Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
FIRSTAR CORPORATION
(Exact name of registrant as specified in its charter)
Wisconsin 39-0711710
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(Address of principal executive offices) (Zip Code)
First Colonial Bankshares Corporation
Retirement Plan
(Full title of the plans)
____________________
Howard H. Hopwood III, Esq.
Firstar Corporation
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 765-5977
(Name, address and telephone number, including area code,
of agent for service)
__________________________
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed
Securities to be to be Maximum Maximum Amount of
Registered Registered Offering Aggregate Registrat
Price Offering ion Fee
Per Share Price
Common Stock, 12,000 $27.69(1) $332,280(1) $114.58
$1.25 par value shares
Preferred Share 6,000 (2) (2) (2)
Purchase Rights rights
(1) Estimated pursuant to Rule 457(c) under the Securities Act of 1933
solely for the purpose of calculating the registration fee based on
the average of the high and low prices for Firstar Corporation
Common Stock on the New York Stock Exchange consolidated reporting
system on January 27, 1995.
(2) The value attributable to the Preferred Share Purchase Rights is
reflected in the market price of the Common Stock to which the
Rights are attached.
_________________________________
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.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified
in Part I are not required to be filed with the Securities and Exchange
Commission (the "Commission") as part of this Form S-8 Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by Firstar
Corporation (the "Company") or by the First Colonial Bankshares
Corporation Retirement Plan (the "Plan") are hereby incorporated herein by
reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1993, which includes certified financial statements as of and
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. All other reports filed since December 31, 1993 by the
Company or the Plan pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934.
4. The description of the Company's Common Stock contained in
Item 1 of the Company's Registration Statement on Form 8-A, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company or the Plan
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended, after the date of filing of this Registration
Statement and prior to such time as the Company files a post-effective
amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Howard H. Hopwood III, Esq., Senior Vice President and General
Counsel of the Company, has acted as legal counsel for the Company in
connection with the registration of the Common Stock. Mr. Hopwood is a
full-time employee of the Company and at December 31, 1994 beneficially
owned 55,372 shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law, directors
and officers of the Company are entitled to mandatory indemnification from
the Company against certain liabilities and expenses (i) to the extent
such officers or directors are successful in the defense of a proceeding
and (ii) in proceedings in which the director or officer is not successful
in defense thereof, unless it is determined that the director or officer
breached or failed to perform his or her duties to the Company and such
breach or failure constituted: (a) a willful failure to deal fairly with
the Company or its shareholders in connection with a matter in which the
director or officer had a material conflict of interest; (b) a violation
of the criminal law unless the director or officer had reasonable cause to
believe his or her conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful; (c) a transaction from which the
director or officer derived an improper personal profit; or (d) willful
misconduct. It should be noted that the Wisconsin Business Corporation
Law specifically states that it is the public policy of Wisconsin to
require or permit indemnification in connection with a proceeding
involving securities regulation, as described therein, to the extent
required or permitted as described above. Additionally, under the
Wisconsin Business Corporation Law, directors of the Company are not
subject to personal liability to the Company, its shareholders or any
person asserting rights on behalf thereof for certain breaches or failures
to perform any duty resulting solely from their status as directors except
in circumstances paralleling those in subparagraphs (a) through (d)
outlined above.
The Company's By-Laws contain similar indemnification provisions
as to directors and officers of the Company. In addition, the Company has
entered into individual indemnity agreements with all of its current
directors. The indemnity agreements are virtually identical in all
substantive respects to the Company's By-Laws.
Expenses for the defense of any action for which indemnification
may be available may be advanced by the Company under certain
circumstances.
The Company maintains a liability insurance policy for officers
and directors which extends to, among other things, liability arising
under the Securities Act of 1933, as amended.
In addition, the Company's Pension Plan and Thrift and Sharing
Plan provide for indemnification of members of the plan committees and
directors of the Company as follows:
The Company shall indemnify each member of the Plan Committee
and the Board and hold each of them harmless from the
consequences of his acts or conduct in his official capacity, if
he acted in good faith and in a manner he reasonably believed to
be solely in the best interests of the Participants and their
Beneficiaries, and with respect to any criminal action or
proceeding had no reasonable cause to believe his conduct was
unlawful. Such indemnification shall cover any and all
attorneys' fees and expenses, judgments, fines and amounts paid
in settlement, but only to the extent such amounts are not paid
to such person(s) under the Company's fiduciary insurance policy
and to the extent that such amounts are actually and reasonably
incurred by such person(s).
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit No. Exhibit
(4.1) First Colonial Bankshares
Corporation Retirement Plan
(4.2) First Amendment to the First
Colonial Bankshares Corporation
Retirement Plan
(5) Opinion of Howard H. Hopwood
III, Esq.
(23.1) Consent of KPMG Peat Marwick LLP
(23.2) Consent of KPMG Peat Marwick LLP
(23.3) Consent of Howard H. Hopwood
III, Esq. (contained in Exhibit
5 hereto)
(24) Powers of Attorney
The undersigned Registrant hereby undertakes to submit the Plan,
as amended, to the Internal Revenue Service ("IRS") in a timely manner and
will make all changes required by the IRS in order to continue the
qualification of the Plan under Section 401 of the Internal Revenue Code
of 1986, as amended.
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 of 1933, as amended;
(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, represents a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, as amended, each such post-effective amendment
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.
(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, as
amended, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended,
that is incorporated by reference in this Registration Statement shall be
deemed to be a new Registration Statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933, as amended, 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.
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 Milwaukee,
State of Wisconsin, on January 31, 1995.
FIRSTAR CORPORATION
By: /s/Roger L. Fitzsimonds
Roger L. Fitzsimonds
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signatures Title Date
/s/Roger L. Fitzsimonds Chairman of the January 31, 1995
Roger L. Fitzsimonds Board, Chief
Executive Officer
and Director
(principal executive
officer)
/s/John A. Becker * President and January 31, 1995
John A. Becker Director
/s/William H. Risch * Senior Vice January 31, 1995
William H. Risch President-Finance
and Treasurer
(principal
accounting and
financial officer)
__________________________ Director
Robert C. Buchanan
/s/Michael E. Batten * Director January 31, 1995
Michael E. Batten
/s/George M. Chester, Jr. * Director January 31, 1995
George M. Chester, Jr.
/s/Roger H. Derusha * Director January 31, 1995
Roger H. Derusha
/s/James L. Forbes * Director January 31, 1995
James L. Forbes
/s/Holmes Foster * Director January 31, 1995
Holmes Foster
_______________________________ Director
Joseph F. Heil, Jr.
/s/John H. Hendee * Director January 31, 1995
John H. Hendee
/s/Jerry M. Hiegel * Director January 31, 1995
Jerry M. Hiegel
/s/Joe Hladky * Director January 31, 1995
Joe Hladky
/s/James H. Keyes * Director January 31, 1995
James H. Keyes
/s/Sheldon B. Lubar * Director January 31, 1995
Sheldon B. Lubar
/s/Daniel F. McKeithan, Jr. * Director January 31, 1995
Daniel F. McKeithan, Jr.
/s/George W. Mead, II * Director January 31, 1995
George W. Mead, II
/s/Guy A. Osborn * Director January 31, 1995
Guy A. Osborn
/s/Judith D. Pyle * Director January 31, 1995
Judith D. Pyle
/s/Clifford V. Smith, Jr. * Director January 31, 1995
Clifford V. Smith, Jr.
/s/William W. Wirtz * Director January 31, 1995
William W. Wirtz
By:/s/William J. Schulz
William J. Schulz
Attorney-in-Fact
_________________________
* Pursuant to authority granted by powers of attorney filed with the
Registration Statement.
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of
1933, First Colonial Bankshare Corporation Retirement Plan Committee,
which administers the Plan, has duly caused this Registration Statement to
be signed on its behalf by the undersigned, hereunto duly authorized, in
the City of Milwaukee, and the State of Wisconsin, on this 31st day of
January, 1995.
FIRST COLONIAL BANKSHARES
CORPORATION RETIREMENT PLAN
/s/Paul D. Braun
Paul D. Braun
/s/Teresa E. Carpenter
Teresa E. Carpenter
William J. Hornig
The foregoing persons are all of the
members of the First Colonial
Bankshares Corporation Retirement Plan
Committee which is the administrator of
the First Colonial Bankshares
Corporation Retirement Plan.
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of
1933, First Colonial Bankshare Corporation Retirement Plan Committee,
which administers the Plan, has duly caused this Registration Statement to
be signed on its behalf by the undersigned, hereunto duly authorized, in
the City of Milwaukee, and the State of Wisconsin, on this 31st day of
January, 1995.
FIRST COLONIAL BANKSHARES
CORPORATION RETIREMENT PLAN
Paul D. Braun
Teresa E. Carpenter
/s/William J. Hornig
William J. Hornig
The foregoing persons are all of the
members of the First Colonial
Bankshares Corporation Retirement Plan
Committee which is the administrator of
the First Colonial Bankshares
Corporation Retirement Plan.
<PAGE>
EXHIBIT INDEX
Exhibit No. Exhibit
(4.1) First Colonial Bankshares Corporation
Retirement Plan
(4.2) First Amendment to the First Colonial
Bankshares Corporation Retirement Plan
(5) Opinion of Howard H. Hopwood III, Esq.
(23.1) Consent of KPMG Peat Marwick LLP
(23.2) Consent of KPMG Peat Marwick LLP
(23.3) Consent of Howard H. Hopwood III, Esq.
(contained in Exhibit 5 hereto)
(24) Powers of Attorney
FIRST COLONIAL BANKSHARES CORPORATION
RETIREMENT PLAN
Amended and Restated Effective January 1, 1994
Except as Specifically Provided Otherwise
<PAGE>
TABLE OF CONTENTS
ARTICLE 1
General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Source of Funds . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Effective Date . . . . . . . . . . . . . . . . . . . . . . 1
1.4 Definitions . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2
Eligibility and Participation . . . . . . . . . . . . . . . . . . . . 15
2.1 Eligibility Requirements . . . . . . . . . . . . . . . . . 15
2.2 Leaves of Absence . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 3
Contributions by Employer . . . . . . . . . . . . . . . . . . . . . . 16
3.1 Employer Contributions . . . . . . . . . . . . . . . . . . 16
3.2 Before-Tax Contributions . . . . . . . . . . . . . . . . . 17
3.3 Limitations on Before-Tax Contributions . . . . . . . . . . 17
3.4 Employer Contribution . . . . . . . . . . . . . . . . . . . 21
3.5 Matching Employer Contribution . . . . . . . . . . . . . . 22
ARTICLE 4
Participant Contributions . . . . . . . . . . . . . . . . . . . . . . 23
4.1 After-Tax Contributions . . . . . . . . . . . . . . . . . . 23
4.2 Rollover Contribution . . . . . . . . . . . . . . . . . . . 23
4.3 Allocation of Rollover Contributions . . . . . . . . . . . 23
ARTICLE 5
Accounting Provisions and Allocations . . . . . . . . . . . . . . . . 24
5.1 Participant's Accounts . . . . . . . . . . . . . . . . . . 24
5.2 Common Fund . . . . . . . . . . . . . . . . . . . . . . . . 24
5.3 Accounting Steps for Employer, Elective and Rollover
Accounts . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.4 Accounting Steps for ESOP Account . . . . . . . . . . . . . 26
5.5 Accounting Steps for ESOP Cash Account . . . . . . . . . . 27
5.6 Charging of Payments and Distributions . . . . . . . . . . 27
5.7 Determination of Value of Trust Fund . . . . . . . . . . . 28
5.8 Allocation of Net Earnings or Losses . . . . . . . . . . . 28
5.9 Eligibility to Share in the Employer's Contribution and
Forfeitures . . . . . . . . . . . . . . . . . . . . . . . . 28
5.10 Allocation of Employer Contribution and Forfeitures . . . . 29
5.11 Provisional Annual Addition . . . . . . . . . . . . . . . . 29
5.12 Limitation on Annual Additions . . . . . . . . . . . . . . 30
5.13 Special Limitation on Maximum Contributions . . . . . . . . 31
ARTICLE 6
Amount of Payments to Participants . . . . . . . . . . . . . . . . . 33
6.1 General Rule . . . . . . . . . . . . . . . . . . . . . . . 33
6.2 Normal Retirement . . . . . . . . . . . . . . . . . . . . . 33
6.3 Death . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.4 Disability . . . . . . . . . . . . . . . . . . . . . . . . 33
6.5 Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.6 Resignation or Dismissal . . . . . . . . . . . . . . . . . 34
6.7 Computation of Period of Service . . . . . . . . . . . . . 34
6.8 Treatment of Forfeitures . . . . . . . . . . . . . . . . . 35
ARTICLE 7
Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.1 Commencement and Form of Distributions . . . . . . . . . . 36
7.2 Distributions to Beneficiaries . . . . . . . . . . . . . . 39
7.3 Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . 40
7.4 Installment or Deferred Distributions . . . . . . . . . . . 41
7.5 Form of Elections and Applications for Benefits . . . . . . 41
7.6 Unclaimed Distributions . . . . . . . . . . . . . . . . . . 41
7.7 Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
7.8 Withdrawals From Elective and Rollover Accounts Prior to
Termination of Employment . . . . . . . . . . . . . . . . . 43
7.9 Facility of Payment . . . . . . . . . . . . . . . . . . . . 46
7.10 Claims Procedure . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE 8
Top-Heavy Plan Requirements . . . . . . . . . . . . . . . . . . . . . 48
8.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . 48
8.2 Top-Heavy Plan Requirements . . . . . . . . . . . . . . . . 50
ARTICLE 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Powers and Duties of Plan Committee . . . . . . . . . . . . . . . . . 52
9.1 Appointment of Plan Committee . . . . . . . . . . . . . . . 52
9.2 Powers and Duties of Committee . . . . . . . . . . . . . . 52
9.3 Committee Procedures . . . . . . . . . . . . . . . . . . . 53
9.4 Consultation with Advisors . . . . . . . . . . . . . . . . 53
9.5 Committee Members as Participants . . . . . . . . . . . . . 54
9.6 Records and Reports . . . . . . . . . . . . . . . . . . . . 54
9.7 Investment Policy . . . . . . . . . . . . . . . . . . . . . 54
9.8 Designation of Other Fiduciaries . . . . . . . . . . . . . 54
9.9 Obligations of Committee . . . . . . . . . . . . . . . . . 55
9.10 Indemnification of Committee . . . . . . . . . . . . . . . 55
ARTICLE 10
Trustee and Trust Fund . . . . . . . . . . . . . . . . . . . . . . . 56
10.1 Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . 56
10.2 Payments to Trust Fund and Expenses . . . . . . . . . . . . 56
10.3 Trustee's Responsibilities . . . . . . . . . . . . . . . . 56
10.4 Reversion to an Employer . . . . . . . . . . . . . . . . . 56
ARTICLE 11
Amendment or Termination . . . . . . . . . . . . . . . . . . . . . . 57
11.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 57
11.2 Termination . . . . . . . . . . . . . . . . . . . . . . . . 57
11.3 Form of Amendment, Discontinuance of Employer
Contributions, and Termination . . . . . . . . . . . . . . 57
11.4 Limitations on Amendments . . . . . . . . . . . . . . . . . 57
11.5 Level of Benefits Upon Merger . . . . . . . . . . . . . . . 58
11.6 Vesting Upon Termination or Discontinuance of Employer
Contributions; Liquidation of Trust . . . . . . . . . . . . 58
ARTICLE 12
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
12.1 No Guarantee of Employment, Etc. . . . . . . . . . . . . . 60
12.2 Nonalienation . . . . . . . . . . . . . . . . . . . . . . . 60
12.3 Qualified Domestic Relations Order . . . . . . . . . . . . 60
12.4 Controlling Law . . . . . . . . . . . . . . . . . . . . . . 60
12.5 Severability . . . . . . . . . . . . . . . . . . . . . . . 60
12.6 Notification of Addresses . . . . . . . . . . . . . . . . . 61
12.7 Gender and Number . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE 13
Adoption by Affiliates . . . . . . . . . . . . . . . . . . . . . . . 62
13.1 Adoption of Plan . . . . . . . . . . . . . . . . . . . . . 62
13.2 The Company as Agent for Employer . . . . . . . . . . . . . 62
13.3 Adoption of Amendments . . . . . . . . . . . . . . . . . . 62
13.4 Termination . . . . . . . . . . . . . . . . . . . . . . . . 62
13.5 Data to Be Furnished by Employers . . . . . . . . . . . . . 62
13.6 Joint Employees . . . . . . . . . . . . . . . . . . . . . . 63
13.7 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 63
13.8 Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . 63
13.9 Prior Plans . . . . . . . . . . . . . . . . . . . . . . . . 63
13.10 List of Employers . . . . . . . . . . . . . . . . . . . . 63
ARTICLE 14
Diversification of Investment . . . . . . . . . . . . . . . . . . . . 64
14.1 Election by Qualified Participant . . . . . . . . . . . . . 64
14.2 Method of Directing Investing . . . . . . . . . . . . . . . 64
14.3 Investment Options . . . . . . . . . . . . . . . . . . . . 64
14.4 Determination of Amount Subject to Diversification
Requirement . . . . . . . . . . . . . . . . . . . . . . . . 64
14.5 Qualified Participant . . . . . . . . . . . . . . . . . . . 65
14.6 Qualified Election Period . . . . . . . . . . . . . . . . . 65
ARTICLE 15
Rights, Restrictions and Options on Company Stock . . . . . . . . . . 66
15.1 Distribution of Company Stock Under Federal Securities
Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
15.2 Right of First Refusal . . . . . . . . . . . . . . . . . . 67
15.3 Put Option . . . . . . . . . . . . . . . . . . . . . . . . 67
15.4 Other Options . . . . . . . . . . . . . . . . . . . . . . . 68
15.5 Voting of Company Stock . . . . . . . . . . . . . . . . . . 68
15.6 Special Put Option Requirements . . . . . . . . . . . . . . 69
APPENDIX A
Applicable to
New Century Bank . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
APPENDIX B
Applicable to
Bank of Highwood . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
<PAGE>
ARTICLE 1
General
1.1 Purpose. It is the intention of the Employer to continue to
provide for the administration of the First Colonial Bankshares
Corporation Retirement Plan (the "Plan") and a Trust Fund in conjunction
therewith for the benefit of eligible employees of the Employer, in
accordance with the provisions of Code Sections 401, 501 and 4975(e)(7)
and in accordance with other provisions of law relating to profit sharing
plans containing a Code Section 401(k) arrangement and qualified employee
stock ownership plans. The component of the Plan relating to the ESOP
Accounts is designed to invest primarily in "qualifying employer
securities," as defined in Code Sections 4975(e)(8), 409(l) and ERISA
Section 407(d)(5). Except as otherwise provided in this Plan or the Trust,
upon the transfer by the Employer of any funds to the Trust Fund in
accordance with the provisions of this Plan, all interest of the Employer
therein shall cease and terminate, and no part of the Trust Fund shall be
used for, or diverted to, purposes other than the exclusive benefit of
Participants and their beneficiaries.
1.2 Source of Funds. The Trust Fund shall be created, funded and
maintained by contributions of the Employer, by contributions of the
Participants, and by such net earnings as are obtained from the investment
of the funds of the Trust Fund.
1.3 Effective Date. The provisions of the Plan as herein restated
shall be effective as of January 1, 1994, except for certain provisions
the effective dates of which are set forth therein. Except as may be
required by ERISA or the Code, the rights of any person whose status as an
employee of the Employer and all Affiliates has terminated shall be
determined pursuant to the Plan as in effect on the date such employment
terminated, unless a subsequently adopted provision of the Plan is made
specifically applicable to such person.
1.4 Definitions. Certain terms are capitalized and have the
respective meanings set forth in the Plan.
"Account" means each of the individual accounts established pursuant
to Article 5 representing a Participant's allocable share of the Trust
Fund.
"Accounts" means the collective individual accounts established
pursuant to Article 5.
"Acquisition Loan" means an amount borrowed by the Trustee for the
purpose of acquiring Company Stock in accordance with Code Section
4975(d)(3). The Company may direct the Trustees to incur Acquisition Loans
from time to time to finance the acquisition of Company Stock acquired for
the Trust or to repay a prior Acquisition Loan. An Acquisition Loan shall
be for a specific term, shall bear a reasonable rate of interest and shall
not be payable on demand except in the event of default. An Acquisition
Loan may be secured by a collateral pledge of the Financed Shares so
acquired. No other assets of the Plan may be pledged as collateral for an
Acquisition Loan, and no lender shall have recourse against any other Plan
assets. Any pledge of Financed Shares must provide for the release of
shares so pledged on a basis equal to the principal paid by the Trustees
on the Acquisition Loan. The released Financed Shares must be allocated
to Participants' ESOP Accounts in accordance with the provisions of
Section 5.4. Repayment of principal and interest on any Acquisition Loan
shall be made by the Trustees only from Company contributions paid in cash
to enable the Trustees to repay such loan, from earnings attributable to
such contributions, from any cash dividends received by the Trustees on
such unallocated Financed Shares, and on shares of Company Stock allocated
to Participants' ESOP Accounts. Financed Shares shall initially be
credited to a "Loan Suspense Account" and shall be transferred for
allocation to the ESOP Accounts of Participants only as payments of
principal on the Acquisition Loan are made by the Trustees. The number of
Financed Shares to be released from the Loan Suspense Account for
allocation to Participants' ESOP Accounts for each Plan Year shall be
based upon the ratio that the payments of principal on the Acquisition
Loan for that Plan Year bears to the total projected payments of principal
on the Acquisition Loan over the duration of the Acquisition Loan
repayment period. Notwithstanding the foregoing, cash dividends paid on
shares of Company Stock allocated to Participants' ESOP Accounts may not
be used for the repayment of principal and interest unless the fair market
value of the Company Stock at the time the cash dividends are allocated to
Participants exceeds the fair market value of the Company Stock acquired
with the Acquisition Loan at the time such Company Stock was acquired.
