<PAGE>
<PAGE>
Registration No. 333-_____
As filed with the Securities and Exchange Commission on
November 16, 1999
________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_________________________________________
COMMERCIAL FEDERAL CORPORATION
- ------------------------------------------------------
(Exact name of Registrant as Specified in Its Charter)
Nebraska 47-0658852
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2120 South 72nd Street
Omaha, Nebraska 68124
(402) 554-9200
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(Address of Principal Executive Offices)
Commercial Federal
401(k) Plan for Acquired Companies
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(Full Title of the Plan)
Mr. James A. Laphen, President
Commercial Federal Corporation
2120 South 72nd Street
Omaha, Nebraska 68124
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(Name and Address of Agent For Service)
(402) 390-5361
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(Telephone number, including area code, of agent for service)
COPIES TO:
GARY R. BRONSTEIN, ESQUIRE
DANIEL L. HOGANS, ESQUIRE
HOUSLEY KANTARIAN & BRONSTEIN, P.C.
1220 19TH STREET, N.W., SUITE 700
WASHINGTON, D.C. 20036
(202) 822-9611
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Proposed Maximum Proposed Maximum Amount Of
Securities to be Amount to be Offering Price Aggregate Offering Registration
Registered (1) Registered Per Share (3) Price Per Share(4) Fee
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value
per share 48,480 $19.90625 $965,055 $268.29
====================================================================================
<FN>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests
available pursuant to the Commercial Federal 401(k) Plan for Acquired Companies
(the "Plan"), as described herein.
(2) Estimates the maximum number of shares expected to be issued under the Plan
assuming that all employer and employee contributions to the Plan are used
to purchase shares of Common Stock of Commercial Federal Corporation,
together with an indeterminate number of shares which may be necessary to
adjust the number of additional shares of Common Stock reserved for issuance
pursuant to the Plan and being registered herein, as the result of a stock
split, stock dividend, reclassification, recapitalization or similar
adjustment(s) of the Common Stock of Commercial Federal Corporation.
(3) Estimated solely for the purpose of calculating the registration fee and
calculated pursuant to Rule 457(c) based on the average of the high and low
selling price per share of the Common Stock of $19.90625 per share on
November 15, 1999.
(4) Estimated based on (2) and (3) above.
</FN>
</TABLE>
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
AUTOMATICALLY UPON THE DATE OF FILING, IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
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ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
- ------ INFORMATION*
*This Registration Statement relates to the registration of
48,480 shares of Common Stock, par value $.01 per share, of
Commercial Federal Corporation (the "Company") reserved for
issuance and delivery under the Commercial Federal 401(k) Plan
for Acquired Companies (the "Plan"). Documents containing the
information required by Part I of this Registration Statement
will be sent or given to participants in the Plan as specified
by Rule 428(b)(1). Such documents are not filed with the
Securities and Exchange Commission (the "Commission") either as
part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424, in reliance on Rule
428.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
- ------
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934 (the "1934 Act") and,
accordingly, files periodic reports and other information with
the Commission. Reports, proxy statements and other information
concerning the Company filed with the Commission may be
inspected and copies may be obtained (at prescribed rates) at
the Commission's Public Reference Section, Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549. The Commission also
maintains a Web site that contains reports, proxy and
information statements and other information regarding
registrants that file electronically with the Commission,
including the Company. The address for the Commission's Web
site is "http://www.sec.gov".
The following documents are incorporated by reference in
this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended June 30, 1999 as filed with the Commission on
September 28, 1999 (Commission File No. 1-11515).
(b) The Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1999 as filed with the Commission on
November 15, 1999 (Commission File No. 1-11515).
(c) Current Reports on Form 8-K for events dated October 29,
1999, October 13, 1999 and September 9, 1999 (Commission File
No. 1-11515).
(d) The description of the Company's securities contained
in the Form 8-A filed with the Commission on July 13, 1995.
