<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 19, 1996
REGISTRATION NO.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST CHICAGO NBD CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 38-1984850
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA 60670
CHICAGO, ILLINOIS (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
FIRST CHICAGO NBD CORPORATION
SAVINGS AND INVESTMENT PLAN
(FULL TITLE OF THE PLAN)
SHERMAN I. GOLDBERG
EXECUTIVE VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
FIRST CHICAGO NBD CORPORATION
ONE FIRST NATIONAL PLAZA
CHICAGO, ILLINOIS 60670
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(312) 732-3551
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPY TO:
LAURENCE GOLDMAN, ESQ.
FIRST CHICAGO NBD CORPORATION
ONE FIRST NATIONAL PLAZA
CHICAGO, ILLINOIS 60670
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES TO BE REGISTERED AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED (1) PER SHARE (2) OFFERING PRICE (2) REGISTRATION FEE (2)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1 par value............ 3,000,000 shares $53.50 $160,500,000.00 $48,637
Interests in the Savings and
Investment Plan...................... (3) -- -- --
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Shares included in First Chicago NBD Corporation's Savings and Investment
Plan (the "Plan") and interests in such Plan were previously registered
pursuant to a Post-Effective Amendment No. 1 to a Registration Statement on
Form S-8 (No. 33-62713). In addition, shares of First Chicago Corporation,
a predecessor to the Registrant, and interests in the Plan were previously
registered by First Chicago Corporation on two prior Registration Statements
(Nos. 33-26788 and 33-51713). Further, shares and interests in the NBD
Bancorp, Inc. Employees' Savings and Investment Plan (the "NBD Plan") were
previously registered by the Registrant on Registration Statement (No. 33-
17494). It is anticipated that the NBD Plan will merge into the Plan as of
January 1, 1997.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h), based upon the average of the high and low
prices of Common Stock reported on the New York Stock Exchange Composite
Transactions Tape for November 13, 1996.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the Plan.
<PAGE>
General Instruction E. The Registrant is the surviving corporation of the
merger (the "Merger"), effective December 1, 1995, of First Chicago Corporation
("FCC") with and into NBD Bancorp, Inc. ("NBD"). At the time of the Merger, NBD
was renamed First Chicago NBD Corporation ("FCN"). The First Chicago NBD
Corporation Savings and Investment Plan (the "Plan") will be the amended and
restated First Chicago Corporation Savings Incentive Plan (the "FCC Plan"). The
FCC Plan and the NBD Bancorp, Inc. Employees' Savings and Investment Plan (the
"NBD Plan"), each a 401(k) plan, have both continued to be offered to employees
of the Registrant since the Merger. Effective January 1, 1997, the FCC Plan will
be amended and restated as the Plan, and the NBD Plan will merge into the Plan.
The contents of the previously filed Registration Statements on Form S-8
relating to either the FCC Plan or the NBD Plan (Nos. 33-26788, 33-51713, 33-
62713 and 33-17494) are incorporated herein by reference.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by FCN (File No. 1-7127) with the
Commission are incorporated by reference in the Registration Statement:
(a) FCN's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
(b) FCN's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1996 and June 30, 1996;
(c) FCN's Current Reports on Form 8-K dated January 16, 1996, January
26, 1996, April 15, 1996, June 7, 1996, June 27, 1996, July 15,
1996 and October 15, 1996;
(d) The description of FCN Common Stock set forth in a registration
statement of NBD, filed pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended, (the "Exchange Act") and any
amendment or report filed with the Commission for the purpose of
updating such description; and
(e) First Chicago Corporation Savings Incentive Plan's Annual Report
on Form 11-K for the year ended December 31, 1995.
All documents filed by FCN or the Plan pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, subsequent to the date hereof and prior to the filing
of a post-effective amendment which indicates that all the securities offered
hereby have been sold or which deregisters all such securities then remaining
unsold, shall be deemed to be incorporated by reference into the Registration
Statement and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein
-2-
<PAGE>
shall be deemed to be modified or superseded for purposes of the Prospectus 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 superseded, to
constitute a part of the Prospectus.
Item 4. Description of Securities.
-------------------------
This item is inapplicable as the securities to be offered are registered
under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
The validity of the shares of Common Stock of FCN offered hereby has been
passed upon for FCN by Sherman I. Goldberg. Mr. Goldberg is Executive Vice
President, General Counsel and Secretary of FCN and is also a stockholder of FCN
and a holder of options to purchase shares of FCN. At September 30, 1996, Mr.
Goldberg was the record and beneficial owner of approximately 189,122 shares of
FCN Common Stock and held options to purchase 221,083 shares of FCN Common
Stock.
The consolidated financial statements of FCN included in the Form 10-K for
the year ended December 31, 1995, incorporated herein by reference have been
audited by Arthur Andersen LLP, independent public accountants, as indicated in
their report with respect thereto, and are incorporated herein by reference in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said report.
The financial statements incorporated by reference in the Annual Report on
Form 11-K of the Plan for the year ended December 31, 1995, have been audited by
Washington, Pittman & McKeever, independent public accountants, as indicated in
their report with respect thereto, and are incorporated herein by reference in
reliance upon the authority of said firm in accounting and auditing in giving
said report.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Article Eighth of FCN's Restated Certificate of Incorporation, as amended
(the "FCN Certificate"), provides for indemnification of directors and officers.
The provision provides that any person shall be indemnified and reimbursed by
FCN for expenses and liabilities imposed upon the person in connection with any
action, suit or proceeding, civil or criminal, or threat thereof, in which the
person may be involved by reason of the person being or having been a director,
officer, employee or agent of FCN, or of any corporation or organization which
the person served in any capacity at the request of FCN, if the person acted in
good faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of FCN and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful; provided, however, that no indemnification shall be made in respect of
any matter as to which such person has been adjudged to be liable for negligence
or misconduct in the performance of the person's duty to FCN unless the Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that such
-3-
<PAGE>
person is fairly and reasonably entitled to indemnity.
The directors and officers of FCN are covered by an insurance policy,
indemnifying them against certain civil liabilities, including liabilities under
the federal securities laws, which might be incurred by them in such capacity.
The Plan provides that, to the extent permitted by law, any person who is a
present or former director, officer or employee of any employer covered by the
Plan to whom the Retirement Committee, which administers the Plan, or an
employer has delegated any portion of its responsibilities under the Plan and
each present or former Retirement Committee member shall be indemnified and
saved harmless by the employers (to the extent not indemnified or saved harmless
under any liability insurance or other indemnification arrangement with respect
to the Plan) from and against any and all claims of liability to which such
person may be subjected by reason of any act done or omitted to be done in good
faith with respect to the administration of the Plan or the investment of the
trust fund, including all expenses reasonably incurred in the individual's
defense, in the event that the employers fail to provide such defense.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers or persons controlling FCN pursuant to the foregoing provisions, FCN
has been informed that in the opinion of the Commission, such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
Item 7. Exemption from Registration Claimed.
-----------------------------------
This item is inapplicable.
-4-
<PAGE>
Item 8. Exhibits.
--------
The Registrant will submit or has submitted the Plan and any amendments thereto
to the Internal Revenue Service (the "IRS") in a timely manner and has made or
will make all changes required by the IRS in order to qualify the Plan under
Section 401 of the Internal Revenue Code of 1986, as amended.
This Registration Statement includes the following Exhibits:
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
------ -----------------------
<S> <C>
5 Opinion of Counsel to FCN as to legality of securities being
issued
23(a) Consent of Arthur Andersen LLP
23(b) Consent of Counsel to FCN (included in Exhibit 5 hereof)
23(c) Consent of Washington, Pittman & McKeever
24 Powers of Attorney
99 Form of First Chicago NBD Corporation Savings and Investment Plan
</TABLE>
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(l) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement: (i) to
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933; (ii) to reflect in the prospectus any facts or events arising after the
effective date of 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
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 (l)(i) and (l)(ii) do not apply if
the Registration Statement is on Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
-5-
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in 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.
(5) That, insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of Registrant pursuant to Registrant's indemnification
provisions, or otherwise, Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in such Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
payment by 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, Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
-6-
<PAGE>
SIGNATURES
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 this Registration Statement 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 Chicago, State of
Illinois, on the 19th day of November, 1996.
FIRST CHICAGO NBD CORPORATION
By: /s/ M. Eileen Kennedy
---------------------
M. Eileen Kennedy
Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 19, 1996.
Signature Title
--------- -----
/s/ Terence E. Adderley *
- ---------------------------
Terence E. Adderley Director
- ---------------------------
James K. Baker Director
/s/ John H. Bryan *
- ---------------------------
John H. Bryan Director
/s/ Siegfried Buschmann *
- ---------------------------
Siegfried Buschmann Director
/s/ James S. Crown *
- ---------------------------
James S. Crown Director
/s/ Maureen A. Fay, O.P. *
- ---------------------------
Maureen A. Fay, O.P. Director
/s/ Charles T. Fisher III *
- ---------------------------
Charles T. Fisher III Director
/s/ Donald V. Fites *
- ---------------------------
Donald V. Fites Director
/s/ Verne G. Istock *
- ---------------------------
Verne G. Istock Director and Principal Executive Officer
-7-
<PAGE>
/s/ Thomas H. Jeffs II *
- ------------------------------
Thomas H. Jeffs II Director
/s/ Richard A. Manoogian *
- ------------------------------
Richard A. Manoogian Director
/s/ Scott P. Marks, Jr. *
- ------------------------------
Scott P. Marks, Jr. Director
/s/ William T. McCormick, Jr.*
- ------------------------------
William T. McCormick, Jr. Director
/s/ Earl L. Neal *
- ------------------------------
Earl L. Neal Director
/s/ James J. O'Connor *
- ------------------------------
James J. O'Connor Director
- ------------------------------
Thomas E. Reilly, Jr. Director
/s/ Patrick G. Ryan *
- ------------------------------
Patrick G. Ryan Director
/s/ Adele Simmons *
- ------------------------------
Adele Simmons Director
/s/ Richard L. Thomas *
- ------------------------------
Richard L. Thomas Director
/s/ David J. Vitale *
- ------------------------------
David J. Vitale Director
/s/ Robert A. Rosholt *
- ------------------------------
Robert A. Rosholt Principal Financial Officer
/s/ William J. Roberts *
- ------------------------------
William J. Roberts Principal Accounting Officer
- --------------------------
* The undersigned, by signing her name hereto, does hereby sign this
Registration Statement on behalf of each of the above-indicated directors and
officers of the Registrant pursuant to a power of attorney signed by such
directors and officers.
/s/ M. Eileen Kennedy
------------------------------
M. Eileen Kennedy
Attorney-in-Fact
-8-
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibits
------ -----------------------
5 Opinion of Counsel to FCN as to legality of securities being
issued
23(a) Consent of Arthur Andersen LLP
23(b) Consent of Counsel to FCN (included in Exhibit 5 hereof)
23(c) Consent of Washington, Pittman & McKeever
24 Power of Attorney
99 Form of First Chicago NBD Corporation Savings and Investment Plan
<PAGE>
[Letterhead of Sherman I. Goldberg] Exhibits 5 and 23(b)
November 19, 1996
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: First Chicago NBD Corporation
Form S-8 Registration Statement
-------------------------------
Ladies and Gentlemen:
Reference is made to the Registration Statement of First Chicago NBD
Corporation (the "Company") on Form S-8 (the "Registration Statement") relating
to the Savings and Investment Plan of the Company (the "Plan"), concurrently
being filed with the Securities and Exchange Commission pursuant to which the
Company's common stock, $1 par value per share (the "Common Stock"), will be
offered under the Plan.
I have examined originals or copies, certified or otherwise identified to my
satisfaction, of such corporate records, certificates of public officials, and
other documents as I have deemed necessary or relevant as a basis for my opinion
set forth herein.
On the basis of the foregoing, it is my opinion that the shares of Common
Stock offered as set forth in the Registration Statement and relevant Plan
documents, when issued in accordance with their respective terms and the terms
of the Plan, will be legally issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name whenever it appears in such
Registration Statement, including the applicable Prospectus constituting a part
thereof, as originally filed or as subsequently amended.
Very truly yours,
/s/ Sherman I. Goldberg
Sherman I. Goldberg
<PAGE>
Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To First Chicago NBD Corporation:
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated January 16, 1996,
on the consolidated financial statements of First Chicago NBD Corporation
included in the Form 10-K of First Chicago NBD Corporation for the year ended
December 31, 1995 and to the reference to our Firm under the caption "Interest
of Named Experts and Counsel" in this Registration Statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois,
November 19, 1996
<PAGE>
Exhibit 23(c)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To First Chicago NBD Corporation:
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated March 4, 1996,
incorporated by reference in The First Chicago Corporation Savings Incentive
Plan's Form 11-K for the year ended December 31, 1995, and to the reference to
our Firm under the caption "Interest of Named Experts and Counsel" in this
Registration Statement.
WASHINGTON, PITTMAN & MCKEEVER
Chicago, Illinois
November 19, 1996
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Sherman I. Goldberg, Robert A. Rosholt, M. Eileen
Kennedy and Laurence Goldman, jointly and severally, his attorney-in-fact, each
with power of substitution, for him in any and all capacities to sign a
Registration Statement on Form S-8 relating to securities to be offered in
connection with the Savings and Investment Plan (the "Plan") of First Chicago
NBD Corporation (the "Corporation"), including the Corporation's Common Stock
and interests in the Plan, pursuant to resolutions adopted by the Board of
Directors of the Corporation on September 13, 1996, and any amendments thereto
(including any post-effective amendments) and to file the same, with exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Terence E. Adderley Director
- ----------------------------------
Terence E. Adderley
- ----------------------------------
James K. Baker
/s/ John H. Bryan Director
- ----------------------------------
John H. Bryan
/s/ Siegfried Buschmann Director
- ----------------------------------
Siegfried Buschmann
/s/ James S. Crown Director
- ----------------------------------
James S. Crown
/s/ Maureen A. Fay, O.P. Director
- ----------------------------------
Maureen A. Fay, O. P.
/s/ Charles T. Fisher III Director
- ----------------------------------
Charles T. Fisher III
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
/s/ Donald V. Fites Director
- ----------------------------------
Donald V. Fites
/s/ Verne G. Istock Director and Principal
- ---------------------------------- Executive Officer
Verne G. Istock
/s/ Thomas H. Jeffs II Director
- ----------------------------------
Thomas H. Jeffs II
/s/ Richard A. Manoogian Director
- ----------------------------------
Richard A. Manoogian
/s/ Scott P. Marks, Jr. Director
- ----------------------------------
Scott P. Marks, Jr.
/s/ William T. McCormick, Jr. Director
- ----------------------------------
William T. McCormick, Jr.
/s/ Earl L. Neal Director
- ----------------------------------
Earl L. Neal
/s/ James J. O'Connor Director
- ----------------------------------
James J. O'Connor
Director
- ----------------------------------
Thomas E. Reilly, Jr.