"Actual Deferral Percentage" and "Actual Deferral Percentage Tests"
are described in Section 3.3.
"Adjusted Net Worth of the Trust Fund" means, as of any Valuation
Date, the then net worth of the Trust Fund as determined by the Trustee,
less an amount equal to the sum of:
(a) Profit Sharing Contributions, ESOP Contributions and ESOP
Cash Contributions, if any, paid or accrued to the Trust for the period
elapsed since the last preceding Valuation Date,
(b) Forfeitures, if any, occurring since the last preceding
Valuation Date,
(c) One-half of the Before-Tax Contributions and Matching
Employer Contributions, if any, paid to the Trust for the period elapsed
since the last preceding Valuation Date,
(d) The fair market value of the Company Stock held by the
Trust as of such Valuation Date, and
(e) The Rollover Contributions received by the Trust since the
15th day of the second month of the calendar quarter ending on such
Valuation Date.
"Affiliate" means any corporation or enterprise, other than the
Company, which, as of a given date, is a member of the same controlled
group of corporations, the same group of trades or businesses under common
control or the same affiliated service group, determined in accordance
with Code Sections 414(b), (c), (m) or (o), as is the Company. For
purposes of determining the amount of a Participant's Annual Addition or
Compensation and applying the limitations of Code Section 415 set forth in
Article 5, "Affiliate" shall include any corporation or enterprise, other
than the Company, which, as of a given date, is a member of the same
controlled group of corporations or the same group of trades or businesses
under common control, determined in accordance with Code Sections 414(b)
or (c) as modified by Code Section 415(h), as is the Company.
"Annual Addition" means for any Limitation Year, the sum of (a) all
Before-Tax Contributions, Matching Employer Contributions, Employer
Contributions and forfeitures allocated to the Accounts of a Participant
under this Plan; (b) any employer contributions, forfeitures and employee
after-tax contributions allocated to such Participant under any other
defined contribution plan maintained by the Employer or an Affiliate; and
(c) amounts allocated to an individual medical account as defined in Code
Section 415(l)(2) and amounts attributable to post-retirement medical
benefits allocated to an account described in Code Section 419A(d)(2)
maintained by the Employer or an Affiliate; provided, however, that with
respect to a Limitation Year beginning before the 1987 Plan Year, only the
greater of (i) the Participant's employee after-tax contributions under
such other plans for such year in excess of 6% of the Participant's
Compensation for the Limitation Year or (ii) one-half of all of the
Participant's employee after-tax contributions under such other plans for
such Limitation Year shall be included in the Annual Addition.
"Basic Before-Tax Contributions" and "Supplemental Before-Tax
Contributions" mean, with respect to a Participant, the contributions made
on behalf of such Participant by the Employer as described in Section 3.2
and, with respect to the Employer, mean the sum of all such contributions
made on behalf of all Participants.
"Before-Tax Contributions" means, with respect to a Participant, the
sum of the Basic Before-Tax Contributions and the Supplemental Before-Tax
Contributions made on behalf of such Participant by the Employer as
described in Section 3.2 and, with respect to the Employer, means the sum
of all such contributions made on behalf of all Participants.
"Code" means the Internal Revenue Code of 1986, as from time to time
amended.
"Committee" means the plan administrator and named fiduciary
appointed pursuant to Section 9.1.
"Company" means First Colonial Bankshares Corporation.
"Company Stock" shall mean common stock issued by the Company or any
Affiliate having a combination of voting power and dividend rates equal to
or in excess of:
(a) that class of common stock of the Company or an Affiliate
having the greatest voting power, and
(b) that class of common stock of the Company or an Affiliate
having the greatest dividend rights.
Non-callable preferred stock shall be treated as Company Stock if such
stock is convertible at any time into stock which meets the requirements
of (a) and (b) above and if such conversion is at a conversion price which
(as of the date of acquisition by the Plan) is reasonable. For purposes of
this definition, preferred stock shall be treated as non-callable if,
after the call, there will be a reasonable opportunity for a conversion
which meets the requirements set forth in this definition.
"Compensation" means an Employee's wages, salaries, fees for
professional services, and other amounts for personal services actually
rendered in the course of employment with an Employer or an Affiliate
accrued during the Limitation Year. Compensation will include the amount
of the Participant's Before-Tax Contributions to this Plan, vacation and
sick pay, and shall exclude:
(1) contributions made by an Employer to a plan of
deferred compensation to the extent that, before the application of
Code Section 415 limitations to that plan, the contributions are not
includible in the gross income of the Employee for the taxable year
in which contributed;
(2) contributions made on behalf of an Employee to a
simplified employee pension plan described in Code Section 408(k) to
the extent such contributions are excludable from the Employee's
gross income;
(3) any distributions from a plan of deferred compensation
regardless of whether such amounts are includible in the gross income
of the Employee when distributed except any amounts received by an
Employee pursuant to an unfunded non-qualified plan to the extent
such amounts are includible in the gross income of the Employee;
(4) amounts realized from the exercise of a non-qualified
stock option, or when restricted stock (or property) held by an
Employee either becomes freely transferable or is no longer subject
to a substantial risk of forfeiture;
(5) amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option;
(6) other amounts which receive special tax benefits, such
as premiums for group-term life insurance (but only to the extent
that the premiums are not includible in the gross income of the
employee) or contributions (whether or not under a salary deferral
agreement) towards the purchase of any annuity contract described in
Code Section 403(b) (whether or not the contributions are excludable
from the gross income of the Employee);
(7) overtime pay, bonuses, incentive compensation and,
effective until October 1,1993, commissions; and
(8) any amount in excess of $200,000 or such other amount
as the Secretary of the Treasury may designate under Code Section
401(a)(17) (as adjusted annually by the U.S. Secretary of the
Treasury for increases in the cost of living). For purposes of this
paragraph (8), the Compensation of a Participant who at any time
during the Plan Year is a five-percent owner (as defined in Code
Section 416(i)(1)), or a member of the group consisting of the 10
employees of the Employer and all Affiliates paid the greatest
compensation (within the meaning of Code Section 414(q)), for the
Plan Year shall include the Compensation of the Participant's spouse
or the Participant's child or grandchild under the age of 19, and the
above amount limitation (as adjusted) shall be applied as if such
Participant, spouse, child and grandchild constituted a single
Participant and allocated among such individuals pro rata on the
basis of Earnings determined before application of the above amount
limitation (as adjusted).
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan
Years beginning on or after January 1, 1994, the annual Compensation of
each employee taken into account under the Plan shall not exceed the OBRA
'93 annual compensation limit. The OBRA '93 annual compensation limit is
$150,000, as adjusted by the Commissioner for increases in the cost of
living in accordance with section 401(a)(17)(B) of the Code. The
cost-of-living adjustment in effect for a calendar year applies to any
period, not exceeding 12 months, over which Compensation is determined
(determination period) beginning in such calendar year. If a determination
period consists of fewer than 12 months, the OBRA '93 annual compensation
limit will be multiplied by a fraction, the numerator of which is the
number of months in the determination period, and the denominator of which
is 12. For Plan Years beginning on or after January 1, 1994, any reference
in this Plan to the limitation under section 401(a)(17) of the Code shall
mean the OBRA '93 annual compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into account
in determining an employee's benefits accruing in the current Plan Year,
the Compensation for that prior determination period is subject to the
OBRA '93 annual compensation limit in effect for that prior determination
period. For this purpose, for determination periods beginning before the
first day of the first Plan Year beginning on or after January 1, 1994,
the OBRA '93 annual compensation limit is $150,000.
"Defined Benefit Dollar Limitation" means an amount equal to $90,000,
or, if greater, the amount in effect as of the last day of the Limitation
Year under Code Section 415(b)(1)(A), as adjusted by the Secretary of the
Treasury pursuant to Code Section 415(d).
"Defined Contribution Dollar Limitation" means an amount equal to
$30,000 or, if greater, one-fourth of the Defined Benefit Dollar
Limitation, prorated for any Limitation Year of less than 12 months;
provided that, for purposes of Section 5.12(a)(ii), such amount shall be
reduced by the amounts allocated to any medical accounts described in
subsection (c) of the definition of "Annual Addition."
"Determination Date" is the applicable Valuation Date (as determined
below) on which the balance of a Participant's Accounts in the Trust Fund
shall be determined for purposes of determining the amount distributable
from the Trust Fund to the Participant (or, in the event of his death, his
beneficiary) pursuant to Articles 6 and 7:
(a) In the case where the balance of a Participant's Accounts
is to be determined upon his termination of employment for purposes of
distribution, the applicable Valuation Date shall be the Valuation Date
coinciding with or next succeeding such termination of employment.
(b) In the case where the balance of a Participant's Account or
Accounts is to be determined prior to his termination of employment for
purposes of a distribution or loan to the Participant in accordance with
Article 7 or because of termination of the Plan in accordance with Article
11, the applicable Valuation Date shall be the Valuation Date coinciding
with or next succeeding the date of such determination.
"Effective Date" means the date established pursuant to Section 1.3.
"Eligible Employee" means any employee of the Employer, including a
Leased Employee, who is not a Member of a Collective Bargaining Unit or a
non-resident alien as described in Code Section 410(b)(3)(C); provided,
however, that no such Leased Employee who is covered by a plan described
in Code Section 414(n)(5) shall be an Employee hereunder if Leased
Employees constitute less than 20% of the Company's employees who are
Non-Highly Compensated Employees.
"Eligible Participant" is a Participant as defined in Section 5.9.
"Eligibility Period" is a one-month period used for the purpose of
determining when an employee is eligible to participate in the Plan. An
employee's first "Eligibility Period" shall commence on the date on which
he first completes an Hour of Service. Subsequent Eligibility Periods
shall commence on the first day of each month which begins after said
date. Notwithstanding the foregoing, the initial Eligibility Period of a
former employee who is reemployed after incurring one or more One-Year
Breaks in Service and who is not eligible for immediate participation
pursuant to Section 2.1(c), shall commence on the date on which he first
completes an Hour of Service after such One-Year Break in Service, and
subsequent Eligibility Periods shall commence on the first day of each
month which begins after said date.
"Employer" means the Company and any Affiliate which adopts this Plan
pursuant to Article 13.
"Employment Commencement Date" for an employee is the first date on
which he performs duties for the Employer or an Affiliate as an employee;
provided that in the case of an employee who returns to service following
his Severance Date, the employee's "Employment Commencement Date" is the
first date on which he performs duties for the Employer or an Affiliate as
an employee following such Severance Date.
"Entry Date" means the first day of each quarter of each Plan Year
(January 1, April 1, July 1 and October 1)
"ERISA" means the Employee Retirement Income Security Act of 1974, as
from time to time amended.
"Estate Tax Loan" shall mean the assumption by the Plan of the estate
tax liability with respect to Company Stock of a deceased shareholder of
the Company and acquired by the Plan. Shares of Company Stock acquired by
the Trustees under this paragraph shall be described as "Estate Tax
Shares." Repayments of principal and interest on any Estate Tax Loan shall
be made by the Trustees (as directed by the Company) only from ESOP and
ESOP Cash Contributions paid in cash to enable the Trustees to repay such
loan, from earnings attributable to such ESOP and ESOP Cash Contributions
and from any cash dividends received by the Trustees on such shares.
Estate Tax Shares shall initially be credited to an "Estate Tax Account"
and shall be allocated to the ESOP Accounts of Participants only as
payments of principal on the Estate Tax Loan are made by the Trustees. The
number of Estate Tax Shares to be released from the Estate Tax Account for
allocation to Participants' ESOP Accounts for each Plan Year shall be
based upon the ratio that the payments of principal on the Estate Tax Loan
for that Plan Year bears to the total projected payments of principal over
the duration of the Estate Tax Loan repayment period.
"Estate Tax Shares" is defined in the immediately preceding
paragraph.
"Excess Forfeiture Suspense Account" is the account described in
Section 5.12.
"Excess Tentative Employer Contribution" is the excess contribution
described in Section 5.12.
"Family Group" means all Family Members of a Highly Compensated
Employee who is a Five-Percent Owner or who is a member of the group
consisting of the 10 employees of the Employer and all Affiliates paid the
greatest Compensation during the Plan Year. If two or more Family Groups
include common Family Members, such Family Groups shall be aggregated as
one Family Group.
"Family Member" means a Highly Compensated Employee who is a
Five-Percent Owner or who is a member of the group consisting of the 10
employees of the Employer and all Affiliates paid the greatest
Compensation during the Plan Year, and any individual who is the spouse,
lineal ascendant or descendant, or the spouse of a lineal ascendant or
descendant, of such Five-Percent Owner or such member.
"Financed Shares" means shares of Company Stock acquired by the
Trustee with the proceeds of an Acquisition Loan or an Estate Tax Loan and
held by the Trustee as collateral for such Loan.
"Five-Percent Owner" means an employee described in Code Section
416(i)(1).
"Gap Period" means the period of time between the end of the Plan
Year and the last day of the month immediately preceding the date on which
excess Before-Tax Contributions are distributed to a Highly Compensated
Employee and excess Matching Employer Contributions are treated as
forfeitures.
"Highly Compensated Employee" means, for the Determination Year, an
employee of the Employer or an Affiliate who was a Participant eligible
during the Plan Year to make Before-Tax Contributions and who:
(a) during the Lookback Year:
(i) was a Five-Percent Owner; or
(ii) received Compensation in excess of $75,000 (as
adjusted annually for increases in the cost of living by the
Secretary of the Treasury); or
(iii) received Compensation in excess of $50,000 (as
adjusted annually for increases in the cost of living by the
Secretary of the Treasury) and was among the top 20% of the employees
(disregarding those employees excludable under Code Section
414(q)(8)) when ranked on the basis of Compensation paid for that
year; or
(iv) was an officer of the Employer or an Affiliate and
received Compensation in excess of one-half of the Defined Benefit
Dollar Limitation for that year, provided that for this purpose, no
more than 50 employees (or, if lesser, the greater of 3 or 10% of all
employees) shall be treated as officers, or if there is no such
officer, was the highest paid officer of the Employer or an Affiliate
for that year; or
(b) at any time during the Determination Year:
(i) is a Five-Percent Owner; or
(ii) is a member of a group consisting of the 100 employees
who received the greatest Compensation during that Plan Year and
would be a member of the group of employees described in subsection
(a)(ii), (iii) or (iv) above for the Determination Year. For any Plan
Year, the Committee may, to the extent permitted by law, elect to
apply the provisions of this subsection (b)(ii) without regard to the
limitation of the group to 100 employees.
For purposes of this definition, "Determination Year" means the
current Plan Year and "Lookback Year" means the preceding Plan Year or, at
the election of the Company, the calendar year ending with or within the
Determination Year.
To the extent required by Code Section 414(q)(9), a former employee
who was a Highly Compensated Employee when he separated from service with
the Employer and all Affiliates or at any time after attaining age 55
shall be treated as a Highly Compensated Employee.
For purposes of determining a Highly Compensated Employee,
Compensation shall be determined without regard to Code Sections 125,
402(a)(8), 402(h)(1)(B), and without regard to employee contributions made
pursuant to a salary reduction agreement under Code Section 403(b).
"Highly Compensated Family Member" means a Family Member who is a
Highly Compensated Employee without application of the family aggregation
rules of Code Section 414(q)(6).
"Hour of Service" is:
(a) each hour for which an employee is paid or entitled to
payment for the performance of duties for the Employer or an Affiliate;
(b) each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Employer or an Affiliate;
and
(c) each hour for which an employee is paid or entitled to
payment for a period during which no duties are performed (irrespective of
whether the employment relationship has terminated) due to vacation,
holiday, illness, incapacity, layoff, jury duty, military duty, or leave
of absence. In crediting Hours of Service pursuant to this subparagraph
(c), all payments made or due shall be taken into account, whether such
payments are made directly by the Employer or an Affiliate or indirectly
(through a trust fund or insurer to which the Employer or an Affiliate
makes payments, or otherwise), except that:
(i) no more than 501 such Hours of Service shall be
credited for any continuous period during which the employee performs
no duties;
(ii) no such Hours of Service shall be credited if payments
are made or due under a plan maintained solely for the purpose of
complying with any workers' compensation, unemployment compensation
or disability insurance laws; and
(iii) no such Hours of Service shall be credited for
payments which are made solely to reimburse the employee for medical
or medically related expenses.
The Hours of Service, if any, for which an employee is credited for a
period in which he performs no duties shall be computed and credited to
computation periods in accordance with 29 C.F.R. 2530.200b-2 and other
applicable regulations promulgated by the Secretary of Labor. For purposes
of computing the Hours of Service to be credited to an employee for whom a
record of hours worked is not maintained, an employee shall be credited
with 45 Hours of Service for each week in which he completes at least one
Hour of Service. In addition, an employee shall be credited with Hours of
Service for each week the employee is on a leave of absence in accordance
with Section 2.2.
"Individual Beneficiary" means a natural person designated by the
Participant in accordance with Section 7.3 to receive all or any portion
of the amounts remaining in the Participant's Accounts at the time of the
Participant's death. "Individual Beneficiary" also means a natural person
who is a beneficiary of a trust designated by the Participant in
accordance with Section 7.3 to receive all or a portion of such amount,
provided the trust complies with the requirements of Code Section
401(a)(9) and regulations promulgated thereunder, including that the trust
is irrevocable, the beneficiaries with respect to the trust's interest in
the Participant's Accounts are identifiable from the trust agreement and a
copy of the trust agreement is provided to the Committee.
"Leased Employee" means any individual who is not an employee of the
Employer or an Affiliate and who provides services for the Employer or an
Affiliate if:
(a) such services are provided pursuant to an agreement between
the Employer or an Affiliate and any other person;
(b) such individual has performed such services for the
Employer or an Affiliate (or a related person within the meaning of Code
Section 144(a)(3)) on a substantially full-time basis for a period of at
least one year; and
(c) such services are of a type historically performed by
employees in the business field of the Employer or an Affiliate.
"Limitation Year" means the Plan Year.
"Loan Suspense Account" means the account described in the definition
of "Acquisition Loan" above.
"Matching Employer Contributions" means the contributions described
in Section 3.5.
"Member of a Collective Bargaining Unit" means any employee who is
included in a collective bargaining unit and whose terms and conditions of
employment are or were covered by a collective bargaining agreement if
there is evidence that retirement benefits were the subject of good-faith
bargaining between representatives of such employee and the Employer,
unless such collective bargaining agreement makes this Plan applicable to
such employee.
"Non-Highly Compensated Employee" means, for any Plan Year, any
employee of the Employer or Affiliate who (a) at any time during the Plan
Year was a Participant eligible to make Before-Tax Contributions, and (b)
was not a Highly Compensated Employee for such Plan Year.
"Normal Retirement Date" means a Participant's 65th birthday.
"One-Percent Owner" means an employee described in Code Section
416(i)(1).
"One-Year Break in Service" is a one-year period during which an
employee does not perform duties for the Employer or an Affiliate. Such
period shall commence on the later of the employee's Severance Date or the
date on which he ceases to be employed by either the Employer or an
Affiliate. Solely for purposes of determining whether a One-Year Break in
Service has occurred, absences shall be disregarded if the employee
otherwise would normally have been credited with service but for the
employee's absence on a maternity or paternity absence. No more than one
year of absence on a single maternity or paternity absence shall be so
disregarded. A maternity or paternity absence is an absence from work:
(a) by reason of pregnancy of the employee;
(b) by reason of the birth of a child of the employee;
(c) by reason of the placement of a child with the employee in
connection with the adoption of such child by the employee; or
(d) for purposes of caring for such child for a period
beginning immediately following such birth or placement.
Any employee requesting such credit shall promptly furnish the Committee
such information as the Committee requires to show that the absence from
work is a maternity or paternity absence, and the number of days for which
there was such an absence.
"Participant" means:
(a) a current employee of the Employer or an Affiliate who has
become a Participant in the Plan pursuant to Section 2.1 or;
(b) a former employee for whose benefit an Account in the Trust
Fund is maintained.
"Plan" means the First Colonial Bankshares Corporation Retirement
Plan.
"Plan Year" means a 12-month period beginning on January 1 and ending
on December 31. References to specific Plan Years are made herein by
reference to the calendar year of the first day of the Plan Year.
"Provisional Annual Addition" is the amount described in Section
5.11.
"Required Beginning Date" means the April 1 following the calendar
year in which the Participant attains age 70 l/2.
"Rollover Contribution" means (a) all or a portion of a qualified
total distribution received by an employee from another qualified plan
which is eligible for tax-free rollover to a qualified plan and which is
transferred by the employee to this Plan within 60 days following his
receipt thereof; (b) amounts transferred to this Plan from a conduit
individual retirement account which has no assets other than assets (and
the earnings thereon) which were (i) previously distributed to the
employee by another qualified plan as a qualified total distribution, (ii)
eligible for tax-free rollover to a qualified plan and (iii) deposited in
such conduit individual retirement account within 60 days of receipt
thereof; and (c) amounts distributed to the employee from a conduit
individual retirement account meeting the requirements of (b) above, and
transferred by the employee to this Plan within 60 days of his receipt
thereof from such conduit individual retirement account.
