<PAGE>
As filed with the Securities and Exchange
Commission on September 25, 1996.
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
GREAT WESTERN FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
___________________
Delaware 95-1913457
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9200 Oakdale Avenue, Chatsworth, California 91311
(Address of principal executive offices)
Great Western Employee Savings Incentive Plan
(Full title of the plan)
J. Lance Erikson
Executive Vice President, General Counsel and Secretary
9200 Oakdale Avenue, Chatsworth, California 91311
(Name and address of agent for service)
___________________
Telephone number, including area code, of agent for service:
(818) 775-3411
___________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Proposed Proposed
maximum maximum
Title of Amount offering aggregate
securities to be price offering Amount of
to be registered registered per unit price registration fee
Common Stock, 4,000,000<1>,<2> $24.69<3> $98,760,000<3> $34,056<3>
$1.00 par value shares
Interests in <1>
the Plan
<FN>
<1>This Registration Statement covers, in addition to the
number of shares of Common Stock stated above, pursuant
to Rule 416(c) under the Securities Act of 1933, an
indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein
and an additional indeterminate number of shares which by
reason of certain events specified in the Plan may become
subject to the Plan.
<2>Each share is accompanied by two-fifths of a preferred
share purchase right pursuant to the Registrant's Rights
Agreement, dated as of June 24, 1986, as amended on
February 19, 1988 and June 27, 1995, with Morgan Guaranty
Trust Company, as Agent.
<3>Pursuant to Rule 457(h), the maximum offering price, per
share and in the aggregate, and the registration fee were
calculated based upon the average of the high and low
prices of the Common Stock on September 19, 1996, as
reported on the New York Stock Exchange and published in
The Western Edition of The Wall Street Journal.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in
Part I of Form S-8 (plan information and registrant
information) will be sent or given to participants as
specified by Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Act"). Such documents need not be filed with
the Securities and Exchange Commission either as part of this
Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Act. These documents,
which include the statement of availability required by Item
2 of Form S-8, and the documents incorporated by reference in
this Registration Statement pursuant to Item 3 of Form S-8
(Part II hereof), taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed with the Securities and
Exchange Commission by Great Western Financial Corporation
(the "Company") and the Great Western Financial Corporation
Employee Savings Incentive Plan (the "Plan") are incorporated
herein by reference:
(a) Annual Report of the Company on Form 10-K for the
Company's fiscal year ended December 31, 1995.
(b) Quarterly Reports on Form 10-Q for the Company's
quarterly periods ended March 31, 1996 and June 30,
1996.
(c) The description of the Company's Common Stock and
Preferred Stock contained in the Prospectus for the
Plan and included as Exhibit 3.4 to this Registration
Statement, and any amendment or report filed under the
Securities Exchange Act of 1934, as amended (the
"Exchange Act") for the purpose of updating such
description.
All documents subsequently filed by the Company or by
the Plan pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been
sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated by reference into the
prospectus and to be a part hereof from the date of filing of
such documents. Any statement contained herein or in a
document, all or a portion of which is incorporated or deemed
to be incorporated by reference herein, shall be deemed to be
modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
amended, to constitute a part of this Registration Statement.
Item 4. Description of Securities
The Company's Common Stock, $1.00 par value (the
"Common Stock") is registered pursuant to Section 12 of the
Exchange Act, and, therefore, the description of securities is
omitted. A description of the capital stock constitutes a
part of the prospectus for the Plan.
Item 5. Interests of Named Experts and Counsel
The validity of the original issuance of the Common
Stock registered hereby is passed on for the Company by
J. Lance Erikson, Executive Vice President, General Counsel
and Secretary of the Company. Mr. Erikson is compensated by
the Company, is a Plan participant, and, as of September 15,
1996, held 24,399 shares of Common Stock (including 15,000
shares of Restricted Stock) and options to acquire 149,010
shares of Common Stock of the Company under the Company's
Stock Option and Incentive Plans.
Item 6. Indemnification of Directors and Officers
Article TWELVE of the Restated Certificate of
Incorporation of the Company eliminates, to the fullest extent
permitted by Delaware law, director liability for monetary
damages for breaches of the director's fiduciary duty of care.
The Company's Bylaws as well as certain employment
agreements and other indemnity agreements also provide that
the Company shall indemnify directors and officers under
certain circumstances for liabilities and expenses incurred by
reason of their actions as agents of the Company. In
addition, the Company maintains an insurance policy that
indemnifies directors and officers against certain
liabilities.
The Plan provides generally that the Company shall
indemnify (i) members of the Company's Board of Directors, the
Company's Executive Management Committee and the Company's
Qualified Plans Investment Committee, each of which Committees
currently includes certain officers of the Company, and their
delegates who are employees of the Company, against certain
expenses, liabilities and claims incurred in connection with
the discharge in good faith of their respective duties under
the Plan.
The Plan and the Trust Agreement, effective as of
October 1, 1996 between the Company and the Plan's trustee,
provide generally that the Company shall indemnify the Plan's
trustee against all expenses, liabilities and claims, except
those arising from its negligence, wilful misconduct or
failure to act in good faith.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
See the attached Exhibit Index.
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 (the "Securities Act");
(ii) To reflect in the prospectus any
facts or events arising after the effective date
of the Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the Registration Statement; and
(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 Exchange Act
that are incorporated by reference in the Registration
Statement;
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the provisions described in Item 6 above, 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 Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
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
Chatsworth, State of California, on September 24, 1996.
By:___/s/ J. Lance Erikson___
J. Lance Erikson
Its: Executive Vice President,
Secretary
and General Counsel
POWER OF ATTORNEY
Each person whose signature appears below constitutes
and appoints J. Lance Erikson, Carl F. Geuther and Stephen F.
Adams, and each of them, his or her true and lawful attorney-
in-fact and agent, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, each acting alone, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
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.
[CAPTION]
<TABLE>
<S> <C> <C>
Signature Title Date
__/s/ John F. Maher__ President, Chief Executive September 24, 1996
John F. Maher Officer and Director
(Principal Executive Officer)
__/s/ Carl F. Geuther__ Executive Vice President September 24, 1996
Carl F. Geuther and Chief Financial Officer
(Principal Financial Officer)
__/s/ Barry R. Barkley__ Senior Vice President and September 24, 1996
Barry R. Barkley Controller (Chief Accounting
Officer)
___________________________ Chairman of the Board September __, 1996
James F. Montgomery and Director
__/s/ David Alexander__ Director September 24, 1996
David Alexander
__/s/ H. Frederick Christie__ Director September 24, 1996
H. Frederick Christie
__/s/ Stephen E. Frank__ Director September 24, 1996
Stephen E. Frank
_________________________ Director September __, 1996
John V. Giovenco
__/s/ Firmin A. Gryp__ Director September 24, 1996
Firmin A. Gryp
__/s/ Enrique Hernandez, Jr.__ Director September 24, 1996
Enrique Hernandez, Jr.
__/s/ Charles D. Miller__ Director September 24, 1996
Charles D. Miller
__/s/ Alberta E. Siegel__ Director September 24, 1996
Alberta E. Siegel
__/s/ Willis B. Wood, Jr.__ Director September 24, 1996
Willis B. Wood, Jr.
</TABLE>
<PAGE>
The Plan. Pursuant to the requirements of the
Securities Act of 1933, the Company's Executive Management
Committee has duly caused this Registration Statement to be
signed on behalf of the Plan by the undersigned, thereunto
duly authorized, in the City of Chatsworth, State of
California, on September 24, 1996.
GREAT WESTERN EMPLOYEE SAVINGS
INCENTIVE PLAN
By: EXECUTIVE MANAGEMENT
COMMITTEE
By: __/s/ J. Lance Erikson__
J. Lance Erikson, Member
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
3.1 Restated Certificate of Incorporation of GWFC, as
in effect on the date hereof (filed as an exhibit
to GWFC's Annual Report on Form 10-K for the year
ended December 31, 1992 and incorporated herein by
reference).
3.2 Certificate of Designations of GWFC's 8.30 percent
Cumulative Preferred Stock (filed as an exhibit to
GWFC's Current Report on Form 8-K dated September
9, 1992, event date September 2, 1992, and
incorporated herein by reference).
3.3 By-Laws of GWFC, as in effect on the date hereof
(filed as an exhibit to GWFC's Current Report on
Form 8-K dated June 30, 1995, event date June 27,
1995, and incorporated herein by reference).
3.4 Summary Description of Capital Stock of Great
Western Financial Corporation.
4.1 Great Western Employee Savings Incentive Plan.
4.2 Trust Agreement for Great Western Employee Savings
Incentive Plan.
5.1 Opinion of Company Counsel as to the legality of
the securities being registered (opinion re
legality).
5.2 Opinion of O'Melveny & Myers LLP as to compliance
under the Employee Retirement Income Security Act
of 1974.
10.1 Rights Agreement dated as of June 27, 1995, between
GWFC and First Chicago Trust Company of New York
(filed as an exhibit to the Company's Current
Report on Form 8-K dated June 30, 1995, event date
June 27, 1995, and incorporated herein by
reference).
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Company Counsel (included in Exhibit
5.1).
23.3 Consent of O'Melveny & Myers LLP (included in
Exhibit 5.2).
24. Power of Attorney (included in this Registration
Statement under "Signatures").
<PAGE>
<PAGE>
EXHIBIT 3.4
DESCRIPTION OF GREAT WESTERN FINANCIAL CORPORATION
CAPITAL STOCK
DESCRIPTION OF COMMON STOCK
General
The holders of the outstanding shares of GW Common Stock
have full voting rights, one vote for each share held of
record. Subject to the rights of holders of preferred stock
of the Company, holders of GW Common Stock are entitled to
receive such dividends as may be declared by the Board of
Directors of the Company out of funds legally available
therefor. Upon liquidation, dissolution, or winding up of
the Company (but subject to the rights of holders of
preferred stock of the Company), the assets legally
available for distribution to holders of GW Common Stock
shall be distributed ratably among such holders. Holders of
GW Common Stock have no preemptive or other subscription or
conversion rights, and no liability for further calls upon
shares. The GW Common Stock is not subject to assessment.
The Transfer Agent and Registrar for the GW Common Stock is
Harris Trust Company of California.
Rights
On June 27, 1995, the Board of Directors of the Company
adopted a Rights Plan pursuant to which the Company
distributed one Right (each a "Right") for each outstanding
share of GW Common Stock to stockholders of record at the
close of business July 14, 1996. Each Right initially
entitles the holder to purchase from the Company a unit of
one one-hundredth of a share of Series A Junior
Participating Preferred Stock, par value $1.00 per share, at
a purchase price of $80.00 per unit, subject to adjustment.
The Rights also attach to shares of GW Common Stock issued
after July 14, 1996. The Rights will expire on July 14,
2006. The Rights may not be exercised, and will not detach
or trade separately from the GW Common Stock, except as
described below.
The Rights will detach from the GW Common Stock and may be
exercised only if a person or group becomes the beneficial
owner of 15% or more of the GW Common Stock (a 'Stock
Acquisition"). If a Stock Acquisition occurs (except
pursuant to an offer for all outstanding shares of the GW
Common Stock which the Company"s independent directors
determine is fair to and otherwise in the best interests of
the Company and its stockholders), the Rights "flip-in" and
each Right not owned by such person will entitle the holder
to purchase, at the Right"s then current exercise price, GW
Common Stock, or, if the number of shares of authorized GW
Common Stock is insufficient to permit the full exercise of
the Rights, cash, property or other securities of the
Company having a formula value equal to twice the Right"s
exercise price. In addition, if at any time following a
Stock Acquisition, (i) the Company is acquired in a merger
or other business combination transaction in which the
Company is not the surviving corporation (other than a
merger which follows an offer at the same price and for the
same consideration as the offer approved by the Board of
Directors of the Company as described in the immediately
preceding sentence), or (ii) 50% or more of the Company"s
assets or earnings power is sold or transferred, the Rights
"flip-over" and each unexercised Right will entitle its
holder to purchase, at the Right"s exercise price, common
shares of the other person having a formula value equal to
twice the Right"s exercise price. The Rights may be redeemed
by the Company at any time prior to ten days following the
date of a Stock Acquisition (which period may be extended by
the Company"s Board of Directors at any time while the
Rights are still redeemable). Upon the occurrence of a
"flip-in" or "flip-over" event, if the Rights are not
redeemed, the Rights would result in substantial dilution to
any person who has acquired 15% or more of the outstanding
GW Common Stock or who attempts to merge or consolidate with
the Company. As a result, the Rights may deter potential
attempts to acquire control of the Company without the
approval of the Company's Board of Directors.
The foregoing summary of the Rights and New Rights is
qualified in its entirety by the complete text of the Rights
Plan, as amended, incorporated herein by this reference.
Other documents incorporated by reference in this Prospectus
include the Certificate of Incorporation and Bylaws of the
Company which include other provisions that might in certain
circumstances delay a change in control.
DESCRIPTION OF PREFERRED STOCK
Shares of Preferred Stock have been and may continue to be
issued from time to time in one or more series for proper
purposes under terms and conditions approved by the Board
without further stockholder action, unless otherwise
required by the rules of the New York, Pacific or London
Stock Exchanges. The Board is authorized to fix and
determine the terms of each series, including the number of
shares of such series, the title of such series, voting and
other powers, preferences, dividends, rights on liquidation,
conversion rights and terms, redemption rights and terms
(including sinking fund provisions), and maturity dates.
Holders of such preferred shares as are and may be issued
will have certain preferences, powers and rights (including
voting rights) that are or may be senior to the rights of
the holders of the Common Stock.
<PAGE>
<PAGE>
EXHIBIT 4.1
GREAT WESTERN
EMPLOYEE SAVINGS INCENTIVE
PLAN
<PAGE>
GREAT WESTERN EMPLOYEE SAVINGS INCENTIVE PLAN
INDEX
Page
ARTICLE I
TITLE AND DEFINITIONS . . . . . . . 2
1.1 - Title.. . . . . . . . . . . . . . . . . . . . . 2
1.2 - Definitions.. . . . . . . . . . . . . . . . . . 2
ARTICLE II
PARTICIPATION . . . . . . . . . . 12
2.1 - Eligibility Requirements. . . . . . . . . . . . . 12
2.2 - Participation.. . . . . . . . . . . . . . . . . . 12
2.3 - Reemployment. . . . . . . . . . . . . . . . . . . 12
2.4 - Designation of Beneficiary. . . . . . . . . . . . 13
2.5 - Investment Options. . . . . . . . . . . . . . . . 13
2.6 - Certain Acquired Companies. . . . . . . . . . . . 15
2.7 - Sales of Subsidiaries, Divisions and Branches.. . 16
2.8 - Requirements for Participant Elections. . . . . . 16
ARTICLE III
CONTRIBUTIONS . . . . . . . . . . 19
3.1 - Required Contributions by Participants. . . . . . 19
3.2 - Compensation Deferrals. . . . . . . . . . . . . . 19
3.3 - Employee Contributions. . . . . . . . . . . . . . 20
3.4 - Employer Matching Contributions.. . . . . . . . . 21
3.5 - Employer Discretionary Contributions. . . . . . . 21
3.6 - Rollover Contributions. . . . . . . . . . . . . . 21
3.7 - Section 402(g) Limit on Compensation Deferrals. . 22
3.8 - Section 401(k) Limitations on Compensation
Deferrals. . . . . . . . . . . . . . . . . . . . . 23
3.9 - Section 401(m) Limitations on Employee
Contributions and Employer Contributions.. . . . . 25
3.10 - Limits on Employer Contributions and Compensation
Deferrals. . . . . . . . . . . . . . . . . . . . . 27
3.11 - Allocation of Forfeitures. . . . . . . . . . . . 28
3.12 - Valuation of Accounts. . . . . . . . . . . . . . 28
3.13 - Notification of Participants.. . . . . . . . . . 30
ARTICLE IV
LIMITATION ON ANNUAL ADDITIONS . . . . . . 31
4.1 - Section 415 Limitations.. . . . . . . . . . . . . 31
ARTICLE V
VESTING. . . . . . . . . . . . 32
5.1 - Fully Vested Accounts.. . . . . . . . . . . . . . 32
5.2 - Participant Incentive Account.. . . . . . . . . . 32
ARTICLE VI
DISTRIBUTIONS . . . . . . . . . . 35
6.1 - Distribution of Benefits. . . . . . . . . . . . . 35
6.2 - Withdrawals of Employee Contributions.. . . . . . 36
6.3 - Hardship Withdrawals. . . . . . . . . . . . . . . 37
6.4 - Withdrawals from Accounts Upon Attaining Age
59-1/2.. . . . . . . . . . . . . . . . . . . . . 38
6.5 - Qualified Domestic Relations Orders.. . . . . . . 39
6.6 - Inability to Locate Participant.. . . . . . . . . 39
6.7 - Limitations on Distributions. . . . . . . . . . . 39
6.8 - Special Rules for Paysop Accounts.. . . . . . . . 40
6.9 - Direct Rollovers. . . . . . . . . . . . . . . . . 41
ARTICLE VII
ADMINISTRATION . . . . . . . . . . 43
7.1 - The Committee.. . . . . . . . . . . . . . . . . . 43
7.2 - Rights and Duties.. . . . . . . . . . . . . . . . 43
7.3 - Qualified Plans Investment Committee. . . . . . . 45
7.4 - Procedure for Establishing Funding Policy --
Transmittal of Information.. . . . . . . . . . . 46
7.5 - Other Information.. . . . . . . . . . . . . . . . 46
7.6 - Compensation, Bonding, Expenses and Indemnity.. . 46
7.7 - Manner of Administering.. . . . . . . . . . . . . 47
7.8 - Duty of Care. . . . . . . . . . . . . . . . . . . 47
7.9 - Committee Report. . . . . . . . . . . . . . . . . 48
7.10 - Section 404(c) Provisions. . . . . . . . . . . . 48
ARTICLE VIII
AMENDMENT AND TERMINATION . . . . . . . 50
8.1 - Amendments. . . . . . . . . . . . . . . . . . . . 50
8.2 - Discontinuance of Plan. . . . . . . . . . . . . . 50
8.3 - Failure to Contribute.. . . . . . . . . . . . . . 51
8.4 - Plan Merger or Consolidation; Transfer of Plan
Assets.. . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE IX
MISCELLANEOUS . . . . . . . . . . 52
9.1 - Contributions Not Recoverable.. . . . . . . . . . 52
9.2 - Limitation on Participant's Rights. . . . . . . . 52
9.3 - Receipt or Release. . . . . . . . . . . . . . . . 52
9.4 - Alienation. . . . . . . . . . . . . . . . . . . . 52
9.5 - Persons Under Incapacity. . . . . . . . . . . . . 53
9.6 - Governing Law.. . . . . . . . . . . . . . . . . . 53
9.7 - Headings, etc. Not Part of Agreement. . . . . . . 53
9.8 - Masculine Gender Includes Feminine and Neuter.. . 53
9.9 - Instruments in Counterparts.. . . . . . . . . . . 53
9.10 - Reorganization of Company. . . . . . . . . . . . 54
9.11 - Loans to Participants. . . . . . . . . . . . . . 54
9.12 - Top-Heavy Plan Requirements. . . . . . . . . . . 56
9.13 - Voting Rights. . . . . . . . . . . . . . . . . . 56
9.14 - Dividends. . . . . . . . . . . . . . . . . . . . 56
9.15 - Rule 16b-3 Provisions.. . . . . . . . . . . . . 57
EXHIBIT A-1 ACQUISITIONS IN WHICH ONLY ELIGIBILITY SERVICE
IS COUNTED. . . . . . . . . . . . . . . . . . 59
EXHIBIT A-2 ACQUISITIONS IN WHICH ELIGIBILITY AND VESTING
SERVICE IS COUNTED. . . . . . . . . . . . . . 62
EXHIBIT A-3 ARISTAR EMPLOYEES . . . . . . . . . . . . . . 63
EXHIBIT B-1 SPECIAL RULE FOR FORMER PARTICIPANTS WHO
TRANSFER TO WASHINGTON TRUST BANK . . . . . . 64
EXHIBIT B-2 OTHER SALES OR CLOSURES . . . . . . . . . . . 65
EXHIBIT C COMPENSATION LIST . . . . . . . . . . . . . . 66
APPENDIX A ANNUAL ADDITION LIMITS. . . . . . . . . . . .A-1
APPENDIX B TOP-HEAVY PROVISIONS. . . . . . . . . . . . .B-1
<PAGE>
GREAT WESTERN EMPLOYEE SAVINGS
INCENTIVE PLAN
WHEREAS, the Great Western Employee Savings-Stock
Bonus Plan was adopted by Great Western Financial
Corporation effective as of January 1, 1974; and
WHEREAS, this Plan was restated, effective as of
January 1, 1984, and constituted a continuation of the Great
Western Employee Savings-Stock Bonus Plan established as of
January 1, 1974, and was again restated effective as of
January 1, 1987, January 1, 1989 and June 1, 1994;
NOW, THEREFORE, this Plan has been restated,
effective as of January 1, 1997, except as otherwise noted
herein.
The Company desires to encourage loyalty, efficiency,
continuity of service and productivity of its Employees. In
order to accomplish these purposes, the Company herein
established this Plan to provide incentives and financial
security for its Employees and their beneficiaries. The
Trust created pursuant to this Plan (incorporated herein by
this reference) and its assets shall not be used for, or
diverted to, purposes other than the exclusive benefit of
Participants or their beneficiaries, as prescribed in
Section 401(a) of the Internal Revenue Code of 1986, as
amended.
It is also intended that this Plan constitute an
accident and health plan so that amounts distributed on
account of disability are excluded from income under Section
105(c) of the Internal Revenue Code.
Except as otherwise provided herein or by law, the
terms of the Plan in effect on December 31, 1996 will govern
the determination of rights and liabilities under the Plan
with respect to events on or before January 1, 1997 and
Participants who are not employed after December 31, 1996
shall be entitled to receive only such benefits and rights
to benefits as were provided under the terms of the Plan
then in effect. Notwithstanding the foregoing, Sections
2.5, 2.8, 3.12 and 6.1 shall apply to former Participants.
<PAGE>
ARTICLE I
TITLE AND DEFINITIONS
1.1 - Title.
This Plan is intended to be a profit sharing plan and
shall be known as the Great Western Employee Savings
Incentive Plan.
1.2 - Definitions.
Whenever the following terms are used in this Plan,
with the first letter capitalized, they shall have the
meanings specified below.
"Account" or "Accounts" shall mean Participant
Contribution Accounts, Cash or Deferred Accounts,
Participant Incentive Accounts, Paysop Accounts, and
Rollover Accounts.
"Allocation Date" shall mean the last day of each
payroll period of the Company.
"Anniversary Date" shall mean the last day of each
Plan Year.
"Beneficiary" or "Beneficiaries" shall mean the
person or persons, including a trustee, personal
representative or other fiduciary, last designated in
writing by a Participant in accordance with the provisions
of Section 2.4 to receive the benefits specified hereunder
in the event of the Participant's death. If there is no
valid Beneficiary designation in effect that complies with
the provisions of Section 2.4, or if there is no surviving
designated Beneficiary, then the Participant's surviving
spouse shall be the Beneficiary. If there is no surviving
spouse to receive any benefits payable in accordance with
the preceding sentence, the duly appointed and currently
acting personal representative of the Participant's estate
(which shall include either the Participant's probate estate
or living trust) shall be the Beneficiary. In any case
where there is no such personal representative of the
Participant's estate duly appointed and acting in that
capacity within 90 days after the Participant's death (or
such extended period as the Committee determines is
reasonably necessary to allow such personal representative
to be appointed, but not to exceed 180 days after the
Participant's death), then Beneficiary or Beneficiaries
shall mean the person or persons who can verify by affidavit
or court order to the satisfaction of the Committee that
they are legally entitled to receive the benefits specified
hereunder.
In the event any amount is payable under the Plan to
a minor, payment shall not be made to the minor, but instead
shall be paid (i) to that person's then living parent(s) to
act as custodian, (ii) if that person's parents are then
divorced, and one parent is the sole custodial parent, to
such custodial parent, or (iii) if no parent of that person
is then living, to a custodian selected by the Committee to
hold the funds for the minor under the Uniform Transfers or
Gifts to Minors Act in effect in the jurisdiction in which
the minor resides. If no parent is living and the Committee
decides not to select another custodian to hold the funds
for the minor, then payment shall be made to the duly ap-
pointed and currently acting guardian of the estate for the
minor or, if no guardian of the estate for the minor is duly
appointed and currently acting within 60 days after the date
the amount becomes payable, payment shall be deposited with
the court having jurisdiction over the estate of the minor.
"Board of Directors" and "Board" shall mean the Board
of Directors of the Corporation.
"Break in Employment" shall mean any termination of
employment by reason of resignation, discharge, retirement,
incurring a Disability Date, or death.
"Business Day" shall generally mean any day on which
the New York Stock Exchange is open, provided that a day
shall not be a Business Day for a particular Fund if it
cannot be traded on that day.
"Cash or Deferred Account" shall mean the Account
maintained by the Committee for each Participant that is to
be credited with Company payments to the Plan attributable
to the Participant's Compensation Deferrals that are
credited to this Account in accordance with Section 3.2,
together with the allocations thereto as required by the
Plan.
"Code" shall mean the Internal Revenue Code of 1986,
as amended from time to time.
"Committee" shall mean the Executive Management
Committee of the Company (formerly the Salary and Benefits
Committee), the members of which are appointed by the Board.
"Company" shall mean the Corporation and, where the
context so warrants, any Participating Affiliate.
"Company Stock" shall mean the common stock of the
Corporation.
"Compensation" shall generally mean the Employee's
base compensation, including overtime pay and Compensation
Deferrals and amounts deferred under any cafeteria plan
described in Section 125 of the Code, but excluding all
bonuses, real estate personal production earnings, memo
earnings, non-recurring compensation and any non-cash
payments. Notwithstanding the foregoing, the specific items
included within the definition of Compensation are set forth
in Exhibit C. Notwithstanding Section 8.1 of the Plan to
the contrary, the Committee may amend Exhibit C and the
approval of the Board shall not be required for such an
amendment.
Notwithstanding the preceding paragraph, the maximum
amount of an Employee's Compensation which shall be taken
into account under the Plan for any Plan Year shall be
$150,000, such amount adjusted at the same time and in the
same manner as under Sections 401(a)(17) and 415(d) of the
Code. For any Plan Year of fewer than twelve months, this
limit shall be reduced to the amount obtained by multiplying
the limit by a fraction having a numerator equal to the
number of full months in the Plan Year and a denominator
equal to twelve.
"Compensation Deferrals" shall mean an amount
contributed to this Plan by the Company in lieu of being
paid to a Participant as salary or wages. Compensation
Deferrals shall be made under salary reduction arrangements
between each Participant and the Company with respect to
salary or wages not yet paid or otherwise available to the
Participant as of the date of the Participant's election
under the arrangement.
"Corporation" shall mean Great Western Financial
Corporation, a Delaware corporation, any predecessor
corporation, or any successor corporation resulting from
merger, consolidation, or transfer of assets substantially
as a whole which shall expressly agree in writing to
continue this Plan.
"Disability Date" shall be the date as of which the
Participant commences to receive benefits from a long term
disability plan sponsored by the Company (or would commence
such benefits, as determined to the satisfaction of the
Committee, if the Participant does not participate in a long
term disability plan), but no earlier than the 180th day of
absence resulting from the disability of the Participant.