/s/ Patrick G. Ryan Director
- ----------------------------------
Patrick G. Ryan
/s/ Adele Simmons Director
- ----------------------------------
Adele Simmons
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
/s/ Richard L. Thomas Director
- ----------------------------------
Richard L. Thomas
/s/ David J. Vitale Director
- ----------------------------------
David J. Vitale
/s/ William J. Roberts Principal Accounting Officer
- ----------------------------------
William J. Roberts
/s/ Robert A. Rosholt Principal Financial Officer
- ----------------------------------
Robert A. Rosholt
</TABLE>
Dated: September 13, 1996
<PAGE>
Exhibit 99
DRAFT
10/31/96
Form of
FIRST CHICAGO NBD CORPORATION
-----------------------------
SAVINGS AND INVESTMENT PLAN
---------------------------
(Effective January 1, 1997)
<PAGE>
Table of Contents
-----------------
<TABLE>
<CAPTION>
ARTICLE 1
<S> <C>
Introduction............................................... 1
1.1 History........................................... 1
1.2 Purpose of the Plan............................... 1
1.3 The Trust......................................... 1
1.4 Effective Date.................................... 1
1.5 Administration.................................... 1
1.6 Form of Election and Signature.................... 2
1.7 Plan Supplements.................................. 2
ARTICLE 2
Definitions................................................ 2
2.1 Account........................................... 2
2.2 Actual Deferral Percentage........................ 3
2.3 After-Tax Contributions........................... 3
2.4 Before-Tax Contributions.......................... 3
2.5 Code.............................................. 3
2.6 Committee......................................... 3
2.7 Company Stock..................................... 3
2.8 Compensation...................................... 3
2.9 Contribution Percentage........................... 4
2.10 Controlled Group.................................. 4
2.11 Corporation....................................... 4
2.12 Designated Beneficiary............................ 4
2.13 Earnings.......................................... 4
2.14 Effective Date.................................... 4
2.15 Eligible Employee................................. 4
2.16 Employer.......................................... 4
2.17 Employer Discretionary Contribution............... 4
2.18 ERISA............................................. 5
2.19 Highly Compensated Employee....................... 5
2.20 Hour of Service................................... 5
2.21 Investment Funds.................................. 5
2.22 Leave of Absence.................................. 6
2.23 Matching Contributions............................ 6
2.24 NBD Plan.......................................... 6
2.25 Participant....................................... 6
2.26 Plan.............................................. 6
2.27 Plan Year......................................... 6
2.28 Related Company................................... 6
2.29 Settlement Date................................... 7
2.30 Subsidiary........................................ 7
2.31 Trust............................................. 7
2.32 Trust Fund........................................ 7
2.33 Valuation Date.................................... 7
2.34 Year of Service................................... 7
</TABLE>
<PAGE>
<TABLE>
<S> <C>
ARTICLE 3
Plan Participants.............................................................. 7
3.1 Participation......................................................... 7
3.2 Employees of Foreign Subsidiaries..................................... 8
3.3 Cessation of Participation............................................ 8
3.4 Cessation and Resumption of Active Participation...................... 8
3.5 Participants' Right to Share in Employer.............................. 9
3.6 Notice of Participation............................................... 9
3.7 Leased Employees...................................................... 9
ARTICLE 4
Employers' Contributions....................................................... 9
4.1 Employers' Contributions.............................................. 9
(a) Matching Contributions........................................... 9
(b) Before-Tax Contributions........................................ 10
(c) Employer Discretionary Contributions............................ 10
4.2 Payment of Employers' Contributions.................................. 10
4.3 Deduction Limitation................................................. 11
4.4 Verification of Employers' Contributions............................. 11
4.5 Forfeiture of "Orphaned" Matching Contributions...................... 11
ARTICLE 5
Before-Tax and After-Tax Contributions........................................ 11
5.1 Before-Tax Contributions............................................. 11
5.2 Distribution of Excess Deferrals..................................... 12
5.3 Actual Deferral Percentage Test Limitation on Before-Tax
Contributions........................................................ 12
5.4 Variation, Discontinuance and Resumption of Participant
Contributions........................................................ 13
5.5 Rollover Contributions............................................... 14
5.6 Transferred Benefits................................................. 15
5.7 Contribution Percentage Test Limitation on Matching Contributions.... 15
5.8 Multiple Use......................................................... 16
ARTICLE 6
Plan Accounting and Investment Alternatives................................... 16
6.1 Separate Participant Accounts........................................ 16
6.2 Investment Alternatives.............................................. 17
6.3 Investment Elections................................................. 18
6.4 Charging Payments and Distributions.................................. 18
6.5 Adjustment of Accounts............................................... 18
6.6 Statement of Accounts................................................ 19
6.7 Investments in Company Stock......................................... 19
6.8 Allocation of Company Stock.......................................... 19
6.9 Additional Accounting Rules For Company Stock........................ 20
6.10 Voting and Tender of Company Stock................................... 21
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
6.11 Correction of Error........................................ 21
ARTICLE 7
Distribution of Account Balances.................................... 22
7.1 Settlement Date............................................ 22
7.2 Methods of Benefit Payment................................. 22
7.3 Selection of Time and Manner of Benefit Payment............ 22
7.4 Designated Beneficiaries................................... 23
7.5 Eligible Rollover Distributions............................ 23
(a) ...................................................... 23
(b) Eligible rollover distribution........................ 24
(c) Eligible retirement plan.............................. 24
(d) Distributee........................................... 24
(e) Direct rollover....................................... 24
7.6 Payment of Certain Benefits from Transfer Account.......... 25
ARTICLE 8
Withdrawals and Loans During Employment............................. 27
8.1 Withdrawal of Before-Tax Contributions, Matching
Contributions and Employer Discretionary Contributions
on Account of Financial Hardship........................... 27
8.2 Withdrawal of After-Tax Contributions...................... 28
8.3 Withdrawal of Prior Employer Contributions................. 28
8.4 Withdrawal After Age 59-1/2................................ 28
8.5 Loans to Participants...................................... 28
ARTICLE 9
Maximum Contributions............................................... 30
9.1 Limitations on Annual Additions............................ 30
9.2 Excess Annual Additions.................................... 31
9.3 Combined Plan Limitation................................... 31
ARTICLE 10
General Provisions.................................................. 32
10.1 Payment to Substitute Beneficiaries........................ 32
10.2 Payment with Respect to Incapacitated Participants
or Beneficiaries........................................... 32
10.3 Examination of Plan Documents.............................. 33
10.4 Notices.................................................... 33
10.5 Nonalienation of Plan Benefits............................. 33
10.6 No Employment or Benefit Guaranty.......................... 34
10.7 Litigation................................................. 34
10.8 Evidence................................................... 35
10.9 Gender and Number.......................................... 35
10.10 Waiver of Notice........................................... 35
10.11 Applicable Law............................................. 35
10.12 Severability............................................... 35
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
10.13 Fiduciary Responsibilities.................................. 35
10.14 Funding of Plan Benefits.................................... 35
ARTICLE 11
Relating to Plan Administration...................................... 36
11.1 Committee Appointed by Corporation.......................... 36
11.2 Resignation or Removal of Committee Member.................. 36
11.3 Committee Secretary......................................... 36
11.4 Powers of Committee......................................... 36
11.5 Action by Committee......................................... 37
11.6 Committee Support........................................... 38
11.7 Decision of Committee Final................................. 38
11.8 Review of Benefit Determinations............................ 38
11.9 Uniform Rules............................................... 38
11.10 Indemnification............................................. 39
ARTICLE 12
Relating to the Employers............................................ 39
12.1 Action by Employers......................................... 39
12.2 Additional Employers........................................ 39
12.3 Restrictions as to Reversion of Trust Fund to
Employers................................................... 39
ARTICLE 13
Amendment and Termination............................................ 40
13.1 Amendment................................................... 40
13.2 Termination................................................. 41
13.3 Vesting on Termination...................................... 41
13.4 Plan Merger................................................. 41
13.5 Notice of Amendment, Termination or Plan Merger............. 41
ARTICLE 14
Top-Heavy Plan Rules................................................. 42
14.1 Key Employees............................................... 42
14.2 Top-Heavy Plan.............................................. 43
14.3 Aggregation Groups.......................................... 43
14.4 Special Minimum Contributions............................... 43
APPENDIX A
INVESTMENT FUNDS..................................................... 45
SUPPLEMENT B......................................................... B-1
SUPPLEMENT C......................................................... C-1
</TABLE>
<PAGE>
FIRST CHICAGO NBD CORPORATION SAVINGS AND INVESTMENT PLAN
---------------------------------------------------------
ARTICLE 1
---------
Introduction
------------
1.1 History. On December 1, 1995, First Chicago Corporation ("FCC")
merged with and into NBD Bancorp, Inc. ("NBD") at which time NBD was renamed
First Chicago NBD Corporation ("Corporation"). Consistent with the terms of the
merger agreement between NBD and FCC, the Corporation intends to create one
savings plan qualified under the Internal Revenue Code for the benefit of all
eligible employees of the Corporation, its subsidiaries and related companies.
To this end, on December 31, 1996 the NBD Bancorp, Inc. Employees' Savings and
Investment Plan ("NBD Plan") was merged into the First Chicago Corporation
Savings Incentive Plan (the "Plan"). This document constitutes an amendment and
restatement of the Plan effective January 1, 1997.
1.2 Purpose of the Plan. The purpose of the Plan is to enable
eligible employees of the Corporation and eligible employees of the
Corporation's subsidiaries and other related companies which adopt the Plan (the
"Employers") with the Corporation's consent to accumulate their own funds and
share in the contributions of their Employers, and thereby assist such employees
in providing for their future security. The Plan is intended to be a qualified
profit sharing plan under Section 401(a) of the Internal Revenue Code of 1986,
as amended ("Code"). The Plan is also intended to qualify as a cash and
deferred arrangement under Section 401(k) of the Code. In addition, the Plan
will operate as a multiple employer plan within the meaning of Section 413(c) of
the Code. The provisions of this Plan shall apply only to an employee who is
employed by an Employer on or after the Effective Date. The rights and
benefits, if any, of a former employee of FCC or NBD shall be determined in
accordance with the provisions of the Plan (or the NBD Plan, if applicable) in
effect on the date his employment was terminated.
1.3 The Trust. Funds contributed under the Plan will be held and
invested until distributed by the person or persons from time to time appointed
by the Corporation to serve as the trustee of the First Chicago Corporation
Savings and Investment Plan Trust (the "Trust").
1.4 Effective Date. The "Effective Date" of the Plan, as set forth
herein, is January 1, 1997.
1.5 Administration. The Plan will be administered by the Retirement
Committee (the "Committee") described in section 11 and any other persons so
authorized by the Committee. Copies
<PAGE>
of the Plan and Trust, which forms a part of the Plan, are on file at the
principal offices of the Corporation where they may be examined by any employee
of an Employer. The provisions of, and benefits under, the Plan are subject to
the Trust.
1.6 Form of Election and Signature. Any election or consent
permitted or required to be made or given by any Participant or other person
entitled to benefits under the Plan, and any permitted modification or
revocation thereof, shall be made in writing or shall be given by means of such
interactive telephone system as the Committee may designate from time to time as
the sole vehicle for executing regular transactions under the Plan (referred to
generally herein as the "Phone System"). Each Participant shall have a personal
identification number or "PIN" for purposes of executing transactions through
the Phone System, and entry by a Participant of his PIN shall constitute his
valid signature for purposes of any transaction the Committee determines should
be executed by means of the Phone System, which may include, without limitation,
enrolling in the Plan, electing contribution rates, making investment choices,
executing loan documents, and requesting a withdrawal or distribution. Any
election made through the Phone System shall be considered submitted to the
Committee on the date it is electronically transmitted.
1.7 Plan Supplements. The provisions of the Plan as applied to any
Employer or any group of employees of any Employer may be modified or
supplemented from time to time by the Corporation by the adoption of one or more
Supplements. Each Supplement shall form a part of the Plan as of the
Supplement's effective date. In the event of any inconsistency between a
Supplement and the Plan document, the terms of the Supplement shall govern.
ARTICLE 2
---------
Definitions
-----------
The following terms, when used in the Plan, shall have the following definitions
unless the context expressly requires otherwise:
2.1 Account means the record, maintained by the Committee for each
Participant, of his interest in the Trust Fund. The Committee also will
maintain, for each Participant, (i) such separate accounts as it deems necessary
to reflect contributions to the Plan (as described in section 6.1) and (ii) a
record of the portion of his account that is invested in each of the Investment
Funds.
2
<PAGE>
2.2 Actual Deferral Percentage means for a specified group of
Eligible Employees for any Plan Year, the average of ratios (computed separately
for each Eligible Employee) of (i) the Before-Tax Contributions (and any other
Employer contributions which meet the withdrawal restrictions and vesting
requirements of Section 401(k) of the Code, except, however, Matching
Contributions are not intended to be used in the computation of this percentage
or for purposes of section 5.3) for each Eligible Employee in such group for
such Plan Year to (ii) the Eligible Employee's Earnings for such Plan Year.
2.3 After-Tax Contributions means the amount of a Participant's
Compensation contributed by him to the Plan on an after-tax basis prior to the
Effective Date. No new After-Tax Contributions are permitted to be made to the
Plan on and after the Effective Date.
2.4 Before-Tax Contributions means the amount by which a
Participant's Compensation is reduced at his election pursuant to section 5.1
and which is contributed to the Trust Fund on his behalf by his Employer
pursuant to section 4.1(b).
2.5 Code means the Internal Revenue Code of 1986, as amended and in
effect from time to time.
2.6 Committee means the Retirement Committee of the Corporation.
2.7 Company Stock means "qualifying employer securities", as defined
in Section 407(d)(5) of the Employee Retirement Income Security Act of 1974, as
amended, of the Corporation.
2.8 Compensation means all cash renumeration paid to or for the
benefit of a Participant during a Plan Year as a U.S.-based employee of an
Employer for the Participant's services as an employee not in excess of $150,000
(or such other maximum amount as may be permitted from time to time by the
Secretary of the Treasury or his delegate or by law) including amounts withheld
from his pay pursuant to a salary reduction agreement and which are not
includible in his gross income under Sections 125 and 402(a)(8) of the Code,
overtime, supplemental pay, sales commissions and shift differentials; however,
Compensation shall not include amounts paid before the date he became a
Participant, or after the date he no longer is eligible to actively participate,
bonuses, business unit performance awards, lump sum severance payments, tuition
assistance, adoption assistance, referral awards, production payments, service
and recognition awards, discretionary profit sharing awards, stock-related
income, dividends, payments of salary or bonus deferrals, payments from
reimbursement accounts, life insurance
3
<PAGE>
attributions, relocation allowances and any other non-cash compensation.
2.9 Contribution Percentage means for a specified group of Eligible
Employees for any Plan Year the average of the ratios (computed separately for
each Eligible Employee in such group) of (i) Matching Contributions (and any
Employer contributions described in Section 401(m)(3) of the Code or which meet
the withdrawal and vesting requirements of Section 401(k) of the Code, if the
Employer elects, in accordance with Treasury Regulations, to take such
contributions into account) for each Eligible Employee in such group for such
Plan Year to (ii) the Eligible Employee's Earnings for such Plan Year.
2.10 Controlled Group means a controlled group of corporations or
trades or businesses within the meaning of Sections 414(b) and 414(c) of the
Code.
2.11 Corporation means First Chicago NBD Corporation, a Delaware
corporation, or its successor or successors.
2.12 Designated Beneficiary means any person or persons designated by
a Participant in accordance with section 7.4 to receive any benefits on account
of the death of the Participant.
2.13 Earnings with respect to each employee of an Employer means total
remuneration for services rendered to the Corporation during the Plan Year as
reported for federal income tax purposes on Form W-2 plus any amounts which are
not includible in the employee's gross income under Sections 125 or 402(a)(8) of
the Code, but excluding amounts in excess of $150,000 (or such other maximum
amount as may be permitted by the Secretary of the Treasury or his delegate or
by law).