"Severance Date" for an employee is the earlier of:
(a) the date on which he quits, retires, dies or is discharged;
or
(b) the first day following any one-year period during which he
performed no duties for the Employer and all Affiliates.
"Tentative Employer Contribution" is the contribution described in
Section 3.1.
"The 1.25 Test" is the test described in Section 3.3(b)(i)(A).
"The 2.0 Test" is the test described in Section 3.3(b)(i)(B).
"Trust" or "Trust Fund" means the Trust established in accordance
with Article 10.
"Trustee" means the Trustee or Trustees under the Trust referred to
in Article 10.
"Valuation Date" means the last day of each quarter of each Plan
Year.
"Year of Service" is a unit of service credited to an employee for
purposes of determining an employee's eligibility to participate in the
Plan and the percentage of the balance in a Participant's Employer Account
and Matching Account which is nonforfeitable. An employee who is
reemployed shall retain service credited to him in his previous employment
with the Employer or an Affiliate, except as otherwise provided in the
Plan. An employee shall be credited with one Year of Service for each
full year in the period commencing on his Employment Commencement Date and
ending on his Severance Date. An employee shall also be credited with
1/365 of a Year of Service for each additional day in such period for
which he did not receive credit pursuant to the preceding sentence. A
former employee who is reemployed and who performs duties for the Employer
or an Affiliate within one year after the date he last performed duties
for the Employer or an Affiliate shall also be credited with 1/365 of a
Year of Service for each day in the period commencing on his Severance
Date and ending on his Employment Commencement Date following such
Severance Date.
<PAGE>
ARTICLE 2
Eligibility and Participation
2.1 Eligibility Requirements.
(a) Every Participant on January 1, 1994 shall continue as such
subject to the provisions of the Plan.
(b) Every other Eligible Employee who is not eligible under
subsection (c) below shall first be eligible to participate, if he is then
employed by the Employer, on the Entry Date coinciding with or next
following the later of (i) the date on which he has completed one month of
service or (ii) his 21st birthday.
(c) Any former employee of the Employer or an Affiliate who was
a Participant or could have become a Participant under subsection (b)
above had he been employed on a prior Entry Date, and is reemployed by the
Employer as an Eligible Employee, shall be eligible to participate on the
first entry date following the date of such reemployment.
2.2 Leaves of Absence. During the period that any Participant is
granted a leave of absence, he shall share in Employer Contributions,
Matching Employer Contributions, forfeitures, and the net earnings or
losses of the Trust Fund in the same manner and subject to the same
conditions as if he were not on leave of absence. Any such leave of
absence must be granted in writing and pursuant to the Employer's
established leave policy, which shall be administered in a uniform and
nondiscriminatory manner to similarly situated employees.
<PAGE>
ARTICLE 3
Contributions by Employer
3.1 Employer Contributions.
(a) Subject to the right reserved to the Employer to alter,
amend or discontinue this Plan and the Trust, the Employer shall for each
Plan Year contribute to the Trust Fund an amount equal to the sum of:
(i) the Employer Contribution;
(ii) the Before-Tax Contribution; and
(iii) the Matching Employer Contribution.
Such sum, which is known as the Tentative Employer Contribution, shall be
reduced by an amount equal to the Excess Tentative Employer Contribution
(as provided in Section 5.12).
(b) In the event that the Tentative Employer Contribution, as
reduced by the Excess Tentative Employer Contribution, exceeds the amount
deductible by the Employer for said year for federal income tax purposes,
then such Tentative Employer Contribution shall be further reduced in an
amount equal to such excess (the "Employer Excess Contribution") as
follows:
(i) first, the Supplemental Before-Tax Contributions
allocated to the Before-Tax Accounts of Participants for such Plan
Year shall be reduced by the lesser of an amount equal to the
Employer Excess Contribution or such Supplemental Before-Tax
Contributions. A Participant's share of such reduction for such Plan
Year shall be in the same ratio that his share in the Supplemental
Before-Tax Contributions (before reduction) bears to the shares of
all Participants in the Supplemental Before-Tax Contributions (before
reduction) for such Plan Year;
(ii) second, to the extent that any Employer Excess
Contribution remains after application of (i) above, then the
Matching Employer Contribution allocated to the Matching Accounts of
Participants and the Basic Before-Tax Contributions allocated to the
Before-Tax Accounts of Participants for such Plan Year will each be
reduced proportionately in an amount equal to the lesser of the
Employer Excess Contribution for such Plan Year less the reduction
determined in (i) above for such Plan Year and the sum of the
Matching Employer Contribution and Basic Before-Tax Contribution for
such Plan Year. A Participant's share of such reduction for such Plan
Year shall be the same ratio that his share in the Matching Employer
Contribution and Basic Before-Tax Contributions (before reduction)
bears to the shares of all Participants in such contributions (before
reduction) for such Plan Year; and
(iii) third, to the extent that any Employer Excess
Contribution remains after application of (i) and (ii) above, then
the Employer Contribution allocated to the Employer Accounts of
Participants for such Plan Year shall be reduced by the lesser of an
amount equal to the Employer Excess Contribution less the reduction
determined in (i) and (ii) above for such Plan Year and such Employer
Contribution. A Participant's share of such reduction for such Plan
Year shall be in the same ratio that his share in the Employer
Contribution (before reduction) bears to the shares of all
Participants in the Employer Contribution (before reduction) for such
Plan Year.
3.2 Before-Tax Contributions. Subject to the provisions of Sections
3.1 and 3.3, each Participant may for each Plan Year elect to have the
Employer make a Basic Before-Tax Contribution on his behalf in an amount
not less than 2% nor in excess of 6% (in increments of 1% and rounded to
the nearest dollar) of his Compensation. Each Participant may in addition
to his Basic Before-Tax Contributions elect to have the Employer make a
Supplemental Before-Tax Contribution on his behalf in an amount not in
excess of 4% (in increments of 1% and rounded to the nearest dollar) of
his Compensation. Such elections shall be subject to change effective as
of the first day of the first payroll period following the first day of
any quarter during the Plan Year (January 1, April 1, July 1, or October
1), provided the Participant submits such change election at least 30 days
prior to the requested change date.
3.3 Limitations on Before-Tax Contributions.
(a) In no event shall a Participant's Before-Tax Contributions
during any calendar year exceed the dollar limitation contained in Code
Section 402(g) in effect at the beginning of such calendar year. If a
Participant's Before-Tax Contributions, together with any additional
employer contributions to a qualified cash or deferred arrangement, and
any elective deferrals under a tax-sheltered annuity program or a
simplified employee pension plan, exceed such dollar limitation for any
calendar year, such excess, and any earnings allocable thereto, shall be
distributed to the Participant by April 15 of the following year; provided
that, if such excess contributions were made to a plan or arrangement not
maintained by the Employer or an Affiliate, the Participant must first
notify the Committee of the amount of such excess allocable to this Plan
by March 1 of the following year.
(b) Notwithstanding any other provision of this Plan to the
contrary, the Before-Tax Contributions and Matching Employer Contributions
for the Highly Compensated Employees for the Plan Year shall be reduced in
accordance with the following provisions:
(i) The Before-Tax Contributions and Matching Employer
Contributions of the Highly Compensated Employees shall be reduced if
neither of the Actual Deferral Percentage Tests set forth in (A) or
(B) below is satisfied:
(A) The 1.25 Test. The Actual Deferral Percentage of
the Highly Compensated Employees is not more than the Actual
Deferral Percentage of the Non-Highly Compensated Employees
multiplied by 1.25.
(B) The 2.0 Test. The Actual Deferral Percentage of
the Highly Compensated Employees is not more than 2 percentage
points greater than the Actual Deferral Percentage of the
Non-Highly Compensated Employees and the Actual Deferral
Percentage of the Highly Compensated Employees is not more than
the Actual Deferral Percentage of the Non-Highly Compensated
Employees multiplied by 2.0.
(ii) (A) As used in this subsection, "Actual Deferral
Percentage" means the average of the ratios of each Highly
Compensated Employee's or Non-Highly Compensated Employee's, as
the case may be, Before-Tax Contributions and share of the
Matching Employer Contributions which were allocated to the
Participant's Before-Tax Account and Matching Account with
respect to the Plan Year, to each such Participant's
Compensation for the Plan Year.
(B) If a Highly Compensated Employee is a member of a
Family Group, such Family Group shall constitute a single Highly
Compensated Employee. The Actual Deferral Percentage of such
Family Group shall be the aggregate Actual Deferral Percentage
of all Family Members, and the Actual Deferral Percentage of
each Family Member shall be disregarded for purposes of the
Actual Deferral Percentage Tests.
(C) All Before-Tax Contributions and Matching
Employer Contributions made under this Plan and all before-tax
and matching contributions made under any other plan that is
aggregated with this Plan for purposes of Code Sections
401(a)(4) and 410(b) shall be treated as made under a single
plan. If any plan is permissively aggregated with this Plan for
purposes of Code Section 401 (k), the aggregated plans must also
satisfy Code Sections 401(a)(4) and 410(b) as though they were a
single plan. The Actual Deferral Percentage ratios of any Highly
Compensated Employee will be determined by treating all plans
subject to Code Section 401(k) under which the Highly
Compensated Employee is eligible as a single plan.
(iii) If neither Actual Deferral Percentage Test is
satisfied as of the end of the Plan Year, the Committee shall cause
the Before-Tax Contributions for the Highly Compensated Employees to
be reduced and refunded to each such Highly Compensated Employee
until either Actual Deferred Percentage Test is satisfied. The
sequence of such reductions and refunds shall begin with Highly
Compensated Employees who elected to defer the greatest percentage,
starting with the Supplemental Before-Tax Contributions, then the
second greatest percentage, continuing until either Actual Deferred
Percentage Test is satisfied. For example, all Highly Compensated
Employees who elected a 10% contribution (combined Basic Before-Tax
Contributions of 6% and Supplemental Before-Tax Contributions of 4%)
shall have their Supplemental Before-Tax Contributions reduced from
4% to 3%. If neither Actual Deferral Percentage Test is then
satisfied, all Highly Compensated Employees who elected Supplemental
Before-Tax Contributions of 3% (including those reduced to 3% as
provided above) shall have their Supplemental Before-Tax
Contributions reduced from 3% to 2%. This process shall continue
through the remaining Supplemental Before-Tax Contributions and
continuing with the Basic Before-Tax Contributions and Matching
Employer Contributions on a pro rata basis until either Actual
Deferral Percentage Test is satisfied. Once either Actual Deferral
Percentage Test is satisfied, the Committee shall direct the Trustee
to distribute to the appropriate Highly Compensated Employees the
amount of the reduction of the Before-Tax Contributions of each such
Highly Compensated Employee and to treat as forfeitures the
appropriate amount of Matching Employer Contributions, together with
the net earnings or losses allocable thereto. The Committee shall
designate such distribution and forfeiture as a distribution and
forfeiture of excess contributions, determine the amount of the
allocable net earnings or losses to be distributed in accordance with
subsection (c) below, and cause such distributions and forfeitures to
occur prior to the end of the Plan Year following the Plan Year in
which the excess Before-Tax Contributions and excess Matching
Employer Contributions were made.
(iv) Notwithstanding anything in this subsection (b) to the
contrary, the provisions of this subsection shall, effective for Plan
Years beginning no later than the 1992 Plan Year, apply separately
with respect to each group of employees who are Members of a
Collective Bargaining Unit (if any) and the group of employees who
are not Members of a Collective Bargaining Unit. Further
notwithstanding anything in this subsection (b) to the contrary, the
provisions of this subsection shall not apply, prior to the 1993 Plan
Year, to any group of employees who are Members of a Collective
Bargaining Unit.
(c) (i) Net earnings or losses to be refunded with the excess
Before Tax Contributions shall be equal to the net earnings or losses
on such contributions for the Plan Year in which the contributions
were made plus the net earnings or losses on such contributions
during the Gap Period.
(ii) The net earnings or losses allocable to the excess
Before-Tax Contributions for the Plan Year shall be determined by
multiplying the net earnings or losses allocable to the Participant's
Before-Tax Account for the Plan Year by a fraction, the numerator of
which is the amount of the Participant's Before-Tax Contributions to
be refunded and the denominator of which is the balance of the
Participant's Before-Tax Account as of the last day of the Plan Year,
reduced by the net earnings (or increased by the net loss) allocable
to the Participant's Before Tax Account for the Plan Year.
(iii) The net earnings or losses allocable to the
excess Before-Tax Contributions for the Gap Period shall be the
amount determined by multiplying the net earnings or losses for the
Plan Year determined in subsection (ii) above times one-tenth for
each month in the Gap Period, including the month in which the
refunds are distributed if the refund is distributed after the 1 5th
day of such month.
(d) Net earnings or losses to be treated as forfeitures
together with the Matching Employer Contributions shall be equal to the
net earnings or losses on such contributions for the Plan Year in which
the contributions were made plus the net earnings or losses on such
contributions during the Gap Period. Net earnings or losses on Matching
Employer Contributions shall be determined in the same manner as in
subsection (c) above, except that the phrases "Matching Employer
Contribution" and "Matching Account" shall be substituted for the phrases
"Before-Tax Contribution" and "Before-Tax Account" wherever used therein.
(e) Any excess contributions distributed to a Family Group and
treated as forfeitures pursuant to the reductions in subsection (b)(iii)
above shall be allocated to each Family Member in the same proportion that
such Family Member's Before-Tax Contributions and Matching Contributions
bear to the aggregate Before-Tax Contributions and Matching Contributions
of the Family Group.
(f) Any Matching Employer Contribution treated as a forfeiture
pursuant to subsection (b) above shall be used to reduce the Employer
Contribution in Section 3.4.
(g) The Committee may adopt such rules as it deems necessary or
desirable to:
(i) impose limitations during a Plan Year on the
percentage of Before-Tax Contributions elected by Participants
pursuant to Section 3.2 for the purpose of avoiding the necessity of
adjustments pursuant to this Section or Section 5.12; or
(ii) increase during a Plan Year the percentage of
Compensation with respect to which a Participant may elect a
Before-Tax Contribution for the purpose of providing Participants
with the opportunity to increase their Before-Tax Contributions
within the limitations of this Section 3.3.
(h) The amount of the Before-Tax Contributions to be made
pursuant to a Participant's election shall reduce the compensation
otherwise payable to him by the Employer.
(i) The amount of each Participant's Basic Before-Tax
Contributions and Supplemental Before-Tax Contributions as determined
under this Section 3.3 is subject to the provisions of Section 5.12.
3.4 Employer Contribution.
(a) Subject to the provisions of Section 3.1, each Employer
shall pay to the Trustee for each Plan Year the following amounts
(collectively, the "Employer Contribution"):
(i) such amounts, if any, as the Board of Directors of the
Company may determine (such contribution to be known as the "Profit
Sharing Contribution"); and
(ii) cash equal to, or Company Stock having an aggregate
fair market value equal to, such amount, if any, as the Board of
Directors of the Company may determine (such amounts to be known as
the "ESOP Cash Contribution" and the "ESOP Contribution,"
respectively); provided, however, that each Employer shall contribute
an amount not less than the amounts required to enable the Trustees
to discharge any indebtedness incurred with respect to an Acquisition
Loan or an Estate Tax Loan in connection with the purchase of Company
Stock to release Company Stock encumbered under such indebtedness.
(b) If any part of the ESOP Cash Contribution for any Plan Year
is in cash for purposes other than discharging Acquisition Loans or Estate
Tax Loans, such cash shall be applied, as soon as practicable, by the
Trustees to the purchase of Company Stock. Notwithstanding the preceding
sentence, if any portion of the ESOP Cash Contribution is allocated to a
Participant subject to the election under Article 14, the amount of such
Participant's share of the ESOP Cash Contribution for which an election
under Article 14 is made shall not be used to purchase Company Stock, but
instead shall be subject to the election under Article 14.
(c) Each Employer shall also pay to the Trustee such additional
amounts, if any, as the Board of Directors of the Company may determine,
which amounts shall be known as the "Qualified Contribution" and allocated
to the Elective Accounts and for all purposes under the plan treated as
Matching Employer Contributions.
3.5 Matching Employer Contribution. Subject to the provisions of
Section 3.1, each Employer may pay to the Trustee an amount, determined as
a uniform percentage of each Participant's Basic Before-Tax Contribution,
to be known as the "Matching Employer Contribution." Any such
contribution shall be paid for each calendar quarter based on the Basic
Before-Tax Contributions made during such quarter on behalf of each
Participant employed by such Employer.
<PAGE>
ARTICLE 4
Participant Contributions
4.1 After-Tax Contributions. Except as permitted by this Article 4,
no Participant shall be required or permitted to make any after-tax
contributions to this Plan.
4.2 Rollover Contribution.
(a) A Rollover Contribution may be transferred in cash to the
Trust Fund for the benefit of an employee with the permission of the
Committee. Prior to accepting any transfer which is intended to be a
Rollover Contribution, the Committee may require the employee to establish
that the amount to be transferred meets the definition of a Rollover
Contribution and any other limitations of the Code applicable to such
transfers.
(b) An employee who is not eligible to participate in the Plan
solely by reason of failing to meet the eligibility requirements of
Article 2 and who is reasonably expected to become a Participant when such
requirements are met, may be a Participant in the Plan solely for the
limited purposes of making a Rollover Contribution, and taking actions
with respect to his Rollover Account for the purposes of loans in
accordance with Article 7, investment options in accordance with Section
5.2, and the withdrawal of Rollover Contributions in accordance with (e)
below, subject to the same conditions as any other Participant.
(c) If the Committee determines after a Rollover Contribution
has been made that such Rollover Contribution did not in fact constitute a
Rollover Contribution as defined in Section 1.4, the amount of such
Rollover Contribution and any earnings thereon shall be returned to the
employee.
(d) Each employee's Rollover Contribution shall be credited to
his Rollover Account and invested in accordance with Section 5.2. A
Participant's Rollover Account shall be fully vested and nonforfeitable.
(e) Subject to the provisions of Article 7, a Participant's
Rollover Account shall be distributed to the Participant (or his
beneficiary in the event of his death) at the time and in the manner
directed by the Participant.
4.3 Allocation of Rollover Contributions. The Rollover Contribution
of a Participant shall be allocated to his Rollover Account as of the
Valuation Date coinciding with or next preceding the date on which such
amounts are received by the Trustee.
<PAGE>
ARTICLE 5
Accounting Provisions and Allocations
5.1 Participant's Accounts. For each Participant there shall be
maintained as appropriate the following separate Accounts: an Employer
Account, which will reflect the Participant's share of Profit Sharing
Contributions; an Elective Account, which will reflect the Participant's
Before-Tax Contributions and Matching Employer Contributions; a Rollover
Account, which will reflect the Participant's Rollover Contribution, if
any; an ESOP Account, which will reflect the Participant's share of ESOP
Contributions; and an ESOP Cash Account, which will reflect the
Participant's share of ESOP Cash Contributions. Each Account shall be
credited with the amount of contributions, forfeitures, interest and
earnings of the Trust Fund allocated to such Account and shall be charged
with all distributions, withdrawals and losses of the Trust Fund allocated
to such Account.
5.2 Common Fund.
(a) The Trust Fund shall be divided into the following separate
investment funds (each a "Fund") as provided in this Section 5.2:
Fixed Income Fund -- This Fund seeks to provide current income
and preservation of capital through investment in a mix of
government securities and corporate bonds.
Equity Fund -- This Fund seeks to provide capital growth and
income that closely corresponds to the returns generated by
stocks included in the Standard & Poor's 500 Stock Index.
The Fund does this by purchasing in the same proportion the
500 common stocks which make up the Standard & Poor's 500
Stock Index.
First Colonial Bankshares Corporation Stock Fund -- This Fund is
invested entirely in Company Stock.
Trust Treasury Guarantee Fund -- This Fund seeks to provide
stability of principal, liquidity and a competitive level
of current income by investing exclusively in general
obligations issued by the U.S. Government and repurchase
agreements involving such securities.
Growth & Income Fund (Effective April 1,1994)-- This fund seeks
to provide long-term growth of principal and income through
investment in a balanced mix of stocks and bonds.
Growth Fund (Effective April 1, 1994)-- This fund seeks to
provide principal growth over the long-term through a mix
of broadly diversified stock and bond investments.
The Committee may add or eliminate Funds in its discretion effective
as of the first day of any quarter of any Plan Year, provided it gives
notice to Participants of any such action prior to the effective date of
any such change. Each such Fund and any additional Funds which may from
time to time be established shall be a common fund in which each
Participant shall have an undivided interest in the respective assets of
the Fund, provided that all Accounts segregated and loans made pursuant to
Article 7 shall, together with any income or expense of such Accounts or
loans, be accounted for separately and will not be included in any of the
adjustments resulting from the application of this Section 5.2. Except as
otherwise provided, the value of each Participant's Accounts in such Funds
shall be measured by the proportion that the net credits to his Accounts
bear to the total net credits to the Accounts of all Participants and
beneficiaries as of the date that such share is being determined. For
purposes of allocation of income and valuation, each Fund shall be
considered separately. No Fund shall share in the gains and losses of any
other, and no Fund shall be valued by taking into account any assets or
distributions from any other.
(b) Each Fund shall be established and invested by the Trustee
in accordance with investment policies determined, or as the Trustee may
be directed, from time to time by the Committee. The Committee may from
time to time also direct that Funds with similar investment objectives be
consolidated.
