<PAGE>
As filed with the Securities and Exchange Commission on July 14, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
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
Amount to be Offering Price Aggregate Amount of
Title of Securities to be Registered Registered Per Share (1) Offering Price (1) Registration Fee (1)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1 par value.............. 800,000 shares $90.97 $72,776,000 $21,469
Interests in the Savings and
Investment Plan....................... (2) - - -
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) 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 July __, 1998.
(2) 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 contents of Registrant's previously filed
Registration Statement on Form S-8 relating to the First Chicago NBD Corporation
Savings and Investment Plan (the "Plan") (No. 333-16369) is 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, 1997;
(b) FCN's Quarterly Report on Form 10-Q for the quarter ended March
31, 1998;
(c) FCN's Current Reports on Form 8-K dated January 15, 1998,
February 17, 1998, April 13, 1998, April 14, 1998, April 21,
1998, May 19, 1998 and July 13, 1998;
(d) The description of FCN Common Stock set forth in a registration
statement filed by a predecessor of FCN 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) The Plan's Annual Report on Form 11-K for the year ended December
31, 1997.
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 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.
-2-
<PAGE>
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 June 30, 1998, Mr.
Goldberg was the record and beneficial owner of approximately 242,458 shares of
FCN Common Stock and held options to purchase 134,207 shares of FCN Common
Stock.
The consolidated financial statements of FCN included in the Form 10-K for
the year ended December 31, 1997, 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, 1997, 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 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.
-3-
<PAGE>
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
------ -----------------------
<C> <S>
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 14th day of July, 1998.
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 July 14, 1998.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
Terence E. Adderley*
- -----------------------------
Terence E. Adderley Director
James K. Baker*
- -----------------------------
James K. Baker Director
John H. Bryan*
- -----------------------------
John H. Bryan Director
Siegfried Buschmann*
- -----------------------------
Siegfried Buschmann Director
James S. Crown*
- -----------------------------
James S. Crown Director
Maureen A. Fay, O.P.*
- -----------------------------
Maureen A. Fay, O.P. Director
Charles T. Fisher III*
- -----------------------------
Charles T. Fisher III Director
Verne G. Istock*
- -----------------------------
Verne G. Istock Director and Principal Executive Officer
</TABLE>
-7-
<PAGE>
<TABLE>
<S> <C>
Thomas H. Jeffs II*
- ------------------------------
Thomas H. Jeffs II Director
William G. Lowrie*
- ------------------------------
William G. Lowrie Director
Richard A. Manoogian*
- ------------------------------
Richard A. Manoogian Director
William T. McCormick, Jr.*
- ------------------------------
William T. McCormick, Jr. Director
Andrew J. McKenna*
- ------------------------------
Andrew J. McKenna Director
James J. O'Connor*
- ------------------------------
James J. O'Connor Director
Thomas E. Reilly, Jr.*
- ------------------------------
Thomas E. Reilly, Jr. Director
John W. Rogers, Jr.*
- ------------------------------
John W. Rogers, Jr. Director
Adele Simmons*
- ------------------------------
Adele Simmons Director
Richard L. Thomas*
- ------------------------------
Richard L. Thomas Director
David J. Vitale*
- ------------------------------
David J. Vitale Director
William J. Roberts*
- ------------------------------
William J. Roberts Principal Accounting Officer
Robert A. Rosholt*
- ------------------------------
Robert A. Rosholt Principal Financial Officer
</TABLE>
-8-
<PAGE>
- --------------
* 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
-9-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
- ------ -----------------------
<C> <S>
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
</TABLE>
<PAGE>
[Letterhead of Sherman I. Goldberg]
Exhibits 5 and 23(b)
July 14, 1998
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 15 1998
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, 1997 and to the reference to our Firm under the caption "Interests
of Named Experts and Counsel" in this Registration Statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois,
July 14, 1998
<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 June 1, 1998
included as part of the First Chicago NBD Corporation Savings and Investment
Plan's Form 11-K for the year ended December 31, 1997, and to the reference to
our Firm under the caption "Interests of Named Experts and Counsel" in this
Registration Statement.
WASHINGTON, PITTMAN & MCKEEVER
Chicago, Illinois
July 14, 1998
<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 July 10, 1998, 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.
Signature Title
--------- -----
/s/ Terence E. Adderley Director
- ----------------------------
Terence E. Adderley
/s/ James K. Baker Director
- ----------------------------
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
<PAGE>
/s/ Verne G. Istock
- ---------------------------- Director and Principal
Verne G. Istock Executive Officer
/s/ Thomas H. Jeffs II Director
- ----------------------------
Thomas H. Jeffs II
/s/ William G. Lowrie Director
- ----------------------------
William G. Lowrie
/s/ Richard A. Manoogian Director
- ----------------------------
Richard A. Manoogian
/s/ William T. McCormick, Jr. Director
- ----------------------------
William T. McCormick, Jr.