ALL DOCUMENTS SUBSEQUENTLY FILED BY THE COMPANY AND THE PLAN
PURSUANT TO SECTIONS 13(A), 13(C), 14, AND 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, AFTER THE DATE
HEREOF AND PRIOR TO THE FILING OF A POST-EFFECTIVE AMENDMENT
WHICH INDICATES THAT ALL SECURITIES OFFERED HAVE BEEN SOLD OR
WHICH DEREGISTERS ALL SECURITIES THEN REMAINING UNSOLD, SHALL BE
DEEMED TO BE INCORPORATED BY REFERENCE IN THIS REGISTRATION
STATEMENT, AND TO BE A PART HEREOF FROM THE DATE OF FILING OF
SUCH DOCUMENTS.
ITEM 4. DESCRIPTION OF SECURITIES
- ------
Not applicable, as the Common Stock is registered under
Section 12 of the Securities and Exchange Act of 1934.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
- ------
Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
- ------
Federal Regulations clearly define areas for indemnity coverage,
as follows:
(a) Any person against whom any action is brought by reason
of the fact that such person is or was a director or officer
of the Bank shall be indemnified by the Bank for:
(i) Reasonable costs and expenses, including
reasonable attorney's fees, actually paid or incurred
by such person in connection with proceedings related
to the defense or settlement of such action;
(ii) Any amount for which such person becomes liable
by reason of any judgment in such action;
(iii) Reasonable costs and expenses, including
reasonable attorney's fees, actually paid or incurred
in any action to enforce his rights under this
section, if the person attains a final judgment in
favor of such person in such enforcement action.
(b) Indemnification provided for in subparagraph (a) shall
be made to such officer or director only if the requirements
of this subparagraph are met:
(i) The Bank shall make the indemnification provided
by subparagraph (a) in connection with any such action
which results in a final judgment on the merits in
favor of such officer or director.
(ii) The Bank shall make the indemnification provided
by subparagraph (a) in case of settlement of such
action, final judgment against such director or
officer or final judgment in favor of such director or
officer other than on the merits except in relation to
matters as to which he shall be adjudged to be liable
for negligence or misconduct in the performance of his
duty, only if a majority of the directors of the Bank
determines that such a director or officer was acting
in good faith within what he was reasonably entitled
to believe under the circumstances was the scope of
his employment or authority and for a purpose which he
was reasonably entitled to believe under the
circumstances was in the best interest of the Bank or
its shareholders.
However, no indemnification shall be made unless the Bank
gives the OTS at least 60 days' notice of its intention to make
such indemnification. No such indemnification shall be made if
the OTS advises the Bank in writing, within such notice period,
of its objection thereto.
(c) As used in this paragraph:
(i) "Action" means any action, suit or other judicial
or administrative proceeding, or threatened
proceeding, whether civil, criminal, or otherwise,
including any appeal or other proceeding for review;
(ii) "Court" includes, without limitation, any court
to which or in which any appeal or any proceeding for
review is brought;
(iii) "Final Judgment" means a judgment, decree, or
order which is appealable and as to which the period
for appeal has expired and no appeal has been taken;
(iv) "Settlement" includes the entry of a judgment by
consent or by confession or upon a plea of guilty or
of nolo contendere.
INDEMNIFICATION OF DIRECTORS AND OFFICERS OF THE COMPANY
Indemnification of directors and officers of the Company is
provided under Article VI of the Articles of Incorporation of
the Company for judgments, fines, settlements, and expenses,
including attorney fees incurred in connection with any
threatened, pending, or completed action, suit, or proceeding,
whether civil, criminal, administrative, or investigative if
such director or officer acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of the Company and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
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Article VI of the Articles of Incorporation provides that an
outside director shall not be personally liable to the Company
or its stockholders for monetary damages for breach of his
fiduciary duty as a director and authorizes the Company to
indemnify such outside director against monetary damages for
such breach to the full extent permitted by law. This provision
applies to acts or omissions occurring after the effective date
of the amendment, and does not limit liability for (i) any act
or omission not in good faith which involves intentional
misconduct or a knowing violation of law, (ii) any transaction
from which the outside director derived an improper direct or
indirect financial benefit, (iii) paying a dividend or approving
a stock repurchase in violation of the Nebraska Business
Corporation Act or (iv) any act or omission which violates a
declaratory or injunctive order obtained by the Company or its
stockholders. For purposes of Article VI, "outside director" is
defined as any member of the Board of Directors who is not an
officer or a person who may control the conduct of the Company
through management agreements, voting trusts, directorships
in related corporations or any other device or relationship.