(c) A Participant may from time to time elect to have a uniform
percentage of his Employer, Elective and Rollover Accounts (excluding the
value of any loan credited to any of such Accounts) credited in increments
of 10% to two or more of the Funds, or to have 100% of such Accounts
credited to one of the Funds; provided however, that elections made prior
to April 1, 1994 to credit two or more of the Funds must be in increments
of 25%. All contributions to such Accounts shall be credited to such Funds
in accordance with such election. Subject to any restriction on transfer
which results from the investment medium chosen for a Fund, a Participant
may elect to transfer a uniform percentage of such Accounts held in any
Fund to one or more different Funds. Loans made pursuant to Article 7
shall be treated as transfers to and from various Funds in accordance with
uniform rules established by the Committee. Elections under this Section
shall be made effective as of the first day of any quarter of any Plan
Year (January 1, April 1, July 1 or October 1) by filing with the
Committee a written form required thereby at least 30 days prior to the
requested change date in accordance with procedures and limitations
established by the Committee. A Qualified Participant (as defined in
Article 14) may also elect to have a percentage of his ESOP Account
credited to one or more of the Funds in accordance with Article 14.
5.3 Accounting Steps for Employer, Elective and Rollover Accounts.
As of each Valuation Date, with respect to the Employer, Elective and
Rollover Accounts, the Committee shall:
(a) First, charge to the proper accounts all payments and
distributions made from Participants' accounts since the last preceding
Valuation Date that have not been charged previously, as provided in
Section 5.6, including any loans under Article 7.
(b) Second, charge the participants' accounts for any
forfeitures occurring since the last preceding Valuation Date.
(c) Third, allocate one-half of the Participant's Before-Tax
Contributions and Matching Employer Contributions since the last Valuation
Date to his Elective Account, and allocate Rollover Contributions since
the last Valuation Date made before the 15th day of the second month of
the quarter to his Rollover Account.
(d) Fourth, adjust the net credit balances in Participants'
Accounts upward or downward, pro rata, according to the net credit
balances taking into account the charges and credits in steps (a) and (b)
above so that the totals of the net credit balances of all Accounts will
equal the then Adjusted Net worth of the Trust Fund.
(e) Fifth, allocate the other one-half of the Participant's
Before-Tax Contributions since the last Valuation Date to his Elective
Account.
(f) Sixth, allocate the principal and interest credited to any
loan account as provided in Article 7.
(g) Seventh, allocate Rollover Amounts since the 15th day of
the second month of the quarter to his Rollover Account.
(h) Finally, if the Valuation Date is coincident with the end
of the Plan Year, allocate and credit the Profit Sharing Contributions,
forfeitures, and Matching Employer Contributions, if any, that are to be
allocated and credited as of that date in accordance with Section 5.10.
5.4 Accounting Steps for ESOP Account. As of each Valuation Date,
the Committee shall:
(a) First, charge to the ESOP Accounts all payments and
distributions made from Participants' ESOP Accounts since the last
preceding Valuation Date that have not been charged previously, as
provided in Section 5.6.
(b) Second, credit to each participants' ESOP Account the
shares of Company Stock, if any, that have been purchased with amounts
from their ESOP Cash Account since the last preceding Valuation Date.
(c) third, credit and allocate to each Participants' ESOP
Account the shares of Company Stock, if any, contributed under the Plan
and forfeitures, if any, as of that date in accordance with Section 5.10.
(d) Finally, credit and allocate to each Participants' ESOP
Account the Financed Shares, if any, released by the payment of principal
on an Acquisition Loan or Estate Tax Loan as of that date in accordance
with Section 5.10.
5.5 Accounting Steps for ESOP Cash Account. As of each Date, the
Committee shall:
(a) First, charge to the ESOP Cash Account all payments and
distributions, if any, made from Participants' Accounts since the last
preceding Valuation Date that have not been charged previously, as
provided in Section 5.6.
(b) Second, credit each Participant's ESOP Cash Account for
cash dividends paid on shares of Common Stock held in the Participant's
ESOP Account as of the record date for such cash dividends.
(c) Third, charge to each Participant's ESOP Cash Account the
amount of cash used to purchase Company Stock that has been credited to
each Participant's ESOP Account in accordance with Section 5.4(b).
(d) Fourth, adjust the net credit balances in Participants'
ESOP Cash Accounts upward or downward, pro rata, according to the net
credit balances taking into account the charges and credits in steps (a),
(b) and (c) above so that the total of the net credit balances of all
Accounts will equal the then Adjusted Net Worth of the Trust Fund.
(e) Finally, if the Valuation Date is coincident with the end
of the Plan Year, allocate and credit the ESOP Cash Contribution (other
than contributions used to repay the Acquisition Loan or Estate Tax Loan)
and forfeitures, if any, that are to be allocated and credited as of that
date in accordance with Section 5.10.
5.6 Charging of Payments and Distributions. As of each Valuation
Date, all payments and distributions which were made under the Plan since
the last preceding Valuation Date to or for the benefit of a Participant
or his Beneficiary will be charged to the proper account of such
Participant.
5.7 Determination of Value of Trust Fund. As of each Valuation Date
the Trustee shall determine for the period then ended the sum of the net
earnings or losses of the Trust Fund (excluding Accounts segregated and
loans made pursuant to Article 7), which shall reflect accrued but unpaid
interest, dividends, gains or losses realized from the sale, exchange or
collection of assets, other income received, appreciation or depreciation
in the fair market value of assets, administration expenses, and taxes and
other expenses paid. Gains or losses realized and adjustments for
appreciation or depreciation in fair market value shall be computed with
respect to the difference between such value as of the preceding Valuation
Date or date of purchase, whichever is later, and the value as of the date
of disposition or the current Valuation Date, whichever is earlier. To the
extent that any assets of the Trust have been invested in one or more
separate investment trusts, mutual funds, investment contracts or similar
investment media, the net earnings or losses distributable to such
investments shall be determined in accordance with the procedures of such
investment media.
5.8 Allocation of Net Earnings or Losses. As of each Valuation Date
the net earnings or losses of the Trust Fund for the quarter then ending
shall be allocated to the Accounts (excluding Accounts segregated and
loans made pursuant to Article 7) of all Participants (or beneficiaries of
deceased Participants) having credits in the Fund both on such date and at
the beginning of such period. Such allocation shall be in the ratio that
(i) the net credits to each such Account of each such Participant on the
first day of such period, less the total amount of any distributions from
such Account to such Participant during such period, bears to (ii) the
total net credits to all such Accounts of all Participants on said first
day of the period, less the total amount of distributions from all such
Accounts to all Participants during such period. Notwithstanding the
foregoing, to the extent the assets of the Trust have been invested in one
or more separate investment trusts, mutual funds, investment contracts or
similar investment media, the net earnings or losses attributable to such
investments shall be allocated to the Accounts of Participants or
beneficiaries on the basis of the balances of such Accounts but in
accordance with the procedures of the respective investment media in which
such assets are invested.
5.9 Eligibility to Share in the Employer's Contribution and
Forfeitures.
(a) A Participant shall be eligible to share in the Employer
Contribution and forfeitures for the Plan Year as of the last day of which
such Contribution or forfeitures are being allocated if he is then
employed by the Employer as an Eligible Employee and has completed 1,000
Hours of Service in such Plan Year. A Participant who, during a Plan Year,
retires on or after his Normal Retirement Date, dies or is initially
deemed to be totally and permanently disabled shall also be eligible to
share in the Employer Contribution and forfeitures for said Plan Year. A
Participant who is eligible to share in the Employer Contribution and
forfeitures shall be known as an "Eligible Participant."
(b) Notwithstanding any provision in the Plan to the contrary,
if Company Stock is sold to the Plan by a shareholder of the Company in a
transaction for which special tax treatment is elected pursuant to Code
Section 1042 by such shareholder, no assets attributable to such Company
Stock may be allocated during the Nonallocation Period (as defined below)
to the ESOP Account of such shareholder, any person who is related to such
shareholder (within the meaning of Code Section 267(b), but excluding
lineal descendants of such shareholder as long as no more than 5% of the
aggregated amount of all Company Stock sold by such shareholder in a
transaction to which Code Section 1042 applies is allocated to lineal
descendants of such shareholder), or any other person who owns (after
application of Code Section 318(a)) more than 25% in value of the
outstanding securities of the Company. Further, no allocation of
contributions may be made to the ESOP Account of such persons unless
additional allocations are made to other Participants, in accordance with
the provisions of Code Sections 401(a) and 410. The phrase "Nonallocation
Period" means the period beginning on the date of sale of the Company
Stock and ending on the later of (a) the date which is 10 years after the
date of sale, or (b) the date of the allocation attributable to the final
payment on the Acquisition Loan incurred with respect to the sale.
5.10 Allocation of Employer Contribution and Forfeitures. As of the
last day of each Plan Year, the sum of the Employer Contribution, the
number of Financed Shares released from the Loan Suspense Account, the
number of Estate Tax Shares released from the Estate Tax Account and the
amounts which become allocable as forfeitures during the Plan Year shall
be allocated among the Employer Accounts, ESOP Accounts and ESOP Cash
Accounts of all Eligible Participants in the ratio that the Compensation
of each Eligible Participant for such Plan Year bears to the Compensation
of all Eligible Participants for such Plan Year.
5.11 Provisional Annual Addition. The sum of the Before-Tax
Contributions, Matching Employer Contributions, Employer Contributions and
forfeitures allocated to the Accounts of the Participants pursuant to this
Article 5 for a Plan Year shall be known as the "Provisional Annual
Addition" and shall be subject to the limitation on Annual Additions in
Section 5.12.
5.12 Limitation on Annual Additions.
(a) For the purpose of complying with the restrictions on
Annual Additions to defined contribution plans imposed by Code Section
415, for each Eligible Participant and each other Participant who has made
Before-Tax Contributions during the Plan Year, there shall be computed a
Maximum Annual Addition, which shall be the excess of the lesser of
(i) 25% of his Compensation for the Plan Year; or
(ii) the Defined Contribution Dollar Limitation for the
Plan Year,
over the amount of employer contributions, forfeitures and employee
contributions allocated as of any day in the Limitation Year to such
Participant's accounts under any other defined contribution plan
maintained by the Employer or an Affiliate.
(b) If the Maximum Annual Addition for a Participant equals or
exceeds the Provisional Annual Addition for that Participant, an amount
equal to the Provisional Annual Addition shall be allocated to the
Participant's respective Accounts.
(c) If the Provisional Annual Addition exceeds the Maximum
Annual Addition for that Participant, the Provisional Annual Addition
shall be reduced as set forth below until the Provisional Annual Addition
as so reduced equals the Maximum Annual Addition for such Participant:
(i) first, the Tentative Employer Contribution allocable
to such Participant's respective Accounts shall be reduced by
reducing (A) the Supplemental Before-Tax Contributions, (B) the Basic
Before-Tax Contributions and Matching Employer Contributions,
proportionately, and (C) the Employer Contribution, in that order;
and
(ii) second, the amount of forfeiture allocable to the
Participant's Employer Account shall be reduced.
The Provisional Annual Addition remaining after such reductions shall be
allocated to the Participant's respective Accounts.
(d) Any forfeiture which cannot be allocated under the Plan
because of the application of the above limit shall be carried in the
Excess Forfeiture Suspense Account for such Plan Year. In the next
succeeding Plan Year the amounts included in such Account shall be treated
as a forfeiture for such Plan Year and shall be allocated to the Eligible
Participants' Employer Accounts in accordance with the provisions of
Section 5.10 (and as such will be again subject to the limitations of this
Section 5.12 for such Plan Year). Amounts which are included in the Excess
Forfeiture Suspense Account as of the end of a Plan Year shall be treated
as a liability of the Trust Fund. Upon termination of the Plan, amounts
then held in the Excess Forfeiture Suspense Account which cannot be
allocated pursuant to this Section shall revert to the Employer.
(e) The Excess Tentative Employer Contribution is an amount
equal to the sum of the reductions in the Tentative Employer Contribution
allocable to the Accounts of Participants pursuant to subsection (c)(i)
above.
5.13 Special Limitation on Maximum Contributions.
(a) In the case of any Participant who is or was also a
participant in a defined benefit plan maintained by the Employer or an
Affiliate, the sum of the Defined Contribution Fraction and Defined
Benefit Fraction (each as determined below) as of the end of any Plan Year
shall not exceed 1.0. In the event that the sum of such Fractions would
otherwise exceed 1.0, then the amount determined under Section 5.12(a)(i)
or (ii), whichever is applicable, in determining the Maximum Annual
Addition under Section 5.1 2(a) shall be equal to such applicable amount
multiplied by the difference between 1.0 and the Defined Benefit Fraction.
(b) The "Defined Benefit Fraction" applicable to a Participant
for any Limitation Year is a fraction, the numerator of which is the sum
of the Projected Annual Benefit (as determined below) of the Participant
under all of the defined benefit plans maintained or previously maintained
by the Employer or an Affiliate in which the Participant was a participant
(determined as of the close of the Limitation Year) and the denominator of
which is the lesser of (i) the product of 1.25 multiplied by the maximum
dollar limitation on a Participant's Projected Annual Benefit if the plan
provided the maximum benefit allowable under Code Section 415(b) for such
Limitation Year or (ii) the product of 1.4 multiplied by 100% of the
Participant's Highest Average Compensation (as determined below).
(c) The "Defined Contribution Fraction" applicable to a
Participant for any Limitation Year is a fraction, the numerator of which
is the sum of the Participant's Annual Additions as of the close of such
Limitation Year for that Limitation Year and for all prior Limitation
Years under this Plan and all other defined contribution plans maintained
by the Employer or an Affiliate, and the denominator of which is the sum
of the lesser of the following amounts (determined for such Limitation
Year and for each prior Limitation Year during which the Participant
performed services as an employee of the Employer or an Affiliate
regardless of whether a plan was in existence during those years): (i) the
product of 1.25 multiplied by the Defined Contribution Dollar Limitation
(as defined above) for the Limitation Year or (ii) the product of 1.4
multiplied by 25% of the Participant's Compensation for the Limitation
Year.
(d) In accordance with regulations issued by the Secretary of
the Treasury or his delegate pursuant to Section 1106(i)(4) of the Tax
Reform Act of 1986, an amount shall be subtracted from the numerator of
the Defined Contribution Fraction (not exceeding such numerator) so that
the sum of the Defined Benefit Fraction and the Defined Contribution
Fraction does not exceed 1.0 as of December 31, 1986. To the extent
provided under applicable law and regulations, adjustments shall be made
to the Defined Benefit Fraction or the Defined Contribution Fraction with
respect to previous transition rules.
(e) (i) "Highest Average Compensation" means the average of a
Participant's Compensation from the Employer and all Affiliates for
the high three consecutive Limitation Years (determined as of the
close of the Limitation Year) of employment with the Employer or an
Affiliate (or the actual number of years of employment for a
Participant who is employed for less than 3 consecutive years for
which the Participant's Compensation is the highest).
(ii) "Projected Annual Benefit" means the annual benefit a
Participant would receive from employer contributions under a defined
benefit plan, adjusted in the case of any benefit payable in a form
other than a single life annuity or a qualified joint and survivor
annuity, to the actuarial equivalent of a single life annuity,
assuming (A) the Participant continued employment until reaching the
plan's normal retirement age (or his current age, if later), (B) his
compensation remained unchanged and (C) all other relevant factors
used to determine benefits under the plan remained constant in the
future.
<PAGE>
ARTICLE 6
Amount of Payments to Participants
6.1 General Rule. Upon the retirement, disability, resignation or
dismissal of a Participant, he, or in the event of his death, his
beneficiary, shall be entitled to receive from his respective Accounts in
the Trust Fund as of his Determination Date:
(a) an amount equal to the Participant's Elective Account and
Rollover Account plus any of the Participant's Before-Tax Contributions
made to the Trust Fund but not allocated to the Participant's Accounts as
of his Determination Date; and
(b) the nonforfeitable portion of the Participant's Employer
Account, ESOP Account and ESOP Cash Account determined as hereafter set
forth.
The time and manner of distribution of a Participant's Accounts shall be
determined in accordance with Article 7.
6.2 Normal Retirement. Any Participant may retire on or after his
Normal Retirement Date, at which date the forfeitable portion, if any, of
his Employer Account, ESOP Account and ESOP Cash Account shall become
nonforfeitable. If the retirement of a Participant is deferred beyond his
Normal Retirement Date, he shall continue in full participation in the
Plan and Trust Fund.
6.3 Death. As of the date any Participant shall die while in the
employ of the Employer or an Affiliate, the forfeitable portion, if any,
of his Employer Account, ESOP Account and ESOP Cash Account shall become
nonforfeitable.
6.4 Disability.
(a) As of the date any Participant shall be determined by the
Committee to have become totally and permanently disabled because of
physical or mental infirmity while in the employ of the Employer or an
Affiliate and his employment shall have terminated, the forfeitable
portion, if any, of his Employer Account, ESOP Account and ESOP Cash
Account shall become nonforfeitable.
(b) A Participant shall be deemed totally and permanently
disabled when, on the basis of qualified medical evidence, the Committee
finds on the basis of the opinion of a physician mutually acceptable to
the Participant and the Company such Participant to be totally and
presumably permanently prevented from engaging in any occupation or
employment available with the Employer or an Affiliate as a result of
physical or mental infirmity, injury, or disease, either occupational or
nonoccupational in cause; provided, however, that disability hereunder
shall not include any disability incurred or resulting from the
Participant having engaged in a criminal enterprise, or any disability
consisting of or resulting from the Participant's chronic alcoholism,
addiction to narcotics or an intentionally self-inflicted injury.
6.5 Vesting. A Participant's interest in his Elective Account and
Rollover Account shall be nonforfeitable at all times. Except as otherwise
provided in this Article 6, a Participant's nonforfeitable interest in his
Employer Account, ESOP Account and ESOP Cash Account at any point in time
shall be determined under Section 6.6.
6.6 Resignation or Dismissal.
(a) If any Participant shall resign or be dismissed from the
service of the Employer and all Affiliates there shall become
nonforfeitable a portion or all of his Employer Account, ESOP Account and
ESOP Cash Account determined as of his Determination Date in accordance
with the following schedule:
Years of Nonforfeitable
Service Percentage
Less than 1 0
1 but less than 2 25
2 but less than 3 50
3 or more 100
(b) Any part of the Employer Account, ESOP Account and ESOP
Cash Account of such Participant which does not become nonforfeitable
shall be treated as a forfeiture pursuant to Section 6.8.
6.7 Computation of Period of Service. For purposes of determining
the nonforfeitable percentage of the Participant's Employer Account, ESOP
Account and ESOP Cash Account, all Years of Service shall be taken into
account, except that the following shall be disregarded:
(a) Years of Service before age 18;
(b) Years of Service prior to the adoption of this Plan
including any predecessor thereto;
(c) Years of Service before a One-Year Break in Service until
such Participant has completed one Year of Service after such One-Year
Break in Service; and
(d) in the case of a Participant whose nonforfeitable balance
of his Employer Account, ESOP Account and ESOP Cash Account is 0, Years of
Service before a period consisting of 5 consecutive One-Year Breaks in
Service if the number of consecutive One-Year Breaks in Service equals or
exceeds the aggregate number of Years of Service before such One-Year
Breaks in Service. Such aggregate number of Years of Service before such
One-Year Breaks in Service shall not include any Years of Service
disregarded by reason of any prior One-Year Breaks in Service.
6.8 Treatment of Forfeitures.
(a) Upon termination of a Participant's employment with the
Employer and all Affiliates, that part of his Employer Account, ESOP
Account and ESOP Cash Account which becomes a forfeiture pursuant to
Section 6.6 shall become allocable pursuant to Section 5.10 at the end of
the Plan Year in which the termination of employment occurred if the
Participant is not then reemployed by the Employer or an Affiliate.
(b) If a Participant is reemployed by the Employer or an
Affiliate without incurring 5 consecutive One-Year Breaks in Service, and
before distribution of the nonforfeitable portion of his Employer Account,
ESOP Account and ESOP Cash Account, the amount of the forfeiture shall be
restored to his Employer Account, ESOP Account and ESOP Cash Account as of
the last day of the Plan Year in which he is reemployed.
(c) If the Participant is reemployed by the Employer or an
Affiliate without incurring 5 consecutive One-Year Breaks in Service but
after distribution of the nonforfeitable portion of his Employer Account,
ESOP Account and ESOP Cash Account and if the Participant repays the
amount distributed before the earlier of
(i) 5 years from the date of such reemployment; or
(ii) the end of 5 consecutive One-Year Breaks in Service
following the date of such distribution,
the amount of the Employer Account, ESOP Account and ESOP Cash Account
distributed to him and the amount of the forfeiture shall be restored to
his Employer Account, ESOP Account and ESOP Cash Account as of the last
day of the Plan Year in which such repayment is made.
(d) Amounts restored to a Participant's Employer Account, ESOP
Account and ESOP Cash Account pursuant to (b) or (c) above shall be
deducted from the forfeitures which otherwise would be allocable for the
Plan Year in which such reemployment or repayment occurs or, to the extent
such forfeitures are insufficient, shall require a supplemental
contribution from the Employer.
