As filed with the Securities and Exchange Commission on November 8,
1995 Registration No. 33-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
__________________
FIRST MID-ILLINOIS BANCSHARES, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 37-1103704
(State or other jurisdiction of (I.R.S.
Employer
incorporation or organization)
Identification No.)
__________________
1515 CHARLESTON AVENUE
MATTOON, ILLINOIS 61938
(Address of principal executive offices)
__________________
FIRST MID-ILLINOIS BANCSHARES, INC.DEFERRED
COMPENSATION PLAN
(Full title of the plan)
__________________
WILLIAM S. ROWLAND
CHIEF FINANCIAL OFFICER
FIRST MID-ILLINOIS BANCSHARES, INC.
1515 CHARLESTON AVENUE
MATTOON, ILLINOIS 61938
(Name and address of agent for service)
(217) 234-7454
(Telephone number, including area code, of agent for service)
WITH COPIES TO:
JOHN E. FREECHACK, ESQ.
DOUGLAS J. TUCKER, ESQ.
BARACK, FERRAZZANO, KIRSCHBAUM & PERLMAN
333 WEST WACKER DRIVE, SUITE 2700
CHICAGO, ILLINOIS 60606
(312) 984-3100
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1)(2) per Share(3) Offering Price(2)(3) Registration Fee(3)
<S> <C> <C> <C> <C>
Common Stock, $4.00 Par Value 100,000 $34.03 $3,403,000.00 $1,174.00
</TABLE>
(1)Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the First Mid-Illinois
Bancshares, Inc. Deferred Compensation Plan (the "Plan").
(2)Pursuant to Rule 416(a) under the Securities Act, this Registration
Statement also registers such indeterminate number of additional shares as
may be issuable under the Plan in connection with share splits, share
dividends or similar transactions.
(3)Estimated pursuant to Rule 457 under the Securities Act solely for the
purpose of calculating the registration fee.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-
8 will be sent or given to participants in the First Mid-Illinois Bancshares,
Inc. Deferred Compensation Plan (the "Plan") as specified by Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act").
Such document(s) are not being filed with the Commission, but constitute
(along with the documents incorporated by reference into the Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents previously or concurrently filed by First Mid-
Illinois Bancshares, Inc. (the "Company") with the Commission are hereby
incorporated by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K (the "Annual Report")
filed by the Company (SEC File No. 0-13368) under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") with the
Commission on March 30, 1995.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
Annual Report referred to in (a) above.
(c) The description of the Company's common stock, par value $4.00
per share, contained in the Company's Registration Statement on
Form 8-A (File No. 0-13368), filed with the Commission on April
10, 1985, and all amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Company or the Plan with the
Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed incorporated by reference into this
Registration Statement and to be a part thereof from the date of the filing of
such documents. Any statement contained in the documents incorporated, or
deemed to be incorporated, by reference herein or therein shall be deemed to be
modified or superseded for purposes of this Registration Statement and the
prospectus which is a part hereof (the "Prospectus") to the extent that a
statement contained herein or therein or in any other subsequently filed
document which also is, or is deemed to be, incorporated by reference herein or
therein 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 this Registration Statement and the Prospectus.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In accordance with the General Corporation Law of the State of Delaware
found at Chapter 1 of Title 8 of the Delaware Code (the "DGCL"), Article 8 of
the Company's Restated Certificate of Incorporation, as amended, (the
"Certificate") provides as follows: "The Corporation shall, to the fullest
extent permitted by Section 145 of the General Corporation Law of Delaware, as
amended from time to time, indemnify all persons whom it may indemnify pursuant
thereto." Under such provisions, any director or officer, who in his or her
capacity as such, is made or threatened to be made, a party to any suit or
proceeding, must be indemnified if such director or officer acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Company. The DGCL further provides that such
indemnification is not exclusive of any other rights to which such individuals
may be entitled under a company's certificate of incorporation or any
agreement, insurance policy, vote of stockholders or disinterested directors or
otherwise.