The Company has purchased director and officer liability
insurance that insures directors and officers against certain
liabilities in connection with the performance of their duties
as directors and officers, including liabilities under the
Securities Act of 1933, as amended, and provides for payment to
the Company of costs incurred by it in indemnifying its
directors and officers.
Under Nebraska law, indemnification of directors and
officers may be provided for judgments, fines, penalties,
settlements, and expenses, including attorney's fees, incurred
in connection with any threatened, pending, or completed action,
suit, or proceeding other than an action by or in the right of
the Company. This applies to any civil, criminal,
investigative, arbitrative, or administrative action, formal or
informal, provided that the director or officer involved acted
in good faith, in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful.
Indemnification of directors and officers may be also
provided for judgments, fines, settlements, and expenses,
including attorney's fees, incurred in connection with any
threatened, pending, or completed action, or suit by or in the
right of the corporation if such director or officer acted in
good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation. However,
no indemnification shall be made in respect of any claim, issue
or matter in which such person is adjudged to be liable for
negligence or misconduct in the performance of his duties to the
corporation unless the court in which the action is brought
deems indemnity proper.
The grant of indemnification to a director or officer shall
be determined by a majority of a quorum of disinterested
directors, by a written opinion from independent legal counsel,
or by the shareholders.
Indemnification shall be provided to any directors and
officers for expenses, including attorney's fees, actually and
reasonably incurred in the defense of any action, suit or
proceeding to the extent that he or she has been successful on
the merits.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
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Not Applicable.
ITEM 8. EXHIBITS
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The exhibit schedules filed or included as part of this
Registration Statement are as follows:
4.1 Commercial Federal 401(k) Plan for Acquired Companies
(the "Plan")
5.1 Opinion of Housley Kantarian & Bronstein, P.C. as to
the validity of the Common Stock being registered
5.2 Favorable determination letter from the Internal
Revenue Service dated April 2, 1999 regarding the tax-
qualification of the Railroad Savings Bank, FSB 401(k)
Savings and Profit Sharing Plan which was amended and
restated as the Commercial Federal 401(k) Plan for
Acquired Companies
23.1 Consent of Housley Kantarian & Bronstein, P.C. (appears
in their opinion filed as Exhibit 5.1)
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23.2 Consent of Independent Auditors
24 Power of Attorney (contained in the signature page to
this Registration Statement)
99.1 Copy of the Plan's most recent Annual Report on Form
5500 as filed with the Internal Revenue Service
ITEM 9. UNDERTAKINGS
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1. The undersigned registrant hereby undertakes:
(a) 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 20 percent change in the maximum
aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8
or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(b) 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
the securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) 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.
(d) If the registrant is a foreign private issuer, to
file a post-effective amendment to the registration statement to
include any financial statements required by Rule 3-19 of this
chapter at the start of any delayed offering or throughout a
continuous offering. Financial statements and information
otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided, that the registrant includes in the
prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph and other
information necessary to ensure that all other information in
the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with
respect to registration statements on Form F-3, a post-effective
amendment need not be filed to include financial statements and
information required by Section 10(a)(3) of the Act or Rule 3-19
of this chapter if such financial statements and information are
contained in periodic reports filed with or furnished to the
Commission 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 Form F-3.
2. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or 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
<PAGE>
<PAGE>
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.
3. The undersigned registrant hereby undertakes to deliver
or cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual report
to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information
required to be presented by Article 3 of Regulation S-X are not
set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such
interim financial information.
4. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, 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 Omaha, State of
Nebraska, on November 16, 1999.
COMMERCIAL FEDERAL CORPORATION
By: /s/ William A. Fitzgerald
----------------------------
William A. Fitzgerald
Chairman of the Board and
Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned Directors of Commercial Federal
Corporation, hereby severally constitute and appoint William A.