"Distribution Value Date" shall mean, subject to the
rules below, the date as of which a Participant's Accounts
are valued for purposes of making distributions and
withdrawals and the date as of which the Corporation intends
to process distributions, loans and withdrawals. The
Distribution Value Date shall generally be the same Business
Day of each week (as established by the benefits department
of the Corporation), unless the Company is not open for
business that Business Day, in which case it shall be the
immediately preceding or following Business Day; provided
that the benefits department may establish different
Distribution Value Dates for loans, withdrawals and
distributions. If the benefits department has received all
completed election and other forms (and, if applicable, the
Participant has terminated employment) sufficiently in
advance of a Distribution Value Date for a week, the
benefits department will use reasonable efforts to process
the distribution, loan or withdrawal for that week.
However, neither the Company, the Committee, the benefits
department nor any other person guarantees that any
distribution, loan or withdrawal will be processed on that
Distribution Value Date. The benefits department may
establish a cutoff date for this purpose and may change the
applicable Distribution Value Date and the cutoff date from
time to time.
"Eligible Employee" shall mean any Employee of the
Company; except that there shall be excluded (1) all leased
employees described in Section 414(n) of the Code, (2) those
Employees covered by a collective bargaining agreement
between the Company and any collective bargaining
representative if retirement benefits were the subject of
good faith bargaining between such representative and the
Company, unless the Employee is a member of a group of
employees to whom this Plan has been extended by such a
collective bargaining agreement, and (3) individuals engaged
in soliciting insurance or real estate sales.
"Eligibility Computation Period" shall mean
(a) The 12-consecutive month period commencing
with the first day that an Employee completes an Hour of
Service for the Company or a Related Company;
(b) The first 12-consecutive month period
coinciding with the Plan Year which includes the first
anniversary of the first day that an Employee completes an
Hour of Service for the Company or a Related Company; and
(c) Succeeding 12-consecutive month periods
coinciding with the Plan Year.
Notwithstanding the above, if an Employee completes more
than 500 Hours of Service during any such Eligibility
Computation Period and then fails to complete more than 500
Hours of Service during a subsequent Eligibility Computation
Period, then future Eligibility Computation Periods shall be
measured from the first day that the Employee completes an
Hour of Service following the Eligibility Computation Period
in which the Employee has been credited with not more than
500 Hours of Service. In addition, any reemployed
individual described in the preceding sentence who
terminates employment again shall measure Eligibility
Computation Periods from the date of subsequent reemployment
if no Hours of Service are performed during an Eligibility
Computation Period ending subsequent to the termination.
"Employee" shall mean every person employed by the
Company, or a Related Company, including any leased employee
described in Section 414(n) of the Code and any other
individual required to be treated as employed by the Company
or a Related Company under Section 414(o) of the Code.
"Employee Contribution" shall mean an amount that a
Participant elects to have deducted from his salary or wages
and contributed to the Participant Contribution Account,
after income taxes have been withheld on such amounts.
Employee Contributions shall be made by payroll deduction in
accordance with arrangements between each Participant and
the Company. Section 3.3 contains the provisions under
which Employee Contributions may be made.
"Employer Contributions" shall mean the sum of the
Employer Matching Contributions and Employer Discretionary
Contributions.
"Employer Discretionary Contribution" shall mean an
amount contributed to the Plan by the Company or by a
Participatory Affiliate in accordance with Section 3.5.
"Employer Matching Contribution" shall mean an amount
contributed to this Plan by the Company or by a
Participating Affiliate in accordance with Section 3.4.
"Entry Date" shall mean the first day of each payroll
period of the Company.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
"Fiduciary" shall mean all persons defined in Section
3(21) of ERISA associated in any manner with the control,
management, operation, and administration of the Plan or the
assets of the Plan, and such term shall be construed as
including the term "Named Fiduciary" with respect to those
Fiduciaries named in the Plan or who are identified as
Fiduciaries pursuant to procedures specified in the Plan.
"Highly Compensated Employee" shall mean
(a) Any Employee who performs services for the
Company or any Related Company during the "current Plan
Year" and who (1) was a 5% owner of the Company or any
Related Company at any time during the current or prior
Plan Year or (2) received compensation from the Company or
any Related Company in excess of $80,000 (as adjusted
pursuant to Section 415(d) of the Code) in the prior Plan
Year. For purposes of this definition "compensation"
means Section 415 Compensation (as defined in Appendix A),
but including elective or salary reduction contributions
to a cafeteria plan, cash or deferred arrangement or tax-
sheltered annuity; or
(b) Any Employee who separated from service (or
was deemed to have separated) prior to the current Plan
Year, performs no services for the Company or any Related
Company during the Plan Year, and met the description in
(a) above for either the separation year or any Plan Year
ending on or after the Employee's 55th birthday.
"Hour of Service" shall mean an hour (a) for which an
Employee is paid, or entitled to payment, for the
performance of duties for the Company or a Related Company;
(b) for which the Employee is paid or entitled to payment by
the Company or a Related Company on account of a period
during which no duties are performed (irrespective of
whether the employment relationship has terminated) due to
vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty, or leave of
absence; or (c) for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by the
Company or a Related Company.
The following additional rules shall apply in
calculating Hours of Service: (1) no more than 501 Hours of
Service are required to be credited to an Employee on
account of any single period during which the Employee
performs no duties; (2) an hour for which an Employee is
directly or indirectly paid, or entitled to payment, on
account of a period during which no duties are performed is
not required to be credited to the Employee if such payment
is made or due under a plan maintained solely for the
purpose of complying with applicable worker's compensation,
unemployment compensation, or disability insurance laws;
(3) Hours of Service are not required to be credited for a
payment which solely reimburses an Employee for medical or
medically related expenses incurred by the Employee; (4) a
payment shall be deemed to be made by or due from a Company
or a Related Company regardless of whether such payment is
made by or due from the Company or a Related Company
directly, or indirectly through, among others, a trust fund,
or insurer, to which the Company or a Related Company
contributes or pays premiums and regardless of whether
contributions made or due to the trust fund, insurer, or
other entity are for the benefit of particular Employees or
on behalf of a group of Employees in the aggregate; (5) no
more than one Hour of Service shall be credited with respect
to any hour of time; (6) an "Hour of Service" shall include
any hour for which an Employee is entitled to payment by a
"leasing organization" (as described in Section 414(n)(2) of
the Code) for the performance of duties for the Company or a
Related Company.
The definition of "Hour of Service" set forth herein
shall also be construed in accordance with, and shall
include any additional periods of service, that may be
required by regulations promulgated by the United States
Department of Labor. The hour of service rules stated in
the Department of Labor Regulations Section 2530.200b-2(b)
and -2(c) are herein incorporated by reference.
"Investment Committee" shall mean the Qualified Plans
Investment Committee of the Company, the members of which
are appointed by the Committee.
"Investment Funds" shall mean the funds set forth in
Section 2.5(a).
"Investment Manager" shall mean a Fiduciary
designated by the Committee under this Plan to whom has been
delegated the responsibility and authority to manage,
acquire or dispose of Plan assets (a) who (1) is registered
as an investment adviser under the Investment Advisers Act
of 1940; (2) is a bank, as defined in that Act; or (3) is an
insurance company qualified to perform investment advisory
services under the laws of more than one state; and (b) who
has acknowledged in writing that he is a Fiduciary with
respect to the management, acquisition, and control of Plan
assets.
"Normal Retirement Age" shall mean a Participant's
65th birthday.
"One-Year Break in Service Year" shall mean each
twelve month period commencing on the Participant's
Severance Date (and anniversaries thereof) if the Employee
fails to complete an Hour of Service during the twelve month
period.
"Participant" shall mean any Eligible Employee who
elects to participate in accordance with the provisions of
this Plan.
"Participant Contribution Account" shall mean the
Account maintained for a Participant that is credited with
Employee Contributions to the Plan in accordance with
Section 3.3 on behalf of such Participant, together with the
allocations thereto as required by the Plan.
"Participant Incentive Account" shall mean the
Account maintained for a Participant that is credited with
payments to the Plan by the Company and any Participating
Affiliate in accordance with Sections 3.4 and 3.5 on behalf
of such Participant, together with the allocations thereto
as required by the Plan. Prior to January 1, 1997, the
Participant Incentive Account of each Participant who was a
Participant on December 31, 1977 contained a Subaccount
known as the Allocated Stock Account which was credited with
the shares and partial shares of Company Stock, if any,
allocated to the Participant's Company Contribution Account
as of December 31, 1977 and any stock dividends on Company
Stock. Effective January 1, 1997, such Subaccount shall no
longer be maintained.
"Participating Affiliate" shall mean any Related
Company which, by resolution of its board of directors and
with the approval of the Corporation, elects to participate
in this Plan. Any such resolution of participation by a
Participating Affiliate may modify the eligibility
requirements for participation in the Plan by an Employee of
the Participating Affiliate, so long as any such
modification complies with the Code and ERISA and is
acceptable to the Corporation.
"Paysop Account" shall mean the Account maintained by
the Committee for each Participant that was credited with
Paysop contributions made before 1987 to the Plan by the
Company and any Participating Affiliate, together with the
allocations thereto as required by the Plan. The Paysop
Accounts are intended to qualify as a tax credit employee
stock ownership plan meeting the requirements of Section 409
of the Code. The Paysop Accounts shall be invested in Fund
H and shall be primarily invested in Company Stock. See
Section 6.8 for additional rules.
"Plan" shall mean the Great Western Employee Savings
Incentive Plan set forth herein, now in effect or hereafter
amended.
"Plan Year" shall mean the twelve-consecutive month
period ending on December 31. The Plan Year shall be the
limitation year for purposes of Section 415 of the Code.
"Price Per Share of Company Stock" shall mean the
closing price per share of Company Stock on the New York
Stock Exchange Composite Transactions for the applicable day
or, in the event the applicable day is not a trading day or
if such stock was not traded on such day, the next preceding
day on which such stock was traded.
"Related Company" shall mean (a) each corporation
which is a member of a controlled group of corporations
(within the meaning of Section 1563(a) of the Code,
determined without regard to Section 1563(a)(4) and
(e)(3)(C) thereof) of which the Company is a component
member, (b) each entity (whether or not incorporated) which
is under common control with the Company, as such common
control is defined in Section 414(c) of the Code and
Regulations issued thereunder, (c) any organization which is
a member of an affiliated service group (within the meaning
of Section 414(m) of the Code) of which the Company or a
Related Company is a member, and (d) any organization which
is required by regulations issued under Section 414(o) of
the Code to be treated as a Related Company. For the
purposes of Article IV of this Plan the phrase "more than 50
percent" shall be substituted for the phrase "at least 80
percent" each place it appears in Section 1563(a)(1) of the
Code. The term "Related Company" shall also include each
predecessor employer to the extent required by Section
414(a) of the Code. Notwithstanding the foregoing, an
organization shall not be considered a Related Company for
any purpose under the Plan prior to the date it is
considered affiliated under clauses (a) through (d) above.
"Rollover Account" shall mean the Account maintained
for a Participant that is credited with the amount, if any,
received by the Plan in accordance with Section 3.6 as a
rollover contribution, as defined in Section 402 of the
Code, together with the allocations thereto as required by
the Plan.
"Section 415 Compensation" for any limitation year
shall mean a Participant's wages and all other compensation
reported on Form W-2, as adjusted as required by Treasury
Regulation Section 1.415-2(d)(11)(i), for that year.
Effective January 1, 1998, Section 415 Compensation shall
also include any Compensation Deferrals under this Plan, and
any amounts deferred under any cafeteria plan described in
Section 125 of the Code.
"Service" shall mean
(a) all periods of employment or reemployment
(commencing on the date the Employee completes an Hour of
Service) and ending on the Employee's Severance Date;
(b) if the Employee quits, is discharged or
retires, the period of severance after such Severance Date
if he becomes an Employee with twelve months of such
Severance Date;
(c) notwithstanding (b) above, if the Employee
quits, is discharged or retires during the first twelve
month of a leave of absence which is included in Service
(pursuant to paragraph (a) above), the period of severance
after the Employee quits, is discharged, or retires shall
be counted as Service only if he becomes an Employee
within twelve months after the leave of absence began; and
(d) Service in the Armed Forces of the United
States or the Public Health Service of the United States
as a result of which such Employee is entitled to
reemployment rights from the Company pursuant to the
provisions of Section 2021 et seq. of Title 38 of the
United States Code, provided that the Employee returns to
work within the time period specified in such provisions.
For this purpose, a period of severance is the period
beginning on the Severance Date on which the Employee quits,
is discharged or retires and ending on the date he again
becomes an Employee.
"Severance Date" shall mean the earlier of (i) the
date the Employee quits, is discharged, retires or dies
(including the occurrence of such an event during an absence
described in (ii) below) and (ii) the first anniversary (or
such later date provided the Company's leave of absence
policy or with respect to military leave, by federal law) of
the date the Employee is absent from employment for any
other reason, including vacation, holiday, sickness,
disability, pregnancy, or birth or adoption of the
Employee's child (or child care for a period following such
birth or adoption).
"Trust" shall mean the Trust which is established to
hold and invest contributions under this Plan.
"Trustee" (or "Trustees," if more than one is
appointed and acting) shall mean the Trustee or Trustees,
whether original or successor, appointed under the Trust.
"Year of Eligibility Service" means each Eligibility
Computation Period during which the Employee is credited
with at least 1,000 Hours of Service.
"Year of Vesting Service" shall mean each 365 day
period of Service completed by the Employee. Non-successive
periods of Service shall be aggregated for this purpose.
<PAGE>
ARTICLE II
PARTICIPATION
2.1 - Eligibility Requirements.
Participation in the Plan is voluntary. Provided he
is then an Eligible Employee, each Employee shall become a
Participant in the Plan on the first day of the calendar
month (or any Entry Date thereafter) following completion of
the later of:
(a) one Year of Eligibility Service,
(b) the date he becomes an Eligible Employee, or
(c) the date the Eligible Employee agrees to
participate hereunder.
Enrolling in the Plan pursuant to the Voice Response
System pursuant to Section 2.8(c) shall signify the
Employee's acceptance of the benefits and terms of this Plan
and Trust and shall signify the Employee's agreement to make
contributions to the Trust pursuant to Article III of this
Plan.
2.2 - Participation.
Participation of a Participant shall commence as of
the date specified in Section 2.1 and shall continue during
the Participant's employment with the Company and until the
occurrence of a Break in Employment.
2.3 - Reemployment.
(a) An Employee who has met the eligibility
requirements described herein but who incurs a Break in
Employment prior to becoming a Participant and is later
reemployed as an Eligible Employee shall become eligible to
participate as of the later of (1) the Entry Date following
the date he met the eligibility requirements described
herein or (2) the date of reemployment.
(b) A Participant who incurs a Break in Employment
and is later reemployed as an Eligible Employee shall resume
participation immediately upon his reemployment.
(c) Notwithstanding the foregoing, an Employee who
incurs a Break in Employment prior to having a vested
interest in an Account attributable to Employer
Contributions or Compensation Deferrals under the Plan,
shall forfeit all Years of Eligibility Service prior to the
break, if during the Break in Employment the Employee
incurred a number of One-Year Break in Service Years at
least equal to the greater of six or the aggregate number of
Years of Eligibility Service the Employee had in the Plan
before the Break in Employment. For the purpose of this
subsection only and notwithstanding anything to the contrary
in the Plan, a One-Year Break in Service Year shall mean any
Plan Year in which an Employee fails to complete more than
500 Hours of Service. Notwithstanding any other provision
of this subsection, any Employee shall not be credited with
more than 501 Hours of Service by reason of such absence.
2.4 - Designation of Beneficiary.
Upon forms provided by the Committee, each Employee
who becomes a Participant shall designate in writing the
Beneficiary or Beneficiaries whom such Employee desires to
receive any benefits payable under this Plan in the event of
such Employee's death. A Participant may from time to time
change his designated Beneficiary or Beneficiaries without
the consent of such Beneficiary or Beneficiaries by filing a
new designation in writing with the Committee. However, if
a married Participant wishes to designate a person other
than his spouse as Beneficiary, such designation shall be
consented to in writing by the spouse, which consent shall
acknowledge the effect of the designation and be witnessed
by a Plan representative or a notary public. The
Participant may change any election designating a
Beneficiary or Beneficiaries without any requirement of
further spousal consent if the spouse's consent so provides.
Notwithstanding the foregoing, spousal consent shall be
unnecessary if it is established (to the satisfaction of a
Plan representative) that there is no spouse or that the
required consent cannot be obtained because the spouse
cannot be located, or because of other circumstances
prescribed by Treasury Regulations. The Company, the
Committee and the Trustee may rely upon his designation of
Beneficiary or Beneficiaries last filed in accordance with
the terms of this Plan. Upon the dissolution of marriage of
a Participant, any designation of the Participant's former
spouse as a Beneficiary, shall be treated as though the
Participant's former spouse had predeceased the Participant,
unless the Participant executes another Beneficiary
designation that complies with this Section 2.4 and that
clearly names such former spouse as a Beneficiary. In any
case in which the Participant's former spouse is treated
under the Participant's Beneficiary Designation as having
predeceased the Participant, no heirs or other beneficiaries
of the former spouse shall receive benefits from the Plan as
a Beneficiary of the Participant except as provided
otherwise in the Participant's Beneficiary designation.
2.5 - Investment Options.
(a) The Investment Funds maintained in the Trust
shall be:
Fund A - a Money Market Fund, which shall be
invested in fixed income investments,
generally of 180 days duration or less.
Prior to January 1, 1997, Fund A was a
Fixed Income Fund, which was invested in
interest bearing savings accounts of the
Company and its Participating Affiliates
and other investments that guarantee
income, including all loans made to
Participants pursuant to Section 9.11.
Fund B - a Short Term Bond Fund, which shall be
invested in short term (i.e., generally
with a maturity of five years or less)
bonds which are issued and guaranteed by
the United States Treasury or another U.S.
agency or are of investment grade quality.
Fund C - a Bond Fund, which shall be invested in
short intermediate and long term (i.e.,
generally with an emphasis on long term)
bonds which are issued and guaranteed by
the United States Treasury or another U.S.
agency or are of investment grade quality.
Fund D - a Balanced Fund, which shall be invested in
equity securities, bonds and/or money
market funds.
Fund E - a S&P 500 Stock Index Fund, which shall be
invested in equity securities of companies
in the S&P 500.
Fund F - a Small Company Stock Fund, which shall be
invested in equity securities of companies
with modest capitalization.
Fund G - a fund invested wholly in Company Stock.
There is no limit on the amount of Plan
assets that may be invested in Fund G.
Fund H - a fund utilized solely for Paysop Accounts.
A Participant's Paysop Account (except as
provided in the next sentence) will
mandatorily be invested in Company Stock.
Unless the Committee directs otherwise,
cash dividends on Company Stock held in the
Paysop Account will mandatorily be invested
in short-term investments. Prior to
January 1, 1997, the portion of the Paysop
Account invested in such fund was referred
to as the Paysop Subaccount; such
Subaccount shall no longer be maintained
after December 31, 1996.
Notwithstanding the foregoing, cash being held in the
Investment Funds for investment or to build up cash reserves
may be invested in short-term or intermediate-term
obligations issued or guaranteed by the Federal Government
(and including any agency or instrumentality thereof) and in
commercial paper other than obligations of the Company,
certificates of deposit, or other investments of a short-
term or intermediate-term nature. Monies in the Investment
Funds may also be invested in mutual funds, common, group,
or collective trust funds maintained by the Trustee or other
bank or trust company, or similar investment vehicles
provided such investment vehicles have investment objectives
similar to those described above. Pursuant to Section 7.3,
the Investment Committee shall select the specific
investments for the Investment Funds, either by selecting a
mutual fund, common, group or collective trust fund, or
similar vehicle, or by designating an Investment Manager (or
Trustee) who will be responsible for investment of monies.
(b) Any contribution and loan repayment allocated to
a Participant's account hereunder will be initially invested
in the Investment Funds (other than Fund H) designated by
the Participant in accordance with Section 2.8, provided
that such election or designation shall be in increments of
one percent (1%). If a Participant does not make an
election, his contributions shall be invested in Fund A.
(c) Any direction by a Participant for investment of
contributions made to his Accounts under this Plan shall be
deemed to be a continuing direction until changed. A
Participant may change his investment direction for future
contributions, but such a change may be made only as of any
Entry Date in accordance with Section 2.8.
(d) A Participant may direct that the investment of
his Accounts (other than his Paysop Account) be redirected
into any or all other Investment Fund or Funds (other than
Fund H), in one percent (1%) increments, but such a shift
may be made only as of any Business Day in accordance with
Section 2.8.
(e) A Participant's directions under Section 2.5
shall apply to all Accounts (except the Paysop Account). A
Participant may not provide different directions for
different Accounts.
2.6 - Certain Acquired Companies.
There have been certain acquisitions and there are
variations in benefits for those Participants affected by
the acquisitions which are outlined in Exhibit A to the
Plan. The details of such arrangements shall be agreed upon
by the Corporation (or subsidiary) and the third party.
Notwithstanding Section 8.1, the Committee may amend Exhibit
A of the Plan to reflect the particulars of said arrangement
(which may include the transfer of accounts to this Plan if
in accordance with Sections 401(a)(12) and 414(l) of the
Code) and the approval of the Board of Directors shall not
be required for such an amendment.
2.7 - Sales of Subsidiaries, Divisions and Branches.
In the event of a sale of any branches, divisions,
subsidiaries or other operations of this Corporation (or a
subsidiary thereof) to a third party, if the Corporation (or
subsidiary) and the third party so agree, the Accounts of
the Participants in this Plan who transfer employment to the
third party may be transferred to a defined contribution
plan maintained or to be established by the third party and
the Account balances of the Participants may be 100% vested.
The asset transfers shall be made in accordance with
Sections 401(a)(12) and 414(1) of the Code. Notwithstanding
any other provision of this Plan to the contrary, in the
event of such a transfer of Account balances with respect to
any such Participants, no benefits shall be paid from the
Plan to any such Participants. The details of such
arrangements shall be agreed upon by the Corporation (or
subsidiary) and the third party. Notwithstanding
Section 8.1, the Committee may amend Exhibit B of the Plan
to reflect the particulars of said arrangement and the
approval of the Board of Directors shall not be required for
such an amendment.
2.8 - Requirements for Participant Elections.
(a) This Section 2.8 sets forth the requirements for
Participants (or Beneficiaries) to make elections regarding
(1) initial and subsequent elections with respect to
investment of contributions into Investment Funds as set
forth in Sections 2.5(b) and (c); (2) initial elections,
suspensions or changes in Compensation Deferrals pursuant to
Section 3.2; (3) initial elections, suspensions or changes
of Employee Contributions pursuant to Section 3.3; (4)
elections with respect to redirection of Account balances
into Investment Funds, pursuant to Section 2.5(d); and (5)
loans pursuant to Section 9.11.
(b)(1) No written forms are required to make the
elections described in subsection (a) or in Section 2.1.
In lieu thereof, such elections will be made through a
Voice Response System, which is a toll-free telephone line
which will permit each Participant to make elections
described in this Section 2.8. To give directions, a
Participant will be assigned a confidential personal
identification number (which can be changed by the
Participant) and must identify himself using this personal
identification number and his social security number for
all telephonic directions.
(2) Elections described in Section 2.8(a)(1), (2)
and (3) will generally be effective as of the first Entry
Date after notice is given (or as soon as practicable
thereafter). Notice must be given on the Voice Response
System no later than such time and dates established by
the Committee from time to time preceding such Entry Date.
(3) Elections described in Section 2.8(a)(4) will
generally be effective as of the Business Day on which
notice is given, provided that notice must be given on the
Voice Response System no later than such time established
by the Committee from time to time on such Business Day.
Otherwise, the election will be effective on the following
Business Day. Notwithstanding the foregoing, the transfer
into a Fund may be effected on the Business Day following
the transfer out of the other Fund.
(4) Elections described in Section 2.8(a)(5) will
generally be processed on the applicable Distribution
Value Date after notice is given and all appropriate
elections are made (or as soon as practicable thereafter).
Notice must be given on the Voice Response System no later
than such time and dates established by the Committee from
time to time preceding such date. Proceeds from such
transactions will be delivered as soon as practicable
thereafter.
(5) As soon as practicable after an election is made
pursuant to the Voice Response System, the Committee (or
its delegate) shall send the Participant or Beneficiary a
written confirmation containing the particulars of said
election. If the Participant or Beneficiary fails to
object, in writing, prior to the Entry Date after the
election was effective that the written confirmation is
incorrect, the particulars set forth in such written
confirmation shall be deemed conclusive evidence of the
election made by the Participant or Beneficiary.
(6) Reasonable efforts will be used to process
elections as set forth above. Notwithstanding the
preceding sentence or the foregoing paragraphs (1) - (5),
neither the Company, the Committee, the benefits
department nor any other person guarantees that any
election will be so processed. Each of the elections
shall be made in conformance with such procedures as are
established by the Committee in its sole and complete
discretion. The Committee may adopt new rules or alter
any of the foregoing rules as it deems appropriate in its
sole and complete discretion including, without
limitation, eliminating the Voice Response System,
implementing a requirement of written forms, establishing
the effective date and notice date for any type of
election and limiting the number of elections that may be
made by a Participant during any specified period. Any
such rule shall be deemed adopted by the Committee if it
distributed to Participants generally in a written
communication.
(c) Subject to applicable law, the Committee may
also implement the Voice Response System for any other
elections described in the Plan, including without
limitation, elections to take a withdrawal or distribution
pursuant to Section 6.1 through 6.4. Notwithstanding the
preceding sentence, if (x) the Internal Revenue Service
issues a favorable determination letter with respect to this
Plan (as adopted January 1, 1997) and (y) the Committee
implements the Voice Response System for one or more types
of distributions or withdrawals, and (z) the Voice Response
System informs the Participant of his right to delay any
distribution until age 65 and that no distribution can be
made prior to age 65 without his consent, then the
Participant's application for a distribution or withdrawal
on the Voice Response System, together with the cashing of
any check subsequently issued by the Plan (whether or not
endorsed), shall treated as constituting (1) written consent
for purposes of Section 6.1(d), Code Section 411(a)(11) and
ERISA Section 203(e) and (2) conclusive proof that any
hardship withdrawal pursuant to Section 6.3 is for a
financial hardship resulting from a reason described in
Sections 6.3(a)(1)-(5) as long as the Participant indicates
on the Voice Response System which reason is applicable.
<PAGE>
ARTICLE III
CONTRIBUTIONS
3.1 - Required Contributions by Participants.
Every Participant shall be required to make either
Compensation Deferrals pursuant to Section 3.2 or Employee
Contributions pursuant to Section 3.3. A Participant may
make Compensation Deferrals and Employee Contributions
during the same pay period provided that, subject to the
limitations of Sections 3.7, 3.9, 3.10 and 4.1, the
Participant's combined Employee Contributions and
Compensation Deferrals for a pay period cannot exceed 14% of
the Participant's Compensation for the month.
3.2 - Compensation Deferrals.
(a) Election to Defer.
Subject to the limitations in Sections 3.7, 3.10 and
4.1, each Participant may elect Compensation Deferrals, in
accordance with Section 2.8, in whole percentages from 1% to
14% of the Participant's Compensation for each pay period,
plus any whole dollar amount deferred pursuant to the terms
of the Great Western PlusPay Benefit Plan. Compensation
Deferrals shall be credited to the Participant's Cash or
Deferred Account, and shall be made in accordance with rules
established by the Committee.
(b) Change in Percentage or Suspension of
Compensation Deferrals.
