUE THE PLAN.
The Employer has established the Plan with the bona fide intention and
expectation that from year to year it will make contributions as
herein provided. However, the Employer realizes that it may become
inadvisable to continue such contributions. The Employer shall have
the right to modify, suspend, or discontinue contributions to the Plan
at any time and from time to time, and such action shall not be deemed
to be a termination of the Plan.
11.03 REMOVAL OR RESIGNATION OF TRUSTEE.
The Trustee may at any time be removed as Trustee of the Plan by
action of the Board of Directors of the Sponsor and written notice to
the Trustee, such removal to be effective sixty (60) days after such
notice is given.
The Trustee may resign as Trustee of the Plan upon written notice to
the Sponsor, such resignation to be effective sixty (60) days after
such notice is given.
Upon mutual, written agreement by the Sponsor and the Trustee, the
sixty (60)-day period in this Section 11.03 may be waived or a shorter
period substituted.
11.04 SUCCESSOR TRUSTEE.
In the event of the resignation or removal of the Trustee, the Sponsor
shall appoint a successor trustee in place of the resigned or removed
Trustee.
Within one hundred twenty (120) days after written notice of
removal or resignation, the Trustee shall file with the Sponsor a
written report setting forth all investments, receipts and
disbursements and other transactions effected by it since the end of
the preceding Plan Year. Such report shall be in the same form and be
subject to the same requirements as the annual report.
The Trustee, if not paid by the Sponsor, is authorized to reserve such
sum of money or to liquidate such property and reserve the proceeds
thereof as it may deem advisable for the payment of its expenses
and/or charges in connection with the settlement of its account or
otherwise, and any such balance of such reserve remaining after the
payment of such expenses and charges shall be paid over to the
successor trustee or trustees, or to the Participants in the event of
termination.
11.05 TERMINATION OF THE PLAN BY THE SPONSOR.
In the event the Sponsor concludes that it is impossible or
inadvisable to continue the Plan, the Board of Directors of the
Sponsor shall have the right to terminate the Plan by an appropriate
resolution or resolutions which shall specify the date of termination.
A certified copy of such resolution or resolutions shall be delivered
to the Committee and to the Trustee, and as soon as possible
thereafter the Committee shall send or deliver to each then
Participant a notice of such action.
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If a determination is made that the Plan has experienced a partial
termination, the Plan shall be considered terminated with respect to
the affected Participants, Retired Participants and Beneficiaries.
11.06 DISTRIBUTION OF TRUST FUND UPON TERMINATION.
Upon termination or partial termination of the Plan or the complete
discontinuance of Employer contributions to the Plan, the balance in
each affected Participant's or Retired Participant's accounts (after
payment of all expenses and proportional adjustment of Participant's
accounts to reflect such expenses, investment gains or losses and
reallocations to the date of termination), shall become
nonforfeitable, and each Participant, Retired Participant or
Beneficiary shall, subject to limitations of Section 6.06, be entitled
to receive any amounts then credited to his accounts in the Trust
Fund; provided that, the Employer may elect to continue the Trust and
make payments therefrom pursuant to the terms of the Plan.
Pursuant to instructions from the Committee, the Trustee shall make
payment of such amounts in a single sum or annual installments, either
in cash or in assets in kind of the Trust Fund, or partly in cash and
partly in assets in kind of the Trust Fund; provided, however, that in
no event shall any payment or distribution be made in the form of a
life annuity. Upon the distribution of all of the Trust Funds as
aforesaid, the Trustee shall be discharged from all obligations under
the Trust and no Participant, Retired Participant or Beneficiary shall
have any further right or claim therein.
11.07 TERMINATION OF PLAN WITH RESPECT TO AN ADOPTING COMPANY.
Each Adopting Company reserves the right to terminate the Plan at any
time with respect to Employees of the Adopting Company by action of
its board of directors. The Adopting Company shall also have the
right to suspend contributions to the Plan from time to time, and such
suspension of contributions shall not be deemed to be a termination of
the Plan with respect to the Employees of the Adopting Company except
that a complete discontinuance of Employer contributions to the Plan
by an Adopting Company shall require that the amounts credited to the
accounts of affected Participants become nonforfeitable pursuant to
Section 11.06.