/s/ Andrew J. McKenna Director
- ----------------------------
Andrew J. McKenna
/s/ James J. O'Connor Director
- ----------------------------
James J. O'Connor
/s/ Thomas E. Reilly, Jr. Director
- ----------------------------
Thomas E. Reilly, Jr.
/s/ John W. Rogers, Jr. Director
- ----------------------------
John W. Rogers, Jr.
/s/ Adele Simmons Director
- ----------------------------
Adele Simmons
<PAGE>
/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
Dated: July 10, 1998
<PAGE>
Exhibit 99
Draft July 13, 1998
FIRST CHICAGO NBD CORPORATION
-----------------------------
SAVINGS AND INVESTMENT PLAN
---------------------------
(As Amended and Restated Effective January 1, 1997,
Reflecting the Merger of the First Chicago Corporation
Savings Incentive Plan and The NBD Bancorp, Inc. Employees'
Savings and Investment Plan)
<PAGE>
Table of Contents
-----------------
<TABLE>
<C> <S> <C>
ARTICLE 1
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 2
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 5
2.18 ERISA 5
2.19 Highly Compensated Employee 5
2.20 Hour of Service 5
2.21 Investment Funds 6
2.22 Leave of Absence 6
2.23 Matching Contributions 6
2.24 NBD Plan 6
2.25 Participant 6
2.26 Plan 7
2.27 Plan Year 7
2.28 Related Company 7
2.29 Subsidiary 7
2.30 Trust 7
2.31 Trust Fund 7
2.32 Trustee 7
</TABLE>
<PAGE>
<TABLE>
<C> <S> <C>
2.33 Valuation Date 7
2.34 Year of Service 7
ARTICLE 3
Plan Participants 7
3.1 Participation 7
3.2 Employees of Foreign Subsidiaries 8
3.3 Cessation and Resumption of Participation and Inactive
Participation 8
3.4 Cessation and Resumption of Active Participation 9
3.5 Notice of Participation 9
3.6 Leased Employees 9
ARTICLE 4
Employers' Contributions 10
4.1 Employers' Contributions 10
4.2 Payment of Employers' Contributions 11
4.3 Deduction Limitation 11
4.4 Verification of Employers' Contributions 11
4.5 Forfeiture of "Orphaned" Matching Contributions 11
4.6 Military Absences 11
ARTICLE 5
Before-Tax Contributions 12
5.1 Before-Tax Contributions 12
5.2 Distribution of Excess Deferrals 12
5.3 Variation, Discontinuance and Resumption of
Participant Contributions 13
5.4 Rollover Contributions 13
5.5 Transferred Benefits 14
5.6 Actual Deferral Percentage Test Limitation on Before-Tax 14
Contributions
5.7 Contribution Percentage Test Limitation on Matching 15
Contributions
5.8 Multiple Use 16
ARTICLE 6
Plan Accounting and Investment Alternatives 17
6.1 Separate Participant Accounts 17
6.2 Investment Alternatives 18
6.3 Investment Elections 18
6.4 Charging Payments and Distributions 19
6.5 Adjustment of Accounts 19
6.6 Statement of Accounts 20
6.7 Investments in Company Stock 20
6.8 Allocation of Company Stock 20
6.9 Additional Accounting Rules For Company Stock 21
6.10 Voting and Tender of Company Stock 21
6.11 Correction of Error 22
</TABLE>
<PAGE>
<TABLE>
<C> <S> <C>
ARTICLE 7 Distribution of Account Balances 22
7.1 Distribution of Accounts 22
7.2 Methods of Benefit Payment 23
7.3 Selection of Time and Manner of Benefit Payment 23
7.4 Designated Beneficiaries 24
7.5 Eligible Rollover Distributions 24
7.6 Payment of Certain Benefits from Transfer Account 25
7.7 Disability Distribution 27
ARTICLE 8 Withdrawals and Loans During Employment 28
8.1 Withdrawal of Before-Tax Contributions, Matching
Contributions and Employer Discretionary
Contributions on Account of Financial Hardship 28
8.2 Withdrawal of After-Tax Contributions 29
8.3 Withdrawal of Prior Employer Contributions 29
8.4 Withdrawal After Age 59-1/2 29
8.5 Loans to Participants 29
ARTICLE 9 Maximum Contributions 31
9.1 Limitations on Annual Additions 31
9.2 Excess Annual Additions 32
9.3 Combined Plan Limitation 32
ARTICLE 10 General Provisions 33
10.1 Payment to Substitute Beneficiaries 33
10.2 Payment with Respect to Incapacitated Participants
or Beneficiaries 33
10.3 Examination of Plan Documents 34
10.4 Notices 34
10.5 Nonalienation of Plan Benefits 34
10.6 No Employment or Benefit Guaranty 35
10.7 Litigation 35
10.8 Evidence 36
10.9 Gender and Number 36
10.10 Waiver of Notice 36
10.11 Applicable Law 36
10.12 Severability 36
10.13 Fiduciary Responsibilities 36
10.14 Funding of Plan Benefits 36
ARTICLE 11 Relating to Plan Administration 37
11.1 Committee Appointed by Corporation 37
11.2 Resignation or Removal of Committee Member 37
11.3 Committee Secretary 37
</TABLE>
<PAGE>
<TABLE>
<C> <S> <C>
11.4 Powers of Committee 37
11.5 Action by Committee 38
11.6 Committee Support 39
11.7 Decision of Committee Final 39
11.8 Review of Benefit Determinations 39
11.9 Uniform Rules 39
11.10 Indemnification 40
ARTICLE 12 Relating to the Employers 40
12.1 Action by Employers 40
12.2 Additional Employers 40
12.3 Restrictions as to Reversion of Trust Fund to Employers 40