A Participant's Compensation Deferral percentage will
remain in effect, notwithstanding any change in Com-
pensation, until the Participant elects to change the
percentage. A Participant may elect at any time to suspend
all Compensation Deferrals, provided he makes an election in
accordance with Section 2.8; such election shall be
effective as soon as administratively feasible. A
Participant may elect to change or to resume his
Compensation Deferrals as of any Entry Date in accordance
with Section 2.8.
(c) Status of Compensation Deferrals.
To make Compensation Deferrals under this Section,
the Company will reduce the Participant's Compensation in
the amount authorized by the Participant and make a
contribution to the Trustee equal to such reduction as of
the earliest date on which such amount can reasonably be
segregated from the Company's general assets, not to exceed
90 days from the date on which such amount would otherwise
have been payable to the Participant in cash. Compensation
Deferrals constitute Company contributions under the Plan
and are intended to qualify as elective contributions under
Code Section 401(k).
(d) General Limitations on Compensation Deferrals.
As of the last day of the Plan Year, the Committee
shall determine the amount of Compensation Deferrals in
excess of those permitted under Section 3.8 of the Plan, and
any excess shall either be distributed to the Participant
responsible for the excess Compensation Deferral or
redesignated as an after-tax contribution and accounted for
separately under the Plan in accordance with the Code,
Treasury Regulations and Section 3.8(d).
3.3 - Employee Contributions.
(a) Election to Make Employee Contributions.
Subject to the limitations of Sections 3.9 and 4.1,
each Participant may elect Employee Contributions on his own
behalf, in accordance with Section 2.8, in whole percentages
from 1% to 14% of the Participant's Compensation for each
pay period plus any whole dollar contributions elected
pursuant to the terms of the Great Western PlusPay Benefit
Plan; provided that amounts may only be elected under the
PlusPay Benefit Plan if the Participant has already deferred
the maximum amount of Compensation Deferrals permitted under
Section 3.7 for the Plan Year. Such contributions by
Participants shall be credited to his Participant
Contribution Account, and shall be made in accordance with
rules established by the Committee.
(b) Change in Percentage or Suspension of Employee
Contributions.
A Participant's Employee Contribution percentage will
remain in effect, notwithstanding any change in
Compensation, until the Participant elects to change the
percentage. A Participant may elect at any time to suspend
all Employee Contributions, provided he makes an election in
accordance with Section 2.8; such election shall be
effective as soon as administratively feasible. A
Participant may elect to change or to resume his Employee
Contributions as of any Entry Date in accordance with
Section 2.8.
(c) Status of Employee Contributions.
To make Employee Contributions under this Section,
the Company will deduct from the Participant's Compensation
the amount authorized by the Participant, and shall withhold
income taxes on such amount. The Company will then
contribute the amount authorized by the Participant, reduced
by withheld income taxes, to the Trustee as of the earliest
date on which such amount can reasonably be segregated from
the Company's general assets, not to exceed 90 days from the
date on which such amount would otherwise have been payable
to the Participant in cash.
(d) General Limitations on Employee Contributions.
As of the last day of the Plan Year, the Committee
shall determine the amount of Employee Contributions in
excess of those permitted under Section 3.9 of the Plan, and
any excess shall be distributed to the Participant
responsible for the excess Employee Contribution as provided
in Section 3.9(d).
3.4 - Employer Matching Contributions.
(a) Amount of Employer Matching Contribution.
Subject to the limitations of Section 3.9, 3.10 and
4.1, for each pay period the Company shall make an Employer
Matching Contribution to the Plan, which when added to the
forfeitures in excess of Plan expenses described in Section
3.11(b), is equal to 50% of the Compensation Deferrals and
Employee Contributions for the pay period of each
Participant; provided that the maximum Employer Matching
Contribution made on behalf of any Participant for a pay
period shall not exceed 3% of such Participant's
Compensation paid during such pay period. The Company shall
pay to the Trustee the Employer Matching Contribution as
soon as practicable after the applicable Allocation Date and
in any event within the time prescribed by law, including
extensions of time, for the filing of the Company's federal
income tax return for the Company's taxable year ending with
or within the Plan Year to which the contribution relates.
(b) Allocation of Employer Matching Contributions.
The Employer Matching Contributions for any pay
period shall be allocated to the Participant Incentive
Account maintained for the Participant on behalf of whom the
contribution under Section 3.4(a) was made.
3.5 - Employer Discretionary Contributions.
(a) Amount of Employer Discretionary Contribution.
Subject to the limitations of Sections 3.9, 3.10 and
4.1, for each Plan Year the Company may make an Employer
Discretionary Contribution in the amount determined by the
Board of Directors, but not to exceed the amount of Employer
Matching Contributions made by the Company for the Plan
Year. The Company shall pay to the Trustee the Employer
Discretionary Contribution by the last date permitted in
Section 3.4(a) for payments of Employer Matching
Contributions.
(b) Allocation of Employer Discretionary
Contributions.
The Employer Discretionary Contribution, if any, made
for a Plan Year shall be allocated, as of the Anniversary
Date of such Plan Year, to the Participant Incentive Account
of each Participant who is a Participant on such Anniversary
Date on the basis of the ratio of such Participant's
Employee Contributions or Compensation Deferrals which are
matched by Employer Matching Contributions less any
withdrawals and any distributions from any Account during
such Plan Year to the total of all such amounts for all
matched Employee Contributions and Compensation Deferrals
net of all withdrawals for each Plan Year.
3.6 - Rollover Contributions.
(a) An Eligible Employee, regardless of whether he
has satisfied the participation requirements of Section 2.1
who has received a distribution from a plan which meets the
requirements of Section 401(a) of the Code may, in
accordance with procedures approved by the Committee,
transfer the distribution received from the other plan to
the Trust; provided that the distribution is eligible for
rollover treatment and exclusion from the gross income of
the Participant in accordance with the Code.
(b) The Committee shall develop such procedures, and
may require such information from an Employee desiring to
make such a transfer, as it deems necessary or desirable to
determine that the proposed transfer will meet the
requirements of this Section. Upon approval by the Commit-
tee, the amount transferred shall be deposited in the Trust
and shall be credited to an account which shall be referred
to as the "Rollover Account." Such account shall be 100%
vested in the Employee and shall share in income allocations
as provided in the Plan, but shall not share in Company
contribution allocations. Upon termination of employment,
the total amount of the Employee's Rollover Account shall be
distributed in accordance with Article VI.
(c) Upon such transfer by an Eligible Employee who
has not yet completed the participation requirements of
Section 2.1, his Rollover Account shall represent his sole
interest in the Plan until he becomes a Participant.
3.7 - Section 402(g) Limit on Compensation Deferrals.
(a) Compensation Deferrals made on behalf of any
Participant under this Plan and all other plans (which are
described in Section 3.7(c)) maintained by the Company or a
Related Company shall not exceed the limitation under Code
Section 402(g)(1) for the taxable year of the Participant,
as adjusted annually under Section 402(g)(5) of the Code,
and shall be effective as of January 1 of each calendar
year.
(b) In the event that the dollar limitation provided
for in Section 3.7(a) is exceeded, the Participant is deemed
to have requested a distribution of the excess amount by the
first March 1 following the close of the Participant's
taxable year, and the Committee shall distribute such excess
amount, and any income allocable to such amount, to the
Participant by April 15th. In determining the excess amount
distributable with respect to a Participant's taxable year,
excess Compensation Deferrals previously distributed for the
Plan Year beginning in such taxable year shall reduce the
amount otherwise distributable under this Paragraph (b).
(c) In the event that a Participant is also a
participant in (1) another qualified cash or deferred
arrangement as defined in Section 401(k) of the Code, (2) a
simplified employee pension, as defined in Section 408(k) of
the Code, or (3) a salary reduction arrangement, within the
meaning of Section 3121(a)(5)(D) of the Code, and the
elective deferrals, as defined in Section 402(g)(3) of the
Code, made under such other arrangement(s) and this Plan
cumulatively exceed the dollar limit under Section 3.7(a)
for such Participant's taxable year, the Participant may,
not later than March 1 following the close of his taxable
year, notify the Committee in writing of such excess and
request that the Compensation Deferrals made on his behalf
under this Plan be reduced by an amount specified by the
Participant. The Committee may then determine to distribute
such excess in the same manner as provided in Section
3.7(b).
3.8 - Section 401(k) Limitations on Compensation Deferrals.
(a) The Committee will estimate, as soon as
practical before the close of the Plan Year and at such
other times as the Committee in its discretion determines,
the extent, if any, to which Compensation Deferral treatment
under Section 401(k) of the Code may not be available to any
Participant or class of Participants. In accordance with
any such estimate, the Committee may modify the limits in
Section 3.2(a), or set initial or interim limits, for
Compensation Deferrals relating to any Participant or class
of Participants. These rules may include provisions
authorizing the suspension or reduction of Compensation
Deferrals above a specified dollar amount or percentage of
Compensation.
(b) For each Plan Year, an actual deferral
percentage will be determined for each Participant equal to
the ratio of the total amount of the Participant's
Compensation Deferrals allocated under Section 3.2(a) for
the Plan Year divided by the Participant's Section 415
Compensation (including Compensation Deferrals and amounts
deferred under Code Section 125) in the Plan Year. For
purposes of the preceding sentence, the Company, in its sole
discretion, may treat all or any part of its Employer
Contributions as Compensation Deferrals to the extent
permitted by Treasury Regulations, provided that such
Employer Contributions (together with any gains or losses
attributable to such amounts) must be non-forfeitable and
subject to the provisions of the Plan pertaining to
distributions of amounts from Compensation Deferral
Accounts, and must be accounted for separately to the extent
required by Treasury Regulations. An Employee's Section 415
Compensation taken into account for this purpose shall be
limited to Section 415 Compensation received during the Plan
Year while the Employee is a Participant. Except as
otherwise provided in this Section 3.8(b), (1) each Eligible
Employee who would be a Participant except for the fact such
Eligible Employee does not agree to participate shall be
considered a Participant for purposes of Section 3.8 and
(2) with respect to Participants who have made no
Compensation Deferrals under this Plan, such actual deferral
percentage will be zero.
(c) The average of the actual deferral percentages
for Highly Compensated Employees for the current Plan Year
("High Average") when compared with the average of the
actual deferral percentages for non-Highly Compensated
Employees for the prior Plan Year ("Low Average") must meet
one of the following requirements:
(1) The High Average is no greater than 1.25 times
the Low Average; or
(2) The High Average is no greater than two times
the Low Average, and the High Average is no greater than
the Low Average plus two percentage points.
(d) At the end of a Plan Year, a Participant or
class of Participants has excess Compensation Deferrals,
then the Committee may elect, at its discretion, to pursue
any of the following courses of action or any combination
thereof:
(1) Within 2-1/2 months after the end of the Plan
Year, excess Compensation Deferrals for a Plan Year may be
redesignated as after-tax contributions and accounted for
separately pursuant to Section 3.2(d). Excess
Compensation Deferrals, however, may not be redesignated
as after-tax employee contributions with respect to a
Highly Compensated Employee to any extent that such
redesignated after-tax employee contributions would exceed
the limits of Section 3.3 or 3.9 when combined with the
Employee Contributions of that Employee for the Plan Year.
Adjustments to withhold any federal, state, or local taxes
due on such amounts may be made by the Company against
Compensation yet to be paid to the Participant during that
taxable year.
(2) Excess Compensation Deferrals, and any earnings
attributable thereto through the end of the Plan Year, may
be returned to the Company employing the Participant,
solely for the purpose of enabling the Company to withhold
any federal, state, or local taxes due on such amounts.
The Company will pay all remaining amounts to the
Participant within the 2-1/2 month period following the
close of the Plan Year to which the excess Compensation
Deferrals relate to the extent feasible, but in all events
no later than 12 months after the close of such Plan Year.
(3) The Company, in its discretion, may make a
contribution to the Plan, which will be allocated as a
fixed dollar amount among the Accounts of non-Highly
Compensated Employees who have met the requirements of
Section 2.1.
Any such excess Compensation Deferrals recharacterized as
after-tax contributions or distributed from the Plan with
respect to a Participant for a Plan Year shall be reduced by
any amount previously distributed to such Participant under
Section 3.7 for the Participant's taxable year ending with
or within such Plan Year.
(e) The amount of the excess Compensation Deferrals
will be determined by the Committee by reducing the
Compensation Deferrals of the Highly Compensated Employee(s)
with the highest Compensation Deferrals to the extent
required to enable the Plan to meet the limits in (c) above
or to cause the Compensation Deferrals of such Employee(s)
to equal the Compensation Deferrals of the Highly
Compensated Employee(s) with the next-highest Compensation
Deferrals. The process in the preceding sentence shall be
repeated until the Plan satisfies the limits in (c) above.
The earnings attributable to excess Compensation Deferrals
will be determined in accordance with Treasury Regulations.
The Committee will not be liable to any Participant (or his
Beneficiary, if applicable) for any losses caused by in-
accurately estimating or calculating the amount of any
Participant's excess Compensation Deferrals and earnings
attributable to the Compensation Deferrals.
(f) If the Committee determines that an amount to be
deferred pursuant to the election provided in Section 3.2
would cause Company contributions under this and any other
tax-qualified retirement plan maintained by any Company to
exceed the applicable deduction limitations contained in
Section 404 of the Code, or to exceed the maximum Annual
Addition determined in accordance with Section 4.1, the
Committee may treat such amount in accordance with the rules
in Section 3.8(a) hereof.
(g) In the discretion of the Committee, the tests
described in this section may be applied by aggregating the
Plan with any other defined contribution plans permitted
under the Code.
3.9 - Section 401(m) Limitations on Employee Contributions
and Employer Contributions.
(a) The Committee will estimate, as soon as
practical, before the close of the Plan Year and at such
other times as the Committee in its discretion determines,
the extent, if any, to which Employee Contributions and/or
Employer Contributions may not be available to any
Participant or class of Participants under Code Section
401(m). In accordance with any such estimate, the Committee
may modify the limits in Section 3.3 and/or percentages on
Sections 3.4 and 3.5 or set initial or interim limits or
percentages, for Employee Contributions and/or Employer
Contributions relating to any Participant or class of
Participants. After determining the amount of excess
Compensation Deferrals, if any, under subsections 3.8(a) and
(b), the Committee shall determine the aggregate
contribution percentage under (b) below.
(b) For each Plan Year, a contribution percentage
will be determined for each Participant equal to the ratio
of the total amount of the Participant's Employee
Contributions, Employer Matching Contributions, Employer
Discretionary Contributions and forfeitures allocated under
Sections 3.3, 3.4, 3.5 and 3.11 for the Plan Year and any
Compensation Deferrals of the Participant redesignated as
after-tax contributions under Section 3.2(d) and 3.8(d) in
the Plan Year in which such excess Compensation Deferrals
would be included in the gross income of the Participant
divided by the Participant's Section 415 Compensation
(including Compensation Deferrals and amounts deferred under
Code Section 125) in the Plan Year. For purposes of the
preceding sentence, the Company, in its sole discretion, may
treat all or any part of its Compensation Deferrals as
Employer Matching Contributions to the extent permitted by
Treasury Regulations. If Compensation Deferrals are treated
as Employer Matching Contributions, the Plan must satisfy
Section 3.8(b) both by counting such amounts as Compensation
Deferrals and by excluding such amounts as Compensation
Deferrals. Furthermore, any Employer Contributions treated
as Compensation Deferrals under Section 3.8(b) shall not be
used to satisfy the requirements of this Section 3.9(b),
except as otherwise permitted by the Code or Treasury
Regulations. An Employee's Section 415 Compensation taken
into account for this purpose shall be limited to Section
415 Compensation received during the Plan Year while the
Employee is a Participant. Except as otherwise provided in
this Section 3.9(b), (1) each Eligible Employee who would be
a Participant except for the fact such Eligible Employee
does not agree to participate shall be considered a
Participant for purposes of Sections 3.9 and (2) with
respect to Participants who have made no Employee Contribu-
tions and for whom there were no Employer Contributions
under this Plan, such contribution percentage will be zero.
(c) The average of the contribution percentages for
Highly Compensated Employees for the current Plan Year
("High Average") when compared with the average of the
contribution percentages for non-Highly Compensated
Employees for the prior Plan Year ("Low Average") must meet
one of the following requirements:
(1) The High Average is no greater than 1.25 times
the Low Average; or
(2) The High Average is no greater than two times
the Low Average, and the High Average is no greater than
the Low Average plus two percentage points.
(d) If, at the end of a Plan Year, a Participant or
a class of Participants has excess contributions, then the
Committee may elect, at its discretion, to pursue any of the
following courses of action or any combination thereof:
(1) Excess Employer Contributions (and any earnings
attributable thereto through the end of the Plan Year)
attributable to excess Compensation Deferrals under
Section 3.7 or 3.8 or attributable to excess Employee
Contributions, may be forfeited.
(2) Employer Contributions (and any earnings
attributable thereto through the end of the Plan Year)
that are not vested may be forfeited.
(3) Excess Employee Contributions and excess
Employer Contributions (and any earnings attributable to
such excess amounts through the end of the Plan Year) may
be distributed to the Participant within the 2-1/2 month
period following the close of the Plan Year to the extent
feasible, and in all events no later than 12 months after
the close of Plan Year. The Company may distribute
unmatched Employee Contributions before distributing any
matched Employee Contributions or may distribute (or
forfeit pursuant to clause (2) above) Employer
Contributions prior to distributing any Employee
Contributions.
(4) Notwithstanding the foregoing, the condition in
the next sentence must be met if there are Employer
Contributions allocated to a Participant which are
attributable to excess Compensation Deferrals under
Sections 3.7 or 3.8 or attributable to excess Employee
Contributions. In such case, Employer Contributions
remaining in the Plan allocated to the Participant after
satisfying Section 3.9 cannot exceed the amount which may
be allocated under Sections 3.4 or 3.5 when taking into
account only those Compensation Deferrals and Employee
Contributions remaining in the Plan after satisfying
Sections 3.7, 3.8 and 3.9. Any such excess Employer
Contributions (and earnings attributable thereto) must be
forfeited or returned pursuant to clauses (1), (2) or (3)
above.
(e) The amount of excess Employee Contributions and
Employer Contributions shall be determined by the Committee
by reducing the contributions of the Highly Compensated
Employee(s) with the highest contributions to the extent
required to enable the Plan to meet the limits in (c) above
or to cause the contributions of such Employee(s) to equal
the contributions of the Highly Compensated Employee(s) with
the next-highest contributions. The process in the
preceding sentence shall be repeated until the Plan
satisfies the limits in (c) above. The earnings attribut-
able to excess contributions will be determined in accor-
dance with Treasury Regulations. The Committee will not be
liable to any Participant (or to his Beneficiary, if
applicable) for any losses caused by inaccurately estimating
or calculating the amount of any Participant's excess
contributions and earnings attributable to the
contributions.
(f) The tests of Sections 3.8(c) and 3.9(c) shall be
met in accordance with the prohibition against the multiple
use of the alternative limitation under Code Section
401(m)(9). In the event such limitations are violated,
corrections shall be made in accordance with Section 3.9(d).
3.10 - Limits on Employer Contributions and Compensation
Deferrals.
In no event shall the aggregate contribution for any
Plan Year made by the Company and any Participating
Affiliates under Sections 3.2, 3.4 and 3.5, and under any
other profit sharing or stock bonus plan(s) maintained by
the Company or a Participating Affiliate, exceed (1) 15% of
the Compensation paid or accrued to all Participants, plus
the amount of any "unused pre-87 limitation carryforwards"
available under Section 404(a)(3)(A) of the Code or (2) the
profits for such Plan Year or the accumulated profits of the
Company or Participating Affiliates. The Compensation taken
into account for purposes of clause (1) of the preceding
sentence shall be Compensation paid or accrued during the
Company's taxable year ending with or within the Plan Year
to which the Company contribution relates. For purposes of
clause (2) of the second preceding sentence, profits earned
that year shall be determined in accordance with sound
accounting practice as consistently applied by the Company
before reduction by federal and state taxes based on or
measured by income and before reduction by the contribution
payable for the year during which such profits are being
determined. In the event that the Company or any
Participating Affiliate is prevented in any year from making
the above contribution which it otherwise would have made by
reason of not having the current or accumulated profits or
because such profits are less than the contribution which it
otherwise would have made, then so much of the contribution
which it was so prevented from making may be made, for the
benefit of the Participants of such Company or Participating
Affiliate, by the Company or other Participating Affiliate
(where each is not so limited) to the extent of the current
or accumulated profits of the Company and such other
Participating Affiliate, except that such contribution by
the Company and each other Participating Affiliate shall be
limited to that portion of its total current and accumulated
profits remaining after adjustment for its contribution
deductible without regard to the provision of this paragraph
which the total prevented contribution bears to the total
current and accumulated profits of the Company and all such
Participating Affiliates remaining after adjustment for all
contributions deductible without regard to this paragraph.
3.11 - Allocation of Forfeitures.
Subject to Section 5.2(d) and 6.6, as of each
Allocation Date, any amounts credited to a former Employee's
Participant Incentive Account which have been forfeited (as
set forth in Section 5.2) shall be applied in accordance
with Section 3.12(b). Any excess Forfeitures shall be
credited against the Employer Matching Contributions of the
Company set forth in Section 3.4(a) and allocated in
accordance with Section 3.4(b).
3.12 - Valuation of Accounts.
(a) Allocation of Investment Income to All Accounts.
As of each Business Day, investment income of each
Investment Fund shall be allocated to each Account within
such Investment Fund by crediting each such Account with an
amount determined as follows:
(1) The amount of any realized or unrealized gains
or losses and income (net of expenses directly
attributable to that Investment Fund) of such Investment
Fund which has not previously been allocated, multiplied
by
(2) A fraction, the numerator of which is the value
of such Account within the Investment Fund on the last
preceding Business Day minus any amount distributed or
withdrawn (including amounts transferred to a different
Investment Fund) therefrom since the last preceding
Business Day, and the denominator of which is the sum
total of all such amounts for each Account within such
Investment Fund. For this purpose, the value of the
Account on any day shall not include amounts allocated as
of that day if the amount has not yet been transferred to
the Plan and credited to the Account for investment
purposes.
The Committee may implement the foregoing allocations by
adopting a unit accounting methodology for one or more
Investment Funds.
(b) Allocation of Plan Expenses.
(1) All expenses of the Plan (excluding expenses
directly attributable to an Investment Fund) shall be
paid, to the extent available, from Forfeitures available
under the Plan. To the extent that such expenses exceed
Forfeitures, the excess expenses shall be charged to
Accounts on an equitable basis by the Committee, provided
that they are generally allocated on the basis of Account
balances.
(2)(A) The Committee may elect to allocate Plan
expenses in accordance with this subsection (b)(2), rather
than subsection (b)(1). The Committee may adopt rules and
regulations to implement this subsection (b)(2).
(B) All expenses of the Plan (excluding expenses
directly attributable to an Investment Fund) shall be
apportioned between Participants who are Employees as of
the applicable Allocation Date and Participants who are
former employees as of the applicable Allocation Date
based on the ratio of the sum of the Account balances of
all Employees as to the sum of the Account balances of all
former Employees.
(C) The expenses apportioned to current Employees
who are Participants shall be paid, to the extent
available, from Forfeitures available under the Plan. To
the extent that such expenses exceed Forfeitures, the
excess expenses shall be charged to Accounts of Employees
in proportion to the ratio that amount previously
allocated and remaining credited to each such Employee's
Account bears the total accumulated amounts previously
allocated and remaining credited to all such Accounts of
Employees.
(D) The expenses apportioned to former Employees who
are Participants shall be charged to Accounts of former
Employees in proportion to the ratio that amount
previously allocated and remaining credited to each such
former Employee's Account bears the total accumulated
amounts previously allocated and remaining credited to all
such Accounts of former Employees.
(c) The allocations required by this Section 3.12
shall be made before the allocations required by any other
Section are made.
(d) Notwithstanding anything to the contrary herein,
if the Committee determines that an alternative method of
allocating earnings and losses would better serve the
interests of Participants and Beneficiaries or could be more
readily implemented, the Committee may substitute such
alternative; provided that any such alternative method must
result in Plan earnings being allocated on the general basis
of Account balances.
3.13 - Notification of Participants.
At least annually, the Committee shall notify each
Participant with respect to the status of such Participant's
Accounts. Such notification shall in any event be made as
soon as practicable after the end of each Plan Year. The
total amounts so credited to each Participant's Accounts
shall represent each Participant's contingent share of the
Trust as of such date. Such allocation and notification
shall not vest in any Participant any right, title or
interest in the Trust, except to the extent, at the time or
times, and upon the terms and conditions set forth herein.
Neither the Company, the Trustee, the Investment Committee,
nor the Committee to any extent warrants, guarantees or
represents that the value of any Participant's Accounts at
any time will equal or exceed the amount previously allo-
cated or contributed thereto.
<PAGE>
ARTICLE IV
LIMITATION ON ANNUAL ADDITIONS
4.1 - Section 415 Limitations.
Notwithstanding anything else contained herein, the
Annual Additions, to all the Accounts of a Participant shall
not exceed the lesser of $30,000 (or, if greater, 1/4 of the
defined benefit dollar limitation in effect under Section
415(b)(1) of the Code for the limitation year) or 25% of the
Participant's Section 415 Compensation from the Company and
all Related Companies during the Plan Year, in accordance
with the provisions of Appendix A attached hereto.
<PAGE>
ARTICLE V
VESTING
5.1 - Fully Vested Accounts.
A Participant's Cash or Deferred Account, Participant
Contribution Account, Paysop Account and Rollover Account
shall be 100% vested and nonforfeitable.
5.2 - Participant Incentive Account.
(a) The interest of each Participant in his
Participant Incentive Account shall vest and become
nonforfeitable up to a maximum of 100% as follows:
(1) A Participant shall become 100% vested if, while
an Employee, he attains age 55, incurs a Disability Date,
or dies; or
(2) A Participant shall become vested in accordance
with the following schedule:
Years of
Vesting Service Percentage Vested
less than 2 0%
2 30%
3 60%
4 or more 100%
(b) If a Participant incurs a One-Year Break in
Service Year before he has a vested interest in his Accounts
(excluding his Participant Contribution Account and Rollover
Account), in determining his Years of Vesting Service under
this Section 5.2, all Years of Vesting Service earned before
the One-Year Break in Service Year shall be forfeited if the
consecutive number of One-Year Break in Service Years equals
or exceeds six.
(c) If a Participant incurs a Break in Employment
which is followed by six consecutive One-Year Break in
Service Years and is subsequently reemployed, no Year of
Vesting Service after such six consecutive One-Year Break in
Service Years shall be taken into account in determining the
vested percentage in a Participant's Incentive Account
accrued up to any such One-Year Break in Service Year.