Fitzgerald, who may act, with full power of substitution, our
true and lawful attorney and agent, to do any and all things in
our names in the capacities indicated below which said William
A. Fitzgerald, who may act, may deem necessary or advisable to
enable Commercial Federal Corporation, Inc. to comply with the
Securities Act of 1933, as amended, and any rules, regulations
and requirements of the Securities and Exchange Commission, in
connection with the registration of Commercial Federal
Corporation common stock, including specifically, but not
limited to, power and authority to sign for us in our names in
the capacities indicated below, the registration statement and
any and all amendments (including post-effective amendments)
thereto; and we hereby ratify and confirm all that said William
A. Fitzgerald shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
<S> <C> <C>
/s/ William A. Fitzgerald Principal Executive Officer November 16, 1999
- ----------------------------- and Director
William A. Fitzgerald
Chairman of the Board and
Chief Executive Officer
/s/ James A. Laphen Principal Financial Officer November 16, 1999
- -----------------------------
James A. Laphen
President, Chief Operating
Officer and Chief Financial
Officer
/s/ Gary L. Matter Principal Accounting Officer November 16, 1999
- -----------------------------
Gary L. Matter
Senior Vice President, Controller
and Secretary
/s/ Talton K. Anderson Director November 16, 1999
- -----------------------------
Talton K. Anderson
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<PAGE>
/s/ Michael P. Glinsky Director November 16, 1999
- -----------------------------
Michael P. Glinsky
/s/ Robert F. Krohn Director November 16, 1999
- -----------------------------
Robert F. Krohn
/s/ Carl G. Mammel Director November 16, 1999
- -----------------------------
Carl G. Mammel
/s/ Sharon G. Marvin Director November 16, 1999
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Sharon G. Marvin
/s/ Robert S. Milligan Director November 16, 1999
- -----------------------------
Robert S. Milligan
/s/ James P. O'Donnell Director November 16, 1999
- -----------------------------
James P. O'Donnell
/s/ Robert D. Taylor Director November 16, 1999
- -----------------------------
Robert D. Taylor
/s/ Aldo J. Tesi Director November 16, 1999
- -----------------------------
Aldo J. Tesi
</TABLE>
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INDEX TO EXHIBITS
Exhibit Description
- ------- -----------
4.1 Commercial Federal 401(k) Plan for Acquired
Companies (the "Plan")
5.1 Opinion of Housley Kantarian & Bronstein, P.C. as to
the validity of the Common Stock being registered
5.2 Favorable determination letter from the Internal
Revenue Service dated April 2, 1999 regarding the
tax-qualification of the Railroad Savings Bank, FSB
401(k) Savings and Profit Sharing Plan which was
amended and restated as the Commercial Federal
401(k) Plan for Acquired Companies
23.1 Consent of Housley Kantarian & Bronstein, P.C.
(appears in their opinion filed as Exhibit 5.1)
23.2 Consent of Independent Auditors
24 Power of Attorney (contained in the signature page
to this Registration Statement)
99.1 Copy of the Plan's most recent Annual Report on Form
5500 as filed with the Internal Revenue Service
<PAGE>
Commercial Federal
401(k) Plan for Acquired Companies
Effective Date: January 1, 1991
COMMERCIAL FEDERAL
401(k) PLAN FOR ACQUIRED COMPANIES
Table of Contents
ARTICLE I. PURPOSE
1.1 Exclusive Benefit
1.2 No Rights of Employment Granted
ARTICLE II. DEFINITIONS
2.1 Accrued Benefit
2.1 Actual Deferral Percentage
2.2 Administrative Committee
2.3 Affiliated Employer
2.4 Average Actual Deferral Percentage
2.4A Average Contribution Percentage
2.5 Beneficiary
2.6 Cash-Out
2.7 Compensation
2.7A Contribution Percentage
2.7B Effective Date
2.8 Elective Deferrals
2.9 Eligible Employee
2.10 Employee
2.11 Employer
2.12 Employer Account
2.12A Employer Matching Account
2.12B Entry Date
2.13 ERISA
2.13A Excess Aggregate Contributions
2.14 Excess Contributions
2.15 Excess Deferral Amount
2.16 Family Member
2.16A Five-Percent
2.17 Forfeiture