ARTICLE 13 Amendment and Termination 41
13.1 Amendment 41
13.2 Termination 42
13.3 Vesting on Termination 42
13.4 Plan Merger 42
13.5 Notice of Amendment, Termination or Plan Merger 43
ARTICLE 14 Top-Heavy Plan Rules 43
14.1 Key Employees 43
14.2 Top-Heavy Plan 44
14.3 Aggregation Groups 44
14.4 Special Minimum Contributions 45
APPENDIX A INVESTMENT FUNDS
SUPPLEMENT B B-1
SUPPLEMENT C C-1
</TABLE>
<PAGE>
FIRST CHICAGO NBD CORPORATION SAVINGS AND INVESTMENT PLAN
---------------------------------------------------------
ARTICLE 1
Introduction
------------
A. 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.
A. 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 with the
Corporation's consent (the "Employers") 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 (or their respective subsidiaries or related
companies) 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.
A. 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").
A. Effective Date. The "Effective Date" of this amended and restated Plan, as
set forth herein, is January 1, 1997.
A. 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 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
<PAGE>
any employee of an Employer. The provisions of, and benefits under, the Plan are
subject to the Trust.
A. 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.
A. 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:
A. 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.
A. 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
<PAGE>
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. For purposes of the foregoing, Earnings
shall be computed before salary reductions for either a Section 125 cafeteria
plan or a Section 401(k) cash-or-deferred arrangement are take with respect to a
Participant for the 1997 Plan Year as well as subsequent years.
A. 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.
A. 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).
A. Code means the Internal Revenue Code of 1986, as amended and in effect from
time to time.
A. Committee means the Retirement Committee of the Corporation.
A. 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.
A. Compensation means the basic salary (estimated where necessary), overtime,
shift differentials, sick pay and short-term disability pay, commissions (as
defined by the Employer awarding such amounts), and other similar cash payments
paid to or for the benefit of a Participant as a U.S.-based employee of an
Employer, including salary continuation payments and amounts withheld from
salary pursuant to a salary reduction agreement under a cafeteria plan as
defined in Section 125 of the Code or as Before-Tax Contributions. Compensation
shall not include all other items, including taxable reimbursements, deferred
salary, tuition assistance, adoption assistance, referral awards, service and
recognition awards, discretionary profit sharing awards, stock-related income,
distributions of salary or bonus deferrals, payments from reimbursement
accounts, life insurance allowances, relocation allowances, lump sum severance
payments and any non-cash compensation, nor amounts paid before the date an
employee became a Participant or after the date he is no longer eligible to
participate. A Participant's Compensation for any Plan Year shall not exceed
$160,000 in 1997 and 1998 and, for subsequent Plan Years, such other maximum
amount as may be permitted from time to time by the Secretary of the Treasury or
his delegate or by law.
<PAGE>
A. 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. For
purposes of the foregoing, Earnings shall be computed before salary reductions
for either a Section 125 cafeteria plan or a Section 401(k) cash-or-deferred
arrangement are take with respect to a Participant for the 1997 Plan Year as
well as subsequent years.
A. 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.
A. Corporation means First Chicago NBD Corporation, a Delaware corporation, or
its successor or successors.
A. 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.
A. Earnings means all compensation paid to an employee of an Employer as
described in Treas. Reg. (S) 1.415-2(d)(11)(ii) (that is, compensation reported
as "wages" for income tax withholding purposes, determined without regard to
limitations based on the nature or location of employment) and, for purposes of
Sections 5.6 and 5.7, that does not exceed the maximum amount permitted to be
taken into account for that year under Section 401(a)(17) of the Code. For Plan
Years after December 31, 1997, Earnings shall be determined prior to reduction
for contributions to a cafeteria plan under Section 125 of the Code or to a
cash-or-deferred arrangement under Section 401(k) of the Code.