(d) When a Participant ceases to participate and
receives a complete distribution of his Accounts, such
portion of his Participant Incentive Account as of the
coinciding or next following Allocation Date as is not
vested shall be forfeited and allocated in the manner
provided in Section 3.11. For purposes of the preceding
sentence, a Participant who ceases to participate in the
Plan and whose nonforfeitable percentage in his Participant
Incentive Account is zero, shall be deemed to have received
a complete distribution of the nonforfeitable portion of his
Participant Incentive Account. If a former Participant who
has suffered a forfeiture on account of his termination of
participation in accordance with the preceding sentences is
reemployed as an Employee by the Company before incurring
six consecutive One-Year Break in Service Years and repays
to the Plan the entire amount previously distributed to him
prior to 60 months after such reemployment, any amounts so
forfeited (unadjusted for any increase or decrease in the
value of Trust assets subsequent to the Anniversary Date on
which the forfeiture occurred) shall be reinstated to the
Participant's Incentive Account within a reasonable time
after such repayment. (Prior to July 1, 1994, to receive a
reinstatement the Participant must meet all of the
conditions of the preceding sentence except that he must
repay all of his Employee Contributions and Compensation
Deferrals paid with respect to Employer Contributions which
were forfeited; the Participant shall not be entitled to
repay any other amounts paid from the Plan.) Such
reinstatement shall be made from forfeitures of Participants
occurring during the Plan Year in which such reinstatement
occurs to the extent such forfeitures are attributable to
contributions by the same Company (or a Company that is a
Related Company to that Company) and earnings on such
contributions; provided, however, if such forfeitures are
not sufficient to provide such reinstatement, the
reinstatement shall be made from the current year's
contribution by that Company to the Plan. If a Participant
ceases to participate and does not receive a complete
distribution of his Accounts, such portion of his non-vested
Participant Incentive Account as of the Allocation Date
which coincides with the end of the sixth consecutive One-
Year Break in Service Year (without being previously
reemployed) shall be forfeited and allocated in the manner
provided in Section 3.11.
(e) If before he was fully vested, a Participant has
previously received any in-service withdrawal from his
Participant Incentive Account, then his vested interest in
his Participant Incentive Account shall be equal to the sum
of (1) and (2), multiplied by (3), minus (1), where said
(1), (2) and (3) are determined as follows:
(1) the sum of all such amounts previously received
from such account.
(2) the latest balance of such account.
(3) the most recent vested percentage applicable to
the Participant in accordance with the above schedule.
The foregoing rules shall also apply to a Participant if
both of the following conditions are met: (i) before he was
fully vested, he previously received any amount from his
Participant Incentive Account due to a prior termination of
employment and (ii) prior to July 1, 1994, he made the
repayments described in subsection (d) above and thus
received a restoration of an otherwise forfeitable amount
pursuant to Section 5.2(d).
(f) Notwithstanding the preceding subsections, in
the case of a Participant who incurs a Break in Employment
prior to the first Plan Year beginning after 1984, the word
"one" shall be substituted for "six" in subsections (b), (c)
and/or (d) if such substitution results in the following
conditions being met: in the case of subsection (b), the
described forfeiture would have occurred prior to the first
Plan Year beginning after 1984; or, in the case of
subsections (c) and (d), a One-Year Break in Service Year
would have occurred before the first Plan Year beginning
after 1984.
<PAGE>
ARTICLE VI
DISTRIBUTIONS
6.1 - Distribution of Benefits.
(a) Except as provided below, benefits shall become
distributable to a Participant or his Beneficiary (in the
case of death) upon a Break in Employment and shall be
distributed as soon as practicable following the
Participant's Break in Employment.
(b) Subject to subsection (d), the amount of the
benefits distributable to a Participant upon a Break in
Employment shall be the amounts credited to his Participant
Contribution Account, Cash or Deferred Account, Paysop
Account, and Rollover Account as of the applicable
Distribution Value Date plus the vested portion of the
amount credited to his Participant Incentive Account as of
the applicable Distribution Value Date.
(c) (i) The normal form of distribution of a
Participant's Paysop Account, if any, and the vested portion
of any other Account invested in Fund G shall be a single
distribution in full shares of Company Stock (plus cash
representing any fractional shares). The Participant shall
receive that number of shares of Company Stock equal to the
balance in Paysop Account and vested portion of his Fund G
Account divided by the Price Per Share of Company Stock, in
each case as determined on the applicable Distribution Value
Date. In lieu thereof, subject to clause (iii) below, a
Participant may elect to receive a distribution of his
Paysop Account and the vested portion of any other Account
invested in Fund G as follows: (1) entirely in cash, in
which case the Participant shall receive the Account balance
on the applicable Distribution Value Date, or (2) in
accordance with Section 6.1(c)(iii).
(ii) Except for amounts paid under Section
6.1(c)(i), the normal form of distribution of a
Participant's Participant Contribution Account, Cash or
Deferred Account, Rollover Account and the vested interest
in his Participant Incentive Account shall be a cash lump
sum.
(iii) If the nonforfeitable balance in the
Participant's Accounts exceeds $3,500, the Participant may
elect that all or a part of his Accounts be distributed in
the form of approximately equal annual (or monthly or
quarterly) installments (to be paid over a period not to
exceed the lesser of the Participant's life expectancy or 15
years). No Beneficiary shall be allowed to elect
installment payments. The amount distributed on each
installment date during a Plan Year shall equal the entire
balance as of the prior Plan Year end (excluding any portion
of the Account paid as a lump sum) divided by the number of
installments left in the payment period. Each installment
shall be made, on a prorata basis, from each of the
Investment Funds. Finally, a Participant who elects
installments may elect a lump sum on the remaining balance
at any time.
(d) Notwithstanding the foregoing and subject to
Section 2.8(c), if the nonforfeitable balance in the
Participant's Accounts exceeds $3,500, distribution shall
commence upon a Break in Employment only if the Participant
(or Beneficiary if the Beneficiary was the Participant's
spouse at the time the Participant's death) gives written
consent to such a distribution; otherwise, distribution
shall commence as soon as practicable after the applicable
Distribution Value Date after the Participant gives written
consent to a distribution of the nonforfeitable balance of
his Accounts, but in no event later than the date prescribed
by Section 6.7(b). A Beneficiary who was not the
Participant's spouse at the time of the Participant's death
shall not be permitted to defer benefits in accordance with
the preceding sentence. An explanation of the Participant's
right to defer distribution of the nonforfeitable balance of
his Accounts shall be provided to the Participant no less
than 30 and no more than 90 days before the date such
distribution is to be made (consistent with such regulations
as the Secretary of Treasury may prescribe). Such
distribution may commence less than 30 days after the notice
described in this subsection is given, provided that:
(1) the Committee clearly informs the Participant that the
Participant has the 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, if applicable,
a particular distribution option), and (2) the Participant,
after receiving the notice, affirmatively elects an
immediate distribution.
(e) If a terminating Participant consents to
immediate distribution, the nonvested portion of his
Accounts shall be forfeited in the year of distribution and
his rights with respect to the forfeited portion shall be
governed by Section 5.2(d).
6.2 - Withdrawals of Employee Contributions.
A Participant may withdraw part or all of his
Participant Contribution Account as of the applicable
Distribution Value Date. Such a withdrawal may be made only
once each Plan Year. Unless the Committee provides
otherwise, such withdrawal shall be made by written notice
filed with the Committee (as such time established by the
Committee from time to time) prior to the intended
Distribution Value Date. Withdrawals from a Participant's
Contribution Account shall be made on all amounts of each
classification below (listed in descending order) before
amounts may be withdrawn from the next lower classification;
(a) The Participant's Employee Contributions made
before 1987 (and accounted for separately), less any prior
withdrawals made from these amounts; and
(b) The Participant's Employee Contributions made
after 1986, and any earnings attributable to all Employee
Contributions.
Notwithstanding anything to the contrary in this
Section 6.2, distributions pursuant to this Section 6.2
shall be made pro rata from the Investment Funds;
distributions from Fund G shall be made in cash.
6.3 - Hardship Withdrawals.
(a) Subject to the approval of the Committee and
guidelines promulgated by the Committee, withdrawals from
the vested portion of the Participant Accounts (other than
the Paysop Account) may be permitted to meet a financial
hardship resulting from:
(1) Uninsured medical expenses previously incurred
by the Participant, or the Participant's spouse or
dependent or necessary to obtain such medical care;
(2) The purchase (excluding mortgage payments) of a
principal residence of the Participant;
(3) The payment of tuition for the next 12 months of
post-secondary education for the Participant, or the
Participant's spouse, children or dependents;
(4) The prevention of eviction of the Participant
from his principal residence, or foreclosure on the
mortgage of the Participant's principal residence; and
(5) Any other event described in Treasury
Regulations or rulings as an immediate and heavy financial
need and approved by the Company as a reason for
permitting distribution under this Section.
The Committee shall determine, in a non-discriminatory
manner, whether a Participant has a financial hardship. A
distribution may be made under this Section only if such
distribution does not exceed the amount required to meet the
immediate financial need created by the hardship (including
taxes or penalties reasonably anticipated from the
distribution) and is not reasonably available from other
resources of the Participant.
(b) The withdrawal amount shall not in any event
exceed the excess of (1) the vested portion of the
Participant Accounts (excluding the Paysop Account) as of
the applicable Distribution Value Date following the
Committee's acceptance of the Participant's application for
a hardship withdrawal over (2) the amount of any outstanding
loan from the Plan as of such day. In addition, the
withdrawal amount from the Cash or Deferred Account shall
not exceed the value of the Participant's Compensation
Deferrals to such Accounts, less previous withdrawals and
excluding earnings. Notwithstanding the foregoing, any
distribution under this Section may include earnings accrued
to the Participant's Cash or Deferred Account prior to 1989.
Payment of the withdrawal shall be in a single sum as soon
as practicable following the applicable Distribution Value
Date. Notwithstanding anything to the contrary in this
Section 6.3, distributions pursuant to this Section 6.3
shall be made pro rata from the Investment Funds;
distributions from Fund G shall be made in cash.
Distributions shall be made first from the Participant
Contribution Account, then the Participant Incentive
Account, then the Rollover Account and finally the Cash or
Deferred Account.
(c) If a Participant withdraws any amount from his
Cash or Deferred Account pursuant to this Section, he must
agree in writing that he shall be unable to elect that any
Compensation Deferrals, Employee Contributions or any other
employee contributions (excluding mandatory employee
contributions to a defined benefit plan) be made on his
behalf under this Plan or under any other plan maintained by
the Company or a Related Company until one year after
receipt of the withdrawal. For purposes of the preceding
sentence, a plan includes any qualified plan or nonqualified
plan of deferred compensation and any stock purchase or
stock option plan, but does not include cafeteria plans or
any other health or welfare benefit plans. In addition, a
Participant who withdraws any amount from his Cash or
Deferred Account pursuant to this Section shall be unable to
elect any Compensation Deferrals under this Plan or under
any other plan maintained by the Company or a Related
Company for the Participant's taxable year immediately
following the taxable year of the withdrawal to any extent
that such Compensation Deferral would exceed the applicable
limit under Section 402(g) of the Code for such taxable
year, reduced by the amount of such Participant's
Compensation Deferrals for the taxable year of the
withdrawal.
(d) A Participant shall not be permitted to make any
withdrawals from his Cash or Deferred Account pursuant to
this section until he has obtained all distributions, other
than hardship distributions, and all non-taxable loans
currently available under all qualified profit sharing and
retirement plans maintained by the Company or a Related
Company.
6.4 - Withdrawals from Accounts Upon Attaining Age 59-1/2.
After attaining age 59-1/2, a Participant may elect
to withdraw vested amounts, in cash, from his any or all of
his Accounts, other than his Paysop Account. No more than
one withdrawal may be made in any Plan Year from an Account
under this section. For purposes of withdrawals under this
section, a Participant's Accounts shall be valued as of the
applicable Distribution Value Date following the
Committee's acceptance of the Participant's written
application for a distribution under this section and shall
be distributed as soon as practicable thereafter.
Notwithstanding anything to the contrary in this Section
6.4, distributions pursuant to this Section 6.4 shall be
made pro rata from the Investment Funds; distributions from
Fund G shall be made in cash. Distributions shall be made
first from the Participant Contribution Account, then the
Participant Incentive Account, then the Rollover Account and
finally the Cash or Deferred Account.
6.5 - Qualified Domestic Relations Orders.
Subject to the procedures established by the
Committee under Section 9.4(b), benefits may be paid from
the nonforfeitable balance of a Participant's Accounts in
accordance with a qualified domestic relations order as
defined in Section 414(p) of the Code without regard to
whether the Participant has attained the "earliest
retirement age," as defined in Section 414(p) of the Code.
6.6 - Inability to Locate Participant.
In the case of any distribution of an account under
this Plan, if the Committee is unable to make such payment
within three years after payment is due a Participant or
Beneficiary because it cannot locate such Participant or
Beneficiary, the Trustee shall direct that such amount shall
be forfeited and shall be reallocated (as of the Allocation
Date coincident with or next succeeding the expiration of
the aforesaid time limit) in accordance with Section 3.11,
as in the case of amounts forfeited for any other reason and
the assets of this Plan shall be relieved of the liability
for such payment. If, after such forfeiture, the
Participant or Beneficiary later claims such benefit, such
account shall be reinstated from forfeitures of Participants
in this Plan occurring during the Plan Year in which such
reinstatement occurs; provided, however, that if such
forfeitures are not sufficient to provide such
reinstatement, an additional Company contribution shall be
made for the Plan Year in which reinstatement occurs to
cover such reinstatement. Establishment of an account
through such reinstatement shall not be deemed an "annual
addition" under Section 415 of the Code or Article IV of the
Plan.
6.7 - Limitations on Distributions.
(a) When benefits become distributable, the
Committee shall direct the Trustee to distribute the amount
described above promptly, the payment of such benefits to
commence, notwithstanding anything to the contrary contained
herein, no later than 60 days following the close of the
later of the Plan Year in which (1) a Participant reaches
Normal Retirement Age, (2) the Participant incurs a Break in
Employment, or (3) occurs the 10th anniversary of the year
in which the Participant commenced participation in the Plan
(unless the amount of the Participant's benefit has not been
calculated by that date or the Participant cannot be
located, in which case distribution shall begin no later
than 60 days after the payment can be calculated or the
Participant located).
(b) Notwithstanding anything to the contrary
contained herein, the distribution options under the Plan
shall comply with Section 401(a)(9) of the Code and
regulations promulgated thereunder, which are hereby
incorporated by this reference as a part of the Plan.
Accordingly, unless otherwise permitted by law, the entire
interest of each Participant shall commence to be
distributed, by April 1 of the calendar year following the
later of (i) the calendar year in which the Participant
reaches age 70-1/2, or (ii) except for a 5% owner of the
Company, the calendar year the Participant retires. In the
case of the Participant's death prior to the commencement of
his benefits, distribution to a Beneficiary who was the
Participant's spouse at the time of the Participant's death
shall begin no later than the date on which the Participant
would have attained age 70-1/2 and distribution to any other
Beneficiary shall begin no later than one year after the
Participant's death. Distribution shall be made over the
life of such Participant (or over the lives of the
Participant and his Beneficiary) or over a period not
extending beyond the life expectancy of the Participant (or
over a period not extending beyond the life expectancy of
the Participant and his Beneficiary). In the case of the
Participant's death after the commencement of his benefits,
distribution of the Participant's remaining interest shall
occur at least as rapidly as under the method of
distribution in effect as of the date of the Participant's
death. If a Participant continues employment past the
required beginning date described above, distributions
required to be made shall be appropriately adjusted to
reflect additional accruals and to reflect to the minimum
required payments in accordance with Treasury Regulations.
6.8 - Special Rules for Paysop Accounts.
(a) No in-service withdrawals shall be allowed from
Paysop Accounts.
(b) Except as provided by Section 401(a)(9) of the
Code, no Company Stock allocated to a Participant's Paysop
Account may be distributed from such Account before the end
of the 84th month beginning after the month in which the
Company Stock is allocated to that Account, except that such
Company Stock may, if other provisions of the Plan so
permit, be distributed on an earlier date pursuant to the
provisions of this Plan in the event of: (1) the
Participant's death, disability or other termination of
employment; (2) the Participant's transfer to the employment
of an acquiring company in the case of a sale to the
acquiring company of substantially all of the assets used by
a company in a trade or business conducted by such company,
or (3) with respect to the Company Stock of the Company, a
disposition of such Company's interest in a subsidiary when
the Participant continued employment with the subsidiary.
(c) Unless a Participant elects otherwise, his
Paysop Account shall be distributed by the end of the Plan
Year following the Plan Year in which his Break in
Employment occurred.
(d) In the event the tax credit claimed by the
Company with respect to the Paysop Accounts is recaptured or
redetermined, all amounts transferred to the Paysop Accounts
shall remain in the Plan allocated to such Accounts.
6.9 - Direct Rollovers.
(a) This Section applies to distributions made on or
after January 1, 1993. Notwithstanding any provision of the
Plan to the contrary that would otherwise limit a
Distributee's election under this Section, if a Distributee
will receive an Eligible Rollover Distribution of at least
$200, the Distributee may elect, at the time and in the
manner prescribed by the Committee, to have any portion of
an Eligible Rollover Distribution paid directly to an
Eligible Retirement Plan specified by the Distributee in a
Direct Rollover; provided, however, that a Distributee may
not elect to have an Eligible Rollover Distribution of less
than $500 paid directly to an Eligible Retirement Plan
unless the Distributee elects to have his or her entire
Eligible Rollover Distribution paid directly to the Eligible
Retirement Plan. In addition, a Distributee may not elect
to have an Eligible Rollover Distribution paid directly to
more than one Eligible Retirement Plan.
(b) Definitions.
(1) For purposes of this Section 6.9, 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: (i) any distribution that is one of a series of
substantially equal periodic payments (not less frequently
than annually) made for the life (or life expectancy) of
the Distributee or the joint lives (or joint life
expectancies) of the Distributee and the Distributee's
designated Beneficiary, or for a specified period of ten
years or more; (ii) any distribution to the extent such
distribution is required under Section 401(a)(9) of the
Code; (iii) the portion of any distribution that is not
includible in gross income (determined without regard to
the exclusion for net unrealized appreciation with respect
to employer securities); or (iv) any other type of
distribution which the Internal Revenue Service announces
(pursuant to regulation, notice or otherwise) is not an
`eligible rollover distribution' under Section 402(c) of
the Code.
(2) For purposes of this Section 6.9, an 'Eligible
Retirement Plan' is an individual retirement account
described in Section 408(a) of the Code, an individual
retirement annuity described in Section 408(b) of the
Code, an annuity plan described in Section 403(a) of the
Code, or a qualified trust described in Section 401(a) of
the Code, that accepts the Distributee's Eligible Rollover
Distribution. However, in the case of an Eligible
Rollover Distribution to the surviving spouse, an Eligible
Retirement Plan is an individual retirement account or
individual retirement annuity.
(3) For purposes of this Section 6.9, a
'Distributee' includes an Employee or former Employee. In
addition, the Employee's or former Employee's surviving
spouse and the Employee's or former Employee's spouse or
former spouse who is the alternate payee under a qualified
domestic relations order, as defined in Section 414(p) of
the Code, are Distributees with regard to the interest of
the spouse or former spouse.
(4) For purposes of this Section 6.9, a 'Direct
Rollover' is a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
<PAGE>
ARTICLE VII
ADMINISTRATION
7.1 - The Committee.
The Committee shall be responsible for the general
administration of the Plan. The Chairman or any other
member or members of the Committee designated by the
Chairman may execute any certificate or other written
direction on behalf of the Committee. The Trustee or any
third person dealing with the Committee may conclusively
rely upon any certificate or other written direction so
signed.
7.2 - Rights and Duties.
(a) The Company shall be the Plan Administrator (as
defined in Section 3(16)(A) of ERISA.) The Company
delegates its duties under the Plan to the Committee. The
Committee shall act as the Fiduciary with respect to control
and management of the Plan (except with respect to the
investment, management and control of any Plan assets) for
purposes of ERISA on behalf of the Participants and their
Beneficiaries, shall enforce the Plan in accordance with its
terms, shall be charged with the general administration of
the Plan, and shall have all full, complete and
discretionary powers necessary to accomplish its purposes,
including (in addition to any other powers given to the
Committee in the Plan), but not by way of limitation, the
following:
(1) To determine all questions relating to the
eligibility of Employees to participate;
(2) To construe and interpret the terms and
provisions of this Plan;
(3) To compute, certify to, and direct the Trustee
with regard to the amount and kind of benefits payable to
Participants and their Beneficiaries;
(4) To authorize all disbursements by the Trustee
from the Trust;
(5) To maintain all records that may be necessary
for the administration of the Plan other than those
maintained by the Trustee;
(6) To provide for the disclosure of all information
and the filing or provision of all reports and statements
to Participants, Beneficiaries or governmental agencies as
shall be required by ERISA or other law, other than those
prepared and filed by the Trustee;
(7) To make and publish such rules for the
regulation of the Plan as are not inconsistent with the
terms hereof;
(8) To appoint a plan administrator or, any other
agent, and to delegate to them or to the Trustee such
powers and duties in connection with the administration of
the Plan as the Committee may from time to time prescribe,
and to designate each such administrator or agent as
Fiduciary with regard to matters delegated to him;
(9) To implement different procedures for
distributions, withdrawals and loans, including, without
limitation, the choice of a Distribution Value Date and a
cutoff date as of which distributions will be processed;
and
(10) To establish claims procedures consistent with
regulations of the Secretary of Labor for presentation of
claims by Participants and Beneficiaries for Plan
benefits, consideration of such claims, review of claim
denials and issuance of a decision on review. Such claims
procedures shall at a minimum consist of the following:
(A) The Committee shall notify Participants
and, where appropriate, Beneficiaries of their right
to claim benefits under the claims procedures, shall
make forms available for filing of such claims, and
shall provide the name of the person or persons with
whom such claims should be filed.
(B) The Committee shall establish procedures
for action upon claims initially made and the
communication of a decision to the claimant promptly
and, in any event, not later than 90 days after the
claim is received by the Committee, unless special
circumstances require an extension of time for
processing the claim. If an extension is required,
notice of the extension shall be furnished the
claimant prior to the end of the initial 90-day
period, which notice shall indicate the reasons for
the extension and the expected decision date. The
extension shall not exceed 90 days. The claim may be
deemed by the claimant to have been denied for
purposes of further review described below in the
event a decision is not furnished to the claimant
within the period described in the three preceding
sentences. Every claim for benefits which is denied
shall be denied by written notice setting forth in a
manner calculated to be understood by the claimant
(i) the specific reason or reasons for the denial,
(ii) specific reference to any provisions of this
Plan on which denial is based, (iii) description of
any additional material or information necessary for
the claimant to perfect his claim with an explanation
of why such material or information is necessary, and
(iv) an explanation of the procedure for further
reviewing the denial of the claim under the Plan.
(C) The Committee shall establish a procedure
for review of claim denials, such review to be
undertaken by the Committee. The review given after
denial of any claim shall be a full and fair review
with the claimant or his duly authorized
representative having 60 days after receipt of denial
of his claim to request such review, the right to
review all pertinent documents and the right to
submit issues and comments in writing.
(D) The Committee shall establish a procedure
for issuance of a decision by the Committee not later
than 60 days after receipt of a request for review
from a claimant unless special circumstances, such as
the need to hold a hearing, require a longer period
of time, in which case a decision shall be rendered
as soon as possible but not later than 120 days after
receipt of the claimant's request for review. The
decision on review shall be in writing and shall
include specific reasons for the decision written in
a manner calculated to be understood by the claimant
with specific reference to any provisions of this
Plan on which the decision is based.
7.3 - Qualified Plans Investment Committee.
With respect to management or control of Trust
assets, the Qualified Plans Investment Committee
("Investment Committee") shall have the power to direct the
Trustee in writing with respect to the investment of the
Trust assets or any part thereof and shall be the Named
Fiduciary with respect to the management and control of the
Trust assets. Where investment authority, management and
control of Trust assets have been delegated to the Trustee
by the Investment Committee, the Trustee shall be the
Fiduciary with respect to the investment, management and
control of the Trust assets contributed by the Company and
Participants with full discretion in the exercise of such
investment, management and control. Except as otherwise
provided by law, the Board of Directors or the Investment
Committee may appoint one or more Investment Manager(s) as
defined in Section 1.2 of the Plan, to invest the Trust
assets or any part thereof. Where investment authority,
management, and control of Trust assets is not specifically
delegated to the Trustee, the Trustee shall be subject to
the direction of the Investment Committee or the Investment
Manager(s) appointed by the Investment Committee, if any,
regarding the investment, management and control of such
assets, and in such case the Investment Committee, or the
Investment Manager(s), as the case may be, shall be the
Fiduciary with respect to the investment, management and
control of such assets.
Notwithstanding the preceding paragraph or any other
provision of this Plan, neither the Investment Committee,
the Committee, the Board, the Company, the Trustee nor any
Investment Manager shall be a Fiduciary with respect to the
designation or direction by a Participant (or Beneficiary)
of Investment Funds with respect to that Participant's
Account. Each Participant (or Beneficiary) shall be the
named Fiduciary (except as otherwise provided by Section
404(c) of ERISA) with respect to any designation, direction
or other exercise of control of Investment Funds with
respect to his Account. As a result, with respect to
designations and directions described in this Plan and any
other exercise of control by a Participant (or Beneficiary
over assets in the Participant's Accounts, such Participant
(or Beneficiary) shall be solely responsible for such
actions and neither the Investment Committee, the Committee,
the Trustee, the Company, the Board of Directors nor any
other person or entity which is otherwise a Fiduciary shall
be liable for any loss or liability which results from such
Participant's or Beneficiary's exercise of control.
The Chairman or any other member or members of the
Investment Committee designated by the Chairman (or such
other delegate designated by the Investment Committee) may
execute any certificate or other written direction on behalf
of the Investment Committee. The Trustee or any third
person dealing with the Investment Committee may
conclusively rely upon any certificate or other written
direction so signed.
7.4 - Procedure for Establishing Funding Policy --
Transmittal of Information.
In order to enable the Investment Committee to
establish a funding policy and perform its other functions
under the Plan, the Company shall supply full and timely
information to the Investment Committee on all matters
relating to the Compensation, employment, retirement, death,
or the cause for termination of employment of each
Participant and such other pertinent facts as may be
required. The Investment Committee shall advise the Trustee
and the Investment Manager, as appropriate, of such of the
foregoing facts as may be pertinent to the duties of the
Trustee and Investment Manager under the Plan.
7.5 - Other Information.
To enable the Committee and Investment Committee to
perform its functions, the Company shall supply full and
timely information to the Committee and Investment Committee
on all matters relating to the compensation of all
Participants, their employment, retirement, death or other
cause for termination of employment, and such other
pertinent facts as the Committee and Investment Committee
may require; and the Committee and Investment Committee
shall advise the Trustee of such of the foregoing facts as
may be pertinent to the Trustee's duties under the Plan.
7.6 - Compensation, Bonding, Expenses and Indemnity.
(a) The members of the Committee and Investment
Committee shall serve without compensation for their
services hereunder.
(b) Members of the Committee and Investment
Committee and any delegates shall be bonded to the extent
required by Section 412(a) of ERISA and the regulations
thereunder. Bond premiums and all expenses of the Committee
and Investment Committee or of any delegate who is an
employee of the Company shall be paid by the Company and the
Company shall furnish the Committee and Investment Committee
and any such delegate with such clerical and other
assistance as is necessary in the performance of their
duties.
(c) The Committee and Investment Committee are
authorized at the expense of the Company to employ such
legal counsel as it may deem advisable to assist in the
performance of its duties hereunder. Expenses and fees in
connection with the administration of the Plan and the Trust
shall be paid from the Trust assets to the fullest extent
permitted by law, unless the Company determines otherwise.
(d) To the extent permitted by applicable state law,
the Company shall indemnify and save harmless the Board of
Directors, the Committee (and each member thereof), the
Investment Committee (and each member thereof), and any
delegate of the Committee or the Investment Committee who is
an employee of the Company against any and all expenses,
liabilities and claims, including legal fees to defend
against such liabilities and claims arising out of their
discharge in good faith of responsibilities under or
incident to the Plan, other than expenses and liabilities
arising out of willful misconduct. This indemnity shall not
preclude such further indemnities as may be available under
insurance purchased by the Company or provided by the
Company under any by-law, agreement or otherwise, as such
indemnities are permitted under state law. Payments with
respect to any indemnity and payment of any expenses and
fees under this Section shall be made only from assets of
the Company and shall not be made directly or indirectly
from Trust assets.