In the event of termination of the Plan only with respect to the
Employees of the Adopting Company, the Committee shall direct that the
portion of the Fund attributable to Employees of the Adopting Company
be segregated by the Trustee into a separate fund.
The portion of the Fund which is so segregated shall be retained in a
separate trust fund and applied in one of the following methods, at
the discretion of the Committee:
(a) If the Adopting Company shall demonstrate conclusively, within
the one hundred eighty (180) day period immediately following
termination of the Plan with respect to its Employees, that it
has established a successor retirement plan and trust for the
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benefit of its Employees which is qualified under Section 401(a)
of the Code, such assets shall be transferred to the successor
trustee.
(b) If the Adopting Company shall fail, within the one hundred eighty
(180) day period immediately following termination of the Plan
with respect to its Employees, to establish a successor
retirement plan and trust which is qualified under Section 401(a)
of the Code, such assets shall, subject to limitations of Section
6.06, be distributed for the benefit of the Employees of the
Adopting Company in accordance with the method described in
Section 11.06 hereof.
11.08 TRANSITIONAL RULE.
Notwithstanding the provisions of Sections 1.30(b), 1.37(c) and 8.02
hereof requiring a minimum of five (5) consecutive Breaks in Service
in order for certain Service to be disregarded or certain Forfeitures
to become available, any Service which could be disregarded on
December 31, 1984 under the terms of the Plan in effect on that date
shall be disregarded, and any Forfeiture which became available to
reduce Employer contributions on or before December 31, 1984, shall
not be reinstated.
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ARTICLE 12
CERTAIN PROVISIONS AFFECTING THE EMPLOYER
12.01 DUTIES OF THE EMPLOYER.
The Sponsor shall furnish the Trustee with the information required
herein, and shall appoint the Committee. Each Employer shall make its
contributions as the same may be appropriated by due corporate action,
which contributions may be in cash or in other property acceptable to
the Trustee. The Employer shall keep accurate books and records with
respect to its Employees and their compensation.
12.02 RIGHT OF EMPLOYER TO DISCHARGE EMPLOYEES.
The adoption and maintenance of the Plan shall not be deemed to
constitute a contract between the Employer and any Employee, or to be
a consideration for, or an inducement or condition of, the employment
of any person.
12.03 INFORMATION TO BE FURNISHED.
As soon as practicable after the close of each Plan Year, each
Employer shall deliver to the Committee a full and complete list of
all Employees entitled to participate in the Plan during such Plan
Year, together with the information required to perform the
allocations described in Article 4 hereof with respect to such Plan
Year.
As soon as possible after the execution of the Plan, and from
time to time thereafter, the Sponsor shall certify to the Trustee the
names and specimen signatures of the members of the Committee then
acting who have authority to control and manage the operation and
administration of the Plan.
12.04 COMMUNICATIONS FROM SPONSOR TO TRUSTEE.
The Trustee may rely upon and shall be protected in acting upon any
information furnished to it by the Sponsor in writing subscribed by an
officer of the Sponsor. Any certification by the Sponsor of the
information required or permitted to be certified to the Trustee
pursuant to the provisions of the Plan, shall, for all purposes of the
Plan, be binding upon all parties in interest.
12.05 NO REVERSION TO EMPLOYER.
The Employer has no beneficial interest in the Trust Fund, and no part
of the Trust Fund shall ever revert or be repaid to the Employer,
directly or indirectly, except:
(a) upon initial non-qualification pursuant to Section 13.11 hereof;
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(b) in the event that the deduction of an Employer contribution to
the Plan under Section 404 of the Code is disallowed, in which
case the contribution (to the extent disallowed) shall be
returned to the Employer, upon the request of the Employer within
one (1) year after the disallowance of the deduction; or
(c) in the event that the Employer contribution is made by mistake of
fact, in which case the amount of such mistaken contribution
shall be returned to the Employer provided no more than one (1)
year has elapsed since the date of payment by the Employer of the
mistaken contribution;
if, and to the extent, permitted by the Code and applicable regulations
thereunder.