2.18 Highly Compensated Employee
2.19 Hour of Service
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2.20 IRC
2.21 Leave of Absence
2.21A Net Profits
2.22 Nonhighly Compensated Employee
2.23 Normal Retirement Age
2.24 One Year Break in Service
2.25 Participant
2.26 Participant Deferral Account
2.27 Plan
2.28 Plan Administrator
2.29 Plan Year
2.30 Retirement
2.30A Rollover Contribution
2.30B Social Security Retirement Age
2.31 Termination Date
2.32 Total and Permanent Disability
2.33 Total Service for Vesting
2.34 Trust
2.35 Trust Fund
2.36 Year of Service for Accrual of Benefits
2.37 Year of Service of Vesting
ARTICLE III. ELIGIBILITY TO PARTICIPATE
3.1 Initial Entry
3.2 Resumption of Participation
ARTICLE IV. CONTRIBUTIONS TO THE TRUST
4.1 Amount of Contributions to Participants
4.1A Matching Contributions
4.2 Employer Contributions to Participants
4.2A Annual Limitations on Participant Deferral
Contributions
4.2B Average Actual Deferral Percentage Limitation
4.2C Average Contribution Percentage Limitation
4.2D Multiple Use of Alternative Limitation
4.3 Permissible Types of Employer Contributions
4.4 Loans to Participants
4.5 Rollover Contributions
ARTICLE V. ADMINISTRATION OF ACCOUNTS
5.1 Investments
5.2 Invest in Single Fund and Reasonable Rules
5.3 Valuation of Assets and Allocation of Changes
5.4 Limitation on Allocations to Each Participant
5.5 Designation of Beneficiary
<PAGE>
<PAGE>
ARTICLE VI. VESTING
6.1 Participant Deferral Account 100 Percent Vested
6.2 Employer Account Vesting on Death, Retirement, or
Total Permanent Disability
6.3 Employer Account Vesting on Termination
ARTICLE VII. DISTRIBUTION OF BENEFITS
7.1 Method of Distribution of Benefits
7.1A Hardship Distribution
7.2 Cash-out Distribution of Account
7.3 Time of Distribution
7.4 Segregation if Installment Distribution
7.5 Non-segregation if Installment Distribution
7.6 Distribution After Death of Participant
7.7 Distribution After Death of Beneficiary
7.8 Rollover from Plan
7.8A Rollover from Plan After January 1, 1993
7.9 Suspense Account for Terminated Participants
7.10 Unable to Locate Participant or Beneficiary
7.11 Repayment of Cash-Out
7.12 Qualified Domestic Relations Order
7.13 Distributions Attributable to Elective Deferrals
VIII. DUTIES AND AUTHORITY OF TRUSTEE
8.1 Receive Payments
8.2 Evaluate Assets
8.3 Segregation of Accounts
8.4 Tax Returns and Reports
8.5 Powers
8.6 Expenses
8.7 Litigation
8.8 Written Instructions
8.9 Appointment of Investment Manager
8.10 Removal and Resignation of the Trustee
8.11 Directed Investment Account
IX. DUTIES AND AUTHORITY OF ADMINISTRATIVE COMMITTEE
9.1 Appointment
9.2 No Discrimination
9.3 Majority Action
9.4 Powers
9.5 Filing Reports
9.6 Records and Information
9.7 Information to Participants
9.8 Compensation of Members
9.9 Review of Participant's Claims
<PAGE>
X. MODIFICATIONS FOR TOP HEAVY PLANS
10.1 Application of Article
10.2 Definitions
10.3 Accelerated Vesting
10.4 Minimum Contributions
10.5 Limitation on Compensation Taken into Account
Under Plan
10.6 Modification of Defined Benefit and Defined
Contribution Plan Fraction
XI. AMENDMENT AND TERMINATION
11.1 Rights to Suspend or Terminate Plan
11.2 Successor Corporation
11.3 Amendment
11.4 100% Vesting on Termination of Plan
11.5 Plan Merger or Consolidation
ARTICLE XII. MISCELLANEOUS
12.1 Laws of Kansas to Apply
12.2 Participant Cannot Transfer or Assign Benefits
12.3 Right to Perform Alternative Acts
12.4 Reversion of Contributions Under Certain
Circumstances
12.5 Plan Administrator Agent for Service of Process
12.6 Filing Tax Returns and Reports
12.7 Indemnification
12.8 Number and Gender
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COMMERCIAL FEDERAL
401(k) PLAN FOR ACQUIRED COMPANIES
This Railroad Savings Bank, F.S.B. 401(k) Savings and
Profit Sharing Plan is made by and between Railroad Savings
Bank, F. S.B., a corporation chartered under the laws of the
United States of America and having its principal place of
business at 110 South Main Street, Suite 900 Wichita, Kansas
67201-2933, herein called "Employer" and the Trustee Committee,
herein called "Trustee".