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company 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.
Not Applicable.
ITEM 8. EXHIBITS.
See the Exhibit Index following the signature page in this Registration
Statement, which Exhibit Index is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to the Registration Statement to
include: (i) any prospectus required by Section 10(a)(3) of the
Securities Act; (ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and (iii) 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 provisions (i) and (ii) of this undertaking are
inapplicable if the information to be filed thereunder is contained in
periodic reports filed by the Company pursuant to Sections 13 or 15(d)
of the Exchange Act and incorporated by reference into the Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provision, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
of expenses incurred or paid by a director, officer or controlling person in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
<PAGE>
SIGNATURES
THE REGISTRANT.Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Mattoon, State of Illinois, on October 17,
1995.
FIRST MID-ILLINOIS BANCSHARES, INC.
By: /S/DANIEL E. MARVIN, JR.
Daniel E. Marvin, Jr.
President and Chief Executive Officer
By: /S/WILLIAM S. ROWLAND
William S. Rowland
Chief Financial Officer
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature
appears below constitutes and appoints Daniel E. Marvin, Jr. and William S.
Rowland, and each of them, his true and lawful attorney-in-fact and agent, each
with full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities to sign any or all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or any of them, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by each of the following persons in the
capacities indicated on the dates indicated below.
SIGNATURE TITLE DATE
/S/DANIEL E. MARVIN, JR. President, Chief Executive October 17, 1995
Daniel E. Marvin, Jr. Officer and Chairman of the
Board
/S/ WILLIAM S. ROWLAND Chief Financial and October 17, 1995
William S. Rowland Accounting Officer and
Director
<PAGE>
/S/ CHARLES A. ADAMS Director October 17, 1995
Charles A. Adams
/S/ KENNETH R. DIEPHOLZ Director October 17, 1995
Kenneth R. Diepholz
/S/ RICHARD A. LUMPKIN Director October 17, 1995
Richard A. Lumpkin
/S/ GARY W. MELVIN Director October 17, 1995
Gary W. Melvin
/S/ WILLIAM G. ROLEY Director October 17, 1995
William G. Roley
/S/ RAY A. SPARKS Director October 17, 1995
Ray A. Sparks
<PAGE>
SIGNATURES
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administrator the employee benefit plan) have
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Mattoon, State of
Illinois, on October 17, 1995.
FIRST MID-ILLINOIS BANCSHARES, INC.
DEFERRED COMPENSATION PLAN
By: FIRST MID-ILLINOIS BANCSHARES, INC.
Plan Administrator
By: /S/ DANIEL E. MARVIN, JR.
Its: President and
Chief Executive Officer
<PAGE>
FIRST MID-ILLINOIS BANCSHARES, INC.
EXHIBIT INDEX
TO
FORM S-8 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
Incorporated
Exhibit No. Description Herein by Filed Sequential
Reference To Herewith Page No.
<S> <C> <C> <C> <C>
4.1 Article IV of the First Exhibit 3(a) to First Mid-
Mid-Illinois Bancshares, Illinois Bancshares, Inc.'s
Inc. Restated Certificate Annual Report on Form 10-K for
of Incorporation and the year ended December 31, 1987
Amendment to Restated (File No. 0-13368) (incorporated
Certificate of by reference)
Incorporation
4.2 Articles II, VI and VIII of Exhibit 3(b) to First Mid-
the First Mid-Illinois Illinois Bancshares, Inc.'s
Bancshares, Inc. Restated Annual Report on Form 10-K for
Bylaws the year ended December 31, 1987
(File No.0-13368) (incorporated
by reference)
5.1 Opinion of Barack, X 8
Ferrazzano, Kirschbaum &
Perlman
23.1 Consent of KPMG Peat X 10
Marwick LLP
23.2 Consent of Barack, Included in Exhibit
Ferrazzano, Kirschbaum & 5.1
Perlman
24.1 Power of Attorney Included on
Signature Page to
this Registration
Statement
99.1 First Mid-Illinois X 11
Bancshares, Inc. Deferred
Compensation Plan
</TABLE>
BARACK, FERRAZZANO, KIRSCHBAUM & PERLMAN
333 WEST WACKER DRIVE, SUITE 2700
CHICAGO, ILLINOIS 60606
TELEPHONE: (312) 984-3100
FAX: (312) 984-3150
November 7, 1995
First Mid-Illinois Bancshares, Inc.