A. Effective Date means January 1, 1997.
A. Eligible Employee means any individual who currently satisfies all of the
eligibility requirements of Subsection 3.1, disregarding paragraph (e) thereof.
A. 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."
<PAGE>
A. Employer Discretionary Contribution means the discretionary contribution an
Employer may make on behalf of each eligible individual as described in
Subsection 4.1(c).
A. ERISA means the Employee Retirement Income Security Act of 1974, as
amended.
A. 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).
A. Hour of Service means:
1. 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.
1. 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 of Service 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 of Service 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.
A. Investment Funds means those funds to be established within the Trust Fund
for the investment of Participants' Accounts as described at Section 6.2.
<PAGE>
A. Leave of Absence means:
1. 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;
1. 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
1. 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.
A. Matching Contributions means contributions which the Employer makes as a
percentage of a Participant's Before-Tax Contributions under Section 4.1(a).
A. NBD Plan means the NBD Bancorp, Inc. Employees' Savings and Investment Plan
which was merged into this Plan immediately prior to the Effective Date.
A. 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(e). 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.
A. Plan means the First Chicago NBD Corporation Savings and Investment Plan
(formerly known as the First Chicago Corporation Savings Incentive Plan).
A. Plan Year means the calendar year.
A. Related Company means the Corporation, and any other corporation or trade
or business during the period in which such corporation or trade or business is
a member of the same Controlled Group as the Corporation.
<PAGE>
A. Subsidiary means a corporation or partnership during any period during
which at least 50% of its interest is directly or indirectly owned by the
Corporation.
A. Trust means the First Chicago NBD Corporation Savings and Investment Plan
Trust.
A. Trust Fund means, as of any date, all property of every kind then held by
the trustee pursuant to the terms of the Trust.
A. Trustee means The First National Bank of Chicago or such successor trustee
as may be appointed pursuant to the terms of the Trust.
A. Valuation Date means each day that the New York Stock Exchange is open or
such other dates that the Committee may designate.
A. 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
-----------------
A. 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:
1. he is employed or otherwise paid as an employee by an Employer; however,
employees covered by a collective bargaining agreement shall not be eligible to
participate unless the collective bargaining agreement states otherwise;
1. 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
<PAGE>
performs an Hour of Service or (ii) an hourly employee who has completed at
least one Year of Service;
1. he is classified by his Employer as a U.S.-based employee;
1. he does not perform services for an Employer under a contract, agreement or
arrangement that purports to treat him as either an independent contractor or
the employee of a leasing organization, agency or other similar entity, even if
he is subsequently determined (by judicial action or otherwise) to have instead
been a common law employee of such Employer; and
1. he has elected to contribute to the Plan, according to rules established by
the Committee.
A. 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.
A. Cessation and Resumption 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. However, active participation
in the Plan shall cease if and when a Participant ceases to satisfy the
conditions of paragraphs (a), (c),(d) or (e) of Subsection 3.1, and such
Participant (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 (a) meets all of the eligibility requirements of Section 3.1
relevant to his employment status and (b) enrolls in the Plan. 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 contributions in accordance with uniform rules established by the
Committee.
A. Notice of Participation. Each employee will be notified of the date he is
eligible to become a Participant by making a contribution election.
<PAGE>
A. 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
------------------------
A. 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:
1. 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 Employers shall make a Matching Contribution on
behalf of each Participant equal to 100 percent of that portion of each
Participant's Before-Tax Contributions which do not exceed 3 percent of the
Participant's Compensation for such pay period and an amount equal to 50 percent
of that portion of a Participant's Compensation that exceeds 3 percent but does
not exceed 6 percent of the Participant's Compensation for such pay period.
1. Before-Tax Contributions. For each payroll period, the Before-Tax
Contributions, if any, elected by each Participant for that payroll period.
1. Employer Discretionary Contributions. As soon as practicable following 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
<PAGE>
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 an 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).
A. 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 each pay day, 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 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 contribution 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.
A. 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.
A. 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.
A. 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.
<PAGE>
ARTICLE 5
Before-Tax Contributions
------------------------
A. 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 1 percent nor more than 15 percent (in multiples
of 1 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 in 1997 ($10,000 in 1998, and, for subsequent calendar
years, such other maximum amount as may be permitted from time to time by the
Secretary of the Treasury or his delegate or by law). 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.
A. 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 under Section 402(g) of the Code during
such calendar year and further notifies the Committee of the amount of such
excess allocated to this Plan, such excess amount ("Excess Deferrals") 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 limitation of Section 402(g) of the Code for a
calendar year is 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 Deferrals (along 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).