12.06 INDEMNIFICATION BY SPONSOR.
The right of indemnification granted to each director, officer or
employee of the Sponsor under the by-laws of the Sponsor, as from time
to time amended, shall apply to any action taken by the Committee or
by any individual member of the Committee in connection with the Plan.
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ARTICLE 13
MISCELLANEOUS PROVISIONS
13.01 ALLOCATION OF RESPONSIBILITY AMONG FIDUCIARIES FOR PLAN AND TRUST
ADMINISTRATION.
Each Fiduciary shall have only those specific powers, duties,
responsibilities and obligations as are specifically given it under
the Plan. Each Fiduciary warrants that any directions given,
information furnished, or action taken by it shall be in accordance
with the provisions of the Plan authorizing or providing for such
direction, information or action. Furthermore, each Fiduciary may
rely upon any such direction, information or action of any other
Fiduciary as being proper under the Plan and is not required to
inquire into the propriety of any such direction, information or
action. It is intended that each Fiduciary shall be responsible for
the proper exercise of its own powers, duties, responsibilities and
obligations under the Plan and shall not be responsible for any act or
failure to act of another Fiduciary. No Fiduciary guarantees the
Trust Fund in any manner against investment loss or depreciation in
asset value.
Each Fiduciary shall discharge its duties set forth in
the Plan solely in the interests of the Participants, Retired
Participants and their Beneficiaries:
(a) for the exclusive purpose of:
(1) providing benefits to such person; and
(2) defraying reasonable expenses of administering the Plan;
(b) with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct
of an enterprise of a like character and with like aims.
13.02 ALIENATION OR ASSIGNMENT OF BENEFITS.
The right of any Participant, Retired Participant or Beneficiary in
any benefit or to any payment hereunder or to any segregated account
may not be anticipated, conveyed, assigned, mortgaged or encumbered
either by voluntary or involuntary action or by operation of law; nor
shall any such right or interest be in any manner subject to levy,
attachment, execution, garnishment or any other seizure under legal,
equitable or other process; provided, however, that this prohibition
on alienation of benefits shall not apply to prevent payments by the
Trustee in recognition of the rights of a spouse, former spouse, child
or other dependent of the Participant embodied in a "qualified
domestic relations order" (as defined in Section 206(d)(3) of ERISA
and in Section 414(p)(1) of the Code) entered on or after January 1,
1985. Distributions pursuant to a qualified domestic relations order
may be made without regard to the age or employment status of the
Participant.
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The Benefit Plan Administrative Committee shall establish a written
procedure to determine, after December 31, 1984, the status of a
judgment, decree or order as a "qualified domestic relations order"
and to administer Plan benefit payments in accordance with such
orders. In the event that a Participant's benefits are garnished or
attached by court order determined in accordance with the aforesaid
procedure not to constitute a "qualified domestic relations order",
the Committee may bring an action for declaratory judgment in a court
of competent jurisdiction to determine the proper recipient of Plan
benefits. During the pendency of such action, any benefits which
become payable on behalf of the Participant may be paid into the court
for distribution to the proper recipient in accordance with the
judgment of the court.
13.03 HEADINGS.
The headings and sub-headings of Articles and Sections are included
solely for convenience of reference, and if there be any conflict
between such headings and the text of the Plan, the text shall
control.
13.04 CONSTRUCTION OF THE PLAN.
All legal questions pertaining to the Plan shall be determined in
accordance with the laws of the State of Tennessee, to the extent that
federal law is not controlling, and all contributions hereunder shall
be deemed to have been made in that state.
In the construction of the Plan, the masculine gender shall include
the feminine, and the singular shall include the plural, unless the
context clearly indicates otherwise.
13.05 CORRECTION OF ERRORS.
If any error or change in records results in any Participant, Retired
Participant or Beneficiary receiving from the Plan more or less than
he would have been entitled to receive had the records been correct or
had the error not been made, the Committee, upon discovery of such
error, shall correct the error by adjusting, as far as practicable,
the payments in such a manner that the benefits to which such person
was correctly entitled shall be paid.