7.7 - Manner of Administering.
The Committee shall have full discretion to construe
and interpret the terms and provisions of this Plan, which
interpretation or construction shall be final and binding on
all parties, including but not limited to the Company and
any Participant or Beneficiary, except as otherwise provided
by law. The Committee shall administer such terms and
provisions in full accordance with any and all laws
applicable to the Plan.
7.8 - Duty of Care.
(a) In the exercise of the powers and duties of the
Committee and Investment Committee, each member of the
Committee and Investment Committee shall use the care,
prudence, and diligence under the circumstances then
prevailing that a prudent person acting in a like capacity
and familiar with such matters would use in the conduct of
an enterprise of a like character and with like aims.
(b) Each Fiduciary under the Plan and Trust shall be
solely responsible for its own acts or omissions. Except to
the extent required by ERISA or the Code, no Fiduciary shall
have the duty to question whether any other Fiduciary is
fulfilling any or all of the responsibilities imposed upon
such other Fiduciary by ERISA or by any regulations or
rulings issued thereunder. No Fiduciary shall have any
liability for a breach of fiduciary responsibility of
another Fiduciary with respect to the Plan or Trust unless
he knowingly participates in such breach, knowingly
undertakes to conceal such breach, has actual knowledge of
such breach and fails to take reasonable remedial action to
remedy said breach or, through his negligence in performing
his own specific fiduciary responsibilities, has enabled
such other Fiduciary to commit a breach of the latter's
fiduciary responsibilities.
7.9 - Committee Report.
The Committee and Investment Committee shall keep the
Board of Directors apprised of the investment results of the
Plan and shall report any other information necessary to
fully inform the Board of Directors of the status and
operation of the Plan and Trust.
7.10 - Section 404(c) Provisions.
(a) This Plan is intended to constitute a plan
described in Section 404(c) of ERISA, and the regulations
thereunder. Accordingly, the Committee intends to provide
to each Participant or his or her Beneficiary the
information described in Section 2530.404c-1(b)(2)(i)(B)(1)
of the Department of Labor Regulations. In addition, upon
request by a Participant or his or her Beneficiary, the
Committee shall provide the information described in
Sections 2530.404c-1(b)(2)(i)(B)(2) of the Department of
Labor Regulations.
(b) The Committee shall take such actions and
establish such procedures as it deems necessary to ensure
the confidentiality of information relating to the purchase,
sale, and holding of Common Stock, and the exercise of
voting, tender and similar rights with respect to such stock
by a Participant or his or her Beneficiary. Notwithstanding
the foregoing, such information may be disclosed to the
extent necessary to comply with applicable state and federal
laws.
(c) In the event of a tender or exchange offer with
respect to the Company, or in the event of a contested
election with respect to the Board of Directors, the Company
shall, at its own expense, appoint an independent Fiduciary
to carry out the Committee's administrative functions with
respect to the Common Stock Fund. Such independent
Fiduciary shall not be an "affiliate" of the Company as such
term is defined in Section 2530.404c-1(e)(3) of the
Department of Labor Regulations.
(d) The Committee may take such other actions or
implement such other procedures as it deems necessary or
desirable in order that the Plan comply with Section 404(c)
of ERISA.
<PAGE>
ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 - Amendments.
The Company shall have the right to amend or modify
the Plan by resolution of the Board of Directors and to
amend or cancel any amendments. In addition, any person or
persons duly authorized by the Board of Directors shall have
the authority to execute any amendment to the Plan which is
necessary to maintain the qualification and tax exempt
status of the Plan under the Code, and any other amendments
to the Plan which (1) do not have the effect of increasing
the liability of the Company in a manner which would cause a
significant detriment to the Company or (2) do not
significantly increase the benefits payable to such officer,
except in his capacity as a member of a broad class of
employees for whom benefits are being increased. To the
extent otherwise provided in the Plan, the Committee may
also amend the Plan. Except for a Board resolution which
indicates it amends the Plan, any amendment shall be stated
in an instrument in writing, executed in the same manner as
the Plan. Except as may be required to permit the Plan and
Trust to meet the requirements for qualification and tax
exemption under the Code, or the corresponding provisions of
other or subsequent revenue laws or of ERISA, no amendment
may be made which may:
(a) Cause any of the assets of the Trust, at any
time prior to the satisfaction of all liabilities with
respect to Participants and their Beneficiaries, to be
used for or diverted to purposes other than for the
exclusive benefit of Participants or their Beneficiaries;
(b) Decrease the accrued benefit of any Participant
or Beneficiary within the meaning of Section 411(d)(6) of
the Code;
(c) Create or effect any discrimination in favor of
Participants who are Highly Compensated Employees; and
(d) Increase the duties or liabilities of the
Trustee without its written consent.
8.2 - Discontinuance of Plan.
(a) It is the Company's expectation that this Plan
and the payment of contributions hereunder will be continued
indefinitely, but continuance of the Plan by the Company is
not assumed as a contractual obligation, and the Company
reserves the right to permanently discontinue contributions
hereunder. In the event of the complete discontinuance of
contributions by the Company, the entire interest of each
Participant affected thereby shall immediately become 100%
vested. The Company shall not be liable for the payment of
any benefits under this Plan and all benefits hereunder
shall be payable solely from the assets of the Trust.
(b) The Company may terminate this Plan at any time.
Upon complete termination or partial termination of the
Plan, the entire interest of each of the affected
Participants shall become 100% vested. The Trustee shall
thereafter, upon direction of the Committee, distribute to
the Participants the amounts in such Participant's Company
and Voluntary Contribution Accounts in the same manner as
set forth in Article VI, subject, where appropriate, to
Section 403(d)(1) of ERISA and regulations of the Secretary
of Labor thereunder as may affect allocation of assets upon
termination of such Plan.
8.3 - Failure to Contribute.
Any failure by the Company to contribute to the Trust
in any year when no contribution is required under this Plan
shall not of itself be a discontinuance of contributions
under this Plan.
8.4 - Plan Merger or Consolidation; Transfer of Plan Assets.
(a) This Plan shall not be merged or consolidated
with, nor shall its assets or liabilities be transferred to,
any other plan unless each Participant in this Plan (if the
Plan then terminated) would receive a benefit immediately
after the merger, consolidation or transfer which is equal
to or greater than the benefit such Participant would have
been entitled to receive immediately before the merger,
consolidation or transfer (if this Plan had been
terminated). Where the foregoing requirement is satisfied,
this Plan and its related Trust may be merged or
consolidated with another qualified plan and trust.
(b) The Committee may, in its discretion, authorize
a plan to plan transfer, provided such a transfer will meet
the requirements of Section 414(l) of the Code and that all
other actions legally required are taken. In the event of a
transfer of assets from the Plan pursuant to this
subsection, any corresponding benefit liabilities shall also
be transferred.
(c) Notwithstanding Section 8.1, the Committee may
amend the Exhibits of the Plan to reflect the particulars of
any plan to plan transfer and the approval of the Board of
Directors shall not be required for such an amendment.
<PAGE>
ARTICLE IX
MISCELLANEOUS
9.1 - Contributions Not Recoverable.
Except where contributions are required to be
returned to the Company by the provisions of this Plan as
permitted or required by ERISA or the Code, it shall be
impossible for any part of the contributions made under this
Plan to be used for, or diverted to, purposes other than the
exclusive benefit of Participants or their Beneficiaries.
Notwithstanding this or any other provision of this Plan,
the Company shall be entitled to recover, and the
Participants under this Plan shall have no interest in
(a) any contributions made under this Plan by mistake of
fact, so long as the contribution is returned within one
year after payment or (b) any contributions for which
deduction is disallowed under Section 404 of the Code, so
long as the contributions are returned to the Company within
one year following such disallowance or as permitted or
required by the Code or ERISA. In the event of such mistake
of fact or disallowance of deductions, contributions shall
be returned to the Company, subject to the limitations, if
any, of Section 403(c) of ERISA.
9.2 - Limitation on Participant's Rights.
Participation in this Plan shall not give any
Employee the right to be retained as an Employee of the
Company or any right or interest under the Plan other than
as herein provided. The Company reserves the right to
dismiss any Employee without any liability for any claim
either against the Trustee, the Trust except to the extent
provided in the Trust, or against the Company. All benefits
under the Plan shall be provided solely from the assets of
the Trust.
9.3 - Receipt or Release.
Any payment to any Participant or Beneficiary in
accordance with the provisions of the Plan shall, to the
extent thereof, be in full satisfaction of all claims
against the Trustee, the Committee, the Investment Committee
and the Company. The Trustee may require such Participant
or Beneficiary, as a condition precedent to such payment, to
execute a receipt and release to such effect.
9.4 - Alienation.
(a) None of the benefits, payments, proceeds or
claims of any Participant or Beneficiary shall be subject to
any claim of any creditors and, in particular, the same
shall not be subject to attachment or garnishment or other
legal process by any creditor, nor shall any such
Participant or Beneficiary have the right to alienate,
anticipate, commute, pledge, encumber or assign any of the
benefits or payments or proceeds which such Participant or
Beneficiary may expect to receive, contingently or
otherwise, under this Plan.
(b) The provisions of this Section 9.4 shall also
apply to the creation, assignment, or recognition of a right
to any benefit payable with respect to a Participant
pursuant to a domestic relations order, unless (1) such
order is determined to be a qualified domestic relations
order, as defined in Section 414(p) of the Code, or (2) the
Committee determines in its discretion to treat any domestic
relations order entered before January 1, 1985 as a
qualified domestic relations order. The Committee shall
establish reasonable procedures to determine the qualified
status of domestic relations orders and to administer
distributions under such qualified orders. In the event a
qualified domestic relations order exists with respect to a
benefit payable under the Plan, the benefits otherwise
payable to a Participant or Beneficiary shall be payable to
the alternate payee specified in the qualified domestic
relations order.
(c) Notwithstanding subsection (a), a loan described
in Section 9.11 of the Plan shall not be considered a
violation of this Section.
9.5 - Persons Under Incapacity.
In the event any amount is payable under the Plan to
a person for whom a conservator has been legally appointed,
the payment shall be distributed to the duly appointed and
currently acting conservator, without any duty on the part
of the Committee to supervise or inquire into the
application of any funds so paid.
9.6 - Governing Law.
This Plan shall be construed, administered, and
governed in all respects under applicable federal law, and
to the extent that federal law is inapplicable, under the
laws of the State of California; provided, however, that if
any provision is susceptible to more than one interpre-
tation, such interpretation shall be given thereto as is
consistent with this Plan's remaining qualified within the
meaning of Section 401(a) of the Code. If any provisions of
this instrument shall be held by a court of competent
jurisdiction to be invalid or unenforceable, the remaining
provisions hereof shall continue to be fully effective.
9.7 - Headings, etc. Not Part of Agreement.
Headings and subheadings in this Plan are inserted
for convenience of reference only and are not to be
considered in the construction of the provisions hereof.
9.8 - Masculine Gender Includes Feminine and Neuter.
As used in this Plan, the masculine gender shall
include the feminine gender.
9.9 - Instruments in Counterparts.
This Plan may be executed in several counterparts,
each of which shall be deemed an original, and said
counterparts shall constitute but one and the same
instrument, which may be sufficiently evidenced by any one
counterpart.
9.10 - Reorganization of Company.
This Plan shall inure to the benefit of, and be
binding upon the parties hereto and their successors and
assigns. If the Company merges or consolidates with or into
a successor, this Plan shall continue in effect unless the
successor terminates this Plan.
9.11 - Loans to Participants.
(a) Each Participant shall have the right, subject
to prior approval by the Committee, to borrow from his
Accounts. Application for a loan must be made by a
Participant pursuant to the Voice Response System described
in Section 2.8, unless the Committee provides otherwise.
Approval shall be granted or denied as specified in
subsection (b), on the terms specified in subsection (c).
For purposes of this Section 9.11, but only to the extent
required by Department of Labor Regulations Section
2550.408b-1, the term "Participant" shall only include
Employees and those parties in interest as defined in
Section 3(14) of ERISA) who are former Employees,
Beneficiaries or alternate payees under a qualified domestic
relations order, as defined in Section 414(p) of the Code,
who have an interest in the Plan that is not contingent.
For purposes of this Section 9.11, Paysop Accounts shall be
ignored.
(b) The Committee shall grant any loan which meets
each of the requirements of paragraphs (1), (2) and (3)
below:
(1) The amount of the loan (when added to the
outstanding balance of all other loan from the Plan) shall
not exceed the lesser of:
(A) $50,000, reduced by the excess, if any, of
a Participant's highest outstanding balance of all
loans from the Plan during the preceding 12 months
over the outstanding balance of such loans on the
loan date, or
(B) 50% of the value of the vested balance of
the Participant's Accounts established as of the date
upon which the loan is approved on the Voice Response
System.
(2) The Loan shall be for at least $500;
(3) No Loan shall have been granted within the last
six months; and
(4) No more than three loans to a Participant may be
outstanding at any time.
(c) Each loan granted shall, by its terms, satisfy
each of the following additional requirements:
(1) Each loan, by its terms, must be repaid within
five years (except that if Participant represents (on the
Voice Response System and by cashing the check) that the
loan proceeds are being used to purchase the principal
residence of a Participant, the Committee may, in its
discretion, establish a term of up to 10 years for
repayment);
(2) Each loan must require substantially level
amortization over the term of the loan, with payments not
less frequently than quarterly; and
(3) Each loan must be adequately secured, with the
security to consist of the balance of the Participant's
Accounts. In addition, in the case of any Participant who
is an active Employee, automatic payroll deductions shall
be required as additional security.
(4) Each loan shall bear a reasonable fixed or
variable rate of interest, which rate shall be established
by the Committee from time to time and shall provide the
Plan with a return commensurate with the interest rates
charged by persons in the business of lending money for
loans which would be made under similar circumstances.
(d) All loan payments shall be transmitted by the
Company to the Trustee as soon as practicable but not later
than the end of the month during which such amounts were
received or withheld. Such amounts shall be invested in the
Funds designated by the Participant pursuant to Section
2.5(b) unless Committee provides otherwise. Each loan may
be prepaid in full at any time. Any prepayment shall be
paid directly to the Trustee in accordance with procedures
adopted by the Committee.
(e) Each loan shall be evidenced by a promissory
note of the Participant and payable in full to the Trustee,
not later than the earliest of (1) a fixed maturity date
meeting the requirements of subsection (c)(1) above, (2) the
Participant's death, (3) the termination of the Plan or (4)
except for parties in interest as defined in Section 3(14)
of ERISA, the Participant's Break in Employment (other than
a Break in Employment due to incurring a Disability Date).
Such promissory note shall evidence such terms as are
required by this section. By applying for a loan and
cashing the check evidencing the loan proceeds (whether or
not the check is endorsed), the Participant shall be deemed
to agree to the terms of any note, payroll withholding
agreement, security agreement and other documents sent to
the Participant with the check.
(f) Effective January 1, 1997, the amount of the
loan (including preexisting loans) shall reduce the amount
of the Participant's accounts invested in Investment Funds;
loan proceeds shall be taken pro rate from the Investment
Fund(s). The investment gain or loss attributable to the
loan shall not be included in the calculation or allocation
of the increase or decrease in fair market value of the
Funds of the Plan. Instead, the entire gain or loss
(including any gain or loss attributable to interest
payments or default) shall be allocated to the accounts of
the Participant. If the Participant fails (for whatever
reason, including a discharge under bankruptcy law) to repay
the full amount of the Loan, including interest, by the time
set forth in subsection (e) above, the Committee may (1)
immediately reduce the value of the Participant's vested
Accounts (other than the Paysop Account and Cash or Deferred
Account) by the amount of the unpaid principal and interest
and/or (2) at such time a distribution is to be made to the
Participant, may reduce such distribution by the amount of
any remaining unpaid principal and interest.
(g) The Committee shall have the power to modify the
above rules or establish any additional rules with respect
to loans extended pursuant to this section. Such rules may
be included in a separate document or documents and shall be
considered a part of this Plan; provided, each rule and each
loan shall be made only in accordance with the regulations
and rulings of the Internal Revenue Service and Department
of Labor and other applicable state or federal law. The
Committee shall act in its sole discretion to ascertain
whether the requirements of such regulations and rulings and
this section have been met.
9.12 - Top-Heavy Plan Requirements.
For any Plan Year for which this Plan is a Top-Heavy
Plan, as defined in Section B.3 of Appendix B, attached
hereto, and despite any other provisions of this Plan to the
contrary, this Plan will be subject to the provisions of
Appendix B.
9.13 - Voting Rights.
Participants who have a Paysop Account or other
Accounts invested in Fund G shall be entitled to vote the
Company Stock credited to such Account by providing the
Trustee with confidential voting instructions on a form to
be provided. All such voting rights with respect to the
Paysop Account shall be in accordance with Code Section
409(e).
9.14 - Dividends.
Cash dividends on shares of stock of the Corporation
allocated to Accounts may be paid, if the Committee
determines in its sole discretion, directly in cash by the
Company to such Participants, or distributed by the Trustee
within ninety (90) days after the end of the Plan Year in
which received.
9.15 - Rule 16b-3 Provisions.
(a) This Section 14.8 shall only apply to
Participants who are officers or directors subject to the
prohibitions of Section 16 of the Securities and Exchange
Act of 1934 ('SEC Section 16"). The provisions of this
Section 9.15 relate to 17 C.F.R. 240.16b-3 (hereinafter
known as Rule 16b-3), promulgated under SEC Section 16.
(b) Notwithstanding any other provision on the Plan
to the contrary, the Committee, may (but need not) provide
that, except as provided in Rule 16b-3, (1) no election of a
Stock Fund Sale shall be made unless the election is made at
least six months following the election of the most recent
Stock Fund Purchase; (2) no election of a Stock Fund
Purchase shall be made unless the election is made at least
six months following the election of the most recent Stock
Fund Sale. For this purpose, a Stock Fund Sale is either
(1) the reallocation of the investment of a Participant's
existing Account balances so that amounts in Fund G are
transferred to one or more other Funds or (2) reduction in
Fund G balances due to a distribution, withdrawal or loan to
a Participant pursuant to Sections 6.1, 6.2, 6.3, 6.4 or
9.11. A Stock Fund Purchase is the reallocation of the
investment of a Participant's existing Account balances so
that there is a transfer from one or more Funds to Fund G.
However, a transaction shall not be a Stock Fund Sale or a
Stock Fund Purchase unless it is at the volition of the
Participant, is not required to be made available to the
Participant pursuant to the Code and is not made in
connection with the Participant's death, disability,
retirement or termination of employment.
(c) The Committee may (but need not) adopt such
rules and/or take such actions or implement such measures
and/or limitations as it deems desirable in order to comply
with Rule 16b-3, including without limitation, rules that
(1) exclude Participants subject to this Section 9.15 from
using the Voice Response System and (2) provide that loans
and in-service withdrawals may be made from all Funds
(excluding Funds G and H), on a pro rata basis if the
election of the in-service withdrawal or loan is made within
six months of an election of a Stock Fund Purchase. Neither
the Company, the Board, the Committee, the Investment
Committee, the Trustee nor the Plan shall have any liability
to any Participant in the event any Participant has any
liability under SEC Section 16 due to any rule so adopted,
the failure to adopt any rule, any Plan provision (or lack
thereof), or any transaction under the Plan.
IN WITNESS WHEREOF, the undersigned has caused this
document to be executed by its duly authorized officers on
this 24th day of September, 1996.
By ___/s/ Stephen F. Adams___
By ___/s/ Carl F. Geuther___
<PAGE>
EXHIBIT A-1
ACQUISITIONS IN WHICH ONLY
ELIGIBILITY SERVICE IS COUNTED
Notwithstanding anything provided elsewhere in the
Plan, in the case of any acquisition by the Corporation (or
any subsidiary thereof) which is listed below, any employee
who was employed by such acquired company or branch
immediately prior to the acquisition by the Corporation (or
subsidiary thereof) and who became an Employee immediately
upon such acquisition shall be subject to the following
special rules:
(a) For purposes of determining eligibility in this
Plan, employment with such acquired company or branch
prior to the acquisition shall be deemed service with the
Company (except as indicated below).
(b) For purposes of determining Years of Vesting
Service, employment with such acquired company or branch
prior to the acquisition shall not be deemed service with
the Company (except as indicated below).
The following companies or branches shall be
considered acquired companies or branches for purposes of
this Exhibit A-1:
(1) Financial Federation, Inc. and corporations
affiliated therewith;
(2) the Chinatown branch of the San Francisco
Federal Savings, a Federal Savings & Loan Association;
(3) Northern California Savings, a Federal Savings &
Loan Association and any corporation affiliated therewith;
(4) the branch acquired from Investment Savings and
Loan Association on October 27, 1986;
(5) the four branches acquired from Chase Federal
Savings and Loan Association on January 5, 1987;
(6) the eight branches acquired from City Federal
Savings Bank on January 16, 1987;
(7) the branch acquired from Goldome Savings Bank on
June 26, 1987;
(8) the two branches acquired from Chase Federal
Savings and Loan Association on July 27, 1987;
(9) Southern Home Savings Bank;
(10) First Commercial Savings and Loan Association
acquired on January 22, 1988;
(11) City Finance Company, unless the employee was a
participant in the City Finance Company More At Retirement
Savings Plan;
(12) Sunpoint Savings Bank, FSB;
(13) Various Centrust Savings Bank branches and other
offices acquired on June 29, 1990, provided that no
employee thereof shall become a Participant prior to
January 1, 1991;
(14) Various Gibraltar Savings Bank branches and
other offices acquired on June 29, 1990, provided that no
employee thereof shall become a Participant prior to
January 1, 1991;
(15) Various City Savings Bank branches and other
offices acquired on September 21, 1990, provided that no
employee thereof shall become a Participant prior to
January 1, 1991;
(16) Various Carteret Savings Bank branches and other
offices acquired on October 9, 1990, provided that no
employee thereof shall become a Participant prior to
January 1, 1991;
(17) Various Lincoln Savings branches acquired on
March 2, 1991, provided that no employee thereof shall
become a Participant prior to July 1, 1991;
(18) Various Pioneer Savings branches acquired on
March 8, 1991, provided that no employee thereof shall
become a Participant prior to July 1, 1991.
(19) Various Capitol Finance branches acquired on
January 1, 1992, provided that no employee thereof shall
become a Participant prior to April 1, 1992.
(20) Various Republic branches acquired on March 23,
1992, provided that no employee thereof shall become a
Participant prior to July 1, 1992.
(21) Various AmeriFirst branches acquired on
March 21, 1992, provided that no employee thereof shall
become a Participant prior to January 1, 1993.
(22) Various Pacific First branches acquired on
February 27, 1993, provided that no employee thereof shall
become a Participant before July 1, 1993.
(23) Various HomeFed Bank branches and other offices
acquired on December 3, 1993, provided that no employees
thereof shall become a Participant prior to July 1, 1994.
<PAGE>
EXHIBIT A-2
ACQUISITIONS IN WHICH ELIGIBILITY
AND VESTING SERVICE IS COUNTED
Notwithstanding anything provided elsewhere in this
Plan, in the case of any acquisition by the Corporation (or
any subsidiary thereof) which is listed below, any employee
who was employed by such acquired company or branch
immediately prior to the acquisition by the Corporation (or
subsidiary thereof) and who became an Employee immediately
upon the acquisition shall be subject to the following
special rules:
(a) For purposes of determining eligibility in this
Plan, employment with such acquired company or branch
prior to the acquisition shall be deemed service with the
Company (except as indicated below).
(b) For purposes of determining Years of Vesting
Service, years of employment with such acquired company or
branch prior to the acquisition shall be counted as Years
of Vesting Service (except as indicated below).
The following companies or branches shall be
considered acquired companies or branches for purposes of
this Exhibit A-2:
(1) Great Western Savings Bank, a Washington
corporation, (for vesting purposes, only years of
employment commencing on the first quarter following the
employee's performance of one year of participation with
Great Western Savings Bank and ending with the date of
acquisition of Great Western Savings Bank shall be
counted);
(2) City Finance Company employees, but only if they
were participants in the City Finance Company More At
Retirement Savings Plan, in which case they shall be 100%
vested in all their Accounts under the Plan.
<PAGE>
EXHIBIT A-3
ARISTAR EMPLOYEES
Notwithstanding anything provided elsewhere in the
Plan, the entire Account balance of each participant in the
Aristar Employee Savings Incentive Plan ("Aristar Plan") who
is a "Transferred Employee" (as defined in the Employee
Benefits Agreement dated October 30, 1987 by and between the
Corporation, Great Western Bank, a Federal Savings Bank, GW
Capital Corporation, JAF Co. I (formerly Aristar, Inc.) and
John Alden Financial Corporation) shall be transferred to
this Plan and held in the appropriate accounts. Each
Transferred Employee shall automatically become a
Participant hereunder on the date he became an Employee.
Each Transferred Employee and each other person who was
eligible to participate in the Aristar Plan and who becomes
a Participant in the Plan on January 1, 1987 shall be 100%
vested in all of his Accounts.
<PAGE>
EXHIBIT B-1
SPECIAL RULE FOR FORMER PARTICIPANTS
WHO TRANSFER TO WASHINGTON TRUST BANK
A Participant in this Plan who transfers employment
to Washington Trust Bank ("WTB") pursuant to the sale (on
October 30, 1989) of certain branches by Great Western Bank,
A Savings Bank to WTB will become 100% vested in all of his
Accounts as of October 30, 1989. As soon as practicable on
or after October 30, 1989, the entire Account balances of
each such former Participant will be transferred to a
defined contribution plan maintained or to be established by
the WTB. The amount transferred for each Participant shall
be his Account balance on the Allocation Date coinciding
with or immediately preceding October 30, 1989.
<PAGE>
EXHIBIT B-2
OTHER SALES OR CLOSURES
Notwithstanding anything to the contrary in this
Plan, any Participant who is employed by the Corporation (or
any subsidiary thereof) on the date of a sale or closure of
a subsidiary, division or branch of the Corporation (or
subsidiary thereof) shall be 100% vested in his Accounts as
of the date of such sale or closure if the subsidiary,
division or branch is listed below:
(1) Nevada National Leasing;
(2) the respective sales of the Atascadero, Paso
Robles or El Centro branches of Great Western Savings
Bank; and
(3) The closure of the Eureka branch of Great
Western Savings Bank.
(4) the sale of the Pensacola branches to Sunshine
Bank on November 8, 1991.
(5) the sale of several branches to Pacific First in
1993.
(6) the closure of the Consumer Finance office
located in Cordova, Tennessee due to relocation.