2.14 Effective Date means January 1, 1997.
2.15 Eligible Employee means any individual who currently satisfies
all of the eligibility requirements of subsection 3.1, disregarding paragraph
(d) thereof.
2.16 Employer means the Corporation and any Related Company or
Subsidiary that has adopted the Plan with the Corporation's consent in
accordance with the provisions of section 12.2. The Corporation, Related
Companies and Subsidiaries that have adopted the Plan are sometimes referred to
herein collectively as the "Employers" and individually as an "Employer."
2.17 Employer Discretionary Contribution means the discretionary
contribution an Employer may make on behalf of each eligible individual as
described in subsection 4.1(c).
4
<PAGE>
2.18 ERISA means the Employee Retirement Income Security Act of 1974,
as amended.
2.19 Highly Compensated Employee means an employee of an Employer who
(a) was a 5-percent owner of the Corporation as defined in Section 416(i)(1) of
the Code at any time during the Plan Year or the preceding Plan Year, or (b)
during the preceding Plan Year received Earnings from the Related Companies and
Subsidiaries (treating each Controlled Group separately) in excess of $80,000
(or such other maximum amount as may be permitted from time to time by the
Secretary of the Treasury or his delegate or by law).
2.20 Hour of Service means:
(a) Each hour for which an employee is directly or indirectly compensated,
or employed, by the Corporation, a Related Company or a Subsidiary. A
salaried employee shall be credited with 45 hours of service for each
week for which he is directly or indirectly compensated, or employed
by, the Corporation, a Related Company or a Subsidiary.
(b) Each other hour required by federal law to be counted as an "hour of
service," including (i) each such hour for which back pay,
irrespective of mitigation of damages, is either awarded or agreed to
by the Corporation, a Related Company or a Subsidiary, and (ii) each
such hour for which an employee is on maternity or paternity leave of
absence; provided, that not more than 501 hours of service shall be
credited for payments of back pay, to the extent that such back pay is
awarded for a period of time during which the employee did not or
would not have performed duties as an employee and not more than 501
hours of service shall be credited by reason of a maternity or
paternity leave of absence.
Hours described in subsection (b) next above for employees on a maternity or
paternity leave of absence shall be determined in the same manner as compensated
hours of service, hours shall be credited for the period in which such duties
were performed (regardless of when payment is due) or for which such
compensation was paid and for this purpose the rules for crediting hours of
service set forth in Section 2530.200b-2 of the Department of Labor Regulations
are hereby incorporated by reference.
2.21 Investment Funds means those funds to be established within the
Trust Fund for the investment of Participants' Accounts as described at section
6.2.
5
<PAGE>
2.22 Leave of Absence means:
----------------
(a) a leave of absence required by law or granted by an Employer or
Related Company or Subsidiary on account of service in military or
governmental branches described in any applicable statute granting
reemployment rights to employees who enter such branches, or any other
military or governmental branch designated by the Employer;
(b) a Leave of Absence for any period the employee is absent from work by
reason of the employee's pregnancy, the birth of a child of the
employee, the placement of a child with the employee in connection
with the adoption of the child by the employee or the caring for the
child for a period beginning immediately after such birth or
placement; and
(c) any other absence from active employment with an Employer or Related
Company or Subsidiary that is approved by it and not treated by it as
a termination of employment.
Leaves of Absence granted by an Employer or Related Company or Subsidiary will
be governed by rules uniformly applied to all similarly situated employees of
that Employer, Related Company or Subsidiary.
2.23 Matching Contributions means contributions which the Employer
makes as a percentage of a Participant's Before-Tax Contributions under section
4.1(a).
2.24 NBD Plan means the NBD Bancorp, Inc. Employees' Savings and
Investment Plan which was merged into this Plan immediately prior to the
Effective Date.
2.25 Participant means an employee or former employee of an Employer
who has met the eligibility requirements of Article 3 to participate in the
Plan, including the requirements of subsection 3.1(d). An employee who becomes
a Participant will continue as such until complete distribution of his Accounts
is made to him or on his behalf under section 7.2.
2.26 Plan means the First Chicago NBD Corporation Savings and
Investment Plan (formerly known as the First Chicago Corporation Savings and
Investment Plan).
2.27 Plan Year means the calendar year.
2.28 Related Company means the Corporation, and any other corporation
or trade or business during the period in which
6
<PAGE>
such corporation or trade or business is a member of the same Controlled Group
as the Corporation.
2.29 Settlement Date means, as to a Participant, the Valuation Date
next following the date on which the Committee receives official confirmation
that a Participant has terminated employment with all of the Related Companies
and Subsidiaries, whether because of death, retirement or otherwise or, in the
case of a Participant who has attained age 59-1/2, the date the Committee
receives the election specified under section 8.4.
2.30 Subsidiary means a corporation or partnership during any period
during which at least 50% of its equity interest is directly or indirectly owned
by the Corporation.
2.31 Trust means the First Chicago NBD Corporation Savings and
Investment Plan Trust.
2.32 Trust Fund means, as of any date, all property of every kind then
held by the trustee pursuant to the terms of the Trust.
2.33 Valuation Date means each day that the New York Stock Exchange is
open or such other dates that the Committee may designate.
2.34 Year of Service means a 12 consecutive month period commencing on
the date an employee first completes an Hour of Service (and each 12 consecutive
month period commencing on the anniversary of his hire date) within which the
employee completes at least 1,000 Hours of Service, provided, however, that for
purposes of determining the first date upon which an individual can enter the
Plan, an employee will not be recognized as having completed a Year of Service
until the end of the applicable 12 month period (although employment on the last
day of such 12 month period is not required for completion of a Year of
Service).
ARTICLE 3
---------
Plan Participants
-----------------
3.1 Participation. Each Participant in the Plan or the NBD Plan
immediately prior to the Effective Date will continue as a Participant in the
Plan on and after that date, subject to the conditions and limitations of the
Plan. Each other employee of an Employer will become a Participant in the Plan
on the first payroll date, after the Effective Date, coincident with or
following the date he meets all of the following requirements:
7
<PAGE>
(a) he is employed by an Employer; however, employees covered by a
collective bargaining agreement shall not be eligible to participate
unless the collective bargaining agreement states otherwise;
(b) he is either (i) a salaried employee (that is, an employee whose
compensation is expressed on his Employer's records as a rate per year
rather than rate per hour) who has completed one calendar month of
employment following the date he first performs an Hour of Service or
(ii) an hourly employee who has completed at least one Year of
Service;
(c) he is classified by his Employer as a U.S.-based employee; and
(d) he has elected to contribute to the Plan, according to rules
established by the Committee.
3.2 Employees of Foreign Subsidiaries. A United States citizen
employed by a foreign subsidiary (as defined in Section 3121(1)(8) of the Code)
of any domestic Employer shall be considered an employee of that Employer if it
has entered into an agreement under Section 3121(1) of the Code which applies to
such foreign subsidiary and if contributions under a funded plan of deferred
compensation are not provided by any person other than such Employer with
respect to the remuneration paid to such individual by such foreign subsidiary,
and in such event, his remuneration from, and employment with, said foreign
subsidiary shall be deemed to be Compensation and to be employment with an
Employer, respectively.
3.3 Cessation of Participation. Once an Eligible employee has become
a Participant in the Plan in accordance with section 3.1 above, such employee
shall remain a Participant in the Plan until the date that the Participant's
entire Account balances under the Plan have been distributed to him or on his
behalf in accordance with the Plan.
3.4 Cessation and Resumption of Active Participation. A Participant
who ceases to be an Eligible Employee (including an employee who transfers from
a salaried to an hourly position who has not yet earned a Year of Service) shall
no longer be eligible to make contributions to the Plan. Such an individual
shall resume active participation in the Plan on the first payroll date
coincident with or following the date he again meets all of the eligibility
requirements of section 3.1. A Participant who elects to discontinue making
Before-Tax Contributions in accordance with section 5.1 may elect again to
contribute as of the first day of any payroll period following his election to
discontinue making contributions, by properly electing to resume
8
<PAGE>
contributions in accordance with uniform rules established by the Committee.
3.5 Participants' Right to Share in Employer Contributions. Only those
Participants who are employed by an Employer and are receiving Compensation for
a pay period are entitled to share in Employer contributions made in accordance
with subsections 4.1(a) and 4.1(b) with respect to such pay period.
3.6 Notice of Participation. Each employee will be notified of the
date he is eligible to become a Participant by making a contribution election.
3.7 Leased Employees. If a person satisfies the requirements of
section 414(n) of the Code and applicable Treasury regulations for treatment as
a "Leased Employee", such Leased Employee shall not be eligible to participate
in this Plan but, to the extent required by section 414(n) of the Code and
applicable Treasury regulations, such person shall be treated as if the services
performed by him in such capacity were performed by him as an employee of a
Related Company or Subsidiary which has not adopted the Plan; provided, however,
that no such service shall be credited for any period during which not more than
20% of the workforce of the Employers, the Related Companies and Subsidiaries
(divided by Controlled Groups) consists of Leased Employees and the Leased
Employee is a participant in a money purchase pension plan maintained by the
leasing organization which (i) provides for a non-integrated employer
contribution of at least 10 percent of compensation, (ii) provides for full and
immediate vesting, and (iii) covers all employees of the leasing organization
(beginning with the date they become employees), other than those employees
excluded under section 414(n)(5) of the Code.
ARTICLE 4
---------
Employers' Contributions
------------------------
4.1 Employers' Contributions. Subject to the conditions and
limitations of this Article 4 and Article 9, for each Plan Year the Employers
will make contributions to the Trust Fund in an amount equal to the sum of the
amounts determined in accordance with subsections (a) and (b) below:
(a) Matching Contributions. With respect to each Participant who has made
a Before-Tax Contribution to the Plan as of the end of any pay period
(excluding Before-Tax Contributions made automatically under
Supplement C to replace distributed dividends), the
9
<PAGE>
Employers shall make a Matching Contribution on behalf of each
Participant equal to one hundred (100) percent of that portion of each
Participant's Before-Tax Contributions which do not exceed three (3)
percent of the Participant's Compensation for such pay period and an
amount equal to fifty (50) percent of that portion of a Participant's
Compensation that exceeds three (3) percent but does not exceed six
(6) percent of the Participant's Compensation for such pay period.
(b) Before-Tax Contributions. For each payroll date of an Employer which
ends during a Plan Year, each Employer will contribute to the Trust
Fund 100 percent of the Before-Tax Contributions, if any, elected by
each Participant employed by it on that payroll date.
(c) Employer Discretionary Contributions. As of the first business day of
each Plan Year, the Employers may contribute a uniform amount to the
Account of each "eligible individual," as defined in the following
sentence, such amount as to be determined in the absolute discretion
of the Corporation's Board of Directors or Organization, Compensation
and Nominating Committee (without regard to the Corporation's current
and accumulated net profits) on or before such date; however, in the
case of eligible individuals designated by their Employer as hourly-
paid employees, the uniform amount contributed to such employee's
Accounts may be a fixed percentage of the amount contributed to
eligible employees designated by their Employer as salaried-paid
employees. An eligible individual is any employee of an Employer who
(i) is an Eligible Employee as of the first day of the Plan Year for
which the contribution is made, (ii) is in salary band 6 or below (or
its equivalent) and (iii) has completed a period of service determined
by the Organization, Compensation and Nominating Committee of the
Corporation for purposes of determining eligibility for an Employer
Discretionary Contribution (which period of service shall comply with
Section 401(a) of the Code and shall not discriminate in favor of
Highly Compensated Employees).
4.2 Payment of Employers' Contributions. It is intended that each
Employer's contributions under the Plan made in accordance with subsection
4.1(a) for a Plan Year shall be paid to the Trust Fund (as described in section
10.14) under the Plan, without interest, to the extent practicable as of the
last day of each calendar month, but in no event later than the time prescribed
by law for filing the Employer's federal income tax return for its fiscal year
coinciding with the Plan Year for which such contributions are made, including
any extensions of
10
<PAGE>
time thereof. Each Employer's contributions under the Plan made in accordance
with subsection 4.1(b) for any payroll date shall be paid to the Trust Fund,
without interest, as soon after that payroll date as it can reasonably be
segregated from the Employer's general assets. Each Employer's contributions
under the Plan to be made in accordance with subsection 4.1(c) shall be paid to
the Trust Fund, without interest, as soon as practicable following the first day
of the Plan Year for which the contribution is made, but in no event later than
the time prescribed by law for filing the Employer's federal income tax return
for its fiscal year coinciding with the Plan Year for which such contributions
are made, including any extensions.
4.3 Deduction Limitation. Each Employer's aggregate contributions
under the Plan for any Plan Year in no event shall exceed an amount equal to the
maximum amount deductible on account thereof by that Employer for its fiscal
year coinciding with that Plan Year as an expense for purposes of federal taxes
on income.
4.4 Verification of Employers' Contributions. The certificate of an
independent certified public accountant selected by the Corporation as to the
correctness of any amounts or calculations relating to the Employers'
contributions under the Plan for any Plan Year shall be conclusive on all
persons.
4.5 Forfeiture of "Orphaned" Matching Contributions. If Before-Tax
Contributions are returned to a Highly Compensated Employee to satisfy the
contribution limits of Section 415(c) of the Code, the deferral limits of
Section 402(g) of the Code or the nondiscrimination requirements of Section
401(k) of the Code, any Matching Contributions allocable thereto shall be
forfeited and used to reduce the amount of Employer contributions otherwise
required to be made to the Plan.
ARTICLE 5
---------
Before-Tax and After-Tax Contributions
--------------------------------------
5.1 Before-Tax Contributions. Subject to the conditions and
limitations of this Article 5 and Article 9, for each payroll date beginning
after January 1, 1997 each Participant may elect to reduce his Compensation from
his Employer by an amount equal to not less than one percent nor more than
fifteen (15) percent (in multiples of one whole percent) of his Compensation for
such payroll date, and his Employer shall in accordance with subsection 4.1(b)
contribute the amount of each such reduction for a payroll date to the Plan on
his behalf as a Before-Tax Contribution; provided that a Participant's aggregate
Before-Tax Contributions may not exceed $9,500 (or such other
11
<PAGE>
maximum amount as may be permitted from time to time by the Secretary of the
Treasury or his delegate or by law) in any calendar year. Each Participant
desiring to have Before-Tax Contributions made on his behalf shall file an
election with the Plan's recordkeeper, in such manner and at such times as the
Committee shall require. Such election shall evidence the Participant's
authorization of his Employer to reduce his Compensation and, accordingly, his
agreement (until subsequently modified by him as permitted in section 5.4) to
have Before-Tax Contributions made on his behalf at his chosen rate.
5.2 Distribution of Excess Deferrals. If a Participant notifies the
Committee by March 1 next following the end of a calendar year that he has made
Before-Tax Contributions to this Plan and one or more other plans in excess of
the maximum Before-Tax Contributions permissible during such calendar year and
further notifies the Committee of the amount of such excess allocated to this
Plan, such excess amount shall be paid to such Participant (along with any
income or loss allocable thereto) as soon as practicable following such
notification, but in any event by the April 15 following the calendar year with
respect to which such excess deferrals were made. In addition, if the applicable
limitation for a calendar year happens to be exceeded with respect to this Plan
alone, or this Plan and another plan or plans of the Employers, Related
Companies and Subsidiaries, the Committee shall direct such excess Before-Tax
Contributions (with allocable gains or losses) to be distributed to the
Participant as soon as practicable after the Committee is notified of the excess
deferrals by the Corporation, an Employer or the Participant, or otherwise
discovers the error (but no later than the April 15 following the close of the
Participant's taxable year).