13.06 LEGALLY INCOMPETENT.
If any Participant, Retired Participant or Beneficiary is a minor, or
is in the judgment of the Committee otherwise legally incapable of
personally receiving and giving a valid receipt for any payment due
him hereunder, the Committee may, unless and until claim shall have
been made by a guardian or conservator of such person duly appointed
by a court of competent jurisdiction, direct that such payment, or any
part thereof, be made to such person or to such person's spouse,
child, parent, brother or sister, or other person deemed by the
Committee to be a proper person to receive such payment. Any payment
so made shall be, to the extent of the payment, a complete discharge
to the Employer and Trustee of any liabilities under the Plan.
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13.07 SUCCESSOR ORGANIZATION.
In the event of a merger or consolidation of any Employer into, or
transfer of all or substantially all of its assets to, any
corporation, partnership or association, provision may be made by such
successor corporation, partnership or association for its election of
the continuance of this Plan as to such successor entity. Such
successor shall, upon its election to continue this Plan, be
substituted in place of the transferor Employer by an instrument duly
authorizing such substitution and duly executed by such Employer and
its successor provided that such entity qualifies as an Adopting
Company. Upon notice of such substitution, accompanied by a certified
copy of the resolutions of the Boards of Directors of such Employer
and its successor authorizing such substitution and delivered to the
Trustee, the Trustee shall be authorized to recognize such successor
in place of the transferor Employer.
13.08 MINIMUM BENEFIT IN SUCCESSOR PLAN.
In the event of any merger or consolidation of the Plan with, or the
transfer of assets or liabilities of the Plan to, any other qualified
plan or trust, each Participant, Retired Participant and Beneficiary
shall be entitled upon termination of the successor plan or trust
immediately after the merger, consolidation or transfer to a benefit
in an amount not less than he would have been entitled to receive if
the Plan had terminated immediately before the merger, consolidation
or transfer.
13.09 APPLICATION OF PLAN PROVISIONS.
The provisions of the Plan shall apply only to Employees who terminate
Service, or incur Breaks in Service, on or after the Effective Date.
Any retirement plan rights and benefits of former Employees shall be
determined in accordance with the provisions of any predecessor plan
as in effect on the respective dates of termination of Service or
Break in Service of such former Employees.
13.10 SEVERABILITY OF PROVISIONS.
The provisions of this Plan are severable, and should any provision be
ruled illegal, unenforceable or void, all other provisions not so
ruled shall remain in full force and effect.
13.11 QUALIFICATION OF THE PLAN.
The adoption of the Plan by each Employer is contingent on the receipt
of a written, initial determination letter by the Internal Revenue
Service that the Plan and Trust, with any modifications or amendments
thereto requested by the Internal Revenue Service and agreed to by the
Corporation, constitute a qualified plan and trust under Sections
401(a) and 501(a) of the Code. In the event no such determination
letter is received, no Participant, Retired Participant or Beneficiary
attaining such status as a result of adoption of the Plan by the
Employer shall have any right or claim to the assets of the Trust Fund
or to any benefit under the Plan, all contributions made by the
Employer and such Participants in accordance with the terms of the
Plan shall be returned to the respective
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parties, the Plan and Trust shall be terminated forthwith with respect
to such Employer, and the Trustee shall be discharged from all
obligation pursuant to adoption of the Plan by the Employer.
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ARTICLE 14
PROVISIONS APPLICABLE TO A TOP HEAVY PLAN
14.01 TOP HEAVY PLANS.
The provisions of this article are designed to meet the requirements
of Section 416 of the Code and shall automatically supersede any
conflicting provisions in the Plan in every Plan Year in which this
Plan is or becomes a Top Heavy Plan. Provided, however, that if the
provisions of this article are in conflict with final regulations
issued by the Secretary of the Treasury with respect to Top Heavy
Plans, then such final regulations shall supersede the provisions of
this article to the extent not otherwise specifically prohibited by
law.