<PAGE>
EXHIBIT C
COMPENSATION LIST
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
SYS ELIGIBLE
ERN LVL CK STUB FOR
ID EID DESCRIPTION NAME ESIP RET
1 REG REGULAR REGULAR Y Y
2 OVT OVERTIME - 1-1/2 OVERTIME Y Y
3 OVT DOUBLETIME DBLETIME Y Y
4 OVT HOLIDAY WORKED HOL WKD Y Y
5 DEF DEFERRED SALARY DEF COMP N N
6 BON STAY-ON BONUS % BONUS N N
7 FRB DEF COMP-CASH OUT DEFC-C/O N N
8 INT INT/ESIP-CO MATCH INT/ESIP N N
9 DCE DEFC-C/O PRIOR YEARS DC-C/O N N
10 RET REG PAY ADJ/RETRO REG ADJ Y Y
12 EIC ADVANCED EIC PAYMNT ADV EIC N N
13 OVT ACQUISION CHARGE/BK ACQ C/B Y Y
100 SHF SHIFT PAY SHIFT Y Y
101 UNP UNPAID HOURS UNPAID N N
105 SKW SICK PAY-USED SICK PAY Y Y
110 VAC VACATION PAY-USED VACATION Y Y
115 OHP OTHER PAY (BACK-OUT) OTHER Y Y
120 SKW SUPPLEMENTAL SICK SICK PAY Y Y
125 VAC SUPPLEMENTAL VAC. VACATION Y Y
130 OHP SUPPLEMENTAL OTHER OTHER Y Y
131 STD STD CARRYOVER STD-C/O Y Y
135 PPC PLUSPAY CREDITS PLUSPAY N N
138 DCE DCP-EARLY DISTRIB DC-EDIST N N
139 DCE DEFERD COMP MAKE-UP DC-MAKUP N N
140 GRB GRATUITOUS RET BEN G.R.B. N N
141 GRB EXEC GRAT RET BENE EXEC-GRB N N
142 BSR RET-BRIDGED SERVICE RET-B.S. N N
143 SRP SUPPL EXEC RET PLAN SERP N N
144 DCE DF CMP/ROLL-IN UNIT DFCP-RIU N N
180 COM LOAN AGENT COMMISSN COMMISSN Y N
182 COM LOAN AGENT DRAW L/A DRAW Y N
185 COM COMMISSION OVERRIDE COMM O/R Y Y
190 SKO ACCRUD SICK-TAXABLE ACC SICK N N
205 FRB DED/NON-TXBL MOV EX DED-MOVX N N
206 FRB NON-DED/TXBL MOV EX TXB-MOVX N N
215 APR APPRAISAL FEE APPRAISL Y Y
216 APR NEW APPRAISER INCNT APPRAISL Y Y
217 INC WKEND PROP INSPECT SFR-REO Y Y
220 BON BONUS BONUS N Y
221 BON ANNUAL BONUSES ONLY EXEC BNS N Y
222 BON EQUITY BONUS EQ-BONUS N Y
226 INC BONUS BUCK-CASH INC BONUS $ N Y
227 BON LOAN AGNT DEF BONUS DEF BON N N
228 BON CFG ANNUAL BONUS CFG BNS N Y
229 BON TEMP SAL INC-AUTOPY SAL ADJ N N
230 OCM ON-CALL MAINTENANCE ON-CALL Y Y
235 BON RELOCATION BONUS RELOCTN N N
240 MOV MOVING EXP-GROSS UP MOV EXP N N
241 TGU CFG CO CAR GROSS-UP CAR-TGU N N
242 TGU MISC TAX GROSS-UP MISC TGU N N
245 FRB STOCK OPT/B.E.-MEMO S/O-MEMO N N
250 COM SALES MNGR COMMISSN S/M-COMM Y Y
251 COM RLO COMMISSION RLO COMM Y Y
252 INC E2000-PBO/RBD PBO-RBD N N
253 INC E2000-INC/PIP PIP-INC N N
254 INC E2000-COMM/PIP PIP-COMM N N
255 COM RBD MGR COMMISSION RBD COMM Y Y
256 BON D/L-PACKAGER BONUS PACK BNS Y Y
257 COM CONS R/E LOAN COMM CREL COM Y Y
258 INC RBD CREDIT CARD INC CCSPRNT N Y
259 BON O/T OFFSET-ERN 256 O/T OFF Y Y
261 TGU GWIM-MISC AWARD TGU GWIM-TGU N N
263 INC RBD-CNTRL SITE INC RBD-CSIP N Y
264 CSR LEADSHRE REF BNS-FL LSREFBNF N N
265 CSR LEADSHRE REF BNS-CA LSREFBNC N N
266 INC SUPERMKT BRANCH INC SMKT BNS N Y
268 INC LOAN AWARD LN AWARD N Y
269 INC GWFSC REFERRAL FEES GWFS REF N Y
270 INC RBD-INCENTIVE RBD INCT N Y
271 INC LOAN BONUS LN BONUS N Y
272 INC RBD-SPECIALIZE SALE SPEC/INC N Y
273 INC RSK MGT-LOSS PREVENTN SBREWARD N Y
274 TGU NSD-FREQ FUND TGU NSD-TGU N N
275 INC TSR REFER-FASTFAX FASTFAX N Y
276 INC RLO CROSS SELL INC RLOXSELL N Y
277 INC E-2000 OUTBOUND TEL E2OUTTEL N Y
278 AWD MLC-GROSS UP MLC-TGU N N
279 INC CORP-COMM/QTR-AWD COM-QAA N Y
280 VAC ACCRD VAC PAYOFF ACC VAC N N
281 OHP FLT HOLIDAY PAYOFF FLT HOL N N
290 SAR STOCK APPREC RIGHTS S.A.R. N N
295 SEV SEVERNCE/PAY IN LIEU SEVERNCE N N
305 INC RBD-MVP INCNTV MVP INCT N Y
308 AWD EMPLOYEE REFERRAL-CA EMPREFCA N N
309 AWD EMPLOYEE REFERRAL-FL EMPREFFL N N
310 AWD REFERRAL AWARD REFERRAL N N
311 INC CONTEST AWARD-GWFS CONT AWD N Y
315 FRB RESTR STOCK AWARD PR STOCK N N
319 INC LSO-EMPL OF THE MO LSO-EOM N Y
320 INC DIST LOAN INCENTIVE D/L INCT N N
325 SPE SPECIAL EARNINGS SPEC EAR Y Y
326 CAR CAR ALLOWANCE CAR ALLW N N
327 INC RIDESHARE INCNTV RD/SHARE N N
330 FRB COMPANY CAR CO. CAR N N
332 FRB CO CAR-PERS USE-BLZR CO CAR-B N N
335 FRB EXECUTIVE DINING EXEC DIN N N
345 FRB COUNTRY CLUB CNTRY CL N N
350 FRB EXEC FINANCIAL PLAN FIN/PLAN N N
351 FRB EDUCATIONAL ASSISTANCE EDUC AST N N
355 FRB COMPANY PLANE CO-PLANE N N
356 FRB UNSUBSTANTIATED B/E MISC EXP N N
357 FRB MISC NON-CASH-FRB N/C-FRB N N
358 INC MISC CASH AWARDS CASH AWD N Y
359 FRB SPLIT DOLLAR POLICY SPLIT$ N N
360 FRB MLC-AWARDS/PRIZES MLC-AWD N N
361 FRB NSD AWRDS-FREQ FUND NSD-AWD N N
362 FRB TXBL VESTED ESIP $-DCP DCP-ESIP N N
363 FRB S.E.R.P.-TAXABLE SERP-TXB N N
</TABLE>
<PAGE>
APPENDIX A
ANNUAL ADDITION LIMITS
Section 4.01 of the Plan shall be construed in
accordance with this Appendix A. Unless the context clearly
requires otherwise, words and phrases used in this
Appendix A shall have the same meanings that are assigned to
them under the Plan.
A.1 - Definitions.
As used in this Appendix A, the following terms shall
have the meanings specified below.
"Annual Additions" shall mean the sum credited to a
Participant's Accounts for any Plan Year of (a) Company
contributions, (b) voluntary contributions, (c) forfeitures,
(d) amounts credited after March 31, 1984 to an individual
medical account, as defined in Section 415(l)(2) of the Code
which is part of a Defined Benefit Plan maintained by the
Company, and (e) amounts derived from contributions paid or
accrued after December 31, 1985, in taxable years ending
after such date, which are attributable to post-retirement
medical benefits allocated to the separate account required
with respect to a key employee (as defined in Section B.2(e)
of Appendix B to the Plan) under a welfare benefit plan (as
defined in Section 419(e) of the Code) maintained by the
Company.
"Defined Benefit Plan" means a plan described in
Section 414(j) of the Code.
"Defined Contribution Plan" means a plan described in
Section 414(i) of the Code.
"Defined Benefit Plan Fraction" shall mean a
fraction, the numerator of which is the projected annual
benefit (determined as of the close of the relevant Plan
Year) of the Participant under all Defined Benefit Plans
maintained by one or more Related Companies, and the
denominator of which is the lesser of (a) the product of
1.25 multiplied by the dollar limitation in effect under
Section 415(b)(1)(A) of the Code for the Plan Year, or
(b) the product of 1.4 multiplied by the amount which may be
taken into account under Section 415(b)(1)(B) of the Code
with respect to the Participant for the Plan Year.
"Defined Contribution Plan Fraction" shall mean a
fraction, the numerator of which is the sum of the annual
additions to a Participant's accounts under all Defined
Contribution Plans maintained by one or more Related
Companies, and the denominator of which is the sum of the
lesser of (a) or (b) for such Plan Year and for each prior
Plan Year of service with one or more Related Companies,
where (a) is the product of 1.25 multiplied by the dollar
limitation in effect under Section 415(c)(1)(A) of the Code
for the Plan Year (determined without regard to Section
415(c)(6) of the Code), and (b) is the product of 1.4 multi-
plied by the amount which may be taken into account under
Section 415(c)(1)(B) of the Code (or Section 415(c)(7) of
the Code, if applicable) with respect to the Participant for
the Plan Year. Solely for purposes of this definition,
contributions made directly by an Employee to a Defined
Benefit Plan which maintains a qualified cost-of-living
arrangement as such term is defined in Section 415(k)(2)
shall be treated as Annual Additions. Notwithstanding the
foregoing, the numerator of the Defined Contribution Plan
Fraction shall be adjusted pursuant to Treasury Regulations
1.415-7(d)(1), Questions T-6 and T-7 of Internal Revenue
Service Notice 83-10, and Questions Q-3 and Q-14 of Internal
Revenue Service Notice 87-21.
A.2 - Annual Addition Limitations.
(a) The compensation limitation of Section 4.1 of
the Plan shall not apply to any contribution for medical
benefits (within the meaning of Section 419A(f)(2)) after
separation from service which is treated as an Annual
Addition. In the event that Annual Additions to all the
accounts of a Participant would exceed the limitations of
Section 4.1 of the Plan, they shall be reduced in the
following priority: (1) return of voluntary contributions
to the Participant; (2) reduction of Company contributions.
(b) If any Company or any Related Company
contributes amounts, on behalf of Participants covered by
the Plan, to other Defined Contribution Plans, the
limitation on Annual Additions provided in Article IV of the
Plan shall be applied to Annual Additions in the aggregate
to the Plan and such other plans. Reduction of Annual
Additions, where required, shall be accomplished by first
refunding any voluntary contributions to Participants, then
by reducing contributions under such other plans pursuant to
the directions of the fiduciary for administration of such
other plans or under priorities, if any, established by the
terms of such other plans, and then, if necessary, by
reducing contributions under the Plan.
(c) In any case where a Participant under the Plan
is also a participant under a Defined Benefit Plan or a
Defined Benefit Plan and other Defined Contribution Plans
maintained by the Company or a Related Company, the sum of
the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction shall not exceed 1.0. Reduction
of contributions to or benefits from all plans, where
required, shall be accomplished by first reducing benefits
under such other Defined Benefit Plan or plans, then by
allocating any excess in the manner set out above with
respect to the Plan, and finally by reducing contributions
or allocating any excess contributions with respect to other
Defined Contribution Plans, if any; provided, however, that
adjustments necessary under this or the next preceding
paragraph may be made in a different manner and priority
pursuant to the agreement of the Committee and the
administrators of all other plans covering such Participant,
provided such adjustments are consistent with procedures and
priorities prescribed by Treasury Regulations under Section
415 of the Code.
(d) In the event the limitations of Section 4.1 of
the Plan or subsections (a) or (b) of this Appendix A are
exceeded and the conditions specified in Treasury
Regulations Section 1.415-6(b)(6) are met, the Committee may
elect to apply the procedures set forth in Treasury
Regulations Section 1.415-6(b)(6).
<PAGE>
APPENDIX B
TOP-HEAVY PROVISIONS
Section 9.12 of the Plan shall be construed in
accordance with this Appendix B. Definitions in this
Appendix B shall govern for the purposes of this Appendix B.
Any other words and phrases used in this Appendix B,
however, shall have the same meanings that are assigned to
them under the Plan, unless the context clearly requires
otherwise.
B.1 - General.
This Appendix B shall be effective for Plan Years
beginning on or after January 1, 1984. This Appendix B
shall be interpreted in accordance with Section 416 of the
Code and the regulations thereunder.
B.2 - Definitions.
(a) The "Benefit Amount" for any Employee means
(1) in the case of any defined benefit plan, the present
value of his normal retirement benefit, determined on the
Valuation Date as if the Employee terminated on such
Valuation Date, plus the aggregate amount of distributions
made to such Employee within the five-year period ending on
the Determination Date (except to the extent already
included on the Valuation Date) and (2) in the case of any
defined contribution plan, the sum of the amounts credited,
on the Determination Date, to each of the accounts
maintained on behalf of such Employee (including accounts
reflecting any nondeductible employee contributions) under
such plan plus the aggregate amount of distributions made to
such Employee within the five-year period ending on the
Determination Date. For purposes of this Section, the
present value shall be computed using a 5% interest
assumption and the mortality assumptions contained in the
defined benefit plan for benefit equivalence purposes,
provided that, if more than one defined benefit plan is
being aggregated for top-heavy purposes, the actuarial
assumptions which shall be used for testing top-heaviness
are those of the plan with the lowest interest assumption,
provided further that if the lowest interest assumption is
the same for two or more plans, the actuarial assumptions
used shall be that of the plan with the greatest value of
assets on the applicable date.
(b) "Company" means any company (including
unincorporated organizations) participating in the Plan or
plans included in the "aggregation group" as defined in this
Appendix B.
(c) "Determination Date" means the last day of the
preceding Plan Year or, in the case of the first Plan Year
of the Plan, the last day of the Plan Year.
(d) "Employees" means employees, former employees,
beneficiaries, and former beneficiaries who have a Benefit
Amount greater than zero on the Determination Date.
(e) "Key Employee" means any Employee who, during
the Plan Year containing the Determination Date or during
the four preceding Plan Years, is:
(1) one of the ten Employees of a Company having
annual compensation from such Company of more than the
limitation in effect under Section 415(c)(1)(A) of the
Code and owning (or considered as owning within the
meaning of Section 318 of the Code) both more than a 1/2%
interest and the largest interest in such Company (if two
Employees have the same interest the Employee having the
greater annual compensation from the Company shall be
treated as having a larger interest);
(2) a 5% owner of a Company;
(3) a 1% owner of a Company who has an annual
compensation above $150,000; or
(4) an officer of a Company having an annual
compensation greater than 50% of the amount in effect
under Section 415(b)(1)(A) of the Code for any such Plan
Year (however, no more than the lesser of (A) 50 employees
or (B) the greater of 3 employees or 10% of the Company's
employees shall be treated as officers). For purposes of
determining the number of employees taken into account
under this Section B.2(e)(4), employees described in
Section 414(q)(8) of the Code shall be excluded.
(f) A "Non-Key Employee" means an Employee who is
not a Key Employee.
(g) "Valuation Date" means the first day (or such
other date which is used for computing plan costs for
minimum funding purposes) of the 12-month period ending on
the Determination Date.
(h) A "Year of Service" shall be calculated using
the Plan rules that normally apply for determining vesting
service.
These definitions shall be interpreted in accordance
with Section 416(i) of the Code and the regulations
thereunder and such rules are hereby incorporated by
reference. The term "Key Employee" shall not include any
officer or employee of an entity referred to in Section
414(d) of the Code. For the purpose of this subsection,
"compensation" shall mean compensation as defined in Section
414(q)(7) of the Code and shall be determined without regard
to Sections 125, 402(a)(8), 402(h)(1)(B) or, in the case of
employer contributions made pursuant to a salary reduction
agreement, Section 403(b).
B.3 - Top-Heavy Definition.
The Plan shall be top-heavy for any Plan Year if, as
of the Determination Date, the "top-heavy ratio" exceeds
60%. The top-heavy ratio is the sum of the Benefit Amounts
for all employees who are Key Employees divided by the sum
of the Benefit Amounts for all Employees. For purposes of
this calculation only, the following rules shall apply:
(a) The Benefit Amounts of all Non-Key Employees who
were Key Employees during any prior Plan Year shall be
disregarded.
(b) The Benefit Amounts of all employees who have
not performed any services for any Company at any time
during the five-year period ending on the Determination
Date shall be disregarded; provided, however, if an
Employee performs no services for five years and then
again performs services, such Employee's Benefit Amount
shall be taken into account.
(c)(1) Required Aggregation. This calculation shall
be made by aggregating any plans, of the Company or a
Related Company, qualified under Section 401(a) of
the Code in which a Key Employee participates or
which enables this Plan to meet the requirements of
Section 401(a)(4) or 410 of the Code; all plans so
aggregated constitute the "aggregation group."
(2) Permissive Aggregation. The Company may
also aggregate any such plan to the extent that such
plan, when aggregated with this aggregation group,
continues to meet the requirements of Section
401(a)(4) and Section 410 of the Code.
If an aggregation group includes two or more defined
benefit plans, the actuarial assumptions used in
determining an Employee's Benefit Amount shall be the same
under each defined benefit plan and shall be specified in
such plans. The aggregation group shall also include any
terminated plan which covered a Key-Employee and which was
maintained within the five-year period ending on the
Determination Date.
(d) This calculation shall be made in accordance
with Section 416 of the Code (including 416(g)(3)(B) and
(g)(4)(A)) and the regulations thereunder and such rules
are hereby incorporated by reference. For purposes of
determining the accrued benefit of a Non-Key Employee who
is a Participant in a defined benefit plan, this
calculation shall be made using the method which is used
for accrual purposes for all defined benefit plans of the
Company, or if there is no such method, as if such benefit
accrued not more rapidly than the slowest accrual rate
permitted under Section 411(b)(1)(C) of the Code.
B.4 - Minimum Benefits or Contributions, Compensation
Limitations and Section 415 Limitations.
If the Plan is top-heavy for any Plan Year, the
following provisions shall apply to such Plan Year:
(a)(1) Except to the extent not required by Section
416 of the Code or any other provision of law,
notwithstanding any other provision of this Plan, if the
Plan and all other plans which are part of the aggregation
group are defined contribution plans, each Participant
(and any other Employee required by Section 416 of the
Code) other than Key employees shall receive an allocation
of employer contributions and forfeitures from a plan
which is part of the aggregation group at least equal to
3% (or, if lesser, the largest percentage allocated to any
Key Employee for the Plan Year) of such Participant's
compensation for such Plan Year (the "defined contribution
minimum"). For purposes of this subsection, salary
reduction contributions on behalf of a Key Employee must
be taken into account. For purposes of this subsection, a
non-Key Employee shall be entitled to a contribution if he
is employed on the last day of the Plan Year (1)
regardless of his level of compensation, (2) without
regard to whether he has made any mandatory contributions
required under the Plan, and (3) regardless of whether he
has less than 1,000 Hours of Service (or the equivalent)
for the accrual computation period.
(2) Except to the extent not required by Section 416
of the Code or any other provision of law, notwithstanding
any other provisions of the Plan, if the Plan or any other
plan which is part of the aggregation group is a defined
benefit plan each Participant who is a participant in any
such defined benefit plan (who is not a Key Employee) who
accrues a full Year of Service during such Plan Year shall
be entitled to an annual normal retirement benefit from a
defined benefit plan which is part of the aggregation
group which shall not be less than the product of (1) the
employee's average compensation for the five consecutive
years when the employee had the highest aggregate
compensation and (2) the lesser of 2% per Year of Service
or 20% (the "defined benefit minimum"). A Non-Key
Employee shall not fail to accrue a benefit merely because
he is not employed on a specified date or is excluded from
participation because (1) his compensation is less than a
stated minimum or (2) he fails to make mandatory employee
contributions. For purposes of calculating the defined
benefit minimum, (1) compensation shall not include
compensation in Plan Years after the last Plan Year in
which the Plan is top-heavy and (2) a Participant shall
not receive a Year of Service in any Plan Year before
January 1, 1984 or in any Plan Year in which the Plan is
not top-heavy. This defined benefit minimum shall be
expressed as a life annuity (with no ancillary benefits)
commencing at normal retirement age. Benefits paid in any
other form or time shall be the actuarial equivalent (as
provided in the plan for retirement benefit equivalence
purposes) of such life annuity. Except to the extent not
required by Section 416 of the Code or any other
provisions of law, each Participant (other than Key
Employees) who is not a participant in any such defined
benefit plan shall receive the defined contribution
minimum (as defined in paragraph (a)(1) above).
(3) If a non-Key Employee is covered by plans
described in both paragraphs (1) and (2) above, he shall
be entitled only to the minimum described in paragraph
(1), except that for the purpose of paragraph (1) "3% (or,
if lesser, the largest percentage allocated to any key
employee for the Plan Year)" shall be replaced by "5%".
Notwithstanding the preceding sentence, if the accrual
rate under the plan described in (2) would comply with
this Section B.4 absent the modifications required by this
Section, the minimum described in paragraph (1) above
shall not be applicable.
(b) For purposes of this Section, "compensation"
shall mean all earnings included in the Employee's Form W-
2 for the calendar year that ends within the Plan Year,
not in excess of $200,000, adjusted at the same time and
in the same manner as under Section 415(d) of the Code.
(c) (1) Unless the Plan qualifies for an exception
under Section B.4(c)(2), "1.0" shall be substituted for
"1.25" in the definitions of Defined Benefit Plan Fraction
and Defined Contribution Plan Fraction used in Appendix A
to the Plan.
(2) A Plan qualifies for an exception from the rule
of Section B.4(c)(1) if the Benefit Amount of all
Employees who are Key Employees does not exceed 90% of the
sum of the Benefit Amounts for all Employees and one of
the following requirements is met:
(A) A defined benefit minimum of 3% per Year of
Service (up to 30%) is provided;
(B) For Participants covered only by a defined
contribution plan, a defined contribution minimum of
4% is provided;
(C) For Participants covered by both types of
plans, benefits from the defined contribution minimum
are comparable to the 3% defined benefit minimum;
(D) The plan provides a floor offset where the
floor is a 3% defined benefit minimum; or
(E) A defined contribution minimum of 7-1/2% of
compensation is provided for any non-Key Employee who
is covered under both a defined benefit plan and a
defined contribution plan (each of which is top-
heavy) of a Company.
<PAGE>
<PAGE>
EXHIBIT 4.2
GREAT WESTERN
EMPLOYEE SAVINGS INCENTIVE PLAN TRUST AGREEMENT
<PAGE>
TABLE OF CONTENTS
Page
Section 1. Trust . . . . . . . . . . . . . . . 1
Section 2. Exclusive Benefit; Nonalienation. . 2
Section 3. Disbursements . . . . . . . . . . . 2
(a) Directions from Administrator. . . . . . 2
(b) Limitations. . . . . . . . . . . . . . . 3
Section 4. Investment of Trust . . . . . . . . 3
(a) Selection of Investment Options. . . . . 3
(b) Available Investment Options . . . . . . 3
(c) Designation of Investment Options. . . . 4
(d) Participant Direction. . . . . . . . . . 4
(e) Mutual Funds . . . . . . . . . . . . . . 4
(i) Execution of Purchases and Sales. . 4
(ii) Voting. . . . . . . . . . . . . . . 5
(f) Sponsor Stock. . . . . . . . . . . . . . 5
(i) Acquisition Limit . . . . . . . . . 5
(ii) Fiduciary Duty of Named Fiduciary . 5
(iii) Execution of Purchases and Sales . . 6
(iv) Securities Law Reports. . . . . . . 8
(v) Voting and Tender Offers. . . . . . 8
(A) Voting . . . . . . . . . . . . 8
(B) Tender Offers. . . . . . . . . 9
(vi) Shares Credited . . . . . . . . . . 10
(vii) General. . . . . . . . . . . . 11
(viii) Conversion. . . . . . . . 11
(g) Notes. . . . . . . . . . . . . . . . . . 11
(h) Reliance of Trustee on Directions. . . . 12
(i) Investment Powers of Trustee . . . . . . 12
(j) Administrative Powers of the Trustee . . 16
(k) Investment Manager Appointment . . . . . 16
Section 5. Accounts of the Trustee . . . . . . 17
Section 6. Compensation and Expenses . . . . . 17
Section 7. Directions and Indemnification. . . 18
(a) Directions . . . . . . . . . . . . . . . 18
(b) Indemnification. . . . . . . . . . . . . 19
(c) Survival . . . . . . . . . . . . . . . . 19
Section 8. Resignation or Removal of Trustee . 19
(a) Resignation. . . . . . . . . . . . . . . 19
(b) Removal. . . . . . . . . . . . . . . . . 19
Section 9. Successor Trustee . . . . . . . . . 19
(a) Appointment. . . . . . . . . . . . . . . 19
(b) Acceptance . . . . . . . . . . . . . . . 19
(c) Corporate Action . . . . . . . . . . . . 19
Section 10. Termination. . . . . . . . . . . . 20
Section 11. Resignation, Removal and Termination
Notices . . . . . . . . . . . . . 20
Section 12. Single Fund. . . . . . . . . . . . 20
Section 13. Transfer of Assets . . . . . . . . 21
Section 14. Adoption of Trust by Separate Plan . 21
Section 15. Agreement Incorporated in Separate
Plans . . . . . . . . . . . . . . . 22
Section 16. Duration . . . . . . . . . . . . . . 23
Section 17. Amendment or Modification. . . . . . 23
Section 18. No Guarantees. . . . . . . . . . . . 23
Section 19. Duty to Furnish Information. . . . . 23
Section 20. Withholding. . . . . . . . . . . . . 23
Section 21. General. . . . . . . . . . . . . . . 23
(a) Entire Agreement . . . . . . . . . . . . . 23
(b) Waiver . . . . . . . . . . . . . . . . . . 23
(c) Successors and Assigns . . . . . . . . . . 24
(d) Partial Invalidity . . . . . . . . . . . . 24
(e) Section Headings . . . . . . . . . . . . . 24
Section 22. Governing Law. . . . . . . . . . . . 24
(a) New York Law Controls. . . . . . . . . . . 24
(b) Trust Agreement Controls . . . . . . . . . 24
<PAGE>
TRUST AGREEMENT, effective as of October 1, 1996 between
Great Western Financial Corporation, a Delaware corporation
(the 'Sponsor"), and The Chase Manhattan Bank incorporated
under the laws of the State of New York (the "Trustee").