5.3 Actual Deferral Percentage Test Limitation on Before-Tax
Contributions. In addition to being subject to the contribution limitations of
sections 5.1, 9.2 and 9.3, Before-Tax Contributions shall be subject to the
nondiscrimination limitations of Sections 401(k)(3) and 401(m)(2) of the Code
and applicable Treasury regulations. For this purpose, Before-Tax Contributions
shall be adjusted each Plan Year by the Committee, as necessary, so that either:
(a) The Actual Deferral Percentage for the group of Highly Compensated
Employees for a Plan Year shall not exceed 125 percent of the Actual
Deferral Percentage for all other Eligible Employees for the preceding
Plan Year; or
(b) The Actual Deferral Percentage for the group of Highly Compensated
Employees for a Plan Year shall not exceed the Actual Deferral
Percentage for all other Eligible
12
<PAGE>
Employees for the preceding Plan Year by more than two percentage
points and also shall not exceed 200 percent of such Actual Deferral
Percentage for all other Eligible Employees (or such lesser amount as
the Secretary of the Treasury prescribes to prevent the multiple use
of this alternative with respect to any Highly Compensated Employee).
The foregoing test shall be applied separately to Eligible Employees employed by
Employers that are members of different Controlled Groups.
An adjustment shall be made hereunder only if neither subsection (a) nor (b)
above is satisfied. If any adjustment is required hereunder, then, in the first
instance, where it is determined that an adjustment is required before the end
of the Plan Year, the maximum amount of Before-Tax Contributions that may be
elected by each Highly Compensated Employee shall be reduced on a prospective
basis for the remainder of the Plan Year to the smallest whole percentage which
will cause either subsection (a) or (b) above to be satisfied. Alternatively,
(or in addition as the case may be) if upon conclusion of the Plan Year, it is
determined that further adjustment is required, then the Before-Tax
Contributions elected by all Highly Compensated Employees which are in excess of
such reduced maximum percentage shall be reduced in accordance with section
401(k) of the Code and applicable Treasury regulations to cause either
subsection (a) or (b) to be satisfied. The amount by which a Participant's
Before-Tax Contributions are reduced hereunder shall be paid to such Participant
(along with any income or loss allocable thereto) as soon as practicable
following such determination, but in any event by the fifteenth day of the third
calendar month following the end of the Plan Year with respect to which such
Before-Tax Contributions were made. Employer Discretionary Contributions may be
utilized in computing the Actual Deferral Percentage for each Participant to the
extent necessary to satisfy the limitations of this section.
5.4 Variation, Discontinuance and Resumption of Participant
Contributions. Each Participant shall initially elect his rate of Before-Tax
Contributions effective as of the first eligible date he elects to participate
in the Plan by an election filed with the Plan's recordkeeper twenty-one days in
advance of such payroll date, which election will evidence the Participant's
agreement (until subsequently modified by him in accordance with this section)
to have his Compensation reduced and contributions made on his behalf in
accordance with section 5.1. A Participant may elect to change the rate of his
contributions as of any payroll date by filing a superseding election with the
Plan's recordkeeper within a time period
13
<PAGE>
announced from time to time by the Committee to Participants. A Participant may
elect to discontinue making all contributions as of any payroll date by filing a
superseding election with the Plan's recordkeeper at least 21 days before such
date (or by such earlier date as the Committee may require). A Participant who
has discontinued making some or all contributions hereunder may resume making
such contributions by filing an election with the Plan's recordkeeper at least
21 days prior to any payroll date. Any elections made in accordance with this
section 5.5 shall be made in accordance with rules established from time to time
by the Committee.
5.5 Rollover Contributions. An individual who would be an Eligible
Employee but for the failure to satisfy the service requirement of subsection
3.1(b) may transfer to the Trust Fund, in cash, all or any portion of an
"eligible rollover distribution," as defined in Section 402(c) of the Code,
provided that such distribution is from a plan that meets the requirements of
Section 401(a) of the Code (the "Former Plan"). The procedures approved by the
Committee shall provide that such a transfer may be made only if the following
conditions are met: (i) the transfer occurs on or before the sixtieth (60th) day
following the employee's receipt of the distribution from the Former Plan, and
(ii) the amount transferred is less than or equal to the amount of the
distribution the employee received from the Former Plan, subject to the
provisions of Section 402 regarding maximum rollovers. Notwithstanding the
foregoing, if such employee had deposited a distribution previously received
from a Former Plan into a "conduit" individual retirement account ("IRA"), as
defined in Section 408 of the Code, he may transfer the amount of such
distribution plus earnings thereon from the IRA to this Plan, provided such
rollover amount is deposited with the Trustee on or before the sixtieth (60th)
day following receipt thereof from the IRA. 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 5.5. Upon approval
by the Committee, the amount transferred shall be deposited in the Trust Fund
and shall be held and administered in accordance with Article VI. A Rollover
Account for the Participant shall be established in the Trust Fund for this
purpose, which shall be fully vested and nonforfeitable at all times, and shall
share in earnings, increments, proceeds thereof or net losses thereon in
accordance with section 6.5.
Upon such a transfer by an individual who is not yet a Participant, credits to
his Rollover Account hereunder shall represent his sole interest in the Plan
until he becomes a Participant.
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<PAGE>
5.6 Transferred Benefits. If an employee of an Employer had previously
participated in any other qualified pension, profit sharing, stock bonus or
other retirement or employee benefit plan maintained by the Employer and such
other plan permits the transfer to this Plan of the vested portion of such
employee's benefits under such other plan, and if so directed by the Committee
in its discretion, the trustee of the Trust Fund shall accept a transfer of cash
to this Plan equal to the vested benefits of such employee under such other plan
which are being transferred to this Plan (and such covered employee shall
thereby become a Participant if he was not already a Participant), provided that
the amount transferred shall not consist of after-tax contributions.
5.7 Contribution Percentage Test Limitation on Matching Contributions.
In addition to being subject to the contribution limitations of sections 9.2 and
9.3, Matching Contributions shall be subject to the nondiscrimination
requirements of Section 401(m) of the Code. For this purpose, such Matching
Contributions shall be adjusted each Plan Year by the Committee as necessary, so
that either:
(a) The Contribution Percentage for the group of Highly Compensated
Employees for a Plan Year shall not exceed 125 percent of the
Contribution Percentage for all other Eligible Employees for the
preceding Plan Year; or
(b) The Contribution Percentage for the group of Highly Compensated
Employees for a Plan Year shall not exceed the Contribution Percentage
for all other Eligible Employees for the preceding Plan Year by more
than two percentage points and also shall not exceed 200 percent of
the Contribution Percentage for all other Eligible Employees (or such
lesser amount as the Secretary of the Treasury prescribes to prevent
the multiple use of this alternative with respect to any Highly
Compensated Employee).
The foregoing test shall be applied separately with respect to Eligible
Employees of Employers that are members of different Controlled Groups.
An adjustment shall be made hereunder only if neither subsection (a) nor (b)
above is satisfied. Upon conclusion of the Plan Year, the excess for such Plan
Year of the aggregate amount of Matching Contributions over the maximum amount
of such contributions permitted under the limitations of this section
(determined first by reducing aggregate contributions made on behalf of Highly
Compensated Employees in order of the amount of their Matching Contributions
beginning with the highest of such
15
<PAGE>
amounts), along with any income allocable thereto, shall be distributed to such
Highly Compensated Employees as soon as practicable following such
determination, but in any event by the fifteenth day of the third calendar month
following the end of the Plan Year with respect to which such contributions were
made. Employer Discretionary Contributions may be utilized in computing the
Contribution Percentage for each Participant to the extent necessary to satisfy
the limitations of this section.
5.8 Multiple Use. The Committee will administer the Plan to prevent
the "multiple use" of the alternative limitations of sections 5.3(b) and 5.7(b)
in accordance with regulations issued by the Secretary of the Treasury. If the
Committee determines that multiple use exists, then the Committee, at its
option, may elect to reduce the Actual Deferral Percentage, Contribution
Percentage, or both using the method described in sections 5.3 or 5.9 or such
other method prescribed in the regulations to eliminate any multiple use.
ARTICLE 6
---------
Plan Accounting and Investment Alternatives
-------------------------------------------
6.1 Separate Participant Accounts. The Committee will establish and
maintain the following separate Accounts with respect to Participants:
(a) A "Matching Contributions Account" will be maintained in the name of
each Participant which will reflect the Matching Contributions made on
his behalf to this Plan and the income, losses, appreciation and
depreciation attributable thereto.
(b) A "Before-Tax Contributions Account" will be maintained in the name of
each Participant which will reflect the Before-Tax Contributions made
on his behalf to this Plan and the income, losses, appreciation and
depreciation attributable thereto.
(c) An "After-Tax Contributions Account" will be maintained in the name of
each Participant which will reflect the amount of the After-Tax
Contributions made by him prior to the Effective Date and the income,
losses, appreciation and depreciation attributable thereto.
(d) An "Employer Discretionary Contribution Account" will be maintained in
the name of each Participant with respect to whom an Employer
Discretionary Contribution is made which will reflect the amount of
such contributions made on his behalf to this Plan and the
16
<PAGE>
income, losses, appreciation and depreciation attributable thereto.
(e) A "Rollover Contribution Account" will be maintained in the name of
each Participant who makes a Rollover Contribution to reflect the
amount of such contribution and the income, losses, appreciation and
depreciation attributable thereto.
The Committee also may maintain such other Accounts in the names of Participants
as it considers desirable, including Accounts reflecting contributions made to
the Plan as in effect prior to the Effective Date. Unless the context indicates
otherwise, reference in the Plan to a Participant's Accounts or Account balances
shall refer to all accounts maintained in his name under the Plan. The
maintenance of separate Accounts as provided above shall not require any
physical segregation of the Trust Fund with respect to such Accounts. Except as
provided in section 4.5, Participants shall at all times have 100 percent vested
and nonforfeitable interests in all of their Accounts under the Plan. In
addition, if a participant in the NBD Plan who terminated employment prior to
the Effective Date and forfeited a portion of his account thereunder is
reemployed by an Employer, Related Company or Subsidiary within five (5) years
of his severance date (within the meaning of the NBD Plan as in effect
immediately prior to the Effective Date), any amounts previously forfeited shall
be restored to his Account. Such reinstated forfeitures shall be invested
according to such Participant's current direction on file with the Committee.
6.2 Investment Alternatives. In addition to other investment
alternatives, from time to time the trustee of the Trust Fund at the direction
of the Committee may cause one or more Investment Funds to be established,
including those Investment Funds described in Appendix A. The continued
availability of Investment Funds established cannot be assured on the same terms
and conditions as may apply from time to time. Participants will be informed
from time to time of the availability of Investment Funds as they are
established or superseded.
17
<PAGE>
6.3 Investment Elections.
--------------------
(a) Each Participant may elect at any time but not more than once per day,
by giving written notice to the Plan's recordkeeper, in accordance
with uniform rules established by the Committee, to have his Account
balances as of the end of business on the date the participant makes
the election invested in accordance with his election entirely in one
of the Investment Funds or partially in each of two or more of the
Investment Funds so that a multiple of one (1) percent of his Account
balances is invested as of such date in each Investment Fund.
Alternatively, a Participant may similarly elect that any whole
percentage of, or whole dollar amount in, an Investment Fund be
transferred to one or more of the remaining Investment Funds.
(b) Each Participant may elect, in accordance with uniform rules
established by the Committee, to have future contributions (including
loan payments) made by him or on his behalf (prior to any subsequent
election he may make) invested in accordance with his election
entirely in one of the Investment Funds or partially in each of two or
more of the Investment Funds so that a multiple of one (1) percent of
such future contributions is invested in each Investment Fund. The
Participant will receive a written confirmation of any election to
change his rate of contribution.
(c) During any period for which a Participant has not made either or both
of the elections in (a) or (b) above, he will be considered to have
elected to have his Account balances or his future contributions
(including loan payments), or both, as the case may be, invested
entirely in the cash management fund, unless the Committee determines
otherwise. The Committee shall from time to time notify each trustee
with custody of an Investment Fund of the aggregate amounts to be
invested in each Investment Fund in accordance with Participants'
elections.
6.4 Charging Payments and Distributions. All payments, withdrawals or
other distributions made to or on behalf of a Participant or his beneficiary
will be charged to the Participant's Accounts as of the appropriate Valuation
Date.
6.5 Adjustment of Accounts. As of each Valuation Date, the
Participant's Account shall be adjusted to reflect payments and withdrawals of
benefits, adjustments in the values of the Investment Funds and Employers' and
Participants' contributions. The Trustee shall determine that fair market
18
<PAGE>
value of the Trust Fund, and the net earnings or losses and expenses of the
Trust Fund for the period elapsed since the most recent previous Valuation Date
shall be allocated among the Accounts of Participants. Earnings, losses and
expenses which pertain to investments which are specifically held for a given
Participant's Account shall be allocated solely to that Account. In the event
that an investment is not specifically held for a given Participant's Account,
the earnings, losses and expenses pertaining to that investment shall be
allocated among all Participants' Accounts in the ratio that each such Account
bears to the total of all Accounts of all Participants. Each Participant's
Accounts shall be adjusted pursuant to this Section 6.5 until such time as they
are either fully distributed, regardless of whether the Participant continues to
be an Employee.
6.6 Statement of Accounts. As soon as practicable after the last day
of each calendar quarter, and at such other times as the Committee considers
desirable, each Participant will be furnished with a statement reflecting the
balance of his Accounts as of the Valuation Date coincident with the end of the
calendar quarter. No Participant, except a member of the Committee, shall have
the right to inspect the records reflecting the Accounts of any other
Participant.
6.7 Investments in Company Stock. Participants may elect to have a
portion or all of their Accounts invested by the trustee in the Company Stock
Fund. For this purpose it is intended that the Plan be considered an "eligible
individual account plan" which explicitly provides for the acquisition and
holding of "qualifying employer securities" (as those terms are defined in
Sections 407(d)(3) and 407(d)(5) of the Employee Retirement Income Security Act
of 1974, as amended). Company Stock may be acquired by the trustee through
purchases on the open market, private purchases, purchases from the Employers
(including purchases from the Corporation of treasury shares or authorized but
unissued shares), contributions in kind by the Employers, or otherwise. The
trustee in its discretion may hold a portion of the Company Stock Fund in cash
or cash equivalents to meet liquidity needs for distribution and while pending
investment in Company Stock. [CONFIRM WITH PUTNAM THAT THIS LAST SENTENCE SHOULD
BE DELETED.]
6.8 Allocation of Company Stock. As of each Valuation Date all
unallocated Company Stock then held under the Trust shall be considered as
purchased for the Accounts of Participants who have elected to invest in Company
Stock to the extent their respective Accounts can be charged therefore on the
basis of the average purchase price paid for such stock and such Company Stock
shall be so allocated to Participants' Accounts and their Accounts charged
therefore. For purposes of allocating Company
19
<PAGE>
Stock and charging Accounts therefore, the average purchase price of Company
Stock to be charged to Participants' Accounts shall be determined by dividing
the total purchase price paid for all Company Stock purchased by the trustee
since the preceding Valuation Date by the total number of shares of unallocated
Company Stock (excluding Company Stock resulting from stock dividends on or
split ups of allocated Company Stock). In applying the provisions of the next
preceding sentence, unallocated Company Stock which has been contributed by the
Employers as a part of the Employers' contribution shall be deemed to have been
purchased by the trustee for an amount equal to the fair market value of such
shares when they were contributed. In addition, any unallocated Company Stock to
be allocated as of a Valuation Date shall include Company Stock resulting from
trades which have been executed but not settled by that Valuation Date. Company
Stock which becomes available for sale as a result of the election of separating
Participants to receive their distribution in cash or elections to transfer
funds from the Company Stock Fund to another Investment Fund shall likewise be
allocated to Participants' Accounts, and their Accounts charged therefore. For
purposes of allocating said shares of Company Stock and charging Accounts
therefore, the average purchase price of such Company Stock shall be the fair
market value of such shares on the preceding Valuation Date.