14.02 DEFINITIONS.
For purposes of this article, and only this article, unless a term
defined in this article is the subject of explicit reference elsewhere
in the Plan, the following terms when used herein, unless the context
clearly indicates otherwise, shall have the meanings set forth
hereinafter:
(a) "Compensation" shall mean, for each Employee, compensation as
that term is defined in Section 4.04 of the Plan, plus amounts
contributed by the Employer pursuant to a salary reduction
agreement which are excludible from the employee's gross income
under Section 125, Section 402(e)(3), Section 402(h) or Section
403(b) of the Code. However, "Compensation" shall not include
compensation in excess of the applicable dollar limits in Section
1.07(d) and 1.07(e).
(b) "Determination Date" shall mean, with respect to any Plan Year
subsequent to the first Plan Year, the last day of the preceding
Plan Year.
(c) "Key Employee" shall mean any Employee or former Employee (or
Beneficiary of such Employee) who, at any time during the
determination period, was (i) an officer of the Employer having
an annual Compensation greater than fifty percent (50%) of the
maximum dollar limitation in effect under Section 415(b)(1)(A) of
the Code for any such Plan Year, (ii) an owner of one (1) of the
ten (10) largest interests in the Employer if such interest is
greater than one-half percent (1/2%) and such individual's
Compensation exceeds the maximum dollar limitation under Section
415(c)(1)(A) of the Code, (iii) a five percent (5%) or more owner
of the Employer or (iv) a one percent (1%) or more owner of the
Employer who has an annual Compensation of more than one hundred
and fifty thousand dollars ($150,000). The term "determination
period" shall mean the Plan Year containing the Determination
Date and the four (4) preceding Plan Years. The determination of
who is a Key Employee shall be made in accordance with Section
416(i)(1) of the Code and regulations thereunder. For purposes
hereof, the term "officer" shall mean an administrative
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<PAGE> 73
executive who is in regular and continued service. An Employee
who merely has the title of an officer, but not the authority of
an officer, is not to be considered an officer hereunder.
Furthermore, for purposes hereof, at any time during a
determination period, no more than fifty (50) Employees of all
members of a Controlled Group, or, if lesser, the greater of
three (3) individuals or ten percent (10%) of such Employees,
shall be treated as officers hereunder. The officers subject to
these preceding limitations shall be comprised of the individual
officers selected from the group of all individuals who were
officers in the current Plan Year of the determination period or
any of the four (4) preceding Plan Years in the determination
period, who had the largest average annual compensation
throughout the total of those five (5) Plan Years in the
determination period. For purposes of (ii) herein, if two (2)
employees have the same interest in the Employer, the Employee
having the greater annual Compensation (without regard to the
dollar limitation of Section 14.02(a) hereof) from the Employer
shall be treated as having a larger interest. Likewise, for
purposes hereof, the term "owner" shall mean an individual
considered to be an owner within the meaning of Section 318 of
the Code; provided, however, that subparagraph (c) of Section
318(a)(2) shall be applied by substituting "5 percent" for "50
percent".
(d) "Non-Key Employee" shall mean any Employee who is not a Key
Employee.
(e) "Permissive Aggregation Group" shall mean the Required
Aggregation Group of plans plus any other plan or plans of the
Employer, as selected by the Employer, which, when considered as
a group with the Required Aggregation Group, would continue to
satisfy the requirements of Sections 401(a)(4) and 410 of the
Code.
(f) "Present Value" shall mean, if the Employer also now or ever
maintains a qualified defined benefit pension plan, the present
value of a benefit based only on the interest and mortality rates
specified in that plan.
(g) "Required Aggregation Group" shall mean as follows:
(1) each qualified plan of the Employer in which at least one
(1) Key Employee participates or participated at any time
during the determination period (regardless of whether or
not the plan terminated), and
(2) any other qualified plan of the Employer which enables a
plan described in the preceding subsection (1) to meet the
requirements of Sections 401(a)(4) or 410 of the Code.
(h) "Super Top Heavy Plan" shall mean, for any Plan Year, the Plan if
it would be a Top Heavy Plan under subsection 14.02(i) hereof if
the words "ninety percent (90%)" were substituted for the words
"sixty percent (60%)" in subsection 14.02(i) hereof.