<PAGE>
ARTICLE 7
Distributions
7.1 Commencement and Form of Distributions.
(a) Distribution of a Participant's Accounts in the Trust Fund
following termination of employment with the Employer and all Affiliates
shall commence on or as soon as practicable after the first to occur of:
(i) the date set forth in the Participant's request for
distribution; provided that (1) the Committee has notified the
Participant of the availability of such distribution in a manner that
would satisfy the notice requirements of Section 1.411 (a)-11 (c) of
the income tax regulations, and (2) such notification is given no
less than 30 days and no more than 90 days prior to the distribution
date requested by the Participant; provided, further, that such
distribution may commence less than 30 days after the date the notice
required under Section 1.411 (a)-11 (c) of the income tax regulations
is given provided that:
(A) the Committee clearly informs the Participant that
the Participant has a right to a period of at least 30 days
after receiving the notice to consider the decision of whether
or not to elect a distribution, and
(B) the Participant, after receiving the notice,
affirmatively elects a distribution; or
(ii) the 60th day after the close of the later of the Plan
Year in which the Participant attains his Normal Retirement Date or
terminates employment with the Employer and all Affiliates, unless
the Participant has requested to defer the distribution to a later
date.
(b) In all events, distribution shall commence no later than
the Required Beginning Date, and subsequent distributions required to be
made each year for compliance with Code Section 401 (a)(9) and the
regulations promulgated thereunder shall be made no later than December 31
of such year.
(c) The ESOP Account and ESOP Cash Account distributable to a
Participant shall be distributed in one or more of the following ways as
the Participant may request and in accordance with applicable laws and
regulations:
(i) by payment in one lump sum; or
(ii) in substantially equal monthly, quarterly, semi-annual
or annual installments which, except for the final payment, shall not
be less than $100.
Unless the Participant elects otherwise, amounts distributable from the
Participant's ESOP Account and ESOP Cash Account shall be distributed in
cash.
(d) The Employer Account, Elective Account and Rollover Account
distributable to a Participant upon termination of employment shall be
distributed in one lump sum.
(e) Distributions required to satisfy Section 7.1(b) and the
value of the Participant's ESOP Account and ESOP Cash Account shall be
paid to the Participant over a period not to exceed his life expectancy or
the joint life expectancy of the Participant and his Individual
Beneficiary. The minimum amount of any installment distribution and
determination of life expectancy of a Participant and the joint life
expectancy of a Participant and his Individual Beneficiary shall be
determined in accordance with the regulations prescribed under Code
Section 401(a)(9); provided that the life expectancy of a Participant or
his spouse shall be redetermined annually.
(f) In no event shall the amount distributable to a Participant
in any year be less than the amount determined in accordance with the
minimum distribution incidental benefit requirements of Treasury
Regulation Section 1.401(a)(9)-2.
(g) Notwithstanding anything in this Section 7.1 to the
contrary, if the vested balance of the Participant's Accounts does not
exceed $3,500 at the time a distribution is to be made from the Plan and
distribution pursuant to this Section 7.1 has not otherwise commenced, the
Committee shall direct the Trustee to distribute such amount in a lump sum
payment to the individual so entitled and the payment thereof shall be in
full satisfaction of any liability of the Trust to such individual. If the
vested balance of the Participant's Accounts at the time of any
distribution to the individual so entitled exceeds $3,500, then the vested
balance at any subsequent time shall be deemed to exceed $3,500. Any
Participant whose vested balance of his Employer Account ESOP Account and
ESOP Cash Account is 0% shall be deemed to have received a lump sum
payment upon termination of employment.
(h) Notwithstanding anything in this Section 7.1 to the
contrary, if the amount of any distribution required to commence on a
certain date cannot be ascertained by such date, a payment retroactive to
such date may be made no later than 60 days after the earliest date on
which such amount can be ascertained.
(i) Notwithstanding any other provision of the Plan (other than
such provision that requires the consent of the Participant to a
distribution with a present value in excess of $3,500), unless the
Participant otherwise elects, any portion of the Participant's ESOP
Account and ESOP Cash Account attributable to Company Stock shall commence
no later than 1 year after the close of the Plan Year in which the
Participant separates from service after attainment of his Normal
Retirement Date, death or disability, or in the case of separation from
service for any other reason, 1 year after the close of the fifth Plan
Year following the year of separation. (This clause will not apply if the
Participant is reemployed by the Company before the close of such 5th Plan
Year). For purposes of this paragraph (i), the ESOP Account and ESOP Cash
Account shall not include any Company Stock acquired with the proceeds of
an Acquisition Loan until the close of the Plan Year in which such loan is
repaid in full.
(j) Notwithstanding anything in this Section 7.1 to the
contrary, effective January 1, 1993, distributees may elect, at the time
and in the manner prescribed by the Committee, to have any portion of an
Eligible Rollover Distribution, as defined in this paragraph, paid
directly to an Eligible Plan, as defined in this paragraph, in a direct
rollover. For purposes of this paragraph, 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 distributee's
designated beneficiary, or for a specified period of ten years or more;
any 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
includable in gross income (determined without regard to the exclusion of
net unrealized appreciation with respect to employer securities). 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. A distributee includes a Participant or former
Participant. In addition, the Participant's or former Participant's
surviving spouse and the Participant's or former Participant'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 the spouse or former spouse. A
direct rollover is a payment by the Plan to the Eligible Retirement Plan
specified by the distributee.
7.2 Distributions to Beneficiaries.
(a) Except as otherwise provided in this Section 7.2, the
balance of a deceased Participant's ESOP Account and ESOP Cash Account
which is distributable to a beneficiary shall be distributed in one or
more of the forms described in Section 7.1, in accordance with an
effective designation filed by the Participant with the Committee or, if
no such designation has been filed, in one or more of such forms as the
Committee in its sole discretion determines after consultation with the
beneficiary; provided, however, that distributions during and after the
1989 Plan Year shall be made in one of the forms described in Section 7.1
(c)(i) or (ii), as the beneficiaries shall elect.
(b) In the event that the distribution of the Participant's
ESOP Account and ESOP Cash Account has begun in accordance with Section
7.1, any form of distribution to a beneficiary under this Section 7.2
shall be designed to distribute the balance of the deceased Participant's
ESOP Account and ESOP Cash Account at least as rapidly as under the method
of distribution in effect at the time of the Participant's death.
(c) If the distribution of a Participant's ESOP Account and
ESOP Cash Account has not commenced at the time of his death, any form of
distribution to a beneficiary shall be designed to distribute the balance
of the deceased Participant's Accounts as follows:
(i) Any portion of the ESOP Account and ESOP Cash Account
payable to or for the benefit of an Individual Beneficiary may be
distributed over a period not to exceed the life expectancy of such
Individual Beneficiary if such payments commence not later than the
December 31 coinciding with or next following the first anniversary
of the Participant's death, unless such Individual Beneficiary is the
surviving spouse of the Participant, in which case such payments need
not commence until the later of (1) the December 31 coinciding with
or next following the first anniversary of the Participant's death,
or (2) the December 31 of the calendar year in which the Participant
would have attained age 70.
(ii) If the Participant's surviving spouse is an Individual
Beneficiary and dies prior to the commencement of benefit payments to
such spouse, subsection (i) above shall be applied as if the
Participant's death had occurred on the date of such spouse's death.
(iii) Unless distribution is made in accordance with
subsections (i) or (ii) above, the balance of the Participant's ESOP
Account and ESOP Cash Account shall be distributed in full no later
than the December 31 coinciding with or next following the 5th
anniversary of the Participant's death.
(d) If a beneficiary to whom payments have commenced dies prior
to receipt of all such payments, the remaining balance of the
Participant's ESOP Account and ESOP Cash Account shall be distributed to
any contingent or successor beneficiary at least as rapidly as under the
method of distribution in effect at the time of the beneficiary's death,
or if there is no such contingent or successor beneficiary, in a lump sum
to the deceased beneficiary's estate.
(e) The life expectancy of an Individual Beneficiary who is the
surviving spouse of the Participant shall be redetermined annually in
accordance with regulations prescribed under Code Section 401 (a)(9).
(f) The balance of a deceased Participant's Employer, Elective
and Rollover Accounts which is distributable to a beneficiary shall be
paid in one lump sum.
(g) If a Participant's Employer, Elective and Rollover Accounts
have not been distributed in full at the time of his death, the balance of
the deceased Participant's Employer, Elective and Rollover Accounts shall
be distributed in full no later than the December 31 coinciding with or
next following the 5th anniversary of the Participant's death.
7.3 Beneficiaries.
(a) Unless a Participant has effectively elected otherwise in
accordance with this Section 7.3, the distributable balance of a deceased
Participant's Accounts shall be paid to his surviving spouse.
(b) The balance of a deceased Participant's Accounts shall be
distributed to the persons effectively designated by the Participant as
his beneficiaries. To be effective, the designation shall be filed with
the Committee in such written form as the Committee requires and may
include contingent or successive beneficiaries; provided that any
designation by a Participant who is married at the time his benefit
payments commence which fails to name his surviving spouse as the sole
primary beneficiary shall not be effective unless such surviving spouse
has consented to the designation in writing, witnessed by a Plan
representative or notary public, acknowledging the effect of the
designation and the specific non-spouse beneficiary, including any class
of beneficiaries or any contingent beneficiary. Such consent shall not be
required if, at the time of filing such designation, the Participant
established to the satisfaction of the Committee that the consent of the
Participant's spouse could not be obtained because there is no spouse,
such spouse could not be located or by reason of such other circumstances
as may be prescribed by regulations. Any consent (or establishment that
the consent could not be obtained) shall be effective only with respect to
such spouse. Any Participant may change his beneficiary designation at any
time by filing with the Committee a new beneficiary designation (with such
spousal consent as may be required). Notwithstanding the foregoing,
designation of a beneficiary by a Participant who did not have early
service after August 22, 1984, shall not require the consent of his
surviving spouse to be effective.
(c) (i) If a Participant dies, and to the knowledge of the
Committee after reasonable inquiry leaves no surviving spouse, has
not filed an effective beneficiary designation or has revoked all
such designations, or has filed an effective designation but the
beneficiary or beneficiaries predeceased him, the distributable
portion of the Participant's Accounts shall be paid to the executor
or administrator of the Participant's estate.
(ii) If the beneficiary, having survived the Participant,
shall die prior to the final and complete distribution of the
Participant's Accounts, then the distributable portion of said
Accounts shall be paid:
(A) to the contingent or successive beneficiary named
in the most recent effective beneficiary designation filed by
the Participant in accordance with such designation; or
(B) if no such beneficiary has been named, to the
executor or administrator of the beneficiary's estate.
7.4 Installment or Deferred Distributions. If distribution is made
to a Participant or to the beneficiary of a deceased Participant in
installments or is deferred, the undistributed vested balance shall share
in the net earnings or losses (including the net adjustments in the value
of the Trust Fund) as provided in Section 5.8 or, if the Participant or
beneficiary so elects, shall be segregated and deposited in an
interest-bearing account as the Committee shall in its discretion select,
and be credited with all interest earned by such account, but shall not
otherwise or thereafter have a participating interest of any other sort in
the Trust Fund.
7.5 Form of Elections and Applications for Benefits. Any election,
revocation of an election or application for benefits pursuant to the Plan
shall not be effective unless it is (a) made on such form, if any, as the
Committee may prescribe for such purpose; (b) signed by the Participant
and, if required by Section 7.3, by the Participant's spouse; and (c)
filed with the Committee.
7.6 Unclaimed Distributions. In the event any distribution cannot
be made because the person entitled thereto cannot be located and the
distribution remains unclaimed for 2 years after the distribution date
established by the Committee, then such amount shall be treated as a
forfeiture and allocated in accordance with Section 5.10. In the event
such person subsequently files a valid claim for such amount, such amount
shall be restored to the Participant's Accounts in a manner similar to the
restoration of forfeitures under Section 6.8.
7.7 Loans.
(a) Upon the submission by the Participant of a written loan
application form as prescribed by the Committee, the Committee shall grant
a loan to such Participant from his Elective and Rollover Accounts;
provided, however, that if the Committee reasonably believes that the
Participant either does not intend to repay the loan or lacks proper
financial ability to repay the loan, it shall not grant such a loan.
Participants are entitled to take one loan out at any time for any reason
subject to the provisions of this Section 7.7. A Participant may request
up to an additional four loans in any rolling 12 month period, and such
loans shall be granted, subject to the other provisions of this Article
15, if such loan is being requested as a result of hardship as defined in
Section 7.8.
(b) The amount of any loan shall not exceed 50% of the amount
which the Participant would be entitled to receive from his Elective and
Rollover Accounts if he had resigned from the service of the Employer and
all Affiliates and his Determination Date next preceded the date of such
authorization; provided, however, that the amount of such loan shall not
be less than $1,000 and shall not exceed $50,000 reduced by the greater of
(i) the highest outstanding balance of loans to the Participant from the
Trust Fund during the one-year period ending on the day before the date on
which such loan is made or modified, or (ii) the outstanding balance of
loans to the Participant from the Trust Fund on the date on which such
loan is made or modified.
(c) Such loans shall be made available on a reasonably
equivalent basis to all Participants and beneficiaries who have vested
Elective and Rollover Account balances in the Plan and who either (i) are
active employees or (ii) are determined by the Committee to be "parties in
interest" as that term is defined in Section 3(14) of ERISA, so long as
the making of such loans does not discriminate in favor of Highly
Compensated Employees.
(d) Loans shall be made on such terms as the Committee may
prescribe, provided that any such loan shall be evidenced by a note, shall
bear a rate of interest on the unpaid principal thereof equal to 1% over
the prime rate in effect on the date the loan request is approved, unless
the Committee determines that such interest rate is not commensurate with
the interest rates charged by persons in the business of lending money for
loans which would be made under similar circumstances, and shall be
secured by the Participant's segregated loan account and such other
security as the Committee in its discretion deems appropriate.
(e) Loans shall be repaid by the Participant by payroll
deduction or any other method approved by the Committee which requires
level amortization of principal and repayments not less frequently than
quarterly. Such loans shall be repaid over a period not less than 6 months
and not in excess of 5 years (except for loans used to acquire a dwelling
unit which within a reasonable time is to be used as the principal
residence of the Participant as determined under the applicable Code
provisions, in which case repayment may occur over a 15-year period) in
accordance with procedures established by the Committee from time to time.
(f) Loans shall be an asset of the Participant's Accounts and
shall be treated in the manner of a segregated account. Upon the failure
of a Participant to make loan payments or some other event of default set
forth in the promissory note, upon the Participant's termination of
employment, or upon termination of the Plan pursuant to Section 11.2, such
loan shall become due and payable, and the unpaid balance of such loan,
including any unpaid interest, may in the Committee's discretion be
charged against the Participant's segregated loan account; provided, that
any unpaid balance of such loan, including any unpaid interest, shall be
charged against the Participant's segregated loan account before any
distribution to the Participant. If after the Participant's segregated
loan account has been so charged, there remains an unpaid balance of any
such loan and interest, then the remaining unpaid balance of such loan
shall be charged against any property pledged as security with respect to
such loan.
7.8 Withdrawals From Elective and Rollover Accounts Prior to
Termination of Employment.
(a) Subject to (c) below, a Participant who has attained age 59
may elect to withdraw from his Elective and Rollover Accounts any amount
not in excess of the balance of such Accounts determined as of the
Determination Date coinciding with or immediately preceding the date of
such withdrawal.
(b) Subject to (c) below, a Participant who has not attained
age 59-1/2 may upon the determination by the Committee that he has incurred a
financial hardship, make a hardship withdrawal from his Elective and
Rollover Accounts. In any case where the Participant claims financial
hardship, he shall submit a written request for such distribution in
accordance with procedures prescribed by the Committee. The Committee
shall determine whether the Participant has a "financial hardship" on the
basis of such written request in accordance with this Section 7.8, and
such determination shall be made in a uniform and nondiscriminatory
manner. The Committee shall only make a determination of "financial
hardship" if (A) the distribution to be made is made on account of an
immediate and heavy financial need of the Participant and (B) the funds
distributed are necessary to satisfy the Participant's need.
(i) The determination of whether a Participant has an
immediate and heavy financial need is to be made by the Committee on
the basis of all relevant facts and circumstances. A distribution
will be deemed to be on account of an immediate and heavy financial
need if made on account of:
(A) Expenses for medical care (as 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 such medical care;
(B) The purchase (excluding mortgage payments) of a
principal residence for the Participant;
(C) Tuition and related educational fees due for the
next 12 months of post-secondary education for the Participant,
the Participant's spouse, children or dependents;
(D) The need to prevent the eviction of the
Participant from his principal residence or foreclosure on the
mortgage of the Participant's principal residence; or
(E) Any other event or expense deemed an immediate
and heavy financial need by the Department of the Treasury.
(ii) The determination of whether a distribution is
necessary to satisfy the immediate and heavy financial need of the
Participant shall be made by the Committee on the basis of all
relevant facts and circumstances. The Committee shall determine that
a distribution is necessary to satisfy the financial need if either
(A) or (B) is satisfied:
(A) The Committee reasonably relies on the
representations of the Participant that the immediate and heavy
financial need cannot be relieved
(1) through reimbursement or compensation by
insurance or otherwise;
(2) by reasonable liquidation of the
Participant's assets to the extent such liquidation would
not itself cause an immediate and heavy financial need;
(3) by cessation of Before-Tax Contributions;
(4) by other distributions or nontaxable loans
available from the Plan or any other plan in which the
Participant participates; or
(5) by borrowing from commercial sources on
reasonable commercial terms.
For purposes of this subparagraph (A), a Participant's
resources shall include assets of the Participant's spouse and
minor children which are reasonably available to the
Participant.
(B) The Participant reasonably demonstrates that all
of the following requirements are satisfied:
(1) the distribution is not in excess of the
amount of the immediate and heavy financial need of the
Participant, taking into account any amounts necessary to
pay any federal, state or local income taxes or penalties
reasonably anticipated to result from the distribution;
(2) the Participant has obtained all
distributions (other than hardship distributions), and all
nontaxable loans currently available under the Plan;
(3) the Participant will not make any Before-Tax
Contributions for twelve months after receiving the
hardship distribution; and
(4) the Participant's Before-Tax Contributions
in the calendar year following the calendar year of the
hardship distribution do not exceed the limitation in Code
Section 402(9)(1) applicable to such following calendar
year, minus the amount of his Before-Tax Contributions for
the calendar year of the hardship distribution.
(c) Any withdrawals under this Section 7.8 shall not reduce the
Participant's Elective and Rollover Account below the amount of the
balance of any outstanding loan made pursuant to Section 7.7. Withdrawals
on account of hardship shall be further limited by (d) below.
(d) Distributions from the Participant's Elective and Rollover
Account because of hardship pursuant to (b) above shall not exceed the
lesser of:
(i) the amount of the immediate and heavy financial need;
or
(ii) the balance of the Participant's Elective and Rollover
Accounts as of the Determination Date coinciding with or
immediately preceding the date of such withdrawal; or
(iii) (A) the sum of the Participant's Elective and
Rollover Accounts as of December 31, 1988 plus the Participant's
Before-Tax Contributions made on or after January 1, 1989,
reduced by (B) the aggregate amount distributed from the
Participant's Elective and Rollover Accounts on or after January
1, 1989.
(e) Any withdrawals under this Section 7.8 shall not be made
more frequently than once per Plan Year and shall not be less than $500
per withdrawal.
7.9 Facility of Payment. When, in the Committee's opinion, a
Participant or beneficiary is under a legal disability or is incapacitated
in any way so as to be unable to manage his affairs, the Committee may
direct the Trustee to make payments:
(a) directly to the Participant or beneficiary;
(b) to a duly appointed guardian or conservator of the
Participant or beneficiary;
(c) to a custodian for the Participant or beneficiary under the
Uniform Gifts to Minors Act;
(d) to an adult relative of the Participant or beneficiary; or
(e) directly for the benefit of the Participant or beneficiary.
Any such payment shall constitute a complete discharge therefor with
respect to the Trustee and the Committee.
7.10 Claims Procedure.
(a) Any person who believes that he is then entitled to receive
a benefit under the Plan, including one greater than that initially
determined by the Committee, may file a claim in writing with the
Committee.
(b) The Committee shall within 90 days of the receipt of a
claim either allow or deny the claim in writing. A denial of a claim shall
be written in a manner calculated to be understood by the claimant and
shall include:
(i) the specific reason or reasons for the denial;
(ii) specific references to pertinent Plan provisions on
which the denial is based;
(iii) a description of any additional material or
information necessary for the claimant to perfect the claim and
an explanation of why such material or information is necessary;
and
(iv) an explanation of the Plan's claim review procedure.
(c) A claimant whose claim is denied (or his duly authorized
representative) may, within 60 days after receipt of denial of his claim:
(i) submit a written request for review to the Committee;
(ii) review pertinent documents; and
(iii) submit issues and comments in writing.
(d) The Committee shall notify the claimant of its decision on
review within 60 days of receipt of a request for review. The decision on
review shall be written in a manner calculated to be understood by the
claimant and shall include specific reasons for the decision and specific
references to the pertinent Plan provisions on which the decision is
based.
(e) The 90-day and 60-day periods described in subsections (b)
and (d), respectively, may be extended at the discretion of the Committee
for a second 90- or 60-day period, as the case may be, provided that
written notice of the extension is furnished to the claimant prior to the
termination of the initial period, indicating the special circumstances
requiring such extension of time and the date by which a final decision is
expected.
(f) Participants and beneficiaries shall not be entitled to
challenge the Committee's determinations in judicial or administrative
proceedings without first complying with the procedures in this Article.