6.9 Additional Accounting Rules For Company Stock. The following
additional accounting rules apply regarding Company Stock:
(a) As of each Valuation Date, uncredited cash dividends attributable to
Company Stock previously allocated to a Participant's Accounts shall
be credited to his Accounts.
(b) As of each Valuation Date, uncredited whole and fractional Company
Stock resulting from stock dividends or splits attributable to Company
Stock previously allocated to a Participant's Accounts shall be
credited to his Accounts.
(c) If rights or warrants are issued with respect to any Company Stock
held by the trustee, such rights or warrants shall be appropriately
reflected in Participants' Accounts in accordance with rules
established by the Committee and uniformly applied until sold or
exercised by the trustee and the proceeds appropriately reflected as
directed by the Committee.
6.10 Voting and Tender of Company Stock. The Committee shall furnish
to each Participant who has Company Stock credited to his Accounts notice of the
date and purpose of each meeting of
20
<PAGE>
the stockholders of the Corporation at which Company Stock are entitled to be
voted. The Committee shall request from each such Participant instructions as to
the voting at that meeting of Company Stock credited to his Accounts. If the
Participant furnishes such instructions within the time specified in the
notification given to him, the trustee shall vote such Company Stock in
accordance with the Participant's instructions. All Company Stock credited to
Accounts as to which the trustee does not receive voting instructions as
specified above and all unallocated Company Stock held by the trustee shall be
voted by the trustee proportionately in the same manner as it votes Company
Stock to which the trustee has received voting instructions as specified above.
Similarly, the Committee shall furnish to each Participant who has Company Stock
credited to his Accounts notice of any tender offer for, or a request or
invitation for tenders of, Company Stock made to the trustee. The Committee
shall request from each such Participant instructions as to the tendering of
Company Stock credited to his Accounts and for this purpose the Participants
shall be provided with a reasonable period of time in which they may consider
any such tender offer for, or request or invitation for tenders of, Company
Stock. The trustee shall tender the Company Stock as to which the trustee has
received instructions to tender from Participants within the time specified.
Company Stock credited to Accounts as to which the trustee has not received
instructions from Participants shall not be tendered. As to all unallocated
Company Stock held by the trustee, the trustee shall tender the same proportion
thereof of the Company Stock as to which the trustee has received instructions
from Participants to tender bear to all Company Stock with respect to which the
trustee has received instructions from Participants to tender and not to tender.
6.11 Correction of Error. In the event of an error in the adjustment
of a Participant's Accounts, the Committee, in its sole discretion, may correct
such error by either crediting or charging the adjustment required to make such
correction to or against income and expenses of the Trust for the Plan Year in
which the correction is made or the Employer may make an additional contribution
to permit correction of the error. Except as provided in this section 6.11, the
Accounts of other Participants shall not be readjusted on account of such error.
21
<PAGE>
ARTICLE 7
---------
Distribution of Account Balances
--------------------------------
7.1 Settlement Date. A Participant's Account balances shall be
distributable to the Participant or, in the event of his death, to his
beneficiary, in accordance with section 7.2, as of the Valuation Date coincident
with or next following the later of (i) his Settlement Date and (ii) the receipt
by the Committee of the required tax withholding instructions and distribution
election instructions, if applicable, but only after all adjustments required
under the Plan as of that date have been made, and subject to any further
adjustments required under the Plan as of subsequent Valuation Dates prior to
complete distribution of his Accounts.
7.2 Methods of Benefit Payment. A Participant's Account balances
which are distributable under section 7.1 shall be paid to or for the benefit of
the Participant or his beneficiary following his Settlement Date by (i) payment
in a lump sum, or (ii) payment in a series of substantially equal annual or more
frequent installments over a period of time not exceeding the lesser of (A) 15
years (but not less than three years), or (B) the life expectancy of the
Participant or, if the Participant has designated a beneficiary who is an
individual, the joint life and last survivor expectancy of the Participant and
his Designated Beneficiary (as determined by the Committee in accordance with
actuarial tables adopted by it for this purpose and in accordance with
incidental death benefit rules of Code Section 401(a)(9) and regulations
thereunder). Payments shall be in cash; however, Company Stock held in a
Participant's Account shall be distributed in kind, unless the Participant
requests that such distribution or a portion of such distribution be made in
cash or elects an installment distribution. Notwithstanding the foregoing, if a
Participant dies before his entire interest has been distributed to him, the
remaining portion of such interest will be distributed to his Designated
Beneficiary in a lump sum.
7.3 Selection of Time and Manner of Benefit Payment. Unless the
Participant whose Account balances exceed $3,500 elects to defer payment,
payment of a Participant's benefits normally will be made within a reasonable
period of time after a Participant's Settlement Date as described in section 7.1
(or the date of a Participant's consent described in the next sentence, if
later); however, in no event shall payments commence later than 60 days after
the end of the Plan Year in which occurs the later of the Participant's (i)
termination of employment, (ii) completion of 10 years of service or (iii) his
attainment of age 65 years; provided that payment of the Account balances of
each Participant who is a five percent or more owner (as defined in
22
<PAGE>
Section 416) of the Corporation must be made (or installments must commence) no
later than the April 1 of the calendar year following the calendar year in which
he attains age 70 1/2 years. In addition, notwithstanding anything in this
Article 7 to the contrary if and while a Participant's Account balances exceed
$3,500 as of a Valuation Date, no amount shall be distributable to the
Participant without his consent.
7.4 Designated Beneficiaries. A Participant may from time to time
designate a beneficiary or beneficiaries to whom the Participant's benefits will
be distributed in the event of the Participant's death prior to complete payment
of his benefits under the Plan. A Participant may designate contingent or
successive beneficiaries and may name individuals, legal persons or entities,
trusts, estates, trustees or other legal representatives as beneficiaries.
Notwithstanding the foregoing or any beneficiary designation filed by a
Participant, if a Participant is married at the date of his death, the
Participant's surviving spouse will be his Designated Beneficiary for all
purposes of the Plan unless the surviving spouse consents to the Participant's
designation of another beneficiary. The consent of a Participant's spouse to the
designation of another beneficiary must (i) be in writing, (ii) designate the
beneficiary or beneficiaries, (iii) acknowledge the effect of such designation,
and (iv) be witnessed by a Plan representative or a notary public. In addition,
such designation of another beneficiary may not be changed without further
spousal consent unless the consent of the spouse expressly permits further
designations without any requirement of further consent. Beneficiary
designations must be completed on a form prescribed by the Committee and filed
with the Committee during the Participant's lifetime. A beneficiary designation
properly completed and filed will cancel all such designations filed earlier.
7.5 Eligible Rollover Distributions:
-------------------------------
(a) Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this section, a
distributee may elect, at the time and in the manner prescribed by the
Committee, to have any portion of an eligible rollover distribution
paid directly to an eligible retirement plan specified by the
distributee in a direct rollover. The terms "distributee," "eligible
rollover distribution," "eligible retirement plan" and "direct
rollover" are defined in paragraphs (b) through (e) of this section
7.5 and are only applicable for purposes of this section 7.5.
23
<PAGE>
(b) Eligible rollover distribution: An eligible rollover distribution is
any distribution of all or any portion of the balance to the credit of
the distributee, except that an eligible rollover distribution does
not include: (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; and
(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 Company Stock).
(c) Eligible retirement plan: An eligible retirement plan is an individual
retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the Code,
an annuity plan described in Section 403(a) of the Code, or a
qualified trust described in Section 401(a) of the Code, that accepts
the distributee's eligible rollover distribution. However, in the case
of an eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account or
individual retirement annuity.
(d) Distributee: A distributee includes a Participant. In addition, the
Participant's surviving spouse and the Participant's spouse or former
spouse who is the alternate payee under a qualified domestic relations
order, as defined in Section 414(p) of the Code, are distributees with
regard to the interest of the spouse or former spouse.
(e) Direct rollover: A direct rollover is a payment by the Plan to the
eligible retirement plan specified by the distributee.
7.6 Payment of Certain Benefits from Transfer Account.
-------------------------------------------------
(a) Notwithstanding anything to the contrary in this Plan, if any portion
of the amounts credited to a Participant's Account was transferred
from a plan to which Section 401(a)(11) of the Code applies, the
amounts so transferred (and any earnings attributable thereto) which
are available for distribution shall be used to purchase a single
premium, nontransferable
24
<PAGE>
annuity contract which shall be distributed to the Participant or, in
the event of his death, to his surviving spouse. Such annuity contract
shall provide for the payment of benefits in the form of a "qualified
joint and survivor annuity" if the Participant is living and married
on the date his accounts become distributable, in the form of a
"straight life annuity" if the Participant is living and not married
on the date his accounts become distributable, or in the form of a
"qualified survivor annuity" if the Participant is not living on such
date and was married for at least one year on the date of his death.
For the purposes of this paragraph:
(i) the term "qualified joint and survivor annuity" means an annuity
for the life of the Participant, with a survivor annuity for the
Participant's surviving spouse which is 50% of the amount payable
during the joint lives of the Participant and his spouse. Such
joint and survivor annuity shall be the actuarial equivalent
(determined under the assumptions then in use for such purpose by
the insurer from which the contract is purchased) of a single
life annuity for the life of the Participant;
(ii) the term "qualified survivor annuity" means a single life annuity
for the life of the Participant's surviving spouse.
(b) Paragraph (a) shall not apply to any Participant if:
(i) the amount available for distribution does not exceed $3,500; or
(ii) in the case of a qualified joint and survivor, the Participant
elects (as provided below in this paragraph) to waive such form
of benefit; or
(iii) in the case of a qualified survivor annuity: (A) the Participant
has effectively designated someone other than his spouse as his
Designated Beneficiary, or (B) the Participant's spouse elects a
different form of payment during the period specified in
paragraph (c) below, or (C) the Participant has not been married
for at least one year on the date of his death.
An election to waive the straight life or qualified joint and survivor
annuity shall be made in writing filed with the Committee at any time
during the period
25
<PAGE>
specified in paragraph (c) below, and shall not be effective unless
accompanied by a valid written consent which is signed by the
Participant's spouse. Such consent shall be valid only if it is signed
by the spouse to whom the Participant is married on the earlier of the
date of his death or the date his benefit payments commence, and then
only if it acknowledges the effect of the Participant's election, is
witnessed by a Plan representative or a notary public and, if
applicable, designates the beneficiary or beneficiaries. An election
to waive a straight life or qualified joint and survivor annuity may
be revoked by the Participant, in writing, at any time during the
period specified in paragraph (c) below.
(c) The elections referred to above shall be made in writing by the
Participant or his Beneficiary during the 90 day period ending on the
date the Participant's benefit payments are scheduled to commence;
provided, that in the case of a Participant who is entitled to make
the elections described above, such period shall not end until at
least 90 days after the date on which the Participant is provided with
a written explanation of:
(i) the terms and conditions of the joint and survivor and qualified
survivor annuities;
(ii) the Participant's right to make, and the effect of, an election
to waive the joint and survivor annuity;
(iii) the rights of the Participant's spouse with respect to any such
election; and
(iv) the Participant's right to make, and the effect of, a revocation
of such election.
(d) Prior to distribution of his Accounts on account of termination of
employment or death, no married Participant described in this section
may elect to withdraw or borrow any amount from this Accounts which is
attributable to such transferred balance without his spouse's written,
notarized consent.
ARTICLE 8
---------
Withdrawals and Loans During Employment
---------------------------------------
8.1 Withdrawal of Before-Tax Contributions, Matching Contributions
and Employer Discretionary Contributions on Account
26
<PAGE>
of Financial Hardship. A Participant experiencing a financial hardship may at
any time request a withdrawal of all or any portion of his Account attributable
to Before-Tax Contributions (excluding earnings after December 31, 1988),
Matching Contributions and Employer Discretionary Contributions, as well as any
other amounts in the Participant's Account which were eligible for withdrawal on
account of financial hardship immediately prior to the Effective Date by filing
a request with the Committee (in such form and at such time as the Committee may
require). Notwithstanding the foregoing, amounts attributable to a Participant's
Matching Contributions Account (including the earnings thereon) and Employer
Discretionary Contributions (including earnings thereon) may not be withdrawn
under this section 8.1 to the extent the Employer uses such Matching
Contributions or Employer Discretionary Contributions to meet the actual
deferral percentage test under section 5.3. A Participant may not withdraw any
amount in accordance with this section 8.1 unless he has first withdrawn all
amounts in his After-Tax Contributions Account. Each request for a hardship
withdrawal must describe the hardship for which the withdrawal is requested. A
withdrawal shall be considered on account of financial hardship only if (i) it
is on account of the Participant's immediate and heavy financial need (including
the purchase of a principal residence for the Participant (excluding mortgage
payments), payment of tuition and related educational fees of post-secondary
education for the next 12 months for the Participant, his spouse or his
dependents, medical expenses of the Participant, his spouse or his dependents or
prevention of eviction from or foreclosure on the mortgage of the Participant's
principal residence), (ii) it does not exceed the amount required to relieve
such financial need and (iii) it cannot be reasonably met through other sources.
The Committee will have the discretionary authority to determine whether
requests for withdrawals satisfy the above-stated standards and to establish
rules or guidelines in responding to such requests as it considers appropriate.
All withdrawals of Before-Tax Contributions shall be made in cash and must be at
least $500. Amounts used as security for loans provided under section 8.4 may
not be withdrawn under this section 8.1. A $50 per withdrawal charge shall apply
after the second withdrawal during any twelve month period. The $50 charge will
be deducted from a Participant's Account after the withdrawal.
8.2 Withdrawal of After-Tax Contributions. A Participant may request
at any time a withdrawal of all or any portion of the amount in his After-Tax
Contributions Account as of the immediately preceding Valuation Date by filing a
written request with the Committee (on such form and at such time as the
Committee may require). All withdrawals of After-Tax Contributions and earnings
thereon shall be in cash and must be at least $500 (or the balance in such
account, if less).
27
<PAGE>
8.3 Withdrawal of Prior Employer Contributions. A Participant may
request, in accordance with rules and procedures established by the Committee
and subject to applicable law, a withdrawal of all or any portion of Employer
contributions made on behalf of Plan Years ending prior to the Effective Date;
provided that except in the case of a financial hardship (as defined in section
8.1 above), a Participant may not withdraw any amounts that he could have, but
did not, elect to receive in cash and further provided that amounts contributed
by an Employer from 1980 through 1986 which a Participant could not elect to
receive in cash may not be withdrawn for any reason.
8.4 Withdrawal After Age 59-1/2. A Participant who has attained age
59-1/2 may request a withdrawal of all or any portion of his Accounts by filing
a written request with the Committee (on such form and at such time as the
Committee may require). All withdrawals pursuant to this section 8.4 shall be
made in a lump sum.