(i) "Top Heavy Plan" shall mean, for any Plan Year, the Plan if any
of the following conditions exists.
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(1) If the Top Heavy Ratio for this Plan exceeds sixty percent
(60%) and this Plan is not part of any Required Aggregation
Group or Permissive Aggregation Group of plans.
(2) If this Plan is a part of a Required Aggregation Group of
plans, but not part of a Permissive Aggregation Group, and
the Top Heavy Ratio for the Required Aggregation Group of
plans exceeds sixty percent (60%).
(3) If this Plan is a part of a Required Aggregation Group and
also is a part of a Permissive Aggregation Group of plans,
and the Top Heavy Ratio for the Permissive Aggregation
Group exceeds sixty percent (60%).
(j) "Top Heavy Ratio" shall mean as follows.
(1) If the Employer maintains one (1) or more defined
contribution plans (including any simplified employee
pension plan under Section 408(k) of the Code), and the
Employer has never maintained any defined benefit plan
which has covered or could cover a Participant in this
Plan, then the Top Heavy Ratio is a fraction, the numerator
of which is the sum of the account balances of all Key
Employees as of the Determination Date (including any part
of any account balance distributed in the five (5) year
period ending on the Determination Date), and the
denominator of which is the sum of all account balances
(including any part of any account balance distributed in
the five (5) year period ending on the Determination Date)
of all Participants as of the Determination Date. Both the
numerator and denominator of the Top Heavy Ratio are
adjusted to reflect any contribution which is due but
unpaid as of the Determination Date.
(2) If the Employer maintains one (1) or more defined
contribution plans (including any simplified employee
pension plan under Section 408(k) of the Code), and the
Employer maintains or has maintained one (1) or more
defined benefit pension plans which have covered or could
cover a Participant in this Plan, then the Top Heavy Ratio
is a fraction, the numerator of which is the sum of account
balances under the defined contribution plans for all Key
Employees and the present value of accrued benefits under
the defined benefit pension plans for all Key Employees,
and the denominator of which is the sum of the account
balances under the defined contribution plans for all
Participants and the present value of accrued benefits
under the defined benefit pension plans for all
Participants. Both the numerator and denominator of the
Top Heavy Ratio are adjusted for any distribution of an
account balance or an accrued benefit made in the five (5)
year period ending on the Determination Date and any
contribution due, but unpaid, as of the Determination Date.
(3) For purposes of the preceding subsections (1) and (2), the
value of account balances and the present value of accrued
benefits shall be determined as of the most recent Top
Heavy Valuation Date that falls within or ends with the
twelve (12) month period ending on the Determination Date.
The account balances
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<PAGE> 75
and accrued benefits of a Participant who is a Non-Key
Employee, but who was a Key Employee in a prior year, or
who has not been credited with at least one (1) Hour of
Service with any Employer maintaining the Plan at any time
during the preceding five (5) year period ending on the
Determination Date, shall be disregarded. The calculation
of the Top Heavy Ratio, and the extent to which
distributions, rollovers and transfers are taken into
account shall be made in accordance with Section 416 of the
Code and the regulations thereunder. Distributions shall
include distributions under a terminated plan which if it
had not been terminated would have been included in the
Required Aggregation Group. When aggregating plans, the
value of account balances and accrued benefits shall be
calculated with reference to the determination dates that
fall within the same calendar year.
(k) "Top Heavy Valuation Date" shall mean, with respect to any Plan
Year, for this Plan, the Determination Date, and shall mean with
respect to any Plan Year for a defined benefit pension plan
maintained by the Employer, if any, the day within the twelve
(12) month period ending on the determination date for such
defined benefit pension plan as of which the actuarial
determination of the minimum funding standard is calculated.
14.03 MINIMUM ALLOCATIONS IN SINGLE PLAN.
Notwithstanding the provisions of Section 4.01 hereof, and before any
contributions are allocated thereunder, minimum Employer contributions
shall be made and allocated pursuant to this section in a Plan Year in
which the Plan is a Top Heavy Plan.