The Committee's decisions made pursuant to this Section are intended to be
final and binding on Participants, beneficiaries and others.
<PAGE>
ARTICLE 8
Top-Heavy Plan Requirements
8.1 Definitions. For purposes of this Article 8:
(a) A "Key Employee" is any current or former employee (and the
beneficiaries of such employee) who at any time during the Determination
Period was an officer of the Employer or an Affiliate if such individual's
annual compensation exceeds 50% of the Defined Benefit Dollar Limitation,
an owner (or considered an owner under Code Section 318) of one of the 10
largest interests in the Employer if such individual's compensation
exceeds 100% of the Defined Contribution Dollar Limitation, a Five-Percent
Owner, or a One-Percent Owner of the Employer who has an annual
compensation of more than $150,000. Annual compensation means Compensation
plus amounts contributed by the Employer pursuant to a salary reduction
agreement which are excludable from the employee's gross income under Code
Section 125, 402(a)(8), 402(h) or 403(b). The "Determination Period" is
the Plan Year containing the Top-Heavy Determination Date and the 4
preceding Plan Years.
The determination of who is a Key Employee will be made in
accordance with Code Section 416(i)(1) and the regulations thereunder.
(b) For any Plan Year beginning after December 31, 1983, this
Plan is "Top-Heavy" if any of the following conditions exists:
(i) The Top-Heavy Ratio for this Plan exceeds 60% and this
Plan is not part of any Required Aggregation Group or Permissive
Aggregation Group of plans;
(ii) 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 group of plans exceeds 60%;
(iii) This Plan is a part of a Required Aggregation
Group and part of a Permissive Aggregation Group of plans and the
Top-Heavy Ratio for the Permissive Aggregation Group exceeds 60%.
(c) The "Top-Heavy Ratio" shall be determined as follows:
(i) If the Employer maintains one or more defined
contribution plans and the Employer has not maintained any defined
benefit plan which during the 5-year period ending on the Top-Heavy
Determination Date(s) has or has had accrued benefits, the Top-Heavy
Ratio for this Plan alone or for the Required or Permissive
Aggregation Group as appropriate is a fraction, the numerator of
which is the sum of the account balances of all Key Employees as of
the Top-Heavy Determination Date(s) (including any part of any
account balance distributed in the 5-year period ending on the
Top-Heavy Determination Date(s)), and the denominator of which is the
sum of all account balances (including any part of any account
balance distributed in the 5-year period ending on the Top-Heavy
Determination Date(s)), both computed in accordance with Code Section
416 and the regulations thereunder. Both the numerator and
denominator of the Top-Heavy Ratio are increased to reflect any
contribution not actually made as of the Top-Heavy Determination
Date, but which is required to be taken into account on that date
under Code Section 416 and the regulations thereunder.
(ii) If the Employer maintains one or more defined
contribution plans and the Employer maintains or has maintained one
or more defined benefit plans which during the 5-year period ending
on the Top-Heavy Determination Date(s) has or has had any accrued
benefits, the Top-Heavy Ratio for any Required or Permissive
Aggregation Group as appropriate is a fraction, the numerator of
which is the sum of account balances under the aggregated defined
contribution plan or plans for all Key Employees, determined in
accordance with (i) above, and the Present Value of accrued benefits
under the aggregated defined benefit plan or plans for all Key
Employees as of the Top-Heavy Determination Date(s), and the
denominator of which is the sum of the account balances under the
aggregated defined contribution plan or plans for all Participants,
determined in accordance with (i) above, and the Present Value of
accrued benefits under the aggregated defined benefit plan or plans
for all Participants as of the Top-Heavy Determination Date(s), all
determined in accordance with Code Section 416 and the regulations
thereunder. The accrued benefits under a defined benefit plan in both
the numerator and denominator of the Top-Heavy Ratio are increased
for any distribution of an accrued benefit made in the 5-year period
ending on the Top-Heavy Determination Date.
(iii) For purposes of (i) and (ii) above the value of
account balances and the Present Value of accrued benefits will be
determined as of the most recent valuation date that falls within or
ends with the 1 2-month period ending on the Top-Heavy Determination
Date, except as provided in Code Section 416 and the regulations
thereunder for the first and second plan years of a defined benefit
plan. The account balances and accrued benefits of a Participant (A)
who is not a Key Employee but who was a Key Employee in a prior year,
or (B) who has not been credited with at least one hour of service
with any employer maintaining the Plan at any time during the 5-year
period ending on the Top-Heavy Determination Date will be
disregarded. The calculation of the Top-Heavy Ratio, and the extent
to which distributions, rollovers, and transfers are taken into
account, will be made in accordance with Code Section 416 and the
regulations thereunder. Deductible employee contributions will not be
taken into account for purposes of computing the Top-Heavy Ratio.
When aggregating plans the value of account balances and accrued
benefits will be calculated with reference to the Top-Heavy
Determination Date(s) that fall within the same calendar year. The
accrued benefit of a Participant other than a Key Employee shall be
determined under (1) the method, if any, that uniformly applies for
accrual purposes under all defined benefit plans maintained by the
Employer, or (2) if there is no such method, as if such benefit
accrued not more rapidly than the slowest accrual rate permitted
under the fractional rule of Code Section 411(b)(1)(C).
(d) "Permissive Aggregation Group" means the Required
Aggregation Group of plans plus any other plan or plans of the Employer
which, when considered as a group with the Required Aggregation Group,
would continue to satisfy the requirements of Code Sections 401 (a)(4) and
410.
(e) "Required Aggregation Group" means (i) each qualified plan
of the Employer in which at least one Key Employee participates or
participated at any time during the Determination Period (regardless of
whether the plan has terminated), and (ii) any other qualified plan of the
Employer which enables a plan described in (i) to meet the requirements of
Code Section 401 (a)(4) or 410.
(f) "Top-Heavy Determination Date" means, for any Plan Year
subsequent to the first Plan Year, the last day of the preceding Plan Year
or, for the first Plan Year of the Plan, the last day of that year.
(g) "Present Value" shall be based on an interest assumption of
5% and a post-retirement mortality assumption based on the UP-1984
Mortality Table.
(h) "Employer" means the Employer and all Affiliates except for
purposes of determining ownership under Code Section 416(i)(1).
8.2 Top-Heavy Plan Requirements.
(a) (i) Except as otherwise provided in (ii) and (iii)
below, the Employer contributions and forfeitures allocated on behalf
of any Participant who is not a Key Employee shall not be less than
the lesser of three percent of the first $200,000 ($150,000,
effective January 1, 1994, both amounts as adjusted annually by the
Secretary of the Treasury for increases in the cost of living) of
such Participant's Compensation or in the case where the Employer has
no defined benefit plan which designates this Plan to satisfy Code
Section 401, the largest percentage of Employer contributions and
forfeitures, as a percentage of the amount described above allocated
on behalf of any Key Employee for that year. The minimum allocation
is determined without regard to any Social Security contribution.
This minimum allocation shall be made even though, under other Plan
provisions, the Participant would not otherwise be entitled to
receive an allocation, or would have received a lesser allocation for
the year because of (A) the Participant's failure to complete 1,000
Hours of Service (or any equivalent provided in the Plan), (B) the
Participant's failure to make mandatory employee contributions to the
Plan, or (C) Compensation less than a stated amount.
(ii) The provision in (i) above shall not apply to any
Participant who was not employed by the Employer or an Affiliate on
the last day of the Plan Year.
(iii) The provision in (i) above shall not apply to any
Participant to the extent the Participant is covered under any other
plan or plans of the Employer and the Employer's contribution and
forfeitures allocated under such plan or plans are equal to or exceed
the amount required to be allocated under (i) above.
(b) The minimum allocation required (to the extent required to
be nonforfeitable under Code Section 416(b)) may not be forfeited under
Code Section 411 (a)(3)(B) or 411 (a)(3)(D).
(c) For any Plan Year in which this Plan is Top-Heavy, the
following schedule shall be substituted for the schedule set forth in
Section 6.6, provided that Section 6.6 shall apply to the extent that the
nonforfeitable percentage thereunder is greater than the following
schedule:
Nonforfeitable
Years of Service Percentage
Less than 2 0
2 but less than 3 20
3 but less than 4 40
4 but less than 5 60
5 but less than 6 80
6 or more 100
The minimum vesting schedule applies to all benefits within the meaning of
Code Section 411 (a)(7) except those attributable to after-tax
contributions, including benefits accrued before the effective date of
Code Section 416 and benefits accrued before the Plan became Top-Heavy.
Further, no reduction in vested benefits may occur in the event the Plan's
Top-Heavy status changes for any Plan Year. However, this Section does not
apply to the account balances of any employee who does not have an Hour of
Service after the Plan has initially become Top-Heavy and such employee's
account balance attributable to Employer contributions and forfeitures
will be determined without regard to this Section.
<PAGE>
ARTICLE 9
Powers and Duties of Plan Committee
9.1 Appointment of Plan Committee.
(a) The Board of Directors of the Employer (the "Board of
Directors") may name a Plan Committee (the "Committee") to consist of not
less than three persons to serve as administrator and named fiduciary of
the Plan. Any person, including directors, shareholders, officers and
employees of the Employer, shall be eligible to serve on the Committee.
Every person appointed a member of the Committee shall signify his
acceptance in writing to the Board of Directors. In the event the Board of
Directors does not appoint a Committee pursuant to this Section 9.1, the
Employer shall act as the administrator and named fiduciary of the Plan
and all references to the Committee shall mean references to the Employer
so acting as administrator and named fiduciary of the Plan.
(b) Members of the Committee shall serve at the pleasure of the
Board of Directors and may be removed by the Board of Directors at any
time with or without cause. Any member of the Committee may resign by
delivering his written resignation to the Board of Directors, and such
resignation shall become effective at delivery or at any later date
specified therein. Vacancies in the Committee shall be filled by the Board
of Directors.
(c) Usual and reasonable expenses of the Committee may be paid
in whole or in part by the Employer and any such expenses not paid by the
Employer shall be paid by the Trustee out of the principal or income of
the Trust Fund. The members of the Committee shall not receive any
compensation for their services as such.
9.2 Powers and Duties of Committee. The Committee shall have final
and binding discretionary authority to control and manage the operation
and administration of the Plan, including all rights and powers necessary
or convenient to the carrying out of its functions hereunder, whether or
not such rights and powers are specifically enumerated herein. In
exercising its responsibilities hereunder, the Committee may manage and
administer the Plan through the use of agents who may include employees of
the Employer.
Without limiting the generality of the foregoing, and in addition to
the other powers set forth in this Article 9, the Committee shall have the
following discretionary authorities:
(a) To construe and interpret the Plan, decide all questions of
eligibility and determine the amount, manner and time of payment of any
benefits hereunder.
(b) To prescribe procedures to be followed by Participants or
beneficiaries filing applications for benefits.
(c) To prepare and distribute, in such manner as the Committee
determines to be appropriate, information explaining the Plan.
(d) To request and receive from the Employer, Participants and
others such information as shall be necessary for the proper
administration of the Plan.
(e) To furnish the Employer upon request such annual and other
reports with respect to the administration of the Plan as are reasonable
and appropriate.
(f) To receive, review and maintain on file reports of the
financial condition and of the receipts and disbursements of the Trust
Fund from the Trustee.
9.3 Committee Procedures.
(a) The Committee may adopt such bylaws and regulations as it
deems desirable for the conduct of its affairs.
(b) A majority of the members of the Committee at the time in
office shall constitute a quorum for the transaction of business. All
resolutions or other actions taken by the Committee at any meeting shall
be by the vote of the majority of the members of the Committee present at
the meeting. The Committee may act without a meeting by written consent of
a majority of its members.
(c) The Committee may elect one of its members as chairman and
may appoint a secretary, who may or may not be a Committee member, and
shall advise the Trustee and the Employer of such actions in writing. The
secretary shall keep a record of all actions of the Committee and shall
forward all necessary communications to the Employer or the Trustee.
(d) Filing or delivery of any document with or to the secretary
of the Committee in person or by registered or certified mail, addressed
in care of the Employer, shall be deemed a filing with or delivery to the
Committee.
9.4 Consultation with Advisors. The Committee (or any fiduciary
designated by the Committee pursuant to Section 9.8) may employ or consult
with counsel, actuaries, accountants, physicians or other advisors (who
may be counsel, actuaries, accountants, physicians or other advisors for
the Employer).
9.5 Committee Members as Participants. Any Committee member may
also be a Participant, but no Committee member shall have power to take
part in any discretionary decision or action affecting his own interest as
a Participant under this Plan unless such decision or action is upon a
matter which affects all other Participants similarly situated and confers
no special right, benefit or privilege not simultaneously conferred upon
all other such Participants.
9.6 Records and Reports. The Committee shall take all such action
as it deems necessary or appropriate to comply with governmental laws and
regulations relating to the maintenance of records, notifications to
Participants, registrations with the Internal Revenue Service, reports to
the U.S. Department of Labor and all other requirements applicable to the
Plan.
9.7 Investment Policy.
(a) The Committee from time to time shall determine the Plan's
short-term and long-term financial needs, with which the investment policy
of the Trust shall be appropriately coordinated, and such needs shall be
communicated from time to time to the Trustee, Investment Managers or
others having any responsibility for management and control of the Trust
assets.
(b) Subject to (c) below, the Trustee shall have exclusive
authority and discretion to manage and control the assets of the Trust
pursuant to an investment policy coordinated with the needs of the Plan as
determined by the Committee.
(c) The Committee may in its discretion appoint one or more
Investment Managers to manage (including the power to direct the Trustee
to acquire and dispose of) any assets of the Plan pursuant to an
investment policy coordinated with the needs of the Plan as determined by
the Committee, in which event the Trustee shall not be liable for the acts
or omissions of any such Investment Manager or be under an obligation to
invest or otherwise manage any asset of the Plan which is subject to the
management of any such Investment Manager except as directed. Any such
investment Manager shall acknowledge in writing that he is a fiduciary
with respect to the Plan.
(d) The term "Investment Manager" shall mean: (i) a registered
investment adviser under the Investment Advisers Act of 1940; (ii) a bank
as defined in the Investment Advisers Act of 1940; or (iii) an insurance
company qualified under the laws of more than one state to manage, acquire
and dispose of plan assets.
9.8 Designation of Other Fiduciaries. The Committee may designate
in writing other persons to carry out a specified part or parts of its
responsibilities hereunder (including the power to designate other persons
to carry out a part of such designated responsibility), but not including
the power to appoint Investment Managers. Any such designation shall be
accepted by the designated person, who shall acknowledge in writing that
he is a fiduciary with respect to the Plan.
9.9 Obligations of Committee.
(a) The Committee or its properly authorized delegate shall
make such determinations as are necessary to accomplish the purposes of
the Plan with respect to individual Participants or classes of such
Participants. The Employer shall notify the Committee of facts relevant to
such determinations, including, without limitation, length of service,
compensation for services, dates of death, permanent disability, granting
or terminating of leaves of absence, ages, retirement and termination of
service for any reason (but indicating such reason), and termination of
participation. The Employer shall also be responsible for notifying the
Committee of any other facts which may be necessary for the Committee to
discharge its responsibilities hereunder.
(b) The Committee is hereby authorized to act solely upon the
basis of such notifications from the Employer and to rely upon any
document or signature believed by the Committee to be genuine and shall be
fully protected in so doing. For the purpose of this Section, a letter or
other written instrument signed in the name of the Employer by any officer
thereof shall constitute a notification therefrom; except that any action
by the Employer or its Board of Directors with respect to the appointment
or removal of a member of the Committee or the amendment of the Plan and
Trust or the designation of a group of employees to which the Plan is
applicable shall be evidenced by an instrument in writing, signed by a
duly authorized officer or officers, certifying that said action has been
authorized and directed by a resolution of the Board of Directors of the
Employer.
(c) The Committee shall notify the Trustee of its actions and
determinations affecting the responsibilities of the Trustee and shall
give the Trustee directions as to payments or other distributions from the
Trust Fund to the extent they may be necessary for the Trustee to fulfill
the terms of the Trust Agreement.
(d) The Committee shall be under no obligation to enforce
payment of contributions hereunder or to determine whether contributions
delivered to the Trustee comply with the provisions hereof relating to
contributions, and is obligated only to administer this Plan pursuant to
the terms hereof.
9.10 Indemnification of Committee. The Employer shall indemnify
members of the Committee and its authorized delegates who are employees of
the Employer for any liability or expenses, including attorneys' fees,
incurred in the defense of any threatened or pending action, suit or
proceeding by reason of their status as members of the Committee or its
authorized delegates, to the full extent permitted by the law of the
Employer's state of incorporation.
<PAGE>
ARTICLE 10
Trustee and Trust Fund
10.1 Trust Fund. A Trust Fund to be known as the First Colonial
Bankshares Corporation Retirement Trust (herein referred to as the "Trust"
or the "Trust Fund") has been established by the execution of a trust
agreement with one or more Trustees and is maintained for the purposes of
this Plan. The assets of the Trust will be held, invested and disposed of
by the Trustee, in accordance with the terms of the Trust, for the benefit
of the Participants and their beneficiaries.
10.2 Payments to Trust Fund and Expenses. All contributions
hereunder will be paid into and credited to the Trust Fund and all
benefits hereunder and expenses chargeable thereto will be paid from the
Trust Fund and charged thereto.
10.3 Trustee's Responsibilities. The powers, duties and
responsibilities of the Trustee shall be as set forth in the Trust
Agreement and nothing contained in this Plan, either expressly or by
implication, shall impose any additional powers, duties or
responsibilities upon the Trustee.
10.4 Reversion to an Employer. An Employer has no beneficial
interest in the Trust Fund and no part of the Trust Fund shall ever revert
or be repaid to an Employer, directly or indirectly, except that an
Employer shall upon written request have a right to recover:
(a) within one year of the date of payment of a contribution by
such Employer, any amount (less any losses attributable thereto)
contributed through a mistake of fact;
(b) within one year of the date on which any deduction for a
contribution by such Employer under Code Section 404 is disallowed, an
amount equal to the amount disallowed (less any losses attributable
thereto); and
(c) at the termination of the Plan, any amounts with respect to
its employees remaining in the Excess Forfeiture Suspense Account.
<PAGE>
ARTICLE 11
Amendment or Termination
11.1 Amendment. The Company reserves the right to amend this Plan at
any time to take effect retroactively or otherwise, in any manner which it
deems desirable including, but not by way of limitation, the right to
increase or diminish contributions to be made by the Employer hereunder,
to change or modify the method of allocation of its contributions, to
change any provision relating to the distribution or payment, or both, of
any assets of the Trust.
11.2 Termination. The Company further reserves the right to
terminate this Plan at any time.
11.3 Form of Amendment, Discontinuance of Employer Contributions, and
Termination. Any such amendment, discontinuance of Employer contributions
or termination shall be made only by resolution of the Board of Directors
of the Company or by any person so duly authorized by the Board of
Directors.
11.4 Limitations on Amendments. The provisions of this Article are
subject to the following restrictions:
(a) Except as provided in Section 10.4, no amendment shall
operate either directly or indirectly to give the Employer any interest
whatsoever in any funds or property held by the Trustee under the terms
hereof, or to permit corpus or income of the Trust to be used for or
diverted to purposes other than the exclusive benefit of the Participants
and their beneficiaries.
(b) Except to the extent necessary to conform to the laws and
regulations or to the extent permitted by any applicable law or
regulation, no amendment shall operate either directly or indirectly to
deprive any Participant of his nonforfeitable beneficial interest in his
Accounts as they are constituted at the time of the amendment.
(c) No amendment shall change any vesting schedule unless each
Participant who has completed 3 or more Years of Service is permitted to
elect to have the nonforfeitable percentage of his Employer Account ESOP
Account and ESOP Cash Account computed under the Plan without regard to
such amendment. The period for making such election shall commence no
later than the date of the adoption of such amendment and shall expire no
earlier than 60 days after the latest of the following dates: (i) the date
the Plan amendment is adopted, (ii) the date the Plan amendment becomes
effective, or (iii) the date the Participant is issued written notice of
the Plan amendment by the Committee. Notwithstanding the foregoing, no
election need be offered to a Participant whose nonforfeitable percentage
of his Employer Account ESOP Account and ESOP Cash Account cannot at any
time be lower than such percentage determined without regard to such
amendment.
(d) Except as permitted by applicable law, no amendment shall
eliminate or reduce an early retirement benefit or a retirement-type
subsidy or eliminate an optional form of benefit.
11.5 Level of Benefits Upon Merger. This Plan shall not merge or
consolidate with, or transfer assets or liabilities to, any other plan,
unless each Participant shall be entitled to receive a benefit immediately
after said merger, consolidation or transfer (if such other plan were then
terminated) which shall be not less than the benefit he would have been
entitled to receive immediately before said merger, consolidation or
transfer (if this Plan were then terminated).
11.6 Vesting Upon Termination or Discontinuance of Employer
Contributions; Liquidation of Trust.
(a) This Plan shall be deemed terminated if and only if the
Plan terminates by operation of law or pursuant to Section 11.2. In the
event of any termination or partial termination within the meaning of the
Code, or in the event the Employer permanently discontinues the making of
contributions to the Plan, the Employer Account ESOP Account and ESOP Cash
Account of each affected Participant who is employed by the Employer on
the date of the occurrence of such event shall be nonforfeitable;
provided, however, that in no event shall any Participant or beneficiary
have recourse to other than the Trust Fund for the satisfaction of
benefits hereunder.