WITNESSETH:
WHEREAS, the Sponsor and certain of its subsidiaries and
affiliated organizations (collectively, the "Company") have
adopted the Great Western Employee Savings Incentive Plan
and may hereafter adopt other defined contribution benefit
plans ('Separate Plans") for the benefit of certain
employees of the Company (each such plan being herein
sometimes referred to as a 'Separate Plan" and the Separate
Plans being herein collectively referred to as the "Plan");
and
WHEREAS, the Sponsor has established a trust for the
collective investment of the assets of the Plan in a trust
fund which may be divided into separate investment accounts;
and
WHEREAS, the Trustee has been named the Trustee of such
trust; and
WHEREAS, the Qualified Plans Investment Committee (the
"Named Fiduciary") is the named fiduciary (for purposes of
investment, control and management of Plan assets) of the
Plan (within the meaning of Section 402(a) of the Employee
Retirement Income Security Act of 1974, as amended
("ERISA")); and
WHEREAS, the Trustee is willing to hold and invest the
aforesaid plan assets, in accordance with the terms of this
Agreement, in trust among several investment options
selected by the Named Fiduciary and as directed by Plan
participants; and
WHEREAS, the Sponsor is the administrator of the Plan
(within the meaning of Section 3(16)(A) of ERISA) and has
delegated its duties to the Committee (as defined in the
Plan) (the "Administrator");
NOW, THEREFORE, in consideration of the foregoing premises
and the mutual covenants and agreements set forth below, the
Sponsor and the Trustee agree as follows:
Section 1. Trust. The Sponsor hereby establishes the
Great Western Employee Savings Incentive Plan Master Trust
(the "Trust") with the Trustee. The Trust shall consist of
an initial contribution of money or other property
acceptable to the Trustee in its sole discretion, made by
the Sponsor or transferred from the previous trustee under
the Plan, such additional sums of money and Sponsor Stock
(hereinafter defined) as shall from time to time be
delivered to the Trustee under the Plan, all investments
made therewith and proceeds thereof, and all earnings and
profits thereon, less the payments that are made by the
Trustee as provided herein, without distinction between
principal and income. The Trustee hereby accepts the Trust
on the terms and conditions set forth in this Agreement. In
accepting this Trust, the Trustee shall be accountable for
the assets received by it, subject to the terms and
conditions of this Agreement. The Trustee shall not be
responsible for the collection of any contributions to the
Plan or for the determination of the amount or frequency of
any contributions required by the Plan or for interpreting,
construing or enforcing the Plan or the Plan's compliance
with ERISA.
Section 2. Exclusive Benefit; Nonalienation.
(a) Except as provided below or under applicable law, no
part of the Trust may be used for, or diverted to, purposes
other than the exclusive benefit of the participants in the
Plan or their beneficiaries prior to the satisfaction of all
liabilities with respect to the participants and their
beneficiaries. Notwithstanding this or any other provision
of the Trust or Plan, the Company shall be entitled to
recover, and the participants shall have no interest in (i)
any contributions made by mistake of fact, so long as the
contribution is returned within one year after payment or
(ii) any contributions for which deduction is disallowed
under Section 404 of the Code, so long as the contributions
are returned to the Company within one year following such
disallowance or as permitted or required by the Code or
ERISA. In the event of such mistake of fact or disallowance
of deductions, contributions shall be returned to the
Company, subject to the limitations, if any, of Section
403(c) of ERISA.
(b) Except as provided in the Plan, the benefits,
proceeds, payments or claims of any participant payable from
the Trust assets shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, charge, garnishment, execution or levy
of any kind, either voluntary or involuntary. Any attempt
to anticipate, alienate, sell, transfer, assign, pledge,
encumber, garnish, levy or otherwise dispose of or execute
upon any right or benefit payable hereunder shall be void.
The Trust assets shall not in any manner be liable for or
subject to the debts, contracts, liabilities, engagements or
torts of any participant entitled to benefits hereunder and
such benefits shall not be considered an asset of the
participant in the event of his insolvency or bankruptcy.
Section 3. Disbursements.
(a) Directions from Administrator. The Trustee shall
make disbursements (which shall not include the transfer of
funds for investment) in the amounts and in the manner that
the Administrator or Subtransfer Agent (as hereinafter
defined) directs from time to time. The Trustee shall have
no responsibility to ascertain any direction's compliance
with the terms of the Plan, any applicable law, the
direction's effect for tax purposes or otherwise; nor shall
the Trustee have any responsibility to determine that any
disbursement is pursuant to the Plan.
(b) Limitations. The Trustee shall not be required to
make any disbursement in excess of the net realizable value
of the assets of the Trust at the time of the disbursement.
All disbursements shall be made in cash unless the
Administrator or Subtransfer Agent has provided a direction
otherwise; the Administrator shall provide directions as to
the assets to be converted to cash for the purpose of making
the disbursement.
Section 4. Investment of Trust.
(a) Selection of Investment Options. The Trustee shall
have no responsibility for the selection of investment
options under the Trust and shall not render investment
advice to any person in connection with the selection of
such options.
(b) Available Investment Options. The Named Fiduciary
shall direct the Trustee as to the investment options which
shall be maintained or used for Plan participant
investments. The Named Fiduciary may determine to offer
investment options which may include, but shall not be
limited to, (i) securities issued by any investment company
registered under the Investment Company Act of 1940 ("Mutual
Funds"), (ii) equity securities issued by the Sponsor or an
affiliate which are publicly-traded and which are
"qualifying employer securities" within the meaning of
Section 407(d)(5) of ERISA ('Sponsor Stock"), (iii) notes
evidencing loans to Plan participants in accordance with the
terms of the Plan, (iv) securities and obligations which
produce a fixed rate of investment return, including but not
limited to United States government securities, corporate
bonds, notes, debentures, convertible securities, preferred
stocks, or an investment fund or funds maintained by the
Trustee or other banks or other financial institutions,
guaranteed investment contracts ("GICs") and other similar
investments, in each case as chosen by the Sponsor or in
investment manager (as defined in ERISA) selected by the
Sponsor (collectively, the "Fixed Income Fund"),
(v) securities of any type held in funds managed by an
investment manager (as defined in Section 3(38) of ERISA)
selected by the Named Fiduciary (provided the same can be
valued on a daily basis), (vi) collective investment funds
maintained by the Trustee for qualified plans, and (vii)
deposits of all types bearing a reasonable rate of interest
in the Sponsor (or an affiliate of Sponsor). The Trustee
shall be considered a fiduciary with investment discretion
only with respect to Plan assets that are invested in
collective investment funds maintained by the Trustee for
qualified plans.
(c) Designation of Investment Options. Specific
investment options shall be designated in writing from time
to time by the Named Fiduciary giving sufficient notice
thereof for the Trustee to implement any necessary operating
procedures. Effective January 2, 1997, all investment
options offered must be able to be valued on a daily basis
by the Trustee. The Trustee will provide daily valuations
to the Administrator.
(d) Participant Direction. Effective January 2, 1997,
each Plan participant shall direct the subtransfer agent
appointed by the Administrator (the 'Subtransfer Agent") in
which investment option(s) to invest the assets in the
participant's individual accounts (except for PAYSOP
Accounts). Notwithstanding any other provision of this
Agreement, neither the Named Fiduciary, the Administrator,
the Sponsor (or any affiliate) nor the Trustee shall be a
fiduciary with respect to any designation or direction by a
participant or beneficiary with respect to his accounts,
including any decisions with respect to voting or tender of
Sponsor Stock. Accordingly, none of the foregoing entities
shall be liable for any loss or liability which results from
such participant's (or beneficiary's) designations.
The Trustee shall invest the assets allocated to Plan
participant accounts only when, if and in the manner,
directed by the Administrator or Subtransfer Agent and shall
not be under any obligation to invest or otherwise manage
any of such assets. It shall be the duty of the Trustee to
act strictly in accordance with the Administrator's or
Subtransfer Agent's directions and the Trustee shall be
under no liability for any loss of any kind which may result
by it taking or refraining from taking any action in
accordance with any such direction. The Subtransfer Agent
shall certify to the Trustee the identity of the person or
persons authorized to give instructions or directions on its
behalf. The Trustee may continue to rely on all
certifications under this paragraph unless otherwise
notified in writing by the Administrator or the Subtransfer
Agent, as the case may be.
In the event that the Trustee fails to receive directions
with respect to any assets held in the Trust outside of its
own collective funds, such assets shall be invested in the
Plan's Money Market Fund until the Trustee receives further
direction.
(e) Mutual Funds. Trust investments in Mutual Funds
shall be subject to the following limitations:
(i) Execution of Purchases and Sales. Purchases,
sales and exchanges of Mutual Funds shall be made on the
date on which the Trustee receives from the Subtransfer
Agent in good order all information and documentation
necessary in time to effect such purchases, sales and
exchanges, and in the case of a purchase, has or receives
funds necessary to make such purchase. For this purpose,
the Named Fiduciary may designate certain funds between
which an exchange shall not be deemed a purchase. The
Trustee shall not be obligated to make exchanges between
other funds unless sufficient balances are available for the
purchase of such Mutual Fund shares.
(ii) Voting. The Named Fiduciary shall have the
right to direct the Trustee as to the manner in which the
Trustee is to vote the shares of Mutual Funds credited to
the participant's accounts (both vested and unvested). The
Trustee shall not vote shares for which it has received no
directions. With respect to all rights other than the right
to vote, the Trustee shall follow the directions of the
Named Fiduciary. The Trustee shall have no duty to solicit
directions.
(f) Sponsor Stock. Trust investments in Sponsor Stock
shall be made via the Great Western Stock Fund and the
PAYSOP Fund, each of which shall consist of shares of
Sponsor Stock and short-term liquid investments, including a
commingled money market fund maintained by the Trustee,
necessary to satisfy the Fund's cash needs for transfers and
payments. Effective January 2, 1997 the Great Western Stock
Fund and the PAYSOP Fund shall be valued on a daily unitized
basis which valuation shall be provided by the Trustee to
the Subtransfer Agent. All funds transmitted by the Sponsor
(or its affiliates) to the Trustee for investment in Sponsor
Stock shall be invested in the Great Western Stock Fund.
Similarly, unless the Sponsor provides otherwise, all
directions to transfer money into or out of Sponsor Stock
shall apply with respect to the Great Western Stock Fund.
The Trustee acknowledges that the PAYSOP Funds are frozen
accounts, which are not subject to participant direction.
Accordingly, unless the Sponsor gives specific written
instructions with respect to the PAYSOP Fund or the
provisions of subsection (f)(v) below apply, no sales or
purchases of Sponsor Stock shall be made with respect to the
PAYSOP Fund.
All dividends or other cash proceeds with respect to
Sponsor Stock held in the Great Western Stock Fund shall be
reinvested in Sponsor Stock. All dividends or other cash
proceeds from Sponsor Stock held in the PAYSOP Fund shall
not be invested in Sponsor Stock and shall instead be
invested in short-term liquid investments.
(i) Acquisition Limit. Pursuant to the Plan, the
Trust may be invested in Sponsor Stock to the extent
necessary to comply with investment directions from the
Sponsor or under Section 4(d) of this Agreement. There is
no limit on the amount of Sponsor Stock that may be held
under the Plan.
(ii) Fiduciary Duty of Named Fiduciary. The Named
Fiduciary shall be responsible for monitoring the
suitability under the fiduciary duty rules of Section
404(a)(1) of ERISA (as modified by Section 404(a)(2) of
ERISA) of acquiring and holding Sponsor Stock. The Trustee
shall not be liable for any loss, or by reason of any
breach, which arises from the directions of the Named
Fiduciary with respect to the acquisition and holding of
Sponsor Stock, unless it is clear on their face that the
actions to be taken under such directions are contrary to
the terms of this Agreement.
(iii)Execution of Purchases and Sales.
(A) Purchases and sales of Sponsor Stock shall
be made on the open market on the date which the Trustee
receives from the Sponsor or the Subtransfer Agent in good
order all information and documentation reasonably necessary
to accurately effect such purchases and sales and, in the
case of purchases, receives a wire transfer of the funds if
necessary to make such purchases. Prior to engaging in any
transaction in Sponsor Stock, the Trustee shall offset
purchase and sale directions so that only the net number of
shares shall be purchased or sold. Such general rules shall
not apply in the following circumstances:
(1) If the Trustee is unable to
determine the number of shares required to be purchased or
sold on such date; or
(2) If the Trustee determines that it is
imprudent to purchase or sell the total number of shares
required to be purchased or sold on such day as a result of
market conditions; or
(3) If the Trustee is prohibited by the
Securities and Exchange Commission, the New York Stock
Exchange, or any other regulatory body from purchasing or
selling any or all of the shares required to be purchased or
sold on such day.
In the event of the occurrence of the circumstances
described in (1) or (3) above, the Trustee shall promptly
notify the Named Fiduciary and the Trustee shall purchase or
sell such shares as soon as possible thereafter and shall
determine the price of such purchases or sales according to
normal operating procedures. In the event of the occurrence
of the circumstances described in (2) above, the Trustee
shall consult with the Named Fiduciary before taking any
action.
(B) Purchases and Sales from or to Sponsor.
The Trustee may purchase or sell Sponsor Stock from or to
the Sponsor or an affiliate thereof if the purchase or sale
is for adequate consideration (within the meaning of Section
3(18) of ERISA) and no commission is charged to the Plan.
If Plan participant or Sponsor contributions under the Plan
are to be invested in Sponsor Stock, the Sponsor may
transfer Sponsor Stock in lieu of cash to the Trust. In
this case the number of shares transferred shall be
determined by dividing the amount of the contribution by the
closing price of the Sponsor Stock on the composite tape on
the trading day immediately preceding the date as of which
the contribution is made. Purchases and sales to or from
third parties may also be made subject to similar
arrangements, such arrangements as approved in writing by
the Sponsor.
(C) Use of an Affiliated Broker. The Named
Fiduciary hereby authorizes the Trustee to use Chase
Securities, Inc. ("CSI") to provide brokerage services in
connection with any purchase or sale of Sponsor Stock in
accordance with directions from Plan participants or the
Named Fiduciary. The provision of brokerage services shall
be subject to the following:
(1) The quality of execution of trades
shall be at best execution and shall not be adversely
affected by the use of CSI.
(2) As consideration for such brokerage
services, the Named Fiduciary agrees that CSI shall be
entitled to reasonable remuneration under this authorization
provision pursuant to a written agreement between the Named
Fiduciary and CSI.
(3) Following the procedures set forth in
Department of Labor Prohibited Transaction Class Exemption
86-128, the Trustee will provide the Named Fiduciary with
the following documents: (1) a description of CSI's
brokerage placement practices; (2) a copy of PTCE 86-128;
and (3) a form by which the Named Fiduciary may terminate
this authorization to use a broker affiliated with the
Trustee. The Trustee will provide the Named Fiduciary with
this termination form annually, as well as quarterly and
annual reports which summarize all securities
transaction-related charges incurred by the Plan, and the
Plan's annualized turnover rate, as required by PTE 86-128.
(4) Any successor organization of CSI,
through reorganization, consolidation, merger or similar
transactions, shall, upon consummation of such transaction
and written notice to the Named Fiduciary, become the
successor broker in accordance with the terms of this
authorization provision.
(5) The Trustee and CSI shall continue to
rely on this authorization provision until notified to the
contrary. The Named Fiduciary reserves the right to
terminate this authorization at any time upon written notice
to CSI (or its successor) and the Trustee, in accordance
with Section 11 of this Agreement.
(iv) Securities Law Reports. The Sponsor shall be
responsible for filing all reports required under Federal or
state securities laws with respect to the Trust's ownership
of Sponsor Stock, including, without limitation, any reports
required under Section 13 or 16 of the Securities Exchange
Act of 1934, and shall immediately notify the Trustee in
writing of any requirement to stop purchases or sales of
Sponsor Stock pending the filing of any report. The Trustee
shall provide to the Sponsor such information on the Trust's
ownership of Sponsor Stock as the Sponsor may reasonably
request in order to comply with Federal or state securities
laws. The Trustee shall notify Sponsor if Trustee becomes
aware that a securities report need to be filed with respect
to the Trust.
(v) Voting and Tender Offers. Notwithstanding any
other provision of this Agreement, the provisions of this
Section shall govern the voting and tendering of Sponsor
Stock. The Sponsor, after consultation with the Trustee,
shall pay for all printing, mailing and other out-of-pocket
costs associated with the voting and tendering of Sponsor
Stock.
(A) Voting.
(1) When the issuer of the Sponsor Stock files
definitive proxy solicitation materials with the Securities
and Exchange Commission, the Sponsor shall cause a copy of
all materials to be simultaneously sent to the Trustee.
Based on these materials the Trustee shall prepare a voting
instruction form or approve a form prepared by the Sponsor.
At the time of mailing of notice of each annual or special
stockholders' meeting of the issuer of the Sponsor Stock,
the Sponsor shall cause, or instruct the Trustee to cause, a
copy of the notice and all proxy solicitation materials to
be sent to each Plan participant with an interest in Sponsor
Stock held in the Trust, together with the foregoing voting
instruction form to be returned to the Trustee or its
designee. The Sponsor shall provide the Trustee with a copy
of any materials provided to the participants and, unless
the Sponsor has requested the Trustee to distribute such
material to the participants, shall certify to the Trustee
that the materials have been mailed or otherwise sent to
participants.
(2) Each participant with an interest in the
Great Western Stock Fund shall have the right, acting in the
capacity of a named fiduciary within the meaning of Section
402 of ERISA, to direct the Trustee as to the manner in
which the Trustee is to vote (including not to vote) that
number of shares of Sponsor Stock reflecting such
participant's proportional interest in the Great Western
Stock Fund (both vested and unvested). Except as required
by law, directions from a participant to the Trustee
concerning the voting of Sponsor Stock shall be held in
confidence by the Trustee and shall not be divulged to the
Sponsor, or any officer or employee thereof, or any other
person. Upon its receipt of the directions, the Trustee
shall vote the shares of Sponsor Stock reflecting the
participant's proportional interest in the Great Western
Stock Fund as directed by the participant. Except as
otherwise required by ERISA, the Trustee shall vote shares
of Sponsor Stock reflecting a participant's proportional
interest in the Great Western Stock Fund for which it has
received no directions from the participant proportionally
in accordance with the votes of shares for which it has
received instructions.
(3) Each participant with an interest in the
PAYSOP Fund shall have the right, acting in the capacity of
a named fiduciary within the meaning of Section 402 of
ERISA, to direct the Trustee as to the manner in which the
Trustee is to vote (including not to vote) that number of
shares of Sponsor Stock reflecting such participant's
proportional interest in the PAYSOP Fund. The rule set
forth in the preceding paragraphs (1) and (2) shall apply in
all respects except that the Trustee need not send separate
copies of proxy solicitation materials to each participant
with an interest in both the Great Western Stock Fund and
PAYSOP Fund.
(B) Tender Offers.
(1) Upon commencement of a tender offer for any
securities held in the Trust that are Sponsor Stock, the
Sponsor shall notify, or request the Subtransfer Agent to
notify, each Plan participant with an interest in such
Sponsor Stock of the tender offer and utilize reasonable
efforts to timely distribute or cause to be distributed to
the participants the same information that is distributed to
shareholders of the issuer of Sponsor Stock in connection
with the tender offer, and, after consulting with the
Trustee and the Subtransfer Agent, shall provide and pay for
a means by which the participant may direct the Trustee
(including directions via the Subtransfer Agent) whether or
not to tender the Sponsor Stock reflecting such
participant's proportional interest in the Great Western
Stock Fund (both vested and unvested). The Sponsor shall
provide the Trustee with a copy of any material provided to
the participants and, unless the Sponsor has requested the
Trustee to distribute such material to the participants,
shall certify to the Trustee that the materials have been
mailed or otherwise sent to participants.
(2) Each participant with an interest in the
Great Western Stock Fund shall have the right, acting in the
capacity of a named fiduciary within the meaning of Section
402 of ERISA, to direct the Trustee (directly or through
the Subtransfer Agent) to tender or not to tender some or
all of the shares of Sponsor Stock reflecting such
participant's proportional interest in the Great Western
Stock Fund (both vested and unvested). Directions from a
participant (or from the Subtransfer Agent) to the Trustee
concerning the tender of Sponsor Stock shall be communicated
in writing, by facsimile transmission or such similar means
as is agreed upon by the Trustee, the Subtransfer Agent and
the Sponsor under the preceding paragraph. Except as
required by law, these directions shall be held in
confidence by the Trustee and shall not be divulged to the
Sponsor, or any officer or employee thereof, or any other
person except to the extent that the consequences of such
directions are reflected in reports regularly communicated
to any such persons in the ordinary course of the
performance of the Trustee's services hereunder. The
Trustee shall tender or not tender shares of Sponsor Stock
as directed by the participant (or the Subtransfer Agent if
directions are provided to it by the participants). The
Trustee shall decide whether to tender shares of Sponsor
Stock reflecting a participant's proportional interest in
the Great Western Stock Fund for which it has received no
directions from the participant or the Subtransfer Agent.
(3) A participant who has directed the Trustee
or the Subtransfer Agent to tender some or all of the shares
of Sponsor Stock reflecting the participant's proportional
interest in the Great Western Stock Fund may, at any time
prior to the tender offer withdrawal date, direct the
Trustee or the Subtransfer Agent to withdraw some or all of
the tendered shares reflecting the participant's
proportional interest, and the Trustee upon receipt of such
directions from the participant or the Subtransfer Agent, as
the case may be, shall withdraw the directed number of
shares from the tender offer prior to the tender offer
withdrawal deadline. A participant shall not be limited as
to the number of directions to tender or withdraw that the
participant may give to the Trustee or the Subtransfer
Agent, as the case may be.
(4) Pending receipt of directions (through the
Administrator) from the Subtransfer Agent or the Named
Fiduciary, as provided in the Plan, as to which of the
remaining investment options the proceeds should be invested
in, the Trustee shall invest the proceeds in the Plan's
Money Market Fund or as may otherwise be directed by the
Named Fiduciary.
(5) Each participant with an interest in the
PAYSOP Fund shall have the right, acting in the capacity of
a named fiduciary within the meaning of Section 402 of
ERISA, to direct the Trustee (directly or through the
Subtransfer Agent) to tender or not to tender some or all of
the shares of Sponsor Stock reflecting such participant's
proportional interest in the PAYSOP Fund. All of the rules
set forth in the preceding paragraphs (1) through (4) shall
apply in all respects except the Trustee need not send
separate copies of proxy solicitation materials to each
participant with an interest in both the Great Western Stock
Fund and PAYSOP Fund.
(vi) Shares Credited. For all purposes of this
Section, the number of shares of Sponsor Stock deemed
"credited" or "reflected" to a participant's proportional
interest shall be determined as of the last preceding
valuation date.
(vii)General. With respect to all rights other than
the right to vote, the right to tender, and the right to
withdraw shares previously tendered, in the case of Sponsor
Stock credited to a participant's proportional interest in
the Great Western Stock Fund, the Trustee shall follow the
directions of the Subtransfer Agent and if no such
directions are received, the directions of the Named
Fiduciary. The Trustee shall have no duty to solicit
directions from any party.
(viii)Conversion. Unless the Named Fiduciary provides
otherwise, all provisions in this Section 4(e) shall also
apply to any securities received as a result of a conversion
of Sponsor Stock as long as they are qualifying employer
securities.
(g) Notes. Unless other arrangements are made, the
Administrator shall act as the Trustee's agent for the
purpose of holding all trust investments in participant loan
notes ("Notes") and related documentation and as such shall
(i) hold physical custody of and keep safe the Notes and
other loan documents, (ii) collect and remit all principal
and interest payments to the Trustee, (iii) keep the
proceeds of such loans separate from the other assets of the
Administrator and clearly identify such assets as Plan
assets, (iv) advise the Trustee of the date, amount and
payee of the checks to be drawn representing loans, and (v)
cancel the Notes and other loan documentation when a loan as
been paid in full. Notwithstanding anything contained in
this Agreement to the contrary, the Trustee shall have no
right, authority or duty to determine the amount of or
enforce in its discretion any payment of principal or
interest or the amount or application of any security under
any Note, to allocate to any Note or Notes any payments
received by the Administrator or any disbursements or
transfers made therefrom, or to maintain any security under
the Notes, and the Administrator shall be solely responsible
for the terms and enforcement of any Notes or security
interests thereunder, for the maintenance of appropriate
records reflecting the individual interests of Plan
participants in any Notes or payments or security relating
thereto and for compliance with the requirements of the
Internal Revenue Code of 1986, as amended (the "Code") and
any applicable truth in lending or other consumer protection
laws relating to loans under the Plan. The Administrator
shall report to the Trustee in writing periodically as
reasonably required by the Trustee as to the Notes in the
Company's possession and/or their disposition. The Trustee
and its independent auditors shall be granted reasonable
access to the records of the Administrator for audit
purposes in determining compliance with this provision.
(h) Reliance of Trustee on Directions.
(i) Except to the extent otherwise required by
ERISA, the Trustee shall not be liable for any loss, or by
reason of any breach, which arises from any Subtransfer
Agent's direction or lack of direction or participant's
exercise or non-exercise of rights under this Section 4 over
the assets in the participant's accounts.
(ii) Except to the extent otherwise required by
ERISA, the Trustee shall not be liable for any loss or by
reason of any breach, which arises from the Named
Fiduciary's exercise or non-exercise of rights under this
Section 4 unless it is clear on their face that the actions
to be taken under the Named Fiduciary's directions were
contrary to the terms of this Agreement.
(i) Investment Powers of Trustee. Subject to the
foregoing provisions of this Section 4, the Trustee shall
have and exercise the following powers and authority
(i) over investment accounts where it has express investment
management discretion as provided in Section 4(b), or
(ii) upon direction of the Investment Manager with respect
to its Investment Accounts, or (iii) upon direction of the
Administrator or Named Fiduciary for a Company directed
account:
(i) Subject to paragraphs (b), (c), (d), (e), (f)
and (g) of this Section 4, to sell, exchange, convey,
transfer, or otherwise dispose of any property held in the
Trust, by private contract or at public auction. No person
dealing on behalf of the Sponsor with the Trustee shall be
bound to see to the application of the purchase money or
other property delivered to the Trustee or to inquire into
the validity, expediency, or propriety of any such sale or
other disposition.
(ii) Subject to paragraphs (b) and (c) of this
Section 4, to invest in the investment media described in
Section 4 and short term investments (including interest
bearing accounts with the Trustee or money market mutual
funds managed by affiliates of the Trustee) and in
collective investment funds maintained by the Trustee for
qualified plans, in which case the provisions of each
collective investment fund in which the Trust is invested
shall be deemed adopted by the Sponsor and the provisions
thereof incorporated as a part of this Trust as long as the
fund remains exempt from taxation under Sections 401(a) and
501(a) of the Code.
(iii)To register any securities held by it hereunder
in its own name or in the name of a nominee with or without
the addition of words indicating that such securities are
held in a fiduciary capacity and to hold any securities in
bearer form and to deposit any securities or other property
in a depository or clearing corporation, but the books and
records of the Trustee shall at all times show that all such
investments are part of the Trust.
(iv) To sell for cash or on credit, to grant options,
convert, redeem, exchange for other securities or other
property, to enter into standby agreements for future
investment, either with or without a standby fee, or
otherwise to dispose of any securities or other property at
any time held by it.
(v) To settle, compromise or submit to arbitration
any claims, debts, or damages, due or owing to or from the
trust, to commence or defend suits or legal proceedings and
to represent the trust in all suits or legal proceedings in
any court of law or before any other body or tribunal.
(vi) To trade in financial options and futures,
including index options and options on futures and to
execute in connection therewith such account agreements and
other agreements in such form and upon such terms as the
Investment Manager or the Administrator shall direct.
(vii)To exercise all voting rights, tender or
exchange rights, any conversion privileges, subscription
rights and other rights and powers available in connection
with any securities or other property at anytime held by it;
to oppose or to consent to the reorganization,
consolidation, merger or readjustment of the finances of any
corporation, company or association, or to the sale,
mortgage, pledge or lease of the property of any
corporation, company or association any of the securities
which may at any time be held by it and to do any act with
reference thereto, including the exercise of options, the
making of agreements or subscriptions and the payment of
expenses, assessments or subscriptions, which may be deemed
necessary or advisable by the Investment Manager or
Administrator in connection therewith, and to hold and
retain any securities or other property which it may so
acquire; and to deposit any property with any protective,
reorganization or similar committee, and to pay and agree to
pay part of the expenses and compensation of any such
committee and any assessments levied with respect to
property so deposited.