(a) The minimum Employer contribution for a Participant who is a
Non-Key Employee for any Plan Year in which the Plan is a Top
Heavy Plan shall not be less than the lesser of (i) three percent
(3%) of his Compensation or (ii) the percentage at which Employer
contributions (including deferred income contributions and
matching Employer contributions) are made for the Plan Year in
respect of the Key Employee for whom such percentage is the
highest for the Plan Year, taking into account such Key
Employee's Compensation.
This minimum allocation shall be made even though, under other
Plan provisions, the Participant would not otherwise be entitled
to receive an allocation, or would have received a lesser
allocation for the Plan Year because of the following:
(1) the Participant's failure to complete one thousand (1,000)
Hours of Service;
(2) the Participant's failure to make mandatory Employee
contributions, if any, required for participation in the
Plan; or
(3) the Participant's Compensation was less than any stated
required amount.
This subsection shall not apply, however, to any Participant who
was not employed by the Employer on the last day of the Plan
Year.
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<PAGE> 76
In determining Employer contributions under this section,
contributions or benefits under Chapter 2 of the Code (relating
to taxes on self-employed income), Chapter 21 of the Code
(relating to the Federal Insurance Contribution Act) or any other
Federal or State laws (including Title II of the Social Security
Act) shall not be taken into account. In determining Employer
contributions under this section for a Non-Key Employee, deferred
income contributions, matching Employer contributions, and basic
Employer contributions needed to satisfy the actual contribution
percentage nondiscrimination test pursuant to Section 3.06 or the
actual deferral percentage nondiscrimination test pursuant to
Section 3.05 shall not be taken into account.
The minimum allocations required hereunder (to the extent
required to be nonforfeitable under Section 416(b) of the Code)
shall not be forfeitable under Sections 411(a)(3)(B) (regarding
the suspension of benefits upon reemployment of a retiree) or
411(a)(3)(D) (regarding withdrawal of mandatory contributions) of
the Code.
(b) Any Employer contributions and Forfeitures remaining unallocated
shall be allocated pursuant to the provisions of Sections 3.01
and 4.01 hereof; provided, however, that all allocations under
the Plan pursuant to Sections 3.01 and 4.01 shall be determined
with respect to Compensation as that term is defined in Section
1.07 hereof.
14.04 MINIMUM VESTING SCHEDULES.
The nonforfeitable interest of each Participant in his Employer
Account in a Plan Year in which this Plan is a Top Heavy Plan shall be
the vested percentage set forth in Section 8.01.
14.05 SPECIAL LIMITATIONS AND ALLOCATION IN MULTIPLE PLANS.
If for any Plan Year the Plan is a Top Heavy Plan, and the Employer
maintains, or has ever maintained, a qualified defined benefit pension
plan which is part of a Required or Permissive Aggregation Group, as
appropriate, then the provisions of this section shall apply.
For Top-Heavy Plan Years, if the Plan is part of an Aggregation Group
that includes a defined benefit pension plan, the minimum benefit
required by Section 416 of the Code shall be provided to Participants
who are Non-Key Employees and who participate in both this Plan and
the defined benefit plan in the following manner. For those
Participants to whom the defined benefit minimum benefits are accruing
under the terms of the defined benefit plan, and in accordance with
Section 416(c)(1) of the Code, no minimum allocation need be provided
under this Plan. For those Participants who are Non-Key Employees and
to whom such defined benefit minimum benefits are not accruing,
Employer shall contribute to Part I of the Employer Account of each
such Non-Key Employee an amount sufficient to provide a minimum
benefit such that total Employer contributions for the Top-Heavy Plan
Year shall equal five percent (5%) of Compensation (as recognized in
Section 4.04 hereof).
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<PAGE> 77
For any Top-Heavy Plan Year, 1.0 shall be substituted for 1.25 in the
determination of the denominator of both the defined contribution
fraction and the defined benefit fraction pursuant to Section 4.04
hereof. The foregoing substitution shall not be required if the Plan
is not a Super Top-Heavy Plan and if a total minimum allocation is
provided to all Non-Key Employees who do not participate in the
defined benefit plan, in accordance with Section 14.03 hereof,
substituting four percent (4%) for three percent (3%), and to all
Non-Key Employees who also participate in the defined benefit plan,
in accordance with this Section, but substituting seven and one-half
percent (7-1/2%) for five percent (5%).