A. 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 prospectively with the Plan's recordkeeper in accordance with
uniform rules established by the Committee, 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 (including discontinuing
<PAGE>
contributions or resuming contributions) as of any payroll date by filing a
superseding election with the Plan's recordkeeper in accordance with uniform
rules established by the Committee.
A. Rollover Contributions. An Eligible Employee or an individual who would be
an Eligible Employee but for the failure to satisfy the service requirement of
Subsection 3.1(b) may contribute to the Trust Fund, in cash, all or any portion
of an "eligible rollover distribution," as defined in Section 402(c) of the Code
in accordance with uniform procedures established by the Committee, provided
that such distribution is from a plan of another employer that meets the
requirements of Section 401(a) of the Code (the "Former Plan"). In addition, an
individual who has not already elected distribution of his Accounts under the
Plan and who terminates employment with an Employer with a vested account
balance under the Personal Pension Account Plan (the "PPAP") may contribute to
the Trust Fund, in cash, all or any portion of such account balance as an
"eligible rollover distribution" defined in Section 402(c) of the Code. The
rollover procedures approved by the Committee shall provide that such a rollover
contribution may be made only if the following conditions are met: (i) the
contribution occurs on or before the 60th day following the employee's receipt
of the distribution from the Former Plan or PPAP, and (ii) the amount
contributed is less than or equal to the amount of the distribution the employee
received from the Former Plan or PPAP, subject to the provisions of Section 402
of the Code regarding maximum rollovers. Notwithstanding the foregoing, if such
employee deposited a distribution previously received from a Former Plan or PPAP
into a "conduit" individual retirement account ("IRA"), as defined in Section
408 of the Code, he may contribute 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 60th day following receipt thereof from the
IRA. The rollover contribution may also be made by means of a "direct rollover"
that complies with applicable Treasury regulations. The Committee shall develop
such procedures, and may require such information from an individual desiring to
make a rollover contribution, as it deems necessary or desirable to determine
that the proposed contribution will meet the requirements of this Section 5.4.
Upon approval by the Committee, the amount contributed 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 contribution by an individual who is not yet a Participant, the
balance of his Rollover Account hereunder shall represent his sole interest in
the Plan unless and until he makes contributions to the Plan under Section 5.1.
A. Transferred Benefits. If an employee of an Employer 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
<PAGE>
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. No protected rights or features (within the
meaning of Section 411(d)(6) of the Code) shall be eliminated as a result of
such transfer, unless under applicable Treasury regulations it constitutes an
"elective transfer" for purposes of such Code section.
A. 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) 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:
1. 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
2. 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 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. Notwithstanding the
foregoing, for the Plan Year beginning January 1, 1997, the test set forth in
Subsection (a) and (b)above shall be performed by comparing the Actual Deferral
Percentage for the group of Highly Compensated Employees for the Plan Year with
the Actual Deferral Percentage for all other Eligible Employees for the Plan
Year.
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 5.6 (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 and notices to
cause either Subsection 5.6(a) or (b) to be satisfied. The amount by which a
Participant's Before-Tax Contributions are
<PAGE>
reduced hereunder, plus applicable earnings for the testing year, 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.
A. 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:
1. 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
1. 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.
Notwithstanding the foregoing, for the Plan Year beginning January 1, 1997, the
test set forth above shall be performed by comparing the Contribution Percentage
for the group of Highly Compensated Employees for the Plan Year with the
Contribution Percentage for all other Eligible Employees for the Plan Year.
Subject to Section 5.8, an adjustment shall be made hereunder only if neither
Subsection 5.7(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 in accordance with Section 401(m)(6) of the Code and
applicable Treasury regulation and notices, along with any income allocable
thereto for the testing year, 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.
<PAGE>
A. Multiple Use. The Committee will administer the Plan to prevent the
"multiple use" of the alternative limitations of Sections 5.6(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 5.6 or 5.7 or such
other method prescribed in the regulations to eliminate any multiple use.
A. Military Absences. Notwithstanding any other provision of the Plan to the
contrary, eligibility service shall be credited, and make-up contributions shall
be permitted (and matched), as required by Section 414(u) of the Code.
ARTICLE 6
---------
Plan Accounting and Investment Alternatives
-------------------------------------------
A. Separate Participant Accounts. The Committee will establish and maintain
the following separate Accounts with respect to Participants:
1. 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.
1. 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.
1. 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.
1. 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 income, losses, appreciation and depreciation
attributable thereto.
1. 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
<PAGE>
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 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 from a
special Employer contribution made for that purpose. Such reinstated forfeitures
shall be invested according to such Participant's current direction, if any, on
file with the Committee or, in the absence of such direction, in the money
market fund alternative (unless the Committee determines otherwise).