Whereas, Employer desires to establish and maintain a
profit-sharing plan for the benefit of its Employees who shall
qualify as Participants hereunder;
Now Therefore Be It Resolved, that effective January 1,
1991, Employer hereby establishes the plan and creates this
trust for the purpose of carrying out such plan and trust on the
following terms:
ARTICLE I
PURPOSE
1.1 Exclusive Benefit
This Plan has been executed for the exclusive benefit
of the Participants hereunder and their Beneficiaries.
This Plan shall be interpreted in a manner consistent with this
intent and with the intention of the Employer that this Plan
satisfy Internal Revenue Code Sections 401 and 501. Under no
circumstances shall the Trust Fund ever revert to or be used or
enjoyed by the Employer, except as provided in Section 12.4
1.2 No Rights of Employment Granted
The establishment of this Plan shall not be considered
as giving any employee the right to be retained in the service
of the Employer, nor shall such Plan be construed as a form of
guarantee of future employment in any respect.
1
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ARTICLE II
DEFINITIONS
2.1 Accrued Benefit
"Accrued Benefit" is the amount credited to the
Employer Account and, if applicable, the Participant Deferral
Account.
2.1A Actual Deferral Percentage
"Actual Deferral Percentage" is the ratio, expressed as
a percentage, of deferral contributions on behalf of
an Eligible Employee for the Plan Year to the Eligible
Employee's Compensation for the Plan Year. The Actual Deferral
Percentage of each Eligible Employee shall be rounded to the
nearest 100th of 1% of such Employee's Compensation. The Actual
Deferral Percentage of an Eligible Employee who makes no
deferral contributions is zero.
2.2 Administrative Committee
The "Administrative Committee"shall refer to the
Administrative Committee, as defined in Section 9.1.
2.3 Affiliated Employer
"Affiliated Employer" shall mean the Employer and any
corporation which is a member of a controlled group of
corporations (as defined in IRC Section 414(b)) which includes
the Employer; any trade or business (whether or not
incorporated) which is under common control (as defined in IRC
Section 414 (c) ) with the Employer; and organization (whether
of not incorporated) which is a member of an affiliated service
group (as defined in IRC Section 414(m)) which includes the
Employer; and any other entity required to be aggregated with
the Employer pursuant to regulations under IRC Section 414 (o) .
2.4 Average Actual Deferral Percentage
"Average Actual Deferral Percentage" shall mean the
average, expressed as a percentage, of the Actual Deferral
Percentages of the Eligible Employees. The Average Actual
Deferral Percentage of the Eligible Employees shall be rounded
to the nearest 100th of 1%.
2.4A Average Contribution Percentage
"Average Contribution Percentage" shall mean the
average, expressed as percentage, of the Contribution
Percentages of the Eligible Employees. The Average Contribution
Percentage of the Eligible Employees shall be rounded to the
nearest 100th of 1%.
2.5 Beneficiary
A "Beneficiary" is any person, estate or trust who by
operation of law, or under the terms of the Plan, or otherwise,
is entitled to receive any Accrued Benefit of a Participant
under the Plan. A "designated Beneficiary" is any individual
designated or determined in accordance with Section 5.5,
except that it shall not include any person who becomes a
beneficiary by virtue of the laws of inheritance or intestate
succession.
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2.6 Cash-Out
A "Cash-Out" may be involuntary or voluntary.