(b) In the event the Employer permanently discontinues the
making of contributions to the Plan, the Trustee shall make or commence
distribution to each Participant or his beneficiaries of the value of such
Participant's Accounts as provided herein within the time prescribed in
Article 7. However, if, after such discontinuance, the Company shall
determine it to be impracticable to continue the Trust any longer, the
Company may, in its discretion, declare a date to be the Determination
Date for all Participants whose Determination Date has not yet occurred.
Such date shall also constitute the final distribution date for each
Participant or beneficiary whose Accounts are being distributed in
installments.
(c) The liquidation of the Trust, if any, in connection with
any Plan termination shall be accomplished by the Committee acting on
behalf of the Company. After directing that sufficient funds be set aside
to provide for the payment of all expenses incurred in the administration
of the Plan and the Trust, to the extent not paid or provided for by the
Employer, the Committee shall, as promptly as shall then be reasonable
under the circumstances, liquidate the Trust assets and distribute to each
Participant or beneficiary his Accounts in the Trust Fund. Notwithstanding
the foregoing, if the Employer or an Affiliate maintains another defined
contribution plan, other than an employee stock ownership plan (as defined
in Code Section 4975(e) or 409) or a simplified employee pension plan (as
defined in Code Section 408(k)), the Accounts of such Participant shall be
transferred to such other plan unless the vested balance of such Accounts
does not exceed $3,500 or the Participant consents to distribution of such
Accounts. If the vested balance of a Participant's Accounts at the time of
any distribution to the Participant exceeds $3,500, then the vested
balance of a Participant's Accounts at any subsequent time shall be deemed
to exceed $3,500. Upon completion of such liquidation and distribution,
the Trust shall finally and completely terminate. In the event the
Committee is no longer in existence, the actions to be taken by the
Committee pursuant to this Section shall be taken by the Trustee.
<PAGE>
ARTICLE 12
Miscellaneous
12.1 No Guarantee of Employment, Etc. Neither the creation of the
Plan nor anything contained in the Plan or trust agreement shall be
construed as a contract of employment between the Employer and the
Participant or as giving any Participant hereunder or other employee of
the Employer any right to remain in the employ of the Employer, any equity
or other interest in the assets, business or affairs of the Employer, or
any right to complain about any action taken or any policy adopted or
pursued by the Employer.
12.2 Nonalienation.
(a) Except as may be provided in the Plan with respect to loans
to Participants, no Participant shall have any right to sell, assign,
pledge, hypothecate, anticipate or in any way create a lien upon any part
of the Trust Fund. Except to the extent required by law or provided in the
Plan, no interest in the Trust Fund, or any part thereof, shall be
assignable in or by operation of law, or be subject to liability in any
way for the debts or defaults of Participants, their beneficiaries,
spouses or heirs-at-law, whether to the Employer or to others.
(b) Prior to the time that distributions are to be made
hereunder, the Participants, their spouses, beneficiaries, heirs-at-law or
legal representatives shall have no right to receive cash or other things
of value from the Employer or the Trustee from or as a result of the Plan
and Trust.
12.3 Qualified Domestic Relations Order. Notwithstanding anything in
this Plan to the contrary, the Committee shall distribute a Participant's
Accounts, or any portion thereof, in accordance with the terms of any
domestic relations order entered on or after January 1, 1985, which the
Committee determines to be a qualified domestic relations order described
in Code Section 414(p). Unless specifically provided otherwise in such
order, any distribution under this Section 12.3 shall be made in a single
lump sum.
12.4 Controlling Law. To the extent not preempted by the laws of the
United States of America, the laws of the State of Illinois shall be
controlling state law in all matters relating to the Plan.
12.5 Severability. If any provision of this Plan shall be held
illegal or invalid for any reason, said illegality or invalidity shall not
affect the remaining parts of this Plan, but this Plan shall be construed
and enforced as if said illegal or invalid provision had never been
included herein.
12.6 Notification of Addresses. Each Participant and each
beneficiary of a deceased Participant shall file with the Committee from
time to time in writing his postoffice address and each change of
post-office address. Any communication, statement or notice addressed to
the last post-office address filed with the Committee, or if no such
address was filed with the Committee, then to the last post-office address
of the Participant or beneficiary as shown on the Employer's records, will
be binding on the Participant and his beneficiary for all purposes of this
Plan and neither the Committee nor the employer shall be obliged to search
for or ascertain the whereabouts of any Participant or beneficiary.
12.7 Gender and Number. Whenever the context requires or permits,
the gender and number of words shall be interchangeable.
<PAGE>
ARTICLE 13
Adoption by Affiliates
13.1 Adoption of Plan. Subject to any resolution or terms of any
agreement approved by the Board of Directors of the Company or a committee
thereof to the contrary, any Affiliate may adopt this Plan for the benefit
of its eligible employees if authorized to do so by the Board of Directors
of the Company. Such adoption shall be by resolution of such Affiliate's
board of directors, a certified copy of which shall be filed with the
Company, the Committee and the Trustee. Upon such adoption, such Affiliate
shall become an "Employer."
13.2 The Company as Agent for Employer. Each Employer which has
adopted this Plan pursuant to Section 13.1 hereby irrevocably gives and
grants to the Company full and exclusive power conferred upon it by the
terms of the Plan and Trust to take or refrain from taking any and all
action which such Employer might otherwise take or refrain from taking
with respect to the Plan, including sole and exclusive power to exercise,
enforce or waive any rights whatsoever which such Employer might otherwise
have with respect to the Trust, and each such Employer, by adopting this
Plan, irrevocably appoints the Company its agent for such purposes.
Neither the Trustee nor the Committee nor any other person shall have any
obligation to account to any such Employer or to follow the instructions
of or otherwise deal with any such Employer, the intention being that all
persons shall deal solely with the Company as if it were the sole company
which had adopted this Plan. Each such Employer shall contribute such
amounts as determined under Article 3.
13.3 Adoption of Amendments.
(a) Any Employer which adopts this Plan pursuant to Section
13.1 may amend this Plan with respect to its own employees by resolution
of its board of directors, if authorized to do so by the Board of
Directors of the Company or any person so duly authorized by the Board of
Directors of the Company.
(b) Any Employer shall be deemed conclusively to have assented
to any amendment of this Plan by the Company without the necessity of any
affirmative action on the part of such Employer.
13.4 Termination. Any Employer which adopts this Plan pursuant to
Section 13.1 may terminate this Plan with respect to its own employees by
resolution of its board of directors, if authorized to do so by the Board
of Directors of the Company, or any person so duly authorized by the Board
of Directors of the Company.
13.5 Data to Be Furnished by Employers. Each Employer which adopts
this Plan pursuant to Section 13.1 shall furnish information and maintain
such records with respect to its Participants as called for hereunder, and
its determinations and notifications with respect thereto shall have the
same force and effect as comparable determinations by the Company with
respect to its Participants.
13.6 Joint Employees. If a Participant receives Compensation during
a Plan Year from more than one Employer, the total amount of such
Compensation shall be considered for the purposes of the Plan, and the
respective Employers shall share in contributions to the Plan on account
of said Participant based on the Compensation paid to such Participant by
the Employer.
13.7 Expenses. Each Employer shall pay such part of actuarial and
other necessary expenses incurred in the administration of the Plan as the
Company shall determine.
13.8 Withdrawal. An Employer may withdraw from the Plan by giving 60
days' written notice of its intention to the Company and the Trustee,
unless a shorter notice shall be agreed to by the Company.
13.9 Prior Plans. If an Employer adopting the Plan already maintains
a defined contribution plan covering employees who will be covered by this
Plan, it may, with the consent of the Company, provide in its resolution
adopting this Plan for the termination of its own plan or for the merger,
restatement and continuation, of its own plan by this Plan. In either
case, such Employer may, subject to the approval of the Company, provide
in its resolution of adoption of this Plan for the transfer of the assets
of such plan to the Trust for this Plan for the payment of benefits
accrued under such other plan.
13.10 List of Employers. The following is a list of the
Affiliates that have adopted this plan as of the Effective Date, or as of
such later date as is indicated below:
All American Bank First Colonial Bank Southwest
Avenue Bank of Oak Park First Colonial Investment Services
BankersTech, Inc. First Colonial Mortgage
Colonial Bank Corporation
Community Bank of Edgewater First Colonial Trust Company
First Colonial Bank Northwest Fox Lake State Bank
First Colonial Bank of Downers Grove Michigan Avenue National Bank
First Colonial Bank of DuPage County Mid-States Financial Corp.
First Colonial Bank of Elk Grove Northlake Bank
First Colonial Bank of Lake County Northwest Commerce Bank
First Colonial Bank of McHenry County York State Bank
Effective July 1,1994
First Colonial Bank/Highwood First Colonial Bank/Mundelein
<PAGE>
ARTICLE 14
Diversification of Investment
14.1 Election by Qualified Participant. Each Qualified Participant
shall be permitted to direct the Plan as to the investment of 25% of the
value of the Participant's ESOP Account (attributable to Company Stock
which was acquired by the Plan after December 31, 1986), within 90 days
after the last day of each Plan Year during the Participant's Qualified
Election Period. Within 90 days after the close of the last Plan Year in
the Participant's Qualified Election Period, a Qualified Participant may
direct the Plan as to the investment of 50% of the value of such ESOP
Account.
14.2 Method of Directing Investing. The Participant's direction
shall be provided to the Committee in writing; shall be effective no later
than 90 days after the close of the Plan Year to which the direction
applies; and shall specify which, if any, of the options set forth in
Section 14.3 the Participant selects.
14.3 Investment Options.
(a) At the election of the Qualified Participant, the Plan
shall distribute (notwithstanding Code Section 409(d)) the portion of the
Participant's ESOP Account that is covered by the election within 90 days
after the last day of the period during which the election can be made.
Such distributions shall be subject to such requirements of the Plan
concerning put options as would otherwise apply to a distribution of
Company Stock from the Plan. This Section 14.3(a) shall apply
notwithstanding any other provision of the Plan other than such provision
as require the consent of the Participant and the Participant's spouse to
a distribution with a present value in excess of $3,500. If the
Participant and the Participant's spouse do not consent, such amount shall
be retained in this Plan.
(b) In lieu of distribution under Section 14.3(a), the Plan
must offer those investment options available with respect to the
Participant's Employer, Elective and Rollover Accounts to the Qualified
Participant covered by the election and, within 90 days after the last day
of the period during which the election can be made, the Plan must invest
the portion of the Participant's ESOP Account in accordance with the
election.
14.4 Determination of Amount Subject to Diversification Requirement.
The portion of the Participant's ESOP Account attributable to Company
Stock which was acquired by the Plan after December 31, 1986, shall be
determined by multiplying the number of shares of such ESOP Account by a
fraction, the numerator of which is the number of shares acquired by the
Plan after December 31, 1986, and allocated to the Participant's ESOP
Account (not to exceed the number of shares held by the Plan on the date
the individual becomes a Qualified Participant) and the denominator of
which is the total number of shares held by the Plan at the date the
individual becomes a Qualified Participant.
14.5 Qualified Participant. For purposes of this Article 14, a
Qualified Participant shall mean a Participant who has attained age 55 and
who has completed at least 10 years of participation in the Plan.
14.6 Qualified Election Period. For purposes of this Article 14, a
Qualified Election Period shall mean the 6-Plan-Year period beginning with
the later of (a) the first Plan Year beginning after December 31, 1986, or
(b) the Plan Year after the Plan Year in which the Participant first
becomes a Qualified Participant.
<PAGE>
ARTICLE 15
Rights, Restrictions and Options on Company Stock
15.1 Distribution of Company Stock Under Federal Securities Laws. If
at the time of any distribution hereunder of Company Stock to any
terminated Participant or his beneficiary, a Form S-8 Registration
Statement in respect to such securities, or their issuance under the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, ("Act"), or under any similar form of
registration, is not then in effect with the Securities and Exchange
Commission ("SEC"), or if no other exemption under the Act is available or
a "no action" letter has not been issued by the SEC, with respect to such
securities, then:
(a) Investment Representation. At the time of any such
distribution, the distributee shall be deemed to have agreed, for himself
and for his heirs, personal or legal representatives, that he or such
successors in interest will represent and shall be deemed to have
represented that he or such successors will hold all such securities
solely for investment and with no present intention to resell or
distribute the same and the distributee, or such successors, as the case
may be, shall sign a certificate to such effect at the time of any
distribution, but the neglect or failure to execute such certificate shall
not be a limitation of the foregoing agreements and representations.
(b) Legend on Certificates. At the time of the issuance of any
certificate or certificates representing Company Stock distributed to any
distributee, or other persons, as a result of a permitted or required
distribution under this Plan when there is no available exemption under
the Act, such certificate(s) shall have endorsed thereon a legend reading
substantially as follows:
"These shares are not registered under the
Securities Act of 1933, as amended ("Act").
Said shares may not be transferred,
assigned, hypothecated or otherwise disposed
of unless: (i) a Registration Statement has
been filed and becomes effective under the
Act, or (ii) until the registration
provisions of the Act have otherwise been
completed with, or (iii) in the opinion of
counsel for the Company such proposed
transfer or other disposition will not
violate the registration provisions of the
Act."
(c) Resubmissions. Any distributee, or any successor in
interest, who is notified by the Committee that counsel for the Company
considers said distributee or successor a statutory underwriter under the
"Act," shall resubmit any share certificate or certificates issued
previously without the above legend to the Company, so that said legend
may be imposed thereon. Any such distributee or successor in interest
further agrees to comply with the provisions of said legend.
15.2 Right of First Refusal. If the distribution of the
Participant's Accounts is made in Company Stock, such shares of Company
Stock distributed by the Trustee shall be subject to a "right of first
refusal," until such time as such shares are publicly traded. Such a
"right" shall provide that prior to any subsequent transfer, the shares
must first be offered by written offer to the Trust, and then, if refused
by the Trust, to the Company. In the event that the proposed transfer
constitutes a gift or other such transfer at less than fair market value,
the price per share shall be determined by an independent appraiser
(appointed by the Board of Directors) as of the Valuation Date coinciding
with or immediately preceding the date of exercise, except in the case of
a transfer to a Disqualified Person, as defined in Section 4975 of ERISA.
In the event of a proposed purchase by a prospective bona fide purchaser,
the offer to the Trust and the Company shall be at the greater of fair
market value, as determined by an independent appraiser (appointed by the
Board of Directors) as of the Valuation Date coinciding with or
immediately preceding the date of exercise (except in the case of a
purchase by a Disqualified Person), or at the price offered by the
prospective bona fide purchaser. In the case of a purchase by or transfer
to a Disqualified Person, fair market value shall be determined as of the
actual date of the transaction. Valuations must be made in good faith and
based on all relevant factors for determining the fair market value of the
securities. The Trust may accept the offer at any time during a period not
exceeding 14 days after receipt of such offer. In the event the Trust does
not accept such offer, the Company may accept such offer at any time
during said 14 day period.
In the case of a purchase from a Disqualified Person, all purchases
of Company Stock shall be made at prices which, in the judgment of the
Company, do not exceed the fair market value of such shares as of the date
of the transaction.
15.3 Put Option. If the distribution of the Participant's Accounts
is made in Company Stock, a Participant or a Beneficiary, or a donee or
heir of a Participant or Beneficiary, shall be granted at the time that
such shares are distributed to him, an option to "put" the shares to the
Company, provided that all such shares are so put; provided, further, that
the Trust shall have the option to assume the rights and obligations of
the Company at the time the "put" option is exercised. A "put" option
shall provide that, for a period of 60 days after such shares are
distributed to a Participant or a Beneficiary, or donee or heir of a
Participant or Beneficiary (and, if the "put" is not exercised within such
60 day period, for an additional period of 60 days commencing 12 months
following the expiration of the initial 60 day period), he would have the
right to have the Company purchase such shares at their fair market value,
as defined hereinabove in Section 15.2. Such "put" option shall be
exercised by notifying the Company in writing. The terms of payment for
the purchase of such shares of Company Stock shall be as set forth in the
"put" and may be either in a lump sum or in up to 5 equal annual
installments (with interest on the unpaid principal balance at a
reasonable rate of interest), as determined by the Company. Payment for
the purchase of such shares must commence within 30 days after the "put"
is exercised. The period during which the put option is exercisable does
not include any time during which the distributee is unable to exercise it
because the party bound by the put option is prohibited from honoring it
by applicable federal or state law. If payment is made in installments,
adequate security and a reasonable rate of interest must be provided.
15.4 Other Options. Except as otherwise provided in this Article 15,
no security acquired with the proceeds of an Acquisition Loan may be
subject to a put, call, buy-sell, or similar arrangement while held by or
when distributed from the Plan. The protections and rights described in
this Article 15 are non-terminable. Should this Plan cease to be an
employee stock ownership plan, or should the Acquisition Loan be repaid,
Company Stock acquired with the proceeds of an Acquisition Loan will
continue after the loan is paid subject to the provisions of this Article
15.
15.5 Voting of Company Stock.
(a) If the Company Stock is a registration type class of
securities as defined in Code Section 409A(e)(4), a Participant shall be
entitled to direct the exercise of all voting rights, or other rights,
with respect to such securities, including fractional shares, allocated to
his ESOP Account on all matters which shareholders of the Company are
permitted to vote.
(b) If the Company Stock is not a registration type class of
securities, then a Participant shall be entitled to direct the exercise of
all voting rights, or other rights, with respect to such securities,
including fractional shares, allocated to his ESOP Account only on those
matters which by law or charter must be decided by more than a majority
vote of the outstanding common shares voted.
(c) In all cases where Participants vote, the Committee shall
provide each Participant with material pertaining to the exercise of such
rights containing all information distributed to other shareholders of the
Company. The Participant shall have the opportunity to exercise any such
rights within the same time period as provided other shareholders of the
Company. Each Participant shall notify the Investment Committee (as said
term is defined in the Trust) of his desires with respect to said vote and
the Investment Committee shall vote the combined fractional shares or
rights to the extent possible with respect to the direction of the
Participants holding them.
(d) In the event a Participant fails, neglects or refuses to
exercise any rights he may have with respect to the vote of shareholders,
said shares shall not be voted by the Trustee or other party. Nothing
herein contained in the contrary shall prohibit the solicitation of a
Participant's voting rights by the management of the Company and others
under any proxy provision applicable to all shareholders of the Company.
15.6 Special Put Option Requirements. Notwithstanding any other
provisions of the Plan regarding a Participant's right to exercise a put
option, in the case of a distribution of Company Stock which is not
readily tradeable on an established securities market, the Plan shall
provide the Participant with a put option that complies with the
requirements of Code Section 409(h). Such put option shall provide that if
the Participant exercises the put option, the Company, or the Plan, if the
Plan so elects, shall repurchase the Company Stock as follows:
(a) If the distribution constitutes a Total Distribution,
payment of the fair market value of a Participant's Accounts shall be made
in 5 substantially equal annual payments. The first installment shall be
paid not later than 30 days after the Participant exercises the put
option. The Plan will pay a reasonable rate of interest and provide the
adequate security on amounts not paid after 30 days.
(b) If the distribution does not constitute a Total
Distribution, the Plan shall pay the Participant an amount equal to the
fair market value of the Company Stock repurchased no later than 30 days
after the Participant exercises the put option.
(c) As used herein, the term "Total Distribution" means a
distribution to a Participant or Beneficiary, within 1 taxable year of
such receipt of the entire balance to the credit of the Participant.
<PAGE>
APPENDIX A
Applicable to
New Century Bank
This Appendix A sets forth provisions applicable to Participants in
the Plan who were employees of New Century Bank on June 30, 1994, who
became Participants in the Plan on July 1, 1994, and whose assets and
liabilities were subsequently transferred from the New Century Bank Profit
Sharing 401(k) Plan to the Trust ("Former New Century Bank Participants").
Except to the extent expressly modified by this Appendix A, the provisions
of the Plan, including the Appendices thereto, shall apply to the
participation of such Former New Century Bank Participants. The
provisions of this Appendix A shall, unless provided otherwise, be
effective as of July 1, 1994.
A.1 A new definition of New Century Bank Plan shall be added to read as
follows:
"New Century Bank Plan" means the New Century Bank Profit
Sharing 401(k) Plan as in effect on December 31, 1994, just prior to
its merger into this Plan."
A.2 Section 2.1A shall be added to read as follows:
"2.1A Special Provision Applicable to New Century Bank.
Notwithstanding the foregoing provisions of Section 2.1, a Former New
Century Bank Participant and who is an Eligible Employee on July 1,
1994, shall become a Participant as of such date. Any other Eligible
Employee of New Century Bank shall become a Participant on the Entry
Date following the day on which he/she is an Eligible Employee and
has completed one month of service and attained age 21; provided,
however, that an individual's satisfaction of this service
requirement as of any Entry Date shall constitute satisfaction
thereof as of all subsequent Entry Dates, regardless of any
intervening interruption of his/her employment."
A.3 Section 6.7 shall be amended by adding the following subparagraph to
read as follows:
"Notwithstanding the foregoing, solely with respect to Former
New Century Bank Participants, such period or periods of employment
shall include any period or periods previously credited to that
employee under the New Century Bank Plan."
A.4 Section 7.1(d) shall be amended by adding the following subparagraph
to read as follows:
"Former New Century Bank Participants may elect to receive under
Section 7.1 of the Plan the value of his/her Accounts (accrued
through December 31, 1994) in one of the following optional forms of
distribution: (i) in installments over his/her life expectancy; (ii)
in installments over a ten-year period; or (iii) by the purchase of
an annuity from an insurance company. Notwithstanding the foregoing,
amounts in a Former New Century Bank Participant's Accounts accrued
after December 31, 1994 shall be paid in the form of a lump sum cash
payment."