A. Investment Alternatives. In addition to other investment alternatives, from
time to time the Trustee at the direction of the Committee may cause one or more
Investment Funds to be established, including those Investment Funds described
in Appendix A. An Investment Fund may be added, deleted entirely or its
investment strategy modified without prior notice to Participants.
A. Investment Elections.
1. Each Participant may elect at any time but not more than once per day, by
giving notice to the Plan's recordkeeper, in accordance with uniform rules
established by the Committee, to change the investment of his Account balances
in any manner that results in such balances being invested in one or more of the
Investment Funds in multiples of 1 percent. Any such change shall be effective
as of the end of business on the date the Participant makes his new election,
provided it is made by the deadline established by the Committee.
1. 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 1
percent of such future contributions is invested in each Investment Fund. The
Participant will receive a written confirmation of any election to change the
investment of his contributions.
1. 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 Pegasus Money Market Fund,
unless the Committee determines otherwise. The Committee shall from time to time
notify each trustee with
<PAGE>
custody of an Investment Fund of the aggregate amounts to be invested in each
Investment Fund in accordance with Participants' elections.
The Plan is intended to satisfy the requirements of Section 404(c) of ERISA with
respect to participants' investment elections.
A. 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.
A. Adjustment of Accounts. As of each Valuation Date, the Participant's
Accounts 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 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 fully distributed, regardless of whether the Participant continues to be an
Employee. The Plan will use a daily valuation system, which generally shall mean
that Accounts will be updated each business day to reflect activity for that
day, such as new contributions received by the Trustee, changes in Participants'
investment elections, and changes in the [unit] value of the Investments Funds
under the Plan. Such daily valuation is dependent upon the Plan's recordkeeper
receiving complete and accurate information from a variety of different sources
on a timely basis. Since events may occur that cause an interruption in this
process, affecting a single Participant or a group of Participants, there shall
be no guarantee by the Plan that any given transaction will be processed on the
anticipated day. In the event of any such interruption, no attempt shall be made
to reconstruct events as they would have occurred absent the interruption,
regardless of the cause, unless the Committee in its sole discretion directs the
Plan's recordkeeper to do so.
A. 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 as of the end of the calendar quarter. No
Participant, except a member of the Committee or its delegate, shall have the
right to inspect the records reflecting the Accounts of any other Participant.
A. 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
<PAGE>
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 6.7, the
Accounts of other Participants shall not be readjusted on account of such error.
ARTICLE 7
---------
Distribution of Account Balances
--------------------------------
A. Distribution of Accounts. A Participant's Account balances shall be
distributable to the Participant or, in the event of his death, to his
Designated Beneficiary, in accordance with Section 7.2, as of the Valuation Date
coincident with or next following the later of (i) his employment termination
date or (ii) the receipt by the Committee or its delegate 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.
If the Participant's vested Account balance is $3,500 or less ($5,000 on or
after January 1, 1998 or such other maximum amount as may be permitted by the
Code for involuntary payments), it shall be paid as soon as possible following
confirmation of his termination of employment. The Committee shall establish
uniform rules, including the specification of appropriate election periods, for
the processing of distributions.
A. 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 Designated Beneficiary 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 a Designated 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. 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.
A. Selection of Time and Manner of Benefit Payment. Unless the Participant
whose Account balances exceed $3,500 ($5,000 on or after January 1, 1998 or such
other maximum amount as may be permitted by the Code for involuntary payments)
elects to defer payment, payment of a Participant's benefits normally will be
<PAGE>
made or will commence within a reasonable period of time after the applicable
Valuation Date as described in Section 7.1 (or the date of a Participant's
consent described in the next sentence, if later); unless the Participant elects
otherwise, 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 Code Section
416) of the Corporation must be made (or installments must commence) or who has
already terminated employment no later than the April 1 of the calendar year
following the calendar year in which he attains age 70 1/2 years.
A. 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 to designate a
beneficiary other than the spouse 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. If the Participant has no
spouse and has not filed a Designated Beneficiary form at the time of his Death,
his Account shall be distributed in accordance with Section 10.1.
A. Eligible Rollover Distributions:
1. 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.
1. Eligible rollover distribution: An eligible rollover distribution is any
distribution of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not include: (i)
any distribution that is one of a series
<PAGE>
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).
1. 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.
1. 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
surviving spouse or alternate payee.
1. Direct rollover: A direct rollover is a payment by the Plan to the eligible
retirement plan specified by the distributee.
A. Payment of Certain Benefits from Transfer Account.
1. 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 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:
a) 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;
<PAGE>
a) the term "qualified survivor annuity" means a single life annuity for the
life of the Participant's surviving spouse.