(viii)To invest all or a portion of the Trust Fund in
contracts issued by insurance companies, including contracts
under which the insurance company holds Plan assets in a
separate account or commingled separate account managed by
the insurance company. The Trustee shall be entitled to
rely upon any written directions of the Administrator or the
Investment Manager, and the Trustee shall not be responsible
for the terms of any insurance contract that it is directed
to purchase and hold or for the selection of the issuer
thereof or for performing any functions under such contract
(other than the execution of any documents incidental
thereto on the instructions of the Administrator or the
Investment Manager).
(ix) To manage, administer, operate, lease for any
number of years, develop, improve, repair, alter, demolish,
mortgage, pledge, grant options with respect to, or
otherwise deal with any real property or interest therein at
any time held by it, and to hold any such real property in
its own name or in the name of a nominee, with or without
the addition of words indicating that such property is held
in a fiduciary capacity, all upon such terms and conditions
as may be deemed advisable by the Investment Manager or
Administrator.
(x) To renew, extend or participate in the renewal
or extension of any mortgage, upon such terms as may be
deemed advisable by the Investment Manager or Administrator,
and to agree to a reduction in a rate of interest on any
mortgage or of any guarantee pertaining thereto in any
manner and to any extent that may be deemed advisable by the
Investment Manager or Administrator for the protection of
the Trust Fund or the preservation of the value of the
investment; to waive any default, whether in the performance
of any covenant or condition of any mortgage or in the
performance of any guarantee, or to enforce any such default
in such manner and to such extent as may be deemed advisable
by the Investment Manager or Administrator; to exercise and
enforce any and all rights of foreclosure, to bid on
property on foreclosure, to take a deed in lieu of
foreclosure with or without paying consideration therefor,
and in connection therewith to release the obligation on the
bond secured by such mortgage, and to exercise and enforce
in any action, suit or proceeding at law or in equity any
rights or remedies in respect to any such mortgage or
guarantee.
(xi) To hold part or all of the Trust Fund invested
in money market accounts to the extent that the directing
party ascertains as reasonable and necessary for limited
periods of time.
(xii)To loan pursuant to separate agreement as may be
agreed upon any securities to brokers or dealers and to
secure the same in any manner, and during the term of any
such loan to permit the loaned securities to be transferred
into the name of and voted by the borrower or others subject
to the limitations of Section 406 of ERISA; to purchase,
enter, sell, hold, and generally deal in any manner in and
with contracts for the immediate or future delivery of
financial instruments of any issuer or of any other
property; to grant, purchase, sell, exercise, permit to
expire, permit to be held in escrow, and otherwise to
acquire, dispose of, hold and generally deal in any manner
with and in all forms of options in any combination; and, in
connection with its exercise of the powers granted in this
Trust Agreement, to deposit any securities or other property
as collateral with any broker-dealer or other person, to
permit securities or other property to be held by or in the
name of others or in transferable form, to retain any form
of securities or other property received as a result of the
exercise of any of the foregoing powers whether or not
investment in such securities or other property is otherwise
authorized under this Trust Agreement and to hold and
administer and securities or other property with respect to
which the foregoing powers have or may be exercised,
including any securities or collateral acquired by it or in
any property received as a result of its exercise of such
powers, as a part of the account subject to the foregoing
powers, or in any sub-account, which property may be
invested in securities or other property of different types
than the securities or other property otherwise held in the
account.
(xiii)To employ suitable agents and counsel and to pay
their reasonable and proper expenses and compensation.
(xiv)To purchase and sell foreign exchange and
contracts for foreign exchange, including transactions
entered into with the Trustee, its agents or subcustodians.
(xv) To form corporations and to create trusts to
hold title to any securities or other property, all upon
such terms and conditions as may be deemed advisable by the
Investment Manager or Administrator.
(xvi)To make, execute and deliver, as Trustee, any
and all deeds, leases, mortgages, conveyances, waivers,
releases, or other instruments in writing necessary or
desirable for the accomplishment of any of the foregoing
powers.
(xvii)To invest at the Trustee or the Company (or
their affiliates) (i) in any type of interest bearing
investments (including, but not limited to savings accounts,
money market accounts, certificates of deposit and
repurchase agreements) and (ii) if specifically authorized
in writing by the Administrator, in non-interest bearing
accounts (including, but not limited to, checking accounts).
(xviii)To invest in collective investment accounts
maintained by the Trustee or by others for the investment of
assets of employee benefit plans qualified under Section 401
of the Code, whereupon the instruments establishing such
funds, as amended, shall be deemed a part of this Trust
Agreement and incorporated by reference herein.
(xix)To do all other acts although not specifically
mentioned herein, as the Trustee may deem necessary to carry
out any of the foregoing powers and the purposes of the
Trust.
(j) Administrative Powers of the Trustee.
Notwithstanding the appointment of an Investment Manager,
the Trustee shall have the following powers and authority,
to be exercised in its sole discretion, with respect to the
Trust Fund:
(i) To employ suitable agents, custodians and
counsel and to pay their reasonable expenses and
compensation.
(ii) To appoint ancillary trustees to hold any
portion of the assets of the trust and to pay their
reasonable expenses and compensation.
(iii)To register any securities held by its hereunder
in its own name or in the name of a nominee with or without
the addition of words indicating that such securities are
held in a fiduciary capacity and to hold any securities in
bearer form and to deposit any securities or other property
in a depository or clearing corporation.
(iv) To make, execute and deliver, as Trustee, any
and all deeds, leases, mortgages, conveyances, waivers,
releases or other instruments in writing necessary or
desirable for the accomplishment of any of the foregoing
powers.
(v) Generally to do all ministerial acts, whether or
not expressly authorized, which the Trustee may deem
necessary or desirable in carrying out its duties under this
Trust Agreement.
(k) Investment Manager Appointment. The Named Fiduciary,
from time to time and in accordance with the provisions of
the Plans, may appoint one or more independent investment
manager ("Investment Managers"), pursuant to a written
investment management agreement describing the powers and
duties of the Investment Manager, to direct the investment
and reinvestment of all or a portion of the Trust Fund held
in a separate account (an "Investment Account").
The Named Fiduciary shall be responsible for ascertaining
that while each Investment Manager is acting in that
capacity hereunder, the following requirements are
satisfied:
(a) The Investment Manager is either (i) registered
as an investment adviser under the Investment Adviser Act of
1940, as amended, (ii) a bank is defined in that Act, or
(iii) an insurance company qualified to perform the services
described in (b) below under the laws of more than one
state.
(b) The Investment Manager has the power to manage,
acquire or dispose of any assets of the Plans for which it
is responsible hereunder.
(c) The Investment Manager has acknowledged in
writing to the Administrator and the Trustee that he or it
is fiduciary with respect to the Plans within the meaning of
Section 3(21)(A) of ERISA.
The Administrator or Named Fiduciary shall furnish the
Trustee with written notice of the appointment of each
Investment Manager hereunder, and of the termination of any
such appointment. Such notice shall specify the assets
which shall constitute the Investment Account. The Trustee
shall be fully protected in relying upon the effectiveness
of such appointment and the Investment Manager's continuing
satisfaction of the requirements set forth above until it
receives written notice from the Administrator or Named
Fiduciary to the contrary.
The Trustee shall conclusively presume that each
Investment Manager, under its investment management
agreement, is entitled to act, in directing the investment
and reinvestment of the investment account for which it is
responsible, in its sole and independent discretion and
without limitation, except for any limitations which from
time to time the Administrator or Named Fiduciary shall
modify the scope of such authority.
Section 5. Accounts of the Trustee. The Trustee shall
render from time to time (but at least annually and upon
removal or resignation) accounts of its transactions to the
Administrator and the Administrator may approve such
accounts by an instrument in writing delivered to the
Trustee. The Administrator shall review such accounts and
notify the Trustee of any exceptions or objections to any
such account within sixty (60) days. No persons other than
the Company or the Administrator may require an accounting
or bring any action against the Trustee with respect to the
trust or its actions as Trustee.
Nothing contained in this Agreement or in the Plan shall
deprive the Trustee of the right to have a judicial
settlement of its accounts. In any proceeding for a
judicial settlement of the Trustee's accounts, or for
instructions in connection with the trust, the only
necessary parties thereto in addition to the Trustee shall
be the Company and the Administrator. If the Trustee so
elects, it may bring in as a party or parties defendant any
other person or persons.
Section 6. Compensation and Expenses. Within thirty (30)
days of receipt of the Trustee's bill, which shall be
computed and billed in accordance with Schedule "A" attached
hereto and made a part hereof, as amended from time to time,
the Sponsor shall send to the Trustee a payment in such
amount. All brokerage commissions incurred by the Trustee
relating directly to the acquisition and disposition of
investments constituting part of the Trust, and all taxes of
any kind whatsoever that may be levied or assessed under
existing or future laws upon or in respect of the Trust or
the income thereof, shall be a charge against and paid from
the appropriate Plan participants' accounts.
Section 7. Directions and Indemnification.
(a) Directions. The Trustee shall be fully protected in
relying upon a certification of any person authorized to act
on behalf of the Administrator or the Named Fiduciary with
respect to any instruction, direction or approval of the
Administrator or Named Fiduciary, and protected also in
relying upon a certification of the Company as to the
persons authorized to act on behalf of the Administrator and
Named Fiduciary, and in continuing to rely upon such
certification until a subsequent certification is filed with
the Trustee. The Trustee shall be further protected in
relying upon a certification from the Subtransfer Agent
appointed by the Company as to the person or persons
authorized to give instructions or directions on behalf of
such Subtransfer Agent and may continue to rely upon such
certification until a subsequent certification is filed with
the Trustee. Unless otherwise provided herein or agreed to
by the Trustee and Sponsor, any directions to be given to
the Trustee under this Agreement by the Administrator, Named
Fiduciary or Subtransfer Agent shall be given in writing or
by electronic means mutually satisfactory to the Trustee and
the person giving the direction.
The Trustee shall be fully protected in acting upon any
instrument, certificate, or paper believed by it to be
genuine and to be signed or presented by the proper person
or persons, and the Trustee shall be under no duty to make
any investigation or inquiry as to any statement contained
in any such writing but may accept the same as conclusive
evidence of the truth and accuracy of the statements therein
contained.
The Trustee shall not be liable for the proper application
of any part of the Trust Fund if payments are made in
accordance with the directions of the Administrator, Named
Fiduciary or Subtransfer Agent as herein provided, nor shall
the Trustee be responsible for the adequacy of the Trust
Fund to meet and discharge any and all payments and
liabilities under the Plan. All persons dealing with the
Trustee are released from inquiry into the decision or
authority of the Trustee and from seeing to the application
of any moneys, securities or other property paid or
delivered to the Trustee. Except as provided by ERISA, in
no event shall the Trustee have any liability for special,
indirect or consequential damages of any form whatsoever
(including, without limitation, lost profits) with respect
to any claim arising out of or relating to this Agreement
whether or not notice has been given as to the possibility
of such damages and regardless of the form of action in
which any such claim may be brought.
(b) Indemnification. The Sponsor shall indemnify the
Trustee against, and hold the Trustee harmless from, any and
all loss, damage, penalty, liability, reasonable cost, and
reasonable expense, including without limitation, reasonable
attorneys' fees and disbursements, that may be incurred by,
imposed upon, or asserted against the Trustee by reason of
any claim, regulatory proceeding, or litigation arising from
any act done or omitted to be done by any individual or
person with respect to the Plan or Trust, including without
limitation the selection of GICs and similar investments by
the Sponsor, excepting only any and all loss, etc., arising
solely from the Trustee's (or its agents) negligence,
willful misconduct, or bad faith.
(c) Survival. The provisions of this Section 7 shall
survive the termination of this Agreement.
Section 8. Resignation or Removal of Trustee.
(a) Resignation. The Trustee may resign at any time upon
thirty (30) days' notice in writing to the Sponsor, unless a
shorter period of notice is agreed upon by the Sponsor.
(b) Removal. The Sponsor may remove the Trustee at any
time upon thirty (30) days' notice in writing to the
Trustee, unless a shorter period of notice is agreed upon by
the Trustee.
Section 9. Successor Trustee.
(a) Appointment. If the office of Trustee becomes vacant
for any reason, the Sponsor may in writing appoint a
successor trustee under this Agreement. The successor
trustee shall have all of the rights, powers, privileges,
obligations, duties, liabilities, and immunities granted to
the Trustee under this Agreement. The successor trustee and
predecessor trustee shall not be liable for the acts or
omissions of the other with respect to the Trust.
(b) Acceptance. When the successor trustee accepts its
appointment under this Agreement, title to and possession of
the Trustee assets shall immediately vest in the successor
trustee without any further action on the part of the
predecessor trustee. The predecessor trustee shall execute
all instruments and do all acts that reasonably may be
necessary or reasonably may be requested in writing by the
Sponsor or the successor trustee to vest title to all Trust
assets in the successor trustee or to deliver all Trust
assets to the successor trustee.
(c) Corporate Action. Any successor of the Trustee or
successor trustee, through sale or transfer of the business
or trust department of the Trustee or successor trustee, or
through reorganization, consolidation, or merger, or any
similar transaction, shall, upon consummation of the
transaction, become the successor trustee under this
Agreement.
Section 10. Termination. This Agreement may be
terminated at any time by the Sponsor upon thirty (30) days'
notice in writing to the Trustee. On the date of the
termination of this Agreement, the Trustee shall forthwith
transfer and deliver to such individual or entity as the
Sponsor shall designate, all cash and assets then
constituting the Trust. Notwithstanding the foregoing, in
the event of a Plan termination, the Trustee shall not be
required to pay out any assets of the Trust fund until it
shall have received such rulings or determinations of the
Internal Revenue Service, the Labor Department, or any other
administrative agency as it may reasonably deem necessary or
appropriate in order to assure itself that any such payment
is made in accordance with the provisions of law or that it
will not subject the Trust fund or the Trustee, individually
or as such Trustee, to liabilities for which it is not
adequately indemnified. If, by the termination date, the
Sponsor has not notified the Trustee in writing as to whom
the assets and cash are to be transferred and delivered, the
Trustee may bring an appropriate action or proceeding for
leave to deposit the assets and cash in a court of competent
jurisdiction. The Trustee shall be reimbursed by the
Sponsor for all costs and expenses of the action or
proceeding including, without limitation, reasonable
attorneys' fees and disbursements.
Section 11. Resignation, Removal and Termination Notices.
All notices of resignation, removal, or termination under
this Agreement must be in writing and mailed to the party to
which the notice is being given by certified or registered
mail, return receipt requested, to the Sponsor c/o Senior
Vice President and Treasurer, Bruce F. Antenberg, and to the
Trustee c/o Great Western Relationship Manager, The Chase
Manhattan Bank, Global Securities Services, 770 Broadway,
New York, NY 10003, or to such other addresses as the
parties have notified each other of in the foregoing manner.
Section 12. Single Fund. The assets of the Trust shall
be held, administered, invested and managed in all respects
as a single trust even though portions of such assets may be
attributable to different employers and the employees of
each, or to separate plans maintained by the same employer
or different employers. The Subtransfer Agent shall be
responsible to maintain and determine the appropriate share
of the Trust fund held in respect of any particular Plan or
any such group of employees in the event that such
maintenance or determination shall be required by the Plan,
this Agreement or the operation of law. The determination
by the Subtransfer Agent of the shares of the Trust fund
held in respect of any such employee group or plan shall be
final and conclusive upon all persons.
Section 13. Transfer of Assets. Upon written direction
of the Named Fiduciary the Trustee shall (i) transfer and
deliver such part of the assets or the Trust fund as may be
specified in such direction to any trustee or insurance
carrier maintaining any other investment medium of the Plan
or to any trustee or insurance carrier maintaining any
investment medium of a plan, other than the Plan, which
qualifies under Section 401(a) of the Code into which plan
the Plan (or any portion thereof) shall be merged or
consolidated, or (ii) accept the transfer to the Trust fund
of assets acceptable to it from any trustee or insurance
carrier maintaining any other investment medium of the Plan
or from any trustee or insurance carrier maintaining any
investment medium of a plan, other than the Plan which
qualifies under Section 401(a) of the Code and which (or any
portion of which) shall be merged or consolidated with the
Plan. Any such transfer shall be subject to the provisions
of Section 12 hereof and the Trustee shall have no liability
or responsibility (i) to determine whether such transfer
shall be in conformity with the provisions of any plan or of
ERISA, or (ii) with regard to the effect of such transfer
upon any shares of the Trust fund held in respect of
participants or beneficiaries in the Plan whose interests
(or any portion thereof) in the Trust fund are being so
transferred to other funding media, whose interests in other
funding media are being so transferred to the Trust fund, or
in respect of participants or beneficiaries in the Plan
whose shares in the Trust fund are not directly subject to
any such transfer. Any such direction by the Named
Fiduciary shall constitute a certification that the transfer
so directed is one which the Named Fiduciary is authorized
to direct and which is in conformity with the provisions of
the Plan or any other plan, this Agreement and ERISA.
Section 14. Adoption of Trust by Separate Plan. A
Separate Plan may be funded in whole or in part through this
trust and become a participating Separate Plan hereunder
only if all of the following conditions have been met:
(a) The Sponsor, subsidiary or an affiliate has
established the Separate Plan;
(b) The Separate Plan is intended to meet the
requirements for qualification under Section 401(a) of the
Code;
(c) This trust is exempt from taxation under Section
501(a) of the Code;
(d) This trust (as then in effect and as the same may be
amended from time to time) has been duly adopted as the
trust for purposes of funding such Separate Plan;
(e) This trust is maintained at all times as a domestic
trust in the United States;
(f) The Sponsor or the Named Fiduciary is duly authorized
to exercise on behalf of such Separate Plan all of the
authority vested in it by the terms of this trust;
(g) This Agreement is constituted as a part of the
Separate Plan to the extent of the beneficial interest of
each such Separate Plan in the Trust Fund; and
(h) Each Separate Plan is prohibited from making any
assignment, either in whole or part, of its beneficial
interest in the Trust Fund.
When the trust is adopted as a trust under the Separate
Plan of any subsidiary or affiliate of the Sponsor, such
subsidiary or affiliate shall be bound by the decisions,
instructions, actions and directions of the Sponsor, the
Named Fiduciary or the Administrator under this Agreement
and the Trustee shall be fully protected by the Sponsor and
such subsidiary or affiliate in relying upon such decisions,
instructions, actions and directions of the Sponsor, the
Named Fiduciary or the Administrator. The Trustee shall not
be required to give notice to or obtain the consent of any
such subsidiary or affiliate with respect to any action
which is taken by the Trustee pursuant to this Agreement,
and the Sponsor shall have the sole authority to enforce
this Agreement on behalf of any such subsidiary or
affiliate.
Any Separate Plan may at any time segregate from further
participation in the trust under this Trust Agreement. The
company establishing such Separate Plan and the Sponsor
shall file with the Trustee a document evidencing its
segregation from the Trust Fund and its continuance as a
trust in accordance with the provisions of this Trust
Agreement as though such company were the sole creator
thereof. In such event, the Trustee shall deliver to
itself, as Trustee of such trust, the beneficial interest of
such Separate Plan as determined under the provisions of
Section 12 hereof. Such company may thereafter exercise in
respect of this Trust Agreement all the rights and powers
reserved to the Named Fiduciary or the Administrator under
the provisions of this Trust Agreement.
In lieu of the establishment of a separate trust with
respect to the participants and beneficiaries under a
segregating Separate Plan in accordance with the foregoing
provisions of this Article, such beneficial interest may be
segregated as provided above and transferred directly to the
trustee or insurance company maintaining the funding medium
of a plan other than the Separate Plan in accordance with
the provisions of Section 13 hereof.
Section 15. Agreement Incorporated in Separate Plans.
This Agreement constitutes a part of each Separate Plan and
of any separate trust created in connection therewith and is
part thereof to the extent of the beneficial interest of
each Separate Plan or separate trust in the Trust Fund.
Trust assets will be accepted or retained for investment
hereunder only from or on account of Separate Plans or
separate trusts which are qualified as tax exempt employee
benefit trusts under the provisions of the Internal Revenue
Code as in effect from time to time. Any separate trust
shall be prohibited from making any assignment, either in
whole or in part, of its beneficial interest in the Trust
Fund.
Section 16. Duration. This Trust shall continue in
effect without limit as to time, subject, however, to the
provisions of this Agreement relating to amendment,
modification, and termination thereof.
Section 17. Amendment or Modification. This Agreement
may be amended or modified at any time and from time to time
only by an instrument executed by both the Sponsor and the
Trustee. Notwithstanding the foregoing, to reflect
increased operating costs the Trustee may once each calendar
year amend Schedule "A" without the Sponsor's consent upon
one-hundred and eighty (180) days written notice to the
Sponsor, provided, however, that no fees shall be increased
prior to the third anniversary of the date hereof.
Section 18. No Guarantees. Neither the Company, the
Employer, the Administrator, the Named Fiduciary nor the
Trustee guarantees the Trust Fund from loss or depreciation,
nor the payment of any amount which may become due to any
person under the Plans or this Trust Agreement.
Section 19. Duty to Furnish Information. Both the
Company and the Trustee shall furnish to the other any
documents, reports, returns, statements, or other
information that the other reasonably deems necessary to
perform its duties imposed under the Plans or this Trust
Agreement or otherwise imposed by law.
Section 20. Withholding. The Trustee shall withhold any
tax which by any present or future law is required to be
withheld from any payment under the Plans. The
Administrator shall provide all information reasonably
requested by the Trustee to enable the Trustee to so
withhold.
Section 21. General.
(a) Entire Agreement. This Agreement contains all of the
terms agreed upon between the parties with respect to the
subject matter hereof.
(b) Waiver. No waiver by either party of any failure or
refusal to comply with an obligation hereunder shall be
deemed a waiver of any other or subsequent failure or
refusal to so comply.
(c) Successors and Assigns. The stipulations in this
Agreement shall inure to the benefit of, and shall bind, the
successors and assigns of the respective parties.
(d) Partial Invalidity. If any term or provision of this
Agreement or the application thereof to any person or
circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the
application of such term or provision to persons or
circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
(e) Section Headings. The headings of the various
sections and subsections of this Agreement have been
inserted only for the purposes of convenience and are not
part of this Agreement and shall not be deemed in any manner
to modify, explain, expand or restrict any of the provisions
of this Agreement.
Section 22. Governing Law.
(a) New York Law Controls. This Agreement and the trust
created hereby shall be construed, regulated and
administered under the laws of the United States and, to the
extent United States law is not applicable, the State of New
York and, except where otherwise specifically required by
the provisions of ERISA, the Trustee shall be liable to
account only in the courts of the State of New York.
(b) Trust Agreement Controls. The Trustee is not a party
to the Plan, and in the event of any conflict involving the
Trustee, between the provisions of the Plan and the
provisions of this Agreement, the provisions of this
Agreement shall control.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on September 25, 1996, by their
duly authorized officers as of the day and year first above
written.
GREAT WESTERN FINANCIAL CORPORATION
By: __/s/ Brue F. Attenberg___
Bruce F. Attenberg,
Senior Vice President and
Treasurer
Attest:
___/s/ Tina D. McKnight___
Assistant Secretary
THE CHASE MANHATTAN BANK
By: ___/s/ Otis A. Sinnott, Jr.___
Vice President
Attest:
__/s/ Colleen Cahill___
Vice President
<PAGE>
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF GREAT WESTERN FINANCIAL CORPORATION]
September
25th
1 9 9 6
Great Western Financial Corporation
9200 Oakdale Avenue
Chatsworth, California 91311
Re: Great Western Employee Savings Incentive Plan
Ladies and Gentlemen:
I have examined the Great Western Employee Savings
Incentive Plan, as amended and restated effective January 1,
1997 (the "Plan"), and the form of Registration Statement to
be filed by Great Western Financial Corporation (the
"Company") with the Securities and Exchange Commission in
connection with the registration under the Securities Act of
1933 of 4,000,000 shares of Company common stock, par value
$1.00 per share, together with the two-fifths of a preferred
share purchase right attached to each share pursuant to the
Company's Rights Agreement, dated as of June 24, 1986, as
amended on February 19, 1988 and June 27, 1995, with Morgan
Guaranty Trust Company, as Agent (the 'Shares") and of
interests in the Plan (together with the Shares, the
"Securities"). I have examined the proceedings heretofore
taken and proposed to be taken by the Company in connection
with the authorization of the Plan and the authorization of
the Company common stock that may be issued and sold to the
Plan. The shares may include treasury shares or other
previously issued shares acquired by the Trustee of the Plan
in open market transactions.
Based upon such examination and upon such matters
of fact and law as we have deemed relevant, and subject to
(i) the requisite additional proceedings being duly taken by
the Company as are contemplated by us prior to any new
issuance and sale of the Securities, and (ii) any required
notices to or approval by other regulatory authorities of
the issuance and sale of the Securities in the manner
proposed by the Company, we are of the opinion that the
Securities have been duly authorized by all necessary
corporate action on the part of the Company and, when issued
in accordance with such authorization and appropriate action
as contemplated thereby and by the Plan and related
agreements, the Securities will be validly issued and the
Shares will be fully paid and nonassessable.
I consent to the use of this opinion as an exhibit
to the Registration Statement on Form S-8 for the Plan.
Respectfully submitted,
__/s/ J. Lance Erikson__
J. Lance Erikson
Executive Vice President,
Secretary and General Counsel
<PAGE>
<PAGE>
EXHIBIT 5.2
[LETTERHEAD OF O'MELVENY & MYERS LLP]
September
25th
1 9 9 6
(213) 669-6000
330,955-50
Great Western Financial Corporation
9200 Oakdale Avenue
Chatsworth, California 91311
Re: Great Western Employee Savings Incentive Plan
Ladies and Gentlemen:
In connection with the preparation of the Form S-8
to be submitted by Great Western Financial Corporation (the
"Company") to the Securities and Exchange Commission with
respect to the Great Western Employee Savings Incentive
Plan, as amended and restated effective January 1, 1997 (the
"Plan"), you have requested our opinion as to whether the
provisions of the written documents constituting the Plan
comply with the requirements of the Employee Retirement
Income Security Act of 1974 ("ERISA").
The Internal Revenue Service has determined that
the Plan, prior to the restatement effective January 1,
1997, constitutes a qualified plan under Sections 401(a) and
401(k) of the Internal Revenue Code of 1986 (the "Code") and
satisfies the requirements of the Tax Reform Act of 1986. The
Company's most recent determination letter is dated
November 10, 1995 and is available on request.
We have been advised by you that the Plan will be
submitted to the Internal Revenue Service in a timely
fashion so that any amendments required by the Internal
Revenue Service may be made within the applicable remedial
amendment period.
Based on the foregoing, and our examination of the
Plan and accompanying Trust, it is our opinion that, the
form of the Plan satisfies the essential substantive
requirements of ERISA and the Code. Our opinion and any
determination letter issued by the Internal Revenue Service
covers only the form of the Plan and leaves open the
question of whether in operation the Plan is qualified.
We consent to the use of this opinion as an
exhibit to the Registration Statement on Form S-8 for the
Plan.
Respectfully submitted,
/s/ O'Melveny & Myers LLP
<PAGE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated
January 18, 1996, appearing on page 88 of Great Western
Financial Corporation's Annual Report on Form 10-K for the
year ended December 31, 1995.
/s/ Price Waterhouse LLP
Los Angeles, California
September 23, 1996