An involuntary Cash-Out is a distribution of Accrued
Benefit to a former Participant which meets the following
requirements: (i) the former Participant's entire non-
forfeitable Accrued Benefit is distributed to the Former
Participant, (ii) the present value of the non-forfeitable
Accrued Benefit of the Participant does not exceed $5,000, and
(iii) the distribution is made on account of the Employee's
termination of participation in the Plan and no later than the
end of the Plan Year following such termination. In determining
the Accrued Benefit of a Participant under this paragraph, the
Plan shall use an interest rate not greater than the interest
rate which would be used (as of the date of distribution) by the
Pension Benefit Guaranty Corporation for purposes of determining
the present value of a lump-sum distribution on plan
termination.
A voluntary Cash-Out is a distribution of Accrued
Benefits to a former Participant which meets the following
requirements: (i) the former Participant has voluntarily elected
to receive the distribution, and (ii) the distribution is made
on account of the Employee's termination of participation in the
Plan and no later than the end of the Plan Year following the
Plan Year of such termination.
2.7 Compensation
"Compensation" refers to all compensation paid during
the Plan Year under consideration as W-2 income by the Employer
to an Employee, during the time he was a Participant, excluding
director's fees and including amounts deferred pursuant to IRC
Section 401(k) (2), or Section 403(b), or contributed to any
welfare benefit plans maintained by the Employer through a
reduction in the Employee's compensation which, pursuant
to IRC Section 125, are not included in the gross income of the
Employee for the taxable year in which such amounts are
contributed. It excludes all contributions by the Employer to
the Plan and to any other retirement or deferred compensation
plan maintained by the Employer (except amounts deferred
pursuant to IRC Section 401(k) (2) or Section 403 (b) or
contributed pursuant to IRC Section 125) and excludes amounts in
excess of $200,000 for the Plan Year or such other amount as may
be prescribed by law. Notwithstanding the foregoing,
Compensation for the purpose of determining permissible Elective
Deferral amounts and Employer Contributions to Participants
shall not include amounts paid as commissions in excess of
$60,000 during such plan year. Amounts paid as bonuses to
Participants shall not be subject to the $60,000
limitation applicable to commissions.
In addition to other applicable limitations set forth
in the Plan, and notwithstanding any other provision of the Plan
to the contrary, for Plan Years beginning on or after January 1,
1994, the Compensation of each Employee taken into account under
the Plan shall not exceed the Omnibus Budget Reconciliation Act
of 1993, ("OBRA '93") annual compensation limit. The OBRA '93
annual compensation limit is $150,000, as adjusted by the
Commissioner of the Internal Revenue Service for increases in
the cost of living in accordance with Section 401(a) (17)(B) of
the IRC. The cost-of-living adjustment in effect for a calendar
year applies to any period, not exceeding 12 months, over which
Compensation is determined (determination period) beginning in
such calendar year. If a determination period consists of fewer
than 12 months, the OBRA '93 annual compensation limit will be
multiplied by a fraction, the numerator of which is the number
of months in the determination period, and the denominator of
which is 12.
For Plan Years beginning on or after January 1, 1994,
any reference in this Plan to the limitation under section
401(a)(17) of the IRC shall mean the OBRA '93 annual
compensation limit set forth in this provision.
If Compensation for any prior determination period is
taken into account in determining an Employee's benefits
accruing in the current Plan Year, the Compensation for that
prior determination period is subject to the OBRA '93 annual
compensation limit in effect for that prior determination
period. For this purpose, for determination periods beginning
before the first day of the first Plan Year beginning on or
after January 1, 1994, the OBRA '93 annual compensation limit is
$150,000.
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2.7A Contribution Percentage
"Contribution Percentage" is the ratio, expressed as a
percentage, of after-tax contributions (if applicable) and
Employer Matching Contributions on behalf of an Eligible
Employee for the Plan Year to the Eligible Employee's
Compensation for the Plan Year. The Contribution Percentage of
each Eligible Employee shall be rounded to the nearest 100th of
1% of such Employee's Compensation.
2.7B Effective Date
"Effective Date" shall mean the first day of the first
Plan Year, that being January 1, 1991.
2.8 Elective Deferrals
"Elective Deferrals" shall mean contributions made to
the plan during the Plan Year by the Employer, at the election
of the Participant, in lieu of cash compensation and shall
include contributions made pursuant to a salary reduction
agreement.