1. Paragraph (a) shall not apply to any Participant if:
a) the amount available for distribution which is attributable to such
transferred amounts does not exceed $3,500 ($5,000 on or after January 1, 1998
or such other maximum amount as may be permitted by the Code for involuntary
payments); or
a) 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
a) in the case of a qualified survivor annuity: (A) the Participant has
effectively designated someone other than his surviving 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 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.
1. The elections referred to above shall be made in writing by the Participant
or his Beneficiary no earlier than 90 days prior to the Valuation Date as of
which payment commences. Prior to the commencement of the applicable election
period, a Participant who is entitled to make the elections described above
shall be provided a written explanation of:
a) the terms and conditions of the joint and survivor and qualified survivor
annuities;
a) the Participant's right to make, and the effect of, an election to waive
the joint and survivor annuity;
<PAGE>
a) the rights of the Participant's spouse with respect to any such election;
and
a) the Participant's right to make, and the effect of, a revocation of such
election,
prior to his election. Such Participant shall have at least 30 days prior
to commencement of his distribution to submit his election, unless he
waives such 30-day period in accordance with applicable Treasury
regulations.
1. Prior to distribution of his Accounts on account of termination of
employment or death, a married Participant described in this section may not
elect to withdraw or borrow any amount from this Accounts which is attributable
to such transferred balance without his spouse's written, notarized consent.
A. Disability Distribution. Notwithstanding any other provision of the Plan to
the contrary, a Participant who is disabled, within the meaning of Section
401(k)(2)(B) of the Code, may elect an immediate distribution of his vested
Account balance.
ARTICLE 8
Withdrawals and Loans During Employment
---------------------------------------
A. Withdrawal of Before-Tax Contributions, Matching Contributions and Employer
Discretionary Contributions on Account 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, by filing a written 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; subject to the preceding limitation, Matching and Employer
Discretionary Contributions (and the earnings thereon) shall be withdrawn first,
prior to the withdrawal of any Before-Tax Contributions. 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 in accordance with
Section 8.2. 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
<PAGE>
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 under this Subsection 8.1 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, if adequate, otherwise from the proceeds of the withdrawal.
A. 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
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).
A. 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 under the First Chicago Corporation Savings Incentive
Plan which a Participant could not elect to receive in cash may not be withdrawn
for any reason.
A. 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.
A. 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:
<PAGE>
1. Each request for a loan under this section must be made 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. A Participant shall be entitled to refinance an
existing loan, provided all applicable limits are met at the time of the
refinancing as though the original loan had been paid off with the proceeds of a
new loan.
1. 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.
1. Each loan will bear interest at a commercially reasonable fixed rate of
interest determined by the Committee as of the date of the loan (using The First
National Bank of Chicago 15 Year Fixed Mortgage Rate, unless the Committee
determines another rate to be appropriate), 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 repay in
full an outstanding loan; however, partial prepayments are not permitted.
1. The aggregate principal amount of all loans from this Plan (when aggregated
with all other loans under qualified 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 and the earnings thereon.
1. Each loan will be for a term not exceeding five years; provided that 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, the loan shall
be for a term not exceeding 15 years.
<PAGE>
1. If after any Participant's termination of employment (or a date shortly
thereafter) 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 (or to his beneficiary in the event of
his death) shall be considered as a payment for purposes of the Plan.
1. 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.
1. 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.
(i) Notwithstanding any other provision of this Section 8.5, loan
repayments will be suspended under the Plan as permitted under Section
414(u)(4) of the Code.
ARTICLE 9
Maximum Contributions
---------------------
A. Limitations on Annual Additions. Notwithstanding any other provisions of
the Plan to the contrary except Section 4.6, a Participant's Annual Additions
(as defined below) for any Plan Year shall not exceed an amount equal to the
lesser of:
1. $30,000 (as adjusted for cost-of-living increases in accordance with
applicable Treasury regulations); or
1. 25 percent of the Participant's Earnings for that Plan Year (excluding
salary reduction contributions under Code Sections 401(k) 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 under Section 5.2, but including any Before-Tax or Matching
Contributions treated as "excess contributions" or "excess aggregate
contributions" as such terms are defined under Code Section 401(k). The term
Annual Additions shall also include employer contributions allocated for a Plan
<PAGE>
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).
A. Excess Annual Additions. The Committee in its discretion may take whatever
steps it considers appropriate to prevent the foregoing limits of Section 9.1
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.
A. Combined Plan Limitation. For plan years beginning prior to January 1,
2000, 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.
<PAGE>
ARTICLE 10
----------
General Provisions
------------------
A. 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 Beneficiaries, 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 Beneficiaries 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:
1. In the event of a missing Participant, benefits will be distributed to the
Participant's Designated Beneficiary.
1. 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.
1. 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 Committee considers to be fair and equitable.
A. 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 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.
<PAGE>
A. 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.
A. 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
A. 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 for such immediate distribution either specifically or by general
reference to any manner of distribution permitted under the Plan.