A.5 Section 11.5A shall be added to read as follows:
"11.5A Merger. Effective as of the close of December 31, 1994,
the New Century Bank Plan shall be merged into this Plan with all
accrued benefits under the New Century Bank Plan becoming accrued
benefits under this Plan. To the extent required by law or otherwise
appropriate, the provisions of this Appendix and the applicable
provisions of the Plan (including those relating to the Tax Reform
Act of 1986 and related laws and regulations) shall be deemed to
apply retroactively to the New Century Bank Plan."
<PAGE>
APPENDIX B
Applicable to
Bank of Highwood
This Appendix B sets forth provisions applicable to Participants in
the Plan who were employees of Bank of Highwood on June 30, 1994, who
became Participants in the Plan on July 1, 1994, and whose assets and
liabilities were subsequently transferred from the Bank of Highwood Salary
Savings Plan to the Trust ("Former Bank of Highwood Participants").
Except to the extent expressly modified by this Appendix B, the provisions
of the Plan, including the Appendices thereto, shall apply to the
participation of such Former Bank of Highwood Participants. The
provisions of this Appendix B shall, unless provided otherwise, be
effective as of July 1, 1994.
B.1 A new definition of Bank of Highwood Plan shall be added to read as
follows:
"Bank of Highwood Plan" means the Bank of Highwood Salary
Savings Plan as in effect on December 31, 1994, just prior to its
merger into this Plan."
B.2 A new definition of Qualified Joint and Survivor Annuity shall be
added to read as follows:
"Qualified Joint and Survivor Annuity" for a married Participant
is an annuity for the life of a Participant with payments continued
upon the death of the Participant for the life of his/her spouse in
an amount which is equal to 100% of the amount payable while the
Participant was living and for an unmarried Participant is an annuity
for the life of the Participant only."
B.3 Section 2.1A shall be added to read as follows:
"2.1A Special Provision Applicable to Bank of Highwood.
Notwithstanding the foregoing provisions of Section 2.1, a Former
Bank of Highwood Participant who is an Eligible Employee on July 1,
1994, shall become a Participant as of such date. Any other Eligible
Employee of Bank of Highwood shall become a Participant on the Entry
Date following the day on which he/she is an Eligible Employee and
has completed one month of service and attained age 21; provided,
however, that an individual's satisfaction of this service
requirement as of any Entry Date shall constitute satisfaction
thereof as of all subsequent Entry Dates, regardless of any
intervening interruption of his/her employment."
B.4 Section 6.7 shall be amended by adding the following subparagraph to
read as follows:
"Notwithstanding the foregoing, solely with respect to Former Bank of
Highwood Participants, such period or periods of employment shall
include any period or periods previously credited to that Employee
under the Bank of Highwood Plan."
B.5 A Former Bank of Highwood Participant shall receive the value of
his/her Accounts (accrued through December 31, 1994) under Section
7.1 of the Plan in the form of a Qualified Joint and Survivor
Annuity, whether such Participant terminates employment before, on,
or after his/her Retirement Date. A Participant may elect to waive
this form of distribution. If a Participant decides not to waive
this form of distribution, the requirements of the following Sections
7.1A and 7.1B apply. If a Participant elects to waive this form of
distribution, distribution of his/her Accounts (accrued through
December 31, 1994) under the Plan shall be made in the form of an
optional form described under Section 7.1C of this Appendix B.
Notwithstanding the foregoing, amounts credited to a Former Bank of
Highwood Participant's Accounts after December 31, 1994 shall be
distributed in the form of a lump sum cash payment.
7.1A Qualified Joint and Survivor Annuity.
(a) Distributions shall be made in the form of a Qualified
Joint and Survivor Annuity unless the Participant has elected not to
receive a Qualified Joint and Survivor Annuity pursuant to subsection
(c) below.
(b) Benefits payable in the form of a Qualified Joint and
Survivor Annuity shall be paid by distributing to the Participant the
annuity contract. Any such annuity contract shall be nonassignable
and non-commutable and shall be subject to the election, consent,
written explanation and Survivor Annuity requirements set forth in
Section 7.1B. Delivery of such contract shall be in full
satisfaction of the rights of the Participant hereunder and upon
delivery of any such contract, the Participant shall look solely to
the insurer issuing such contract for the payment of benefits.
(c) A Participant may, within 90 days before his/her
Annuity Starting Date (the "Election Period"), elect not to receive a
Qualified Joint and Survivor Annuity. Such election may be revoked
at any time during the Election Period and if so revoked the
Participant's benefit shall automatically be paid in the form of a
Qualified Joint and Survivor Annuity unless he/she again elects
within the Election Period not to receive his/her benefit in such
form. Elections and revocations may continue to be made under this
Section within the Election Period. Subject to the requirements of
Section 7.1A(e), annuity payments may be made over one of the
following periods:
(1) the life of the Participant;
(2) the lives of the Participant and a designated
beneficiary, with the amount payable to the designated
beneficiary equal to 50% or 100% of the amount payable to the
Participant;
(3) the life of the Participant with payments
guaranteed for 60 months; and
(4) the life of the Participant with payments
guaranteed for 120 months.
(d) The Committee shall furnish each Participant a general
written explanation of the terms and conditions of the Qualified
Joint and Survivor Annuity, the Participant's right to make and the
effect of an election to waive it, the rights of the Participant's
spouse, the Participant's right to revoke an election to waive the
Qualified Joint and Survivor Annuity and the effect of such a
revocation. This general explanation shall be furnished to a
Participant within a reasonable period before the Participant's
Annuity Starting Date.
(e) Any election under subsections 7.1A(c) or 7.1B(d) must
have the consent of the Participant's spouse to be effective unless,
at the time of filing such election, the Participant established to
the satisfaction of the Committee that the consent of the spouse
could not be obtained because such spouse could not be located or by
reason of such other circumstances as may be prescribed by
regulations. Any consent (or establishment that the consent could
not be obtained) shall be effective only with respect to such spouse.
Such consent shall be in writing, witnessed by a Plan representative
or notary public, acknowledging the effect of the election and the
designation of the specific non-spouse beneficiary, including any
class of beneficiary or any contingent beneficiary, to receive the
Participant's Accounts in the Trust Fund in the event of the
Participant's death, and shall be irrevocable with respect to such
form and beneficiary designation.
7.1B Surviving Spouse Survivor Annuity.
(a) The Accounts of a Participant who dies prior to
his/her Annuity Starting Date, who is married on the date of his/her
death shall be distributed in the form of an annuity for the life of
his/her surviving spouse ("Survivor Annuity") unless such Participant
has elected not to have benefits paid in the form of a Survivor
Annuity pursuant to subsection (d) below.
(b) Benefits payable in the form of a Survivor Annuity
shall be paid by distributing to the surviving spouse of the
Participant the annuity contract. Such annuity contract shall
provide for level monthly payments for the life of the surviving
spouse commencing as soon as practicable thereafter. Any such
annuity contract shall be nonassignable and non-commutable. Delivery
of any such contract shall be in full satisfaction of the rights of
the Participant's spouse.
(c) Notwithstanding subsection (b) above, the surviving
spouse of a Participant may elect to receive a distribution of the
balance of the deceased Participant's Accounts in one lump sum or in
the form of an annuity, subject to the requirements of Section 7.2.
Such election shall be made by filing an election with the Committee
at such time and in such manner as the Committee shall provide.
(d) A Participant may elect not to have a Survivor Annuity
paid to his/her surviving spouse. Such election may be made at any
time during the Election Period described in subsection (e) below.
To be effective any such election shall require the consent of the
Participant's spouse as provided in Section 7.1A(e). Any such
election may be revoked by the Participant within the Election
Period.
(e) The Election Period shall commence on the first day of
the Plan Year in which the Participant attains age 35 and end on the
earlier of: (i) the date of the Participant's death or (ii) his/her
Annuity Starting Date; provided that, in the case of a Participant
who separates from service prior to attaining age 35, the Election
Period shall commence on the date of his/her separation from service.
(f) The Committee shall furnish each Participant a general
written explanation of the terms and conditions of the Survivor
Annuity, the Participant's right to make and the effect of an
election to waive it, the rights of the Participant's spouse, the
Participant's right to revoke an election to waive the Survivor
Annuity and the effect of such a revocation.
7.1C Optional Forms of Distributions.
(a) The Accounts distributable to a Participant which are
not distributable in the form of a Qualified Joint and Survivor
Annuity shall be distributed in one or more of the following ways, as
the Participant may request, and in accordance with applicable laws
and regulations:
(i) by payment in one lump sum; or
(ii) by the purchase of an annuity providing monthly
benefits over the Participant's lifetime; or
(iii) by the purchase of an annuity providing
monthly benefits over the Participant's lifetime and upon
his/her death reduced monthly benefits (50%) payable to his/her
Individual Beneficiary; or
(iv) by the purchase of an annuity providing monthly
benefits over the Participant's lifetime with 60 monthly
payments guaranteed; or
(v) by the purchase of an annuity providing monthly
benefits over the Participant's lifetime with 120 monthly
payments guaranteed.
(b) The value of the Participant's Accounts shall be paid
to the Participant over a period not to exceed his life expectancy or
the joint life expectancy of the Participant and his Individual
Beneficiary. The minimum amount of any installment distribution and
determination of the life expectancy of a Participant and the joint
life expectancy of a Participant and his Individual Beneficiary shall
be determined in accordance with the regulations prescribed under
Code Section 401(a)(9); provided that the life expectancy of a
Participant or his spouse shall be redetermined annually. In no
event shall the amount distributable in any year be less that the
amount determined in accordance with the minimum distribution
incidental benefit requirements of Treasury Regulation Section
1.401(a)(9)-2.
B.6 In the event a Former Bank of Highwood Participant dies prior to
commencement of his/her benefits, and the balance of the
Participant's Accounts was not distributed in accordance with Section
7.1B, the beneficiary may receive the balance of such Participant's
Accounts under Section 7.2 of the Plan in the form of a lump sum or
an annuity contract. The annuity may be for the life of the
beneficiary or over any period described in Section 7.1C, subject to
the requirements of Section 7.2. If the beneficiary is the
Participant's surviving spouse, or if the Participant has not
designated the form of distribution prior to his/her death, the
designated beneficiary must elect the method of distribution no later
than the date such distributions are required to begin in accordance
with Section 7.2.
B.7 Section 11.5A shall be added to read as follows:
"11.5A Merger. Effective as of the close of December 31, 1994,
the Bank of Highwood Plan shall be merged into this Plan with all
accrued benefits under the Bank of Highwood Plan becoming accrued
benefits under this Plan. To the extent required by law or otherwise
appropriate, the provisions of this Appendix and the applicable
provisions of the Plan (including those relating to the Tax Reform
Act of 1986 and related laws and regulations) shall be deemed to
apply retroactively to the Bank of Highwood Plan.
FIRST AMENDMENT TO THE
FIRST COLONIAL BANKSHARES CORPORATION
RETIREMENT PLAN
(Amended and Restated Effective January 1, 1994)
The First Colonial Bankshares Corporation Retirement Plan, Amended
and Restated Effective January 1, 1994, is hereby amended effective as of
the Effective Time of the Merger as described in the Agreement and Plan of
Reorganization, dated as of July 31, 1994, among Firstar Corporation,
Firstar Corporation of Wisconsin (as successor to Firstar Corporation of
Illinois) and First Colonial Bankshares Corporation by adding at the end
thereof a new Appendix C to read as set forth on the attachment hereto.
In accordance with the authorizations and directions of the Board of
Directors of First Colonial Bankshares Corporation at its meeting on
January 18, 1995, this First Amendment is hereby adopted effective as of
such date by the undersigned duly authorized officer.
FIRST COLONIAL BANKSHARES
CORPORATION
By: /s/ William J. Hornig
Its: Senior Vice President
Dated: January 18, 1995
<PAGE>
APPENDIX C
Provisions Applicable Upon the Effective Time of the Merger
Involving Firstar Corporation, Firstar Corporation of Wisconsin
and First Colonial Bankshares Corporation
This Appendix C sets forth provisions applicable from and after the
Effective Time of the Merger contemplated by the Agreement and Plan of
Reorganization, dated as of July 31, 1994, among Firstar Corporation,
Firstar Corporation of Wisconsin (successor to Firstar Corporation of
Illinois) and First Colonial Bankshares Corporation. Except to the extent
expressly modified by this Appendix C, the provisions of the Plan,
including Appendices thereto, shall continue to apply to participation in
the Plan. The provisions of this Appendix C shall, unless provided
otherwise, be effective as of the Effective Time of the Merger.
C.1 From and after the Effective Time, "Company" shall mean Firstar
Corporation of Wisconsin, successor by merger to First Colonial Bankshares
Corporation.
C.2 From and after the Effective Time, "Company Stock" shall mean
the common stock, $1.25 par value, of Firstar Corporation, a Wisconsin
corporation (including associated Preferred Share Purchase Rights) and the
First Colonial Bankshares Corporation Stock Fund shall be renamed the
"Firstar Corporation Stock Fund" and such Fund shall be invested in such
Company Stock.
C.3 Notwithstanding anything in Section 3.4 to the contrary, each
Employer shall pay to the Trustee as an Employer Contribution described in
Section 3.4 for the 1995 Plan Year an amount equal to 4% of the
Compensation for the calendar quarter ending March 31, 1995 of each
Participant who, pursuant to Section C.4 below, is an "Eligible
Participant" with respect to eligibility to share in such Employer
Contribution. Such Employer Contribution shall be made as a Profit
Sharing Contribution or as an ESOP Contribution, or as a combination of
the two as the Board of Directors of the Company shall in its discretion
determine.
C.4 For purposes of Sections C.3 above and application of Section
5.9 with regard to such Employer Contribution, a Participant shall be an
"Eligible Participant" eligible to share therein if he (a) is employed by
an Employer on March 31, 1995 as an Eligible Employee and has completed at
least 250 Hours of Service during the quarter ending on March 31, 1995, or
(b) retired on or after his Normal Retirement Date, dies or is initially
deemed to be totally and permanently disabled during such calendar
quarter. For purposes of applying Section 5.10, the Employer Contribution
made pursuant to Section C.3, together with the amounts which become
allocable as forfeitures during such calendar quarter shall be allocated
among the Employer Accounts, ESOP Accounts and ESOP Cash Accounts of the
Eligible Participants in the ratio that the Compensation of each Eligible
Participant for such quarter bears to the Compensation of all Eligible
Participants for such quarter.
C.5 Solely for purposes of the limitation described in Section
5.12(a)(i), a Participant's Compensation shall include any severance pay
paid to the Participant during the Plan Year.
C.6 Notwithstanding anything in Section 7.7 or the notes evidencing
loans described therein to the contrary, the loan of a Participant whose
employment terminates in circumstances which entitle the Participant to
receive severance pay shall not become due and payable in full for so
long as the Participant continues to repay the loan by payroll deduction
from such severance pay.
EXHIBIT (5)
January 30, 1995
Firstar Corporation
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by Firstar Corporation (the
"Corporation") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), relating to shares of the Corporation's Common Stock,
$1.25 par value ("Common Stock"), and related preferred share purchase
rights (the "Rights") which may be issued pursuant to the First Colonial
Bankshares Corporation Retirement Plan (the "Plan").
As Senior Vice President and General Counsel of the Corporation,
I am familiar with the Corporation's Restated Articles of Incorporation
and By-Laws, as amended, an with its affairs. I also have examined, or
caused to be examined (i) the Plan; (ii) a signed copy of the Registration
Statement; (iii) the Agreement and Plan of Reorganization dated as of
July 31, 1994 among the Corporation, its wholly owned subsidiary, Firstar
Corporation of Wisconsin (successor to Firstar Corporation of Illinois)
and First Colonial Bankshares Corporation; (iv) resolutions of the
Corporation's Board of Directors adopted on July 29, 1994; and (v) such
other proceedings, documents and records as I have deemed necessary or
appropriate to enable me to render this opinion.
Based on the foregoing, it is my opinion that:
1. The Corporation is a corporation duly organized and
validly existing under the laws of the State of Wisconsin.
2. The Common Stock, when issued and paid for in the
manner set forth in the Plan and assuming that the consideration
received by the Corporation is not less than the par value of
the shares of Common Stock issued, will be validly issued, fully
paid and nonassessable and no personal liability will attach to
the ownership thereof, except with respect to wage claims of
employees of the Corporation for services performed not to
exceed six months' service in any one case, as provided in
Section 180.0622(2)(b) of the Wisconsin Statutes and judicial
interpretations of such provision.
3. The Rights to be issued with the Common Stock have
been duly and validly authorized by all corporate action.
I consent to the use of this opinion as an Exhibit to the
Registration Statement, and I further consent to the use of my name in the
Registration Statement. In giving this consent, I do not admit that I am
an "expert" within the meaning of Section 11 of the Securities Act, or
within the category of persons whose consent is required by Section 7 of
the Securities Act or the rules and regulations of the Commission issued
thereunder.
Very truly yours,
Howard H. Hopwood III
Senior Vice President and
General Counsel
Consent of KPMG Peat Marwick LLP
The Board of Directors
Firstar Corporation:
We consent to incorporation by reference in the Registration Statement on
Form S-8 of Firstar Corporation of our report dated June 20, 1994,
relating to the consolidated balance sheets of Firstar Corporation and
Subsidiaries as of December 31, 1993 and 1992, and the related
consolidated statements of income, stockholders' equity, and cash flows
for each of the years in the three-year period ended December 31, 1993,
which report appears in the December 31, 1993 annual report on Form 10-K
of Firstar Corporation.
KPMG Peat Marwick LLP
Milwaukee, Wisconsin
January 30, 1995
Consent of KPMG Peat Marwick LLP
The Board of Directors
First Colonial Bankshares Corporation:
We consent to incorporation by reference in the Registration Statement on
Form S-8 of Firstar Corporation of our report dated June 20, 1994,
relating to the statements of net assets available for plan benefits of
First Colonial Bankshares Corporation Profit Sharing and Thrift Plan
(Plan) as of December 31, 1993 and 1992, and the related statements of
changes in net assets available for plan benefits for the years then
ended.
KPMG Peat Marwick LLP
Chicago, Illinois
January 30, 1995<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 17th day of October, 1994.
/s/ John A. Becker
<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 17th day of October, 1994.
/s/ William H. Risch
<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 24th day of October, 1994.
/s/ Michael E. Batten
<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 18th day of October, 1994.
/s/ George M. Chester, Jr.
<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 18th day of October, 1994.
/s/ Roger H. Derusha
<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 17th day of October, 1994.
/s/ James L. Forbes
<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 20th day of October, 1994.
/s/ Holmes Foster
<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 16th day of October, 1994.
/s/ John H. Hendee
<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 18th day of October, 1994.
/s/ Jerry M. Hiegel
<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 12th day of October, 1994.
/s/ Joe Hladky
<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 20th day of October, 1994.
/s/ James H. Keyes
<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 18th day of October, 1994.
/s/ Sheldon B. Lubar
<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 25th day of October, 1994.
/s/ Daniel F. McKeithan, Jr.
<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 17th day of October, 1994.
/s/ George W. Mead, II
<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 18th day of October, 1994.
/s/ Guy A. Osborn
<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 20th day of October, 1994.
/s/ Judith D. Pyle
<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 18th day of October, 1994.
/s/ Clifford V. Smith, Jr.
<PAGE>
FIRST COLONIAL BANKSHARES CORPORATION
POWER OF ATTORNEY WITH RESPECT TO
REGISTRATION STATEMENT
COVERING COMMON STOCK OF
FIRSTAR CORPORATION
KNOW ALL MEN BY THESE PRESENTS that the undersigned, an officer
and/or director of FIRSTAR CORPORATION, does hereby constitute and appoint
Roger L. Fitzsimonds, John A. Becker, Howard H. Hopwood, William H. Risch
and William J. Schulz, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and
all acts and things and execute, in his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation,
or otherwise) any and all instruments which said attorney and agent may
deem necessary, appropriate or desirable to enable Firstar Corporation to
comply with the Securities Act of 1933, as amended, and any requirements
of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement and any and all amendments
(including post-effective amendments) to the Registration Statement
relating to the issuance of Common Stock, $1.25 par value, of Firstar
Corporation and associated preferred stock purchase rights in connection
with the acquisition by Firstar Corporation (or a subsidiary thereof) of
First Colonial Bankshares Corporation pursuant to and in accordance with
an Agreement and Plan of Reorganization and related Plan of Merger entered
into by Firstar Corporation, including specifically but without limitation
thereto, power and authority to sign his or her name (whether on behalf of
Firstar Corporation, or as an officer or director of Firstar Corporation
or by attesting the seal of Firstar Corporation, or otherwise) to such
Registration Statement and to such amendments (including post-effective
amendments) to the Registration Statement to be filed with the Securities
and Exchange Commission, or any of the exhibits, financial statements and
schedules, or the Proxy Statements-Prospectuses, filed therewith, and to
file the same with the Securities and Exchange Commission; and the
undersigned does hereby ratify and confirm all that said attorneys and
agents, and each of them, shall do or cause to be done by virtue hereof.
Any one of said attorneys and agents shall have, and may exercise, all the
powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his or her name
hereto on the 28th day of October, 1994.
/s/ William W. Wirtz