8.5 Loans to Participants. While it is the primary purpose of the
Plan to provide funds for Participants when they retire, it is recognized that
under some circumstances it would be in the best interests of Participants to
permit loans to be made to them from their Accounts. Accordingly, the Committee
may direct that a loan be made to a Participant who is an active employee of the
Employers, Related Companies or Subsidiaries (or otherwise is a party-in-the-
interest with respect to the Plan, as defined in ERISA), subject to the
following:
(a) Each request for a loan under this section must be in accordance with
rules established by the Committee and supported by such evidence as
the Committee requests to review and approve the Participant's
request. A Participant may not have more than one home loan and one
personal loan outstanding at any time. Such request must be received
by the Plan's recordkeeper by the 15th of the month preceding the
month in which payment of the loan proceeds is desired.
(b) Each loan must be evidenced by a note in a form furnished by the
Committee and must be secured by a pledge of the Participant's
Accounts.
(c) Each loan will bear interest at a commercially reasonable fixed rate
of interest determined by the Committee as of the date of the loan,
and must be amortized in level biweekly payments over the life of the
loan. Repayment of a loan will be through biweekly deductions from
each Participant's payroll. A Participant may, as of the
_________________, repay in
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full an outstanding loan; however, partial prepayments are not
permitted.
(d) The aggregate principal amount of all loans from this Plan (when
aggregated with all other loans under plans maintained within the same
Controlled Group) may not exceed the lesser of
(i) $50,000 reduced by the excess, if any, of:
(A) the highest outstanding balance of all loans to the
Participant from the plans during the one-year period ending
on the day immediately before the date on which the loan is
made, over
(B) the outstanding balance of loans from the plans to the
Participant on the date on which such loan is made; or
(ii) 50 percent of the Participant's eligible Account balances.
The minimum loan amount a Participant may request is $500. "Eligible
Account balances" shall not include the portion of a Participant's
Account attributable to After-Tax Contributions.
(e) Each loan will be for a term not exceeding five years; provided that
the term of a loan may be for a term not exceeding fifteen years where
the loan is to be used to acquire any dwelling unit which within a
reasonable time is to be used as a principal residence of the
Participant.
(f) If after any Participant's Settlement Date any loan made to him or any
part thereof, together with accrued interest thereon, remains unpaid,
the total of the unpaid balance or balances and accrued interest shall
be charged to the balances of the Participant's Accounts, as otherwise
adjusted under the Plan as of that date. The distribution of a
Participant's cancelled note to him shall be considered as a payment
for purposes of the Plan.
(g) Each note evidencing a loan to a Participant shall be held on the
Participant's behalf and shall be considered an individual directed
investment of his Accounts. Accordingly, principal and interest
payments on the note shall be credited solely to such Accounts on the
Participant's behalf.
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(h) A $50 per loan charge shall apply after the second loan during any
twelve month period. The $50 charge will be deducted from a Participant's
Account after the loan amount is distributed.
ARTICLE 9
---------
Maximum Contributions
---------------------
9.1 Limitations on Annual Additions. Notwithstanding any other
provisions of the Plan to the contrary, a Participant's Annual Additions (as
defined below) for any Plan Year shall not exceed an amount equal to the lesser
of:
(a) $30,000 (indexed in accordance with applicable regulations); or
(b) 25 percent of the Participant's Earnings for that Plan Year (excluding
salary reduction contributions under Code sections 402(g) or 125 for
years prior to 1998), calculated as if each Section 415 Affiliate
(defined below) were a Related Company,
reduced by any Annual Additions for the Participant for the Plan Year under any
other defined contribution plan of an Employer or a Related Company or Section
415 Affiliate, provided that, if any other such plan has a similar provision,
the reduction shall be pro rata. The term "Annual Additions" means, with respect
to any Participant for any Plan Year, the sum of all contributions allocated to
a Participant's Accounts under the Plan for such year, excluding Rollover
Contributions and any Before-Tax Contributions that are distributed as excess
deferrals, but including any Before-Tax or Matching Contributions treated as
excess contributions or excess aggregate contributions. The term Annual
Additions shall also include employer contributions allocated for a Plan Year to
any individual medical account (as defined in section 415(l) of the Code) of a
Participant and any amount allocated for a Plan Year to the separate account of
a Participant for payment of post-retirement medical benefits under a funded
welfare benefit plan (as described in section 419A (d)(2) of the Code), which is
maintained by an Employer or a Related Company or Section 415 Affiliate.
"Section 415 Affiliate" means any entity that would be a Related Company if the
ownership test of section 414 of the Code was "more than 50%" rather than "at
least 80%". The foregoing limits shall be applied separately with respect to
each Controlled Group (as modified to include any Section 415 Affiliates).
30
<PAGE>
9.2 Excess Annual Additions. The Committee in its discretion may take
whatever steps it considers appropriate to prevent the foregoing limits from
being exceeded. Nevertheless, if as a result of a reasonable error in estimating
a Participant's Earnings, a reasonable error in determining the amount of
Before-Tax Contributions that may be made with respect to a Participant under
the limits of Section 415 of the Code or such other mitigating circumstances as
the Commissioner of Internal Revenue shall prescribe, the Annual Additions for a
Participant for a Plan Year exceed the limitations set forth in section 9.1, the
excess amounts shall be treated in accordance with Treas. Reg. (S) 1.415-
6(b)(6)(ii), after any Before-Tax Contributions, and any income, losses,
appreciation or depreciation attributable thereto, are first returned to the
Participant to reduce the excess amount.
9.3 Combined Plan Limitation. If a Participant also participates in any
defined benefit plan (as defined in section 415(k) of the Code) maintained by an
Employer or a Related Company or Section 415 Affiliate, the aggregate benefits
payable to, or on account of, the Participant under such plan together with this
Plan will be determined in a manner consistent with section 415(e) of the Code.
The benefit provided for the Participant under the defined benefit plan shall be
adjusted to the extent necessary so that the sum of the "defined benefit
fraction" and the "defined contribution fraction" (as such terms are defined in
section 415(e) of the Code and applicable regulations thereunder) calculated
with regard to such Participant does not exceed 1.0. For purposes of this
section 9.3, all qualified defined benefit plans (whether or not terminated) of
the Employers, Related Companies and Section 415 Affiliates belonging to a
single Controlled Group shall be treated as one defined benefit plan.
31
<PAGE>
ARTICLE 10
----------
General Provisions
------------------
10.1 Payment to Substitute Beneficiaries. If benefits remain to be
paid with respect to a Participant at a time when the Committee is unable to
locate the Participant and his Designated Beneficiary, or following the death of
the Participant and such Designated Beneficiaries, then the Committee shall
cause the Participant's benefits to be distributed or paid to the person or
persons who can be located and agree to accept such amounts within the
applicable priority categories set forth below. Participants and Designated
Beneficiaries are required to maintain a current post office address on file
with the Committee. A substitute beneficiary will not be determined under this
section with respect to a missing Participant or missing Designated Beneficiary
unless the Participant or Designated Beneficiaries, as the case may be, have
failed to claim the Participant's Account balances or notify the Committee of
their whereabouts within three years after the Committee notifies such
Participant or Designated Beneficiaries of their entitlement to benefits at
their last post office addresses filed with the Committee. Such notice shall
describe the amounts to which the Participant or the Designated Beneficiaries
are entitled and shall describe the substitution procedures of this section. In
disposing of a Participant's benefits in accordance with this section, the
Committee shall cause the Participant's benefits to be distributed by lump sum
in accordance with the following priority categories:
(a) In the event of a missing Participant benefits will be distributed to
the Participant's Designated Beneficiary.
(b) In the event the Participant, and all Designated Beneficiaries are
missing, benefits will be distributed in such proportions as the
Committee decides to one or more of the Participant's relatives by
blood, marriage or adoption.
(c) After unsuccessful attempts have been made by the Committee to locate
persons described in the priority categories set forth above, the
benefits of the Participant or of any beneficiary will be disposed of
in any manner permitted by law which the Plan administrator considers
to be fair and equitable.
10.2 Payment with Respect to Incapacitated Participants or
Beneficiaries. If any person entitled to benefits under the Plan is under a
legal disability or, in the Committee's opinion, is incapacitated in any way so
as to be unable to manage his
32
<PAGE>
financial affairs, the Committee may in its sole discretion direct the payment
of such benefits to such person's legal representative or to a relative or
friend of such person for such person's benefit, or the Committee may direct the
application of such benefits for the benefit of such person in any manner which
the Committee may select that is permitted by federal law and is consistent with
the Plan. Any payments made in accordance with the foregoing provisions of this
section shall be a full and complete discharge of any liability for such
payments.
10.3 Examination of Plan Documents. Copies of the Plan and any
amendments thereto will be on file at the principal office of the Corporation
where they may be examined by any Participant or any other person entitled to
benefits under the Plan.
10.4 Notices. Any notice or document relating to the Plan required to
be given to or filed with the Committee or any Employer shall be considered as
given or filed if delivered or mailed by registered or certified mail, postage
prepaid, to the Committee, in care of the Company at the following address:
The Retirement Committee
First Chicago NBD Corporation
Mail Suite 0002
Chicago, IL 60670-0002
10.5 Nonalienation of Plan Benefits. The rights or interests of any
Participant or any Participant's beneficiaries to any benefits or future
payments under the Plan shall not be subject to attachment or garnishment or
other legal process by any creditor of any such Participant or beneficiary, nor
shall any such Participant or beneficiary have any right to alienate,
anticipate, commute, pledge, encumber or assign any of the benefits or rights
which he may expect to receive (contingently or otherwise) under the Plan,
except as to any debt owing to an Employer with respect to which a Participant
entitled to a distribution has voluntarily issued a revocable assignment of an
amount not in excess of ten percent of the distribution, and except as may be
required by the tax withholding provisions of the Code or of a state's income
tax act or pursuant to a qualified domestic relations order (as defined in
Section 414(p) of the Code). Notwithstanding any other provision of the Plan to
the contrary, distribution of the entire portion of the Account balance of a
Participant awarded to his alternate payee may be made in a lump sum payment, as
soon as practicable after the Committee determines that a domestic relations
order is qualified within the meaning of section 414(p) of the Code, without
regard to whether the Participant would himself be entitled under the terms of
the Plan to withdraw or receive a distribution of such amount at that time, but
only if the terms of the order provide
33
<PAGE>
for such immediate distribution either specifically or by general reference to
any manner of distribution permitted under the Plan.
10.6 No Employment or Benefit Guaranty. None of the establishment of
the Plan, any modification thereof, the creation of any fund or Account, or the
payment of any benefits shall be construed as giving to any Participant or other
person any legal or equitable right against the Employers, the Committee or any
trustee except as provided herein. Under no circumstances shall the maintenance
of this Plan constitute a contract of employment or shall the terms of
employment of any Participant be modified or in any way affected hereby.
Accordingly, participation in the Plan will not give any Participant a right to
be retained in the employ of any Employer. Neither the Committee nor any
Employer in any way guarantees any assets of the Plan from loss or depreciation
or any payment to any person. The liability of the Committee or any Employer as
to any payment or distribution of benefits under the Plan is limited to the
available assets of the Trust Fund.
10.7 Litigation. In any action or proceeding regarding any Plan
assets, any Plan benefits or the administration of the Plan, employees or former
employees of the Employers, their beneficiaries and any other persons claiming
to have an interest in the Plan shall not be necessary parties and shall not be
entitled to any notice of process. Any final judgment which is not appealed or
appealable and which may be entered in any such action or proceeding shall be
binding and conclusive on the parties hereto and on all persons having or
claiming to have any interest in the Plan. To the extent permitted by law, if a
legal action is begun against the Committee, an Employer, or any trustee by or
on behalf of any person and such action results adversely to such person, or if
a legal action arises because of conflicting claims to a Participant's or other
person's benefits, the cost of the Employers, the Committee, or the trustee of
defending the action will be charged to the sums, if any, which were involved in
the action or were payable to the Participant or the other person concerned.
Acceptance of participation in the Plan shall constitute a release of the
Employers, the Committee, any trustee and their agents from any and all
liability and obligation not involving willful misconduct or gross neglect to
the extent permitted by applicable law. Notwithstanding any other provisions of
the Plan, if the Committee is required by a final court order to distribute the
benefits of a Participant other than in a manner required under the Plan, then
the Committee shall cause the Participant's benefits to be distributed in a
manner consistent with such final court order. The Committee shall not be
required to comply with the requirements of a final court order in an action in
which the Committee, a trustee, the Plan or the Trust was not a party,
34
<PAGE>
except to the extent such a final court order is a qualified domestic relations
order.
10.8 Evidence. Evidence required of anyone under the Plan shall be
signed, made or presented by the proper party or parties and may be by
certificate, affidavit, document or other information which the person acting
thereon considers pertinent and reliable.
10.9 Gender and Number. Words denoting the masculine gender shall
include the feminine and neuter genders, the singular shall include the plural
and the plural shall include the singular wherever required by the context.
10.10 Waiver of Notice. Any notice required under the Plan may be
waived by the person entitled to notice.
10.11 Applicable Law. The Plan shall be construed in accordance with
the provisions of the Employee Retirement Income Security Act of 1974, as
amended and other applicable federal laws and, to the extent not inconsistent
with such laws, with the laws of the State of Illinois and not the laws of
conflict.
10.12 Severability. If any provisions of the Plan shall be held
illegal or invalid for any reason, such illegality or invalidity shall not
affect the remaining provisions of the Plan, and the Plan shall be construed and
enforced as if such illegal and invalid provisions had never been set forth in
the Plan.
10.13 Fiduciary Responsibilities. It is specifically intended that
all provisions of the Plan shall be applied so that all fiduciaries with respect
to the Plan shall be required to meet the prudence and other requirements and
responsibilities of applicable law to the extent such requirements or
responsibilities apply to them. No provisions of the Plan are intended to
relieve a fiduciary from any responsibility, obligation, duty or liability
imposed by applicable law. In general, a fiduciary shall discharge his duties
with respect to the Plan solely in the interests of Participants and other
persons entitled to benefits under the Plan and with the care, skill, prudence
and diligence under the circumstances then prevailing that a prudent man acting
in a like capacity and familiar with such matters would use in the conduct of an
enterprise of like character and with like aims.
10.14 Funding of Plan Benefits. A "Trust Fund", as defined in section
2.27, will be maintained in order to implement and carry out the provisions of
the Plan. The Trust Fund from time to time shall consist of one or more funds
established through one or more Trust agreements. Such funds shall be
35
<PAGE>
maintained for the purpose of receiving and holding contributions to the Plan
and the interest and other income thereon and paying benefits provided under the
Plan. The trustee under the Trust or Trusts shall determine the form and terms
of each Trust agreement and from time to time may direct the transfer of amounts
held in any such fund to any such other fund in accordance with the provisions
of the applicable Trust agreements.
ARTICLE 11
----------
Relating to Plan Administration
-------------------------------
11.1 Committee Appointed by Corporation. The Committee will be the
Retirement Committee of the Corporation which will consist of two or more
persons appointed from time to time by the Corporation.
11.2 Resignation or Removal of Committee Member. Each member of the
Committee shall serve until his death, resignation or removal from such office.
Any member may resign at any time by notice in writing to the Corporation and to
the remaining Committee members. The Corporation may remove any Committee member
at any time by written notice to him and to the remaining Committee members.
11.3 Committee Secretary. The Committee may appoint a Secretary who
may, but need not, be a Committee member. Any document required to be filed
with, or any notice required to be given to, the Committee will be properly
filed or given if mailed by registered mail, or delivered, to the Secretary of
the Committee in care of the Corporation.