A. 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
<PAGE>
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.
B. 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 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, except to the
extent such a final court order is a qualified domestic relations order.
A. 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.
A. 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.
A. Waiver of Notice. Any notice required under the Plan may be waived by the
person entitled to notice.
A. 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.
A. 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
<PAGE>
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.
A. 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.
A. 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 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
-------------------------------
A. 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.
A. 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.
A. 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.
<PAGE>
A. 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:
1. 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;
1. 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
consistent with its purpose, including rules and procedures to assure the
Participant's investment in, voting of and tendering of Company Stock remain
confidential;
1. To enforce the Plan, in accordance with its terms and with the Committee's
rules and regulations;
1. To direct the trustee with respect to all matters involving distributions
from the Trust Fund;
1. 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
1. To do all other acts, in its judgment necessary or desirable, for the
proper and advantageous administration of the Plan.
A. Action by Committee. During a period in which two or more Committee members
are acting, the following provisions shall apply:
1. 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;
1. 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;
1. If, because of the number qualified to act, there is an even division of
opinion among the Committee members as to a matter, the chairman of the
Committee shall decide the matter;
<PAGE>
1. 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;
1. 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;
1. 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 member's fiduciary responsibility to the Plan;
and
1. 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.
A. Committee Support. The Corporation and the Employers 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.
A. 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.
A. Review of Benefit Determinations. If a claim for benefits made by a
Participant or his Designated 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 his Designated 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 until the
<PAGE>
procedures of this Section 11.8 have been exhausted and the denial of his claim
shall become final and binding on all persons for all purposes.
A. 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 similarly-situated Participants.
A. 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
-------------------------
A. Action by Employers. Any action required or permitted of an Employer under
the Plan shall be taken 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.
A. 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.
A. 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
<PAGE>
part of the assets of the Plan at any time revert or be repaid to an Employer,
directly or indirectly, except as follows:
(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
-------------------------
A. 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
the Related 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 by the Board in its entirety.
<PAGE>
A. 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 30 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.
A. 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.
A. 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 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).
A. 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.
<PAGE>
ARTICLE 14
----------
Top-Heavy Plan Rules
---------------------
A. 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 Earnings greater
than 50 percent of the amount in effect under Section 415(b)(1)(A) of
the Code for any such Plan Year, or
(b) one of the ten employees of an employer having Earnings 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 with the Corporation under Section 414(m)
of the Code. The beneficiary of a key employee shall be considered a key
employee.
A. 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
<PAGE>
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.
A. Aggregation Groups. All employer plans in a required aggregation group (as
defined below) of plans shall be considered to be top-heavy plans if either the
required or permissive aggregation group (as defined below) 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.
A. 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 (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.
<PAGE>
APPENDIX A
----------
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 Asset Allocation: Growth Portfolio
(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) First Chicago NBD Corporation Common Stock
<PAGE>
SUPPLEMENT B
------------
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) 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
<PAGE>
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.
(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.
<PAGE>
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.
<PAGE>
SUPPLEMENT C
------------
TO THE
------
FIRST CHICAGO NBD CORPORATION
-----------------------------
SAVINGS AND INVESTMENT PLAN:
----------------------------
THE ESOP
--------
C-1 Introduction. This Supplement C to the Plan shall be known as the First
Chicago NBD 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 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 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 without regard to 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. Each Participant in the Plan on the Effective Date will remain
or become (as applicable) a Participant in the ESOP on the Effective Date,
provided that such Employee was a Participant in the Plan or the NBD Plan
immediately prior to 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-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
<PAGE>
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 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
rules 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.
<PAGE>
(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 uniformly applied until sold or
exercised by the trustee and the proceeds appropriately reflected as
directed by the Committee.
(c) 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.
C-6 Voting and Tender of Company Stock. The Committee shall furnish or cause to
be furnished 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 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 and not tender the same
proportions thereof as the allocated shares of Company Stock as 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 (a)
by the dividend disbursing agent directly to Participants, (b) by the
dividend disbursing agent to the Corporation's payroll department which
shall serve, for this purpose, as agent for the Participants, or (c) 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
<PAGE>
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 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
and Investment 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 have been distributed which
will be less than the dividend to be distributed on such date;
or
(iii) The Participant is a non-U.S. resident; or
(iv) The Participant's employment with the Employer is terminated at
the time the dividend is otherwise distributable.
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.
<PAGE>
(a) General Rule.
Upon a distribution of a Participant's Account under Article VII, 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 ($5,000 on or after
January 1, 1998 or such other maximum amount as may be permitted by
the Code for involuntary payments), 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.
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 and Loans.
A Participant may withdraw or obtain loan 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
right 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
<PAGE>
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.