1515 Charleston Avenue
Mattoon, Illinois 60507
Ladies and Gentlemen:
We have acted as special counsel to First Mid-Illinois Bancshares, Inc., a
Delaware corporation (the "Company"), in connection with the proposed offering
of 100,000 shares of its common stock, $4.00 par value ("Common Shares"),
pursuant to the Company's Deferred Compensation Plan (the "Offering") as
described in the Form S-8 Registration Statement to be filed with the
Securities and Exchange Commission (the "SEC") on November 8, 1995 (the
"Registration Statement"). Capitalized terms used, but not defined, herein
shall have the meanings given such terms in the Registration Statement. You
have requested our opinion concerning certain matters in connection with the
Offering.
We have made such legal and factual investigation as we deemed necessary
for purposes of this opinion. In our investigation, we have assumed the
genuineness of all signatures, the proper execution of all documents submitted
to us as originals, the conformity to the original documents of all documents
submitted to us as copies and the authenticity of the originals of such copies.
In arriving at the opinions expressed below, we have reviewed and examined
the following documents:
a. the Restated Certificate of Incorporation of the Company filed with
the Secretary of State of the State of Delaware on May 21, 1986, as
amended, and the Company's Restated Bylaws;
b. the Registration Statement, including the prospectus constituting a
part thereof (the "Prospectus");
c. Resolutions of the board of directors of the Company (the "Board")
relating to the Offering; and
d. a form of share certificate representing the Common Shares approved
by the Board.
<PAGE>
BARACK, FERRAZZANO, KIRSCHBAUM & PERLMAN
First Mid Illinois Bancshares, Inc.
November 7, 1995
Page 2
We call your attention to the fact that our firm only requires lawyers to
be qualified to practice law in the State of Illinois and, in rendering the
foregoing opinions, we express no opinion with respect to any laws relevant to
this opinion other than the Securities Act of 1933, as amended, and the rules
and regulations thereunder, the laws and regulations of the State of Illinois,
the General Corporation Law of the State of Delaware and United States federal
law.
Based upon the foregoing, but assuming no responsibility for the accuracy
or the completeness of the data supplied by the Company and subject to the
qualifications, assumptions and limitations set forth herein, it is our opinion
that:
1. The Company has been duly organized and is validly existing in good
standing under the laws of the State of Delaware and has due corporate
authority to carry on its business as it is presently conducted.
2. The Company is authorized to issue up to 2,000,000 Common Shares, of
which 892,991 Common Shares were issued and are presently outstanding prior to
the Offering.
3. When the Registration Statement shall have been declared effective
by order of the SEC and the Common Shares to be sold thereunder shall have been
issued and sold upon the terms and conditions set forth in the Registration
Statement, then such Common Shares will be legally issued, fully paid and non-
assessable.
We express no opinion with respect to any specific legal issues other than
those explicitly addressed herein. We assume no obligation to advise you of
any change in the foregoing subsequent to the date of this letter (even though
the change may affect the legal conclusions stated in this letter).
We hereby consent (i) to be named in the Registration Statement, and in
the Prospectus, as attorneys who will pass upon the legality of the Common
Shares to be sold thereunder and (ii) to the filing of this opinion as an
Exhibit to the Registration Statement.