IN WITNESS WHEREOF, the Sponsor and the Trustee have each caused this
Plan and Trust to be executed by its duly authorized representative
on this 27th day of June, 1994.
SPONSOR:
FIRST AMERICAN CORPORATION
By: /S/ Dennis C. Bottorff
-------------------------------
Attest: /s/ Title: President & CEO
-------------------- ----------------------------
TRUSTEE:
FIRST AMERICAN TRUST COMPANY, N.A.
By: /S/ Barbara Shoulders
-------------------------------
Attest: /s/ Title (if appropriate): Asst. V.P.
-------------------- -----------
The Plan may be executed in several counterparts, each of which
shall be deemed an original.
14 - 6
<PAGE> 1
EXHIBIT 5
<PAGE> 2
Exhibit 5
January 20, 1995
First American Corporation
First American Center
Nashville, Tennessee 37237
Ladies and Gentlemen:
As General Counsel of First American Corporation, a Tennessee corporation
("First American"), I have examined and am familiar with such documents,
corporate records and other instruments as I have deemed necessary for the
purposes of this opinion, including the First American Corporation First
Incentive Reward Savings Thrift Plan (the "Plan"), the corporate proceedings of
First American taken to adopt the Plan, and the Registration Statement on Form
S-8 (the "Registration Statement") filed by First American with the Securities
and Exchange Commission for the registration under the Securities Act of 1933,
as amended, of 1,000,000 shares of Common Stock, par value of $5.00 per share,
of First American ("Common Stock") to be distributed under the Plan.
Based on the foregoing, I am of the opinion that when certificates for such
shares of Common Stock have been duly executed, countersigned and registered by
a Transfer Agent of First American and paid for in accordance with applicable
law and delivered in accordance with the terms of the Plan, such shares of
Common Stock will be duly authorized, validly issued, fully paid and non-
assessable.
I hereby consent to the use of my opinion for filing as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Martin E. Simmons
- ---------------------
Martin E. Simmons
MES/mnp
<PAGE> 1
EXHIBIT 15
<PAGE> 2
EXHIBIT 15
The Board of Directors
First American Corporation
Re: Form S-8 Filing for the First American Corporation
First Incentive Reward Savings Thrift Plan
With respect to the subject registration statement, we acknowledge our
awareness of the use therein to our reports dated October 21, 1994, July 21,
1994, and April 21, 1994 related to our reviews of interim financial
information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports are not
considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the
meaning of sections 7 and 11 of the Act.
Very truly yours,
KPMG Peat Marwick LLP
/s/ KPMG Peat Marwick LLP
Nashville, Tennessee
January 19, 1995
<PAGE> 1
EXHIBIT 23.1
<PAGE> 2
EXHIBIT 23.1
ACCOUNTANTS' CONSENT
The Board of Directors
First American Corporation
We consent to the use of our audit report dated January 21, 1994 on the
consolidated financial statements of First American Corporation and
subsidiaries as of December 31, 1993 and 1992, and for each of the years in the
three-year period ended December 31, 1993 incorporated herein by reference, our
audit report dated March 10, 1994 on the financial statements of First American
Corporation First Incentive Reward Savings Thrift Plan as of December 31, 1993
and 1992, and for each of the years in the three-year period ended December 31,
1993 incorporated herein by reference, and to the reference to our firm under
the heading "Experts" in the registration statement. Our January 21, 1994
report refers to the Corporation's adoption in 1993 of the provisions of the
Financial Accounting Standards Board's Statements of Financial Accounting
Standards No. 109, Accounting for Income Taxes; No. 106, Employers' Accounting
for Postretirement Benefits Other Than Pensions; No. 112, Employers' Accounting
for Postemployment Benefits; and No. 115, Accounting for Certain Investments in
Debt and Equity Securities.
KPMG Peat Marwick LLP
/s/ KPMG Peat Marwick LLP
Nashville, Tennessee
January 19, 1995