11.4 Powers of Committee. The Committee shall have the
responsibility, and the full power and authority, to administer the Plan and,
within the limits provided by the Plan:
(a) To determine in its sole discretion all benefits and resolve all
questions pertaining to the construction, interpretation and
administration of the Plan, including, but not by way of limitation,
the determination of the rights or eligibility under the Plan of
employees, Participants, and beneficiaries, and the amount of their
respective benefits, and to interpret and remedy ambiguities,
inconsistencies, or omissions and to make factual findings;
(b) To adopt such rules and regulations as it may in its sole discretion
deem reasonably necessary for the proper and efficient administration
of the Plan and
36
<PAGE>
consistent with its purpose, including rules and procedures to assure
the Participant's investment in, voting of and tendering of Company
Stock remain confidential;
(c) To enforce the Plan, in accordance with its terms and with the
Committee's rules and regulations;
(d) To direct the trustee with respect to all matters involving
distributions from the Trust Fund;
(e) To create subcommittees and appoint agents, and to delegate such of
its rights, powers, and discretions to such subcommittees or agents as
it deems desirable; and
(f) To do all other acts, in its judgment necessary or desirable, for the
proper and advantageous administration of the Plan.
11.5 Action by Committee. During a period in which two or more
Committee members are acting, the following provisions shall apply:
(a) The Committee members may act by meeting or by writing signed without
meeting and may sign any documents by signing one document or
concurrent documents;
(b) Any action or decision of a majority of the Committee members as to a
matter shall be as effective as if taken or made by all Committee
members;
(c) If, because of the number qualified to act, there is an even division
of opinion among the Committee members as to a matter, the Company
shall decide the matter;
(d) To the extent permitted by law, no Committee member shall be liable or
responsible for an act or omission of another Committee member in
which the former has not concurred;
(e) The certificate of the Secretary of the Committee or of a majority of
the Committee members that the Committee has taken or authorized any
action shall become conclusive in favor of any person relying on the
certificate;
(f) A Committee member who is a Participant may not take part in Committee
action on any matter that may affect his interest under the Plan in a
manner which is inconsistent with the members fiduciary responsibility
to the plan; and
37
<PAGE>
(g) A Committee member may delegate, in writing, to any other member or
members any power, right or duty granted to, or imposed upon, the delegating
member by the Plan.
11.6 Committee Support. The Corporation and the Bank shall provide
the Committee with all the clerical, bookkeeping and stenographic help and
facilities that may be necessary to enable it to perform its functions
hereunder. The Committee may appoint consultants, accountants or other
assistants to perform any of the Committee's non-discretionary functions under
its supervision and upon its direction. No compensation will be paid to a
Committee member as such.
11.7 Decision of Committee Final. Subject to the provisions of
section 11.8, any interpretation of the provisions of the Plan and any decision
on any matter within the discretion of the Committee made by the Committee or
its delegate shall be final and binding on all persons. A misstatement or other
mistake of fact shall be corrected when it becomes known and the Committee shall
make such adjustment on account thereof as the Committee considers equitable and
practicable.
11.8 Review of Benefit Determinations. If a claim for benefits made
by a Participant or his beneficiary is denied, the Committee shall within 90
days (or 180 days if special circumstances require an extension of time) after
the claim is made furnish the person making the claim with a written notice
specifying the reasons for the denial. Such notice shall also refer to the
pertinent Plan provisions on which the denial is based, describe any additional
material or information necessary for properly completing the claim and explain
why such material or information is necessary, and explain the Plan's claim
review procedures. If requested in writing, the Committee shall afford each
claimant whose claim has been denied a full and fair review of the Plan
administrator's decision and, within 60 days (120 days if special circumstances
require additional time) of the request for reconsideration of the denied claim,
the Committee shall notify the claimant in writing of the Committee's final
decision. If a Participant or beneficiary shall fail to file a request for
review of his claim denial, he shall have no right to review and shall have no
right to bring action in any court and the denial of his claim shall become
final and binding on all persons for all purposes.
11.9 Uniform Rules. The Committee shall perform its duties with
respect to Plan administration on a reasonable and nondiscriminatory basis and
shall apply uniform rules to all Participants similarly situated.
38
<PAGE>
11.10 Indemnification. To the extent permitted by law, no person
(including the Employers, a trustee, any present or former Committee member, and
any present or former director, officer or employee of any Employer) shall be
personally liable for any act done or omitted to be done in good faith in the
administration of the Plan or the investment of the Trust Fund. To the extent
permitted by law, each present or former director, officer or employee of any
Employer to whom the Committee or an Employer has delegated any portion of its
responsibilities under the Plan and each present or former Committee member
shall be indemnified and saved harmless by the Employers (to the extent not
indemnified or saved harmless under any liability insurance or other
indemnification arrangement with respect to the Plan) from and against any and
all claims of liability to which they are subjected by reason of any act done or
omitted to be done in good faith in connection with the administration of the
Plan or the investment of the Trust Fund, including all expenses reasonably
incurred in their defense if the Employers fail to provide such defense.
ARTICLE 12
----------
Relating to the Employers
-------------------------
12.1 Action by Employers. Any action required or permitted of an
Employer under the Plan shall be by resolution of its Board of Directors or by a
duly authorized committee of its Board of Directors, or by a person or persons
authorized by resolution of its Board of Directors or such committee.
12.2 Additional Employers. Any Subsidiary or other Related Company
that is not an Employer may adopt the Plan and become an Employer hereunder by
filing with the trustee and the Committee a certified copy of a resolution of
the Board of Directors of the Subsidiary or other Related Company providing for
its adoption of the Plan and a certified copy of a resolution of the Board of
Directors of the Corporation consenting to such adoption. To the extent required
by applicable Code provisions and Treasury regulations, any limitations on
contributions set forth herein shall be applied separately to Employers, Related
Companies and Subsidiaries that constitute different Controlled Groups.
12.3 Restrictions as to Reversion of Trust Fund to Employers. The
Employers shall have no right, title or interest in the assets of the Plan, nor
will any part of the assets of the Plan at any time revert or be repaid to an
Employer, directly or indirectly, except as follows:
39
<PAGE>
(a) If the Internal Revenue Service initially determines that the Plan, as
applied to any Employer, does not meet the requirements of a
"qualified plan" under Section 401(a) of the Code, the assets of the
Plan attributable to contributions made by that Employer under the
Plan shall be returned to that Employer within one year of the date of
denial of qualification of the Plan as applied to that Employer.
(b) If a contribution or a portion of a contribution is made by an
Employer as a result of a mistake of fact, such contribution shall not
be considered to have been contributed under the Plan by that Employer
and, after having been reduced by any losses of the Trust Fund
allocable thereto, shall be returned to that Employer within one year
of the date the amount is contributed under the Plan.
(c) Each contribution made by an Employer is conditioned upon the
continued qualification of the Plan and the deductibility of such
contribution as an expense for federal income tax purposes and,
therefore, to the extent that a contribution is made by an Employer
under the Plan for a period for which the Plan is not a qualified plan
or the deduction for a contribution made by the Employer is
disallowed, then such contribution or portion of a contribution, after
having been reduced by any losses of the Trust Fund allocable thereto,
shall be returned to that Employer within one year of the date of
determination of the nonqualified status of the Plan or the date of
disallowance of the deduction.
ARTICLE 13
----------
Amendment and Termination
-------------------------
13.1 Amendment. While the Employers expect and intend to continue the
Plan, the Corporation must necessarily reserve and hereby does reserve the
right, subject to section 12.3, to amend the Plan from time to time, except that
the duties and liabilities of the Committee cannot be changed substantially
without its consent and no amendment shall reduce the value of a Participant's
benefits to less than the amount he would be entitled to receive if he had
resigned from the employ of all of the First Chicago Companies on the day of the
amendment. The Chairman of the Corporation may amend the Plan in any non-
material respect. Whether an amendment is material shall be determined by the
Chairman in his sole discretion. Material amendments to the Plan shall be
approved by the Organization, Compensation and Nominating Committee of the Board
or the Board.
40
<PAGE>
13.2 Termination. The Plan will terminate as to all Employers on any
date specified by the Corporation, and as to any Employer on any date specified
by that Employer, if thirty days' advance written notice of the termination is
given to the Committee, the trustee, and, in the case of the termination of the
entire Plan, any other Employers. The Plan also will terminate as to an
individual Employer on the first to occur of the date that Employer is
judicially declared bankrupt or insolvent, the date that Employer ceases to
qualify as a subsidiary or related company, or the dissolution, merger,
consolidation or reorganization of that Employer, or the sale by that Employer
of all or substantially all of its assets, except that in any such event
arrangements may be made with the consent of the Corporation whereby the Plan
will be continued by any successor to that Employer or any purchaser of all or
substantially all of its assets without a termination thereof, in which case the
successor or purchaser will be substituted for that Employer under the Plan;
provided that if any Employer is merged, dissolved or in any way reorganized
into, or consolidated with, any other Employer, the Plan as applied to the
former Employer will automatically continue in effect without a termination
thereof. Notwithstanding the foregoing, if any of the events described above
should occur but some or all of the Participants employed by an Employer are
transferred to employment with one or more of the other Employers coincident
with or immediately after the occurrence of such event, the Plan as applied to
those Participants will automatically continue in effect without a termination
thereof.
13.3 Vesting on Termination. As provided in section 6.1, the rights
of all affected employees in their Account balances is nonforfeitable and shall
remain nonforfeitable on termination or partial termination of the Plan as
respects all Employers or any single Employer.
13.4 Plan Merger. In no event shall there be any merger or
consolidation of the Plan with, or transfer of assets or liabilities to, any
other plan unless each Participant in the Plan would (if the Plan then
terminated) receive a benefit immediately after the merger, consolidation or
transfer which is equal to or greater than the benefit the Participant would
have been entitled to receive immediately before the merger, consolidation or
transfer (if the Plan had then terminated).
13.5 Notice of Amendment, Termination or Plan Merger. Participants
affected thereby will be notified of an amendment, termination, merger or
consolidation of the Plan within a reasonable time.
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<PAGE>
ARTICLE 14
----------
Top-Heavy Plan Rules
--------------------
14.1 Key Employees. An employee or former employee shall be a "key
employee" for any Plan Year if during such Plan Year or during any of the four
preceding Plan Years the employee is:
(a) an officer of an employer (as defined below) having an annual
compensation (as defined in section 9.1) greater than 150 percent of
the amount in effect under Section 415(c)(1)(A) of the Code for any
such Plan Year, or
(b) one of the ten employees of an employer having annual compensation
from an employer 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) the largest interests in the
employer, or
(c) any person who owns (or is considered as owning within the meaning of
Section 318 of the Code) more than five percent of the outstanding
stock of the employer or stock possessing more than five percent of
the total combined voting power of all the Company Stock, or
(d) any person having annual compensation in excess of $150,000 who owns
(or is considered as owning within the meaning of Section 318 of the
Code) more than one percent of the outstanding stock of the employer
or stock possessing more than one percent of the total combined voting
power of all the employer's stock.
For purposes of subparagraph (a) above, if the number of officers exceeds 50,
only the 50 officers with the highest compensation shall be considered key
employees and if the number of officers is less than 50, the number of officers
considered key employees shall not exceed the greater of three such officers or
ten percent of all employees. For purposes of subparagraphs (c) and (d) above,
Section 318(a)(2)(C) of the Code shall be applied by substituting "five percent"
for the reference to "50 percent" therein and the rules of Section 414(b), (c)
and (m) of the Code shall not apply for determining ownership in the employer.
For purposes of this Article 14, the term "employer" includes all corporations
which are members of a controlled group of corporations which includes the
Corporation under Section 414(b) of the Code, all trades or businesses (whether
or not incorporated) which are under common control with the Corporation under
Section 414(c) of the Code and any service or other organization which is a
member of an affiliated service group
42
<PAGE>
with the Corporation under Section 414(m) of the Code. The beneficiary of a key
employee shall be considered a key employee.
14.2 Top-Heavy Plan. The Plan will be considered a "top-heavy plan"
for any Plan Year if as of the last day of the preceding Plan Year (but the last
day of the initial Plan Year in the case of that year) (the "determination
date") the sum of (i) the aggregate of the Accounts of all key employees under
the Plan and all other defined contribution plans in an aggregation group of
plans as described in section 14.3 below, and (ii) the present value of the
aggregate cumulative accrued benefits for key employees under all defined
benefit plans in an aggregation group of plans exceeds 60 percent of such sum
determined for all Participants under all such plans, excluding Participants who
are former key employees. There shall be included in the determination of a
Participant's Accounts and accrued benefit under such plans any amounts
distributed to him during the preceding five year period. Notwithstanding the
foregoing, if any individual has not performed any services for the employer at
any time during the five-year period ending on the determination date, any
Account of such individual (and the accrued benefit for such individual) shall
not be included for purposes of this section. Furthermore, a rollover
contribution initiated by a Participant and made to any Plan in an aggregation
group of plans shall not be taken into account for purposes of determining
whether the Plan is a top-heavy plan.
14.3 Aggregation Groups. All employer plans in a required aggregation
group of plans shall be considered to be top-heavy plans if either the required
or permissive aggregation group of plans is determined to be top-heavy under
section 14.2 above. If the required or permissive aggregation group of plans is
not a top-heavy group, no employer plans in the group shall be considered to be
top-heavy plans. A "required aggregation group of plans" shall include each
employer plan in which a key employee participates and any other employer plan
which enables any plan in which a key employee participates to meet the coverage
and nondiscrimination requirements of Sections 401(a)(4) or 410 of the Code. A
"permissive aggregation group of plans" shall include all plans in the required
aggregation group plus any other employer plans which satisfy the requirements
of Sections 401(a)(4) and 410 of the Code when considered together with the
required aggregation group of plans.
14.4 Special Minimum Contributions. Notwithstanding the provisions of
subsections 3.1(a) above, the amount contributed by an employer in accordance
with subsections 3.1(a) for each Participant (whether active or inactive) for
each Plan Year in which the Plan is considered a top-heavy plan (as defined in
section 14.2) shall not be less than the lesser of (i) four percent of the
Participant's total compensation for that year, or
43
<PAGE>
(ii) the highest percentage of compensation contribution (disregarding
compensation in excess of $200,000 or such other maximum amount as may be
permitted from time to time by the Secretary of the Treasury or his delegate or
by law) contributed by such employer under subsection 4.1(a) for such Plan Year
on behalf of a key employee; provided, however, that in the case of an employee
covered under this Plan and a defined benefit plan maintained by the employer,
for each Plan Year for which this Plan and such defined benefit plans are
considered top-heavy plans, if such employee receives the top-heavy minimum
contribution specified in such defined benefit plan, such employee need not
receive the minimum contribution specified in this section.
44
<PAGE>
APPENDIX A
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INVESTMENT FUNDS
----------------
(a) Pegasus Money Market Fund
(b) Pegasus Bond Fund
(c) Pegasus Managed Assets - Conservative Fund
(d) Pegasus Managed Assets - Balanced Fund
(e) Putnam Assets Allocation Growth Fund
(f) Pegasus Growth and Value Fund
(g) Putnam Vista Fund
(h) Pegasus Mid-Cap Opportunity Fund
(i) Putnam Voyager Fund
(j) Putnam International Growth Fund
(k) Putnam New Opportunities Fund
(l) FCNBD Common Stock
<PAGE>
SUPPLEMENT B
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FIRST CHICAGO NBD CORPORATION SAVINGS AND INVESTMENT PLAN
---------------------------------------------------------
Special Benefit Schedule for Former Participants in the
NBD Bancorp, Inc. Employees' Savings and Investment Plan
Pursuant to section 1.7, this Supplement B is made a part of the Plan and
supersedes any provisions thereof which are not consistent with this Supplement
B.