Sincerely,
BARACK, FERRAZZANO, KIRSCHBAUM & PERLMAN
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to incorporation by reference in this Registration Statement on
Form S-8 of First Mid-Illinois Bancshares, Inc. of our report, dated
January 20, 1995, relating to the consolidated balance sheets of First Mid-
Illinois Bancshares, Inc. and subsidiaries as of December 31, 1994 and
1993, and the related consolidated statements of income, changes in
stockholders' equity, and cash flows for each of the years in the three-
year period ended December 31, 1994, which report is incorporated by
reference in the December 31, 1994 annual report on Form 10-K of First Mid-
Illinois Bancshares, Inc.
/s/ KPMG Peat Marwick LLP
Chicago, Illinois
November 6, 1995
FIRST MID-ILLINOIS BANCSHARES, INC.
DEFERRED COMPENSATION PLAN
<PAGE>
FIRST MID-ILLINOIS BANCSHARES, INC.
DEFERRED COMPENSATION PLAN
1. PURPOSE
The purpose of the First Mid-Illinois Bancshares, Inc. Deferred
Compensation Plan (the "Plan") is to enable First Mid-Illinois Bancshares,
Inc. (the "Company") directors, advisory directors and key officers to
elect to defer a portion of the fees and cash compensation payable by the
Company and any affiliates on account of service as a director or employee.
The Plan is intended as a means of maximizing the effectiveness and
flexibility of the compensation arrangements to directors and a select
group of management or highly compensated employees of the Company and
affiliates, and as an aid in attracting and retaining individuals of
outstanding abilities and specialized skills for service.
2. EFFECTIVE DATE
The Plan was effective as of June 14, 1984.
3. PLAN ADMINISTRATION
The Plan shall be administered by the First Mid-Illinois Bancshares,
Inc. Deferred Compensation Plan Committee (hereinafter referred to as the
"Committee") which shall be comprised of at least three (3) non-employee
disinterested directors appointed by the Board of Directors of the Company
(hereinafter referred to as the "Board"). A disinterested director is any
member of the Board who within the prior year has not been, and is not
being, granted any awards under the Plan or any other plan of the Company
or any related corporation except for awards which: (i) are calculated in
accordance with a formula; or (ii) arise from an election by a director to
receive all or part of his Board fees in securities. All directors,
advisory directors and employees who are also directors, in both
capacities, shall be eligible to participate under the Plan. The Committee
shall have sole authority to select the employees from among those eligible
who may participate under the Plan and to prescribe the legend to be
affixed to any certificate representing Plan benefits. The Committee is
authorized, subject to Board approval, to interpret the Plan and may from
time to time adopt such rules, regulations, forms and agreements, not
inconsistent with the provisions of the Plan, as it may deem advisable to
carry out the Plan. All decisions made by the Committee in administering
the Plan shall be subject to Board review.
4. ELIGIBILITY
Any director, advisory director or key officer of the Company or any
affiliate designated by the Board is eligible to participate in the Plan;
provided, however, that officers or employees so designated shall be
limited to a select group of management or highly compensated employees
within the meaning of Section 201(2)
<PAGE>
of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). Any such director, advisory
director or key officer shall be a "Participant" as of the date designated
by the Board, and his or her status as a Participant shall continue until
the date of the first payment pursuant to Section 8 hereof.
5. SHARES SUBJECT TO THE PLAN
Upon receipt of stockholder approval, the aggregate number of shares
of common stock of the Company (hereafter referred to as "Shares") which
may be distributed to directors and employees under the Plan shall be
100,000 Shares. Any Shares that remain unissued at the termination of the
Plan shall cease to be subject to the Plan, but until termination of the
Plan, the Company shall at all times make available sufficient Shares to
meet the requirements of the Plan. The aggregate number of Shares which
may be sold under the Plan shall be adjusted to reflect a change in
capitalization of the Company, such as a stock dividend or stock split.
6. ELECTION TO DEFER PAY
(a) IN GENERAL. Each Participant shall be entitled to make an annual
irrevocable election to defer receipt of all or a part of the fees or
compensation payable to him or her in cash ("Pay"). Such election shall
continue in effect until the beginning of the subsequent calendar year.
Pay with respect to which a deferral election has been made shall be
referred to hereinafter as "Deferred Pay."
(b) MANNER OF ELECTION. Elections to defer receipt of Pay shall be
made in writing in accordance with such rules and procedures as the Board
may prescribe, provided that: (i) each such election to defer cash
compensation shall include the percentage to be deferred, either five (5),
ten (10) or fifteen (15) percent of base salary or twenty-five percent
(25%) increments of incentive compensation, of the Pay from the Company or
affiliate which becomes payable; and (ii) each such election to defer fees
shall include all fees receivable. Elections to defer receipt of base
salary or fees must be made at least two (2) months before the beginning of
the calendar year for which such amounts will be paid, elections to defer
receipt of incentive compensation must be made at least two (2) months
before the incentive compensation is determined.
7. RECORD AND CREDITING OF DEFERRED AMOUNTS
(a) DEFERRED PAY. The Company shall credit the amount of any
Deferred Pay to a memorandum account for the benefit of the Participant
(the "Deferred Pay Account") no later than the last day of the calendar
quarter in which such Pay would otherwise have been paid to the
Participant. Upon receipt of stockholder approval, the amount of Deferred
Pay credited each quarter will be deemed to be applied to purchase Shares,
unless a director or advisory director has elected to direct
<PAGE>
investment
under Section 7(c). The price at which any Shares will be deemed purchased
with Deferred Pay shall be the actual purchase price or the price as
determined by the Board in accordance with the other equity based stock
purchase programs of the Company.
(b) EARNINGS CREDIT. At the end of each calendar quarter, the
Company shall credit earnings for the Participant's benefit to his or her
Deferred Pay Account. Upon the receipt of stockholder approval, these
earnings shall be based on the aggregate number of Shares deemed purchased
under the Deferred Pay Account and the amount of dividends which would have
been paid on such Shares for the quarter. The earnings credited each
quarter will be deemed to be applied to purchase additional Shares, at the
price determined under Section 7(a). Notwithstanding the foregoing, until
Stockholder approval is obtained, or if a director or advisory director has
elected to direct investment under Section 7(c), interest shall be accrued
on the balance in the Deferred Pay Account as of the first day of the year
at a rate equivalent to the prevailing rate offered by the Company or any
affiliate at the beginning of such year on a one year certificate of
deposit for cash accounts. Until complete distribution of the balance of
the Deferred Pay Account has been made, the unpaid balance shall continue
to be credited with earnings in accordance with this paragraph.
(c) INVESTMENT DIRECTION. The Company may elect to allow a director
or advisory director Participant to direct the investment of his or her
Deferred Pay Account. In the event the Company so elects, the Company will
be relieved of all investment responsibility and liability for such
investment direction.
(d) VALUE AND STATEMENT OF ACCOUNT. The Company shall provide each
Participant with a statement of the value of his or her Deferred Pay
Account, including the amount of Deferred Pay and income thereon, at least
annually.
8. PAYMENT OF DEFERRED ACCOUNT
(a) IN GENERAL. No withdrawals or payment shall be made from the
Participant's Deferred Pay Account except as provided in this Section 8.
(b) PAYMENT EVENT. The value of a Participant's Deferred Pay Account
shall be payable in five (5) annual installments commencing on the March 15
following the date he or she terminates service with the Company.
(c) SINGLE SUM PAYMENT. The Board in its sole discretion may elect
to pay the value of a Participant's Deferred Pay Account in a single
payment.
(d) ACCELERATION FOR HARDSHIP. The Board, in its sole discretion,
may accelerate payment of amounts credited to a Participant's Deferred Pay
Account if requested to do so and if the requirements of this paragraph (d)
are met. Such
<PAGE>
acceleration may occur only in the event of unforeseeable
financial emergency or severe hardship from one or more recent events
beyond the control of the Participant and is limited to the amount deemed
reasonably necessary to satisfy the emergency or hardship.