B-1 Effective Date: January 1, 1997.
B-2 Participating Group: Former employees of NBD Bancorp, Inc. and its
affiliates.
B-3 Eligibility: As of the Effective Date, the employees described in section
B-2 who are employed by an Employer, Related Company or Subsidiary became
eligible to participate in the Plan subject to its normal terms, except
that any such individual who was not already a participant in the NBD Plan
when that plan was merged into the Plan shall be eligible to participate in
the Plan at the earlier of the date he would have been eligible to
participate in the NBD Plan (had it not been merged into the Plan) or the
date determined under section 3.1, recognizing all pre-merger service with
NBD and its affiliates as though it were service with a Related Company.
B-4 Special Distribution Provisions: Any Participant may choose to have the
portion of his Accounts attributed to his NBD Plan balance as of December
31, 1996 distributed in the form of an annuity purchased from a commercial
insurance company. If a married Participant elects distribution in the
form of an annuity, the following rules shall apply and shall supersede any
other provision of the Plan to the contrary:
(a) The vested portions of the Participant's Accounts, less any
outstanding loan balance, shall be used to purchase a
nontransferable "Joint and Survivor Annuity" (that is, an annuity
payable for the life of the Participant with a survivor annuity
payable for the life of his spouse which is not less than 50% of
the amount of the annuity payable during the joint lives of the
Participant and spouse), unless he elects another form of annuity
and, if applicable, a beneficiary other than his spouse, with the
consent of his spouse to such form and beneficiary, during the
90-day period immediately preceding his annuity starting date.
B-1
<PAGE>
(b) No consent by the spouse to the election of a form of annuity
other than the Joint and Survivor Annuity and, if applicable,
beneficiary other than the spouse shall be effective unless it is
in writing, acknowledges the effect of such consent and is
witnessed by a Plan representative or a notary public (unless the
Committee determines that there is no spouse, that the spouse
cannot be located, that the Participant and his spouse are
legally separated, that the Participant has been abandoned (under
applicable state law) and the Participant has a court order to
that effect, or that consent may be waived because of such other
circumstances as regulations or rulings under Code section 417
set forth).
(c) During the period between his election of an annuity and his
distribution date, no loan may be made to a Participant, no
amount may be withdrawn by the Participant and no amount may be
distributed to the Participant in any form other than a Joint and
Survivor Annuity, without the written consent of the spouse as
provided in subsection (b) of this section.
(d) Subject to subsection (e) below, if the Participant dies during
the period between his election of an annuity and his
distribution date, the vested portions of his Accounts (less any
borrowed amounts) shall be paid to his spouse in the form of a
life annuity as of the Valuation Date next following the date the
Participant would have attained age 65 or, if the spouse so
elects, as soon as practicable after any earlier Valuation Date
next following his death; provided, however, that a spouse to
whom payment is due under this subsection (d) may elect to have
such vested portions, if any, distributed in the form of a lump
sum payment.
(e) The provisions of subsection (d) above shall not apply, if the
spouse consents to the designation of a Designated Beneficiary
other than the spouse during the period between the Participant's
election of an annuity and his death, and acknowledges that such
consent to the Participant's designation of such Designated
Beneficiary constitutes the spouse's consent to the Participant's
waiver of a qualified preretirement survivor annuity payable to
the spouse in accordance with section 417 of the Code.
B-2
<PAGE>
(f) A Participant may revoke his election pursuant to this subsection,
and may make a new election of any form of distribution permitted
under the Plan, at any time before purchase of the Annuity
contract, provided, however, that if the effect of such revocation
is to select a distribution form other than a Joint and Survivor
Annuity, it shall be ineffective without the written consent of
his spouse in accordance with section (b) to the new form of
distribution and, if applicable, a beneficiary other than the
spouse.
B-5 Preservation of Protected Rights and Features. Prior to the Effective
Date, the NBD Plan had been the recipient of moneys (by merger or transfer)
to which certain protected rights or features (within the meaning of
Section 411(d)(6) of the Code) attached. To the extent provided in the NBD
Plan immediately prior to the Effective Date, any such rights and features
shall be incorporated herein by reference.
B-3
<PAGE>
SUPPLEMENT C
------------
TO THE
------
FIRST CHICAGO CORPORATION
-------------------------
SAVINGS INCENTIVE PLAN:
-----------------------
THE ESOP
--------
C-1 Introduction. This Supplement C to the First Chicago Corporation Savings
Incentive Plan shall be known as the First Chicago Corporation ESOP Fund
(the "ESOP"). The ESOP provides for the investment of Employer and
Participant contributions (as described in Articles 4 and 5 of the Plan),
and the earnings thereon in Company Stock, so that Participants will have
an opportunity to become stockholders of the Corporation. The effective
date of the ESOP is July 1, 1996.
The Corporation intends that the Plan and the ESOP together shall
constitute a single plan under ERISA and the Code. Accordingly, the
provisions set forth in the other sections of the Plan shall apply to the
ESOP in the same manner as those provisions apply to the remaining portions
of the Plan, except to the extent that those provisions are by their terms
inapplicable to the ESOP, or to the extent that they are inconsistent with
the specific provisions set forth below in this Supplement C. Except as
provided in this Supplement C, the amendment of the Plan to include the
ESOP shall not affect any beneficiary designations or any other applicable
agreements, elections, or consents that Participants, spouses, or
beneficiaries validly executed under the terms of the Plan before the
effective date of the ESOP; and such designations, agreements, elections,
and consents shall apply under the ESOP in the same manner as they apply
under the Plan.
The ESOP, as set forth in this Supplement C, is intended to meet the
requirements of an employee stock ownership plan, as defined in Section
4975(e)(7) of the Code and the accompanying regulations, and Section
407(d)(6) of ERISA. As provided below, the ESOP is designed to invest
primarily in qualifying employer securities of the Corporation.
C-2 Eligibility. An employee shall become a Participant in the ESOP on the
effective date of the ESOP, provided that such Employee was a Participant
in the Plan on that date and has part or all of his Accounts invested in
Company Stock. Any other Employee shall become a Participant in the ESOP
as of the date on which such Employee becomes a Participant in the Plan and
elects to invest part or all of his Accounts in Company Stock.
C-1
<PAGE>
C-3 Investments in Company Stock. Participants may elect to have a portion or
all of their Accounts invested by the trustee in Company Stock. The
portion of a Participant's Accounts invested in Company Stock shall be
known as the "ESOP Fund". For this purpose it is intended that the ESOP be
considered an "eligible individual account plan" which explicitly provides
for the acquisition and holding of "qualifying employer securities" (as
those terms are defined in Sections 407(d)(3) and 407(d)(5) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) and that the
trustee may invest up to 100 percent of the Trust fund held by it in
Company Stock, to the extent elected by Participants. Company Stock may be
acquired by the trustee through purchases on the open markets private
purchases, purchases from the Employers (including purchases from the
Corporation of treasury shares or authorized but unissued shares),
contributions in kind by the Employers, or otherwise. The trustee in its
discretion may hold a portion of the ESOP Fund in cash or cash equivalents
to meet liquidity needs for distribution and while pending investment in
Company Stock.
C-4 Allocation of Company Stock. As of each Valuation Date all unallocated
Company Stock then held under the Trust shall be considered as purchased
for the Accounts of Participants who have elected to invest in Company
Stock to the extent their respective Accounts can be charged therefore on
the basis of the average purchase price paid for such Stock, and such
Company Stock shall be so allocated to Participants' Accounts and their
Accounts charged therefore. For purposes of allocating Company Stock and
charging Accounts therefore, the average purchase price of Company Stock to
be charged to Participants' Accounts shall be determined by dividing the
total purchase price paid for all Company Stock purchased by the trustee
since the preceding Valuation Date by the total number of shares of
unallocated Company Stock (excluding Company Stock resulting from stock
dividends on or split ups of allocated Company Stock). In applying the
provisions of the next preceding sentence, unallocated Company Stock which
has been contributed by the Employers as a part of the Employers'
contribution shall be deemed to have been purchased by the trustee for an
amount equal to the fair market value of such shares when they were
contributed. In addition, any Unallocated Company Stock to be allocated as
of a Valuation Date shall include Company Stock resulting from trades which
have been settled by that Valuation Date. Company Stock which becomes
available for sale as a result of the election of separating Participants
to receive their distribution in cash or elections to transfer funds from
the ESOP Fund to another Investment Fund shall likewise be allocated to
Participants' Accounts', and their Accounts
C-2
<PAGE>
charged therefore. For purposes of allocating said shares of Company Stock
and charging Accounts therefore, the average purchase price of such Company
Stock shall be the fair market value of Such shares on the preceding
Valuation Date.
C-5 Additional Accounting Rules for Company Stock. The following additional
miles apply regarding Company Stock.
(a) As of each Valuation Date, Uncredited whole and fractional shares of
Company Stock resulting from stock dividends or splits attributable to
Company Stock previously allocated to a Participant's Accounts shall
be credited to his Accounts.
(b) If rights or warrants are issued with respect to any Company Stock
held by the trustee, such rights or warrants shall be appropriately
reflected in Participants' Accounts in accordance with rules
established by the Committee and uniformally applied until sold or
exercised by the trustee and the proceeds appropriately reflected as
directed by the Committee.
C-6 Voting and Tender of Company Stock. The Committee shall furnish or cause
to be Misled to each Participant who has Company Stock credited to his
Accounts notice of the date and purpose of each meeting of the stockholders
of the Corporation at which Company Stock are entitled to be voted. The
Committee shall request from each such Participant instructions as to the
voting at that meeting of Company Stock credited to his Accounts. If the
Participant furnishes Such instructions within the time specified in the
notification given to him, the trustee shall vote such Company Stock in
accordance with the Participant's instructions. All Company Stock credited
to Accounts as to which the trustee does not receive voting instructions as
specified above and all unallocated Company Stock held by the trustee shall
be voted by the trustee proportionately in the same manner as it votes
Company Stock to which the trustee has received voting instructions as
specified above unless otherwise required by ERISA. Similarly, the
Committee shall furnish to each Participant who has Company Stock credited
to his Accounts notice of any tender offer for, or a request or invitation
for tenders of, Company Stock made to the trustee. The Committee shall
request from each such Participant instructions as to the tendering of
Company Stock credited to his Accounts and for this purpose the
Participants shall be provided with a reasonable period of time in which
they may consider any such tender offer for, or request or invitation for
tenders of, Company Stock. The trustee shall tender the Company Stock as
to which the
C-3
<PAGE>
trustee has received instructions to tender from Participants within the
time specified. Company Stock credited to Accounts as to which the trustee
has not received instructions from Participants shall not be tendered,
unless otherwise required by ERISA. As to all unallocated Company Stock
held by the trustee, the trustee shall tender the same proportion thereof
of the Company Stock as to which the trustee has received instructions from
Participants to tender bear to all Company Stock with respect to which the
trustee has received instructions from Participants to tender and not to
tender.
C-7 Payment of Dividends. Any cash dividend paid with respect to Company Stock
which is held in Participant Accounts will be paid directly in cash to such
Participants or will be paid in cash to the trustee and, within 90 days
following the close of the Plan Year, shall be distributed to such
Participants. At the direction of the Committee the trustee shall retain a
dividend disbursing agent. Notwithstanding the above, if directed by the
Committee, the trustee shall provide that the dividend payments be made (1)
by the dividend disbursing agent directly to Participants, (2) by the
dividend disbursing agent to the Corporation's payroll department which
shall serve, for this purpose, as agent for the Participants, or (3) by the
dividend disbursing agent to the trustee who is hereby authorized to pay
any dividend directly to participants or to appoint the Corporation's
payroll department as disbursing agent for the trustee. Notwithstanding the
above, a cash dividend will not be paid to a Participant if as of the
applicable record date such Participant's Accounts hold less than one share
of the Company Stock, rather such dividend will be retained in the ESOP as
it was prior to the effective date of the ESOP. Participant's accounts as
it was prior to the effective date of the ESOP.
In addition, with respect to any Plan Year, a Participant described below
will not receive a cash dividend payment (unless such Participant
affirmatively elects otherwise):
(i) The Participant is not eligible for the Supplemental Savings
Incentive Plan and, because of Sections 402(g) or 415 of the
Code, is expected to be unable to increase the amount of his
deferral under Section 5.1 of the Plan in an amount equal to such
Participant's projected annual dividend payment; or
(ii) The Participant will receive Compensation on the pay date when
the cash dividend would otherwise
C-4
<PAGE>
have been distributed which will be less than the dividend to be
distributed on such date.
In any Such case, the dividend will be retained in the ESOP as it was prior
to the effective date of the ESOP, unless such Participant affirmatively
elects to have the dividend distributed, in which case such Participant
will also be deemed to have elected not to have his Compensation reduced by
an amount equal to the cash dividend.
C-8 Participant Deferral Election. Subject to the limitations of Articles 5 and
9 of the Plan, unless otherwise elected by a Participant, a Participant's
election under Section 5.1 of the Plan to reduce his Compensation from his
Employer and have Such amount contributed on his behalf to the Plan, shall
be increased by the amount of the cash dividend paid to the Participant
under Section C.7.
Any amount contributed on behalf of a Participant to the Plan under this
Section C.8 shall not be eligible for Employer Matching Contributions
described in Section 4.1 and shall not be Subject to the six percent
limitation or the whole percent requirement under Section 5.1.
C-9 Distribution of Company Stock.
------------------------------
(a) General Rule.
------------
Upon a Participant's Settlement Date, the Participant (or, if
applicable, the Participant's beneficiary) shall be entitled to
receive a distribution of the Company Stock then credited to his
Accounts under the ESOP Fund at the same time and in the same manner
as he receives a distribution of the other portions of his Account
balances in accordance with Article 7 of the Plan. A Participant shall
not be entitled to elect a time or method of distribution, or to
designate a beneficiary, with respect to such Company Stock that is
different from the time and method of distribution and beneficiary
that are applicable to the other portions of his Participant Accounts.
(b) Cash-Outs.
---------
For purposes of determining, pursuant to Article 7, whether a
Participant's Account balances exceed $3,500, the Participant's ESOP
Fund shall not be considered separately, but shall be included with
the other portions of his Participant Accounts.
(c) Distributions in Company Stock.
-------------------------------
C-5
<PAGE>
In accordance with Section 7.2 of the Plan, all Company Stock held in
a Participant's Accounts shall be distributed in kind, unless the
Participant elects to receive such distribution in cash.
C-10 Withdrawal and Diversification Rights.
-------------------------------------
(a) Withdrawals.
-----------
A Participant may withdraw amounts from his Accounts invested in the
ESOP Fund subject to the same rules as apply to withdrawals from the
Participant's Accounts under Article 8 of the Plan. A Participant may
elect to receive any withdrawal described in this subsection (a) in
the form of Company Stock rather than in cash.
(b) Diversification.
---------------
It is the intent of the Employers that the participant's withdrawal
fight described in subsection C. 9(a), above, and the fact that the
Participant has the right, in accordance with Sections 6.3 and 6.7 of
the Plan, to direct how his Account balances shall be invested, shall
satisfy the diversification requirements of Section 401(a)(28) of the
Code. Accordingly, a Participant shall not be entitled to have his
share of the ESOP Fund and any earnings attributable thereto invested
in any Investment Fund other than the ESOP Fund, except as provided in
Section 6.3 of the Plan.
C-6