(e) DEATH OF PARTICIPANT. In the event that a Participant shall die
at any time prior to complete distribution of all amounts payable to him or
her under the provisions of the Plan, the unpaid balance of the
Participant's Deferred Pay Account shall be determined as of the valuation
date immediately following death, and such amount shall be paid in a single
payment on the March 15 following such valuation date, or as soon as
reasonably possible thereafter, to the Participant's beneficiary or
beneficiaries.
9. DESIGNATION OF BENEFICIARY
Participants shall designate in writing, in accordance with such rules
and procedures as the Committee may prescribe, the beneficiary or
beneficiaries who are to receive the Participant's Deferred Pay Account in
the event of the Participant's death.
10. UNSECURED OBLIGATIONS
The obligation of the Company to make payments under the Plan shall be
a general obligation of the Company, and such payments shall be made from
general assets and property of the Company. The Participant's relationship
to the Company under the Plan shall be only that of a general unsecured
creditor and neither this Plan nor any agreement entered into hereunder or
action taken pursuant hereto shall create or be construed to create a trust
or fiduciary relationship of any kind. The Company may establish an
irrevocable grantor trust for purposes of holding and investing the
Deferred Pay Account balances but such establishment shall not create any
rights in or against any amount so held, except that the trustee of such
trust may vote any Shares thereunder in accordance with the direction of
the Participants.
11. AMENDMENT AND TERMINATION
The Board may amend, suspend or terminate the Plan or any portion
thereof at any time, but (except as provided in Section 5 hereof) no
amendment shall be made without approval of the stockholders of the Company
which shall: (i) materially increase the aggregate number of Shares with
respect to which distributions may be made under the Plan; (ii) materially
increase the benefits which may be provided to individuals under the Plan;
or (iii) change the class of persons eligible to participate in the Plan;
provided, however, that no such amendment, suspension or termination shall
impair the rights of any individuals, without his consent, in any award
theretofore made pursuant to the Plan.
<PAGE>
12. EFFECT OF TRANSFER
In the event that all or substantially all of the assets of the
Company shall be transferred by way of a sale, merger, consolidation or
other means, the entire unpaid balance of each Deferred Pay Account shall
be paid in a lump sum to the Participant as of the effective date thereof.
13. NON-ASSIGNABILITY
No right to receive payments under the provisions of this Plan shall
be transferable or assignable by a Participant, except by will or by the
laws of descent and distribution, and during his or her lifetime payment
may only be received by the Participant or his or her legal representative
or guardian.
14. DELIVERY AND REGISTRATION OF STOCK
The Company's obligation to deliver Shares with respect to an award,
if any, shall, if the Committee so requests, be conditioned upon the
receipt of a representation as to the investment intention of the
individual to whom such Shares are to be delivered, in such form as the
Committee shall determine to be necessary or advisable to comply with the
provisions of the Securities Act of 1933 or any other federal, state or
local securities legislation or regulation. It may be provided that any
representation requirement shall become inoperative upon a registration of
the Shares or other action eliminating the necessity of such representation
under securities legislation. The Company shall not be required to deliver
any Shares under the Plan prior to (i) the admission of such Shares to
listing on any stock exchange on which Shares may then be listed, and (ii)
the completion of such registration or other qualification of such Shares
under any state or federal law, rule or regulation, as the Committee shall
determine to be necessary or advisable.
This Plan is intended to comply with Rule 16b-3. Any provision of the
Plan which is inconsistent with said rule shall, to the extent of such
inconsistency, be inoperative and shall not affect the validity of the
remaining provisions of the Plan.
15. BINDING PROVISIONS
All of the provisions of this Plan shall be binding upon all persons
who shall be entitled to any benefits hereunder and their heirs and
personal representatives.
16. CLAIMS PROCEDURE
The procedures applicable to claims for benefits and review thereof
set forth in the Company sponsored qualified cash or deferred (401(k)) plan
shall apply to any claims for benefits hereunder. For purposes of applying
such procedures, the Board shall be deemed the plan administrator of this
Plan.