2.9 Eligible Employee
"Eligible Employee" shall mean any Employee of the
Employer who is otherwise authorized under the terms of the Plan
to have (i) deferral contributions allocated to the Employee's
account for all or any portion of the Plan Year with respect to
computing the Average Actual Deferral Percentage. An Employee
who would be eligible to make deferral contributions but
for a suspension due to a distribution, a loan, or an election
not to participate in the Plan, will not fail to be an Eligible
Employee for purposes of Paragraphs 4.2A, 4.2B, 4.2C, and 4.2D
for a Plan Year merely because the Employee may not make a
deferral contribution by reason of such suspension. Further, an
Employee will not fail to be an Eligible Employee merely because
the Employee may receive no additional annual additions pursuant
to Section 5.4.
2.10 Employee
An "Employee" is an individual who is employed by the
Employer, including employees on Leave of Absence, but shall not
include a leased employee within the meaning of IRC Section
414(n)(2). "Leased Employee" means any person (other than an
Employee) who pursuant to an agreement between the Employer and
any other person ("Leasing Organization") has performed services
for the Employer (or for the Employer and related persons
determined in accordance with Section 414(n)(6) of the Code) on
a substantially full time basis for a period of at least one
year, and such services are performed under the primary
direction or control of the Employer. The control test does not
apply to relationships that have been determined by the Internal
Revenue Service, before August 20, 1996, to not involve Leased
Employees. Contributions or benefits provided a Leased Employee
by the Leasing Organization which are attributable to services
performed for the Employer shall be treated as provided by the
Employer.
2.11 Employer
The "Employer" shall mean Railroad Savings Bank, F.S.B.
2.12 Employer Account
The "Employer Account" is the separate account
maintained for each Participant to which all Employer
contributions shall be allocated and to which Forfeitures may be
reallocated.
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2.12A Employer Matching Account
The "Employer Matching Account" is the separate account
maintained for each Participant to which all Employer matching
contributions shall be allocated and to which Forfeitures may be
reallocated.
2.12B Entry Date
"Entry Date" shall mean the first of the month of
January, April, July or October which shall be on, or after,
completion of six (6) months of service.
2. 13 ERISA
"ERISA" refers to the Employee Retirement Income
Security Act of 1974, as amended.
2.13A Excess Aggregate Contributions
"Excess Aggregate Contributions" shall mean the amount
described in Subsection 4.2C(f).
2.14 Excess Contributions
"Excess Contributions" shall mean the amount described
in Section 4.2B(e).
2.15 Excess Deferral Amount
"Excess Deferral Amount" shall mean the amount
described in Section 4.2A(c).
2.16 Family Member
A "Family Member" includes the spouse, lineal
ascendants and descendants of the Employee or former employee
and the spouses of such lineal ascendants and descendants.
2.16A Five-Percent Owner
A "Five-Percent Owner" shall mean 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 stock of the Employer.
2.17 Forfeiture
"Forfeiture" refers to the amount of non-vested Accrued
Benefits in a Participants's Employer Account forfeited pursuant
to Section 7.2.
2.18 Highly Compensated Employee
2.18. Highly Compensated Employee
A "Highly Compensated Employee" means an Employee who
is (1) a Five-Percent Owner of the Employer at any time during
the current or preceding Plan Year or (2) had Compensation for
the preceding Plan Year in excess of $80,000 (as adjusted by the
Commissioner of the Internal Revenue Service in the same manner
as under Section 415(d)) of the Code, and was in the top 20% of
the Employees ranked by Compensation for the preceding Plan
Year.
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2.19 Hour of Service
"Hour of Service" means:
(a) each hour for which an Employee is directly or
indirectly compensated or entitled to compensation from the
Employer for the performance of duties during the applicable
computation period;
(b) each hour for which an Employee is directly or
indirectly compensated or entitled to compensation from the
Employer (irrespective of whether the employment relationship
has terminated) for reasons other than performance of duties
(such as vacation, holidays, sickness, disability, lay-off,
military duty or leave of absence) during the applicable
computation period; and
(c) each hour for which back pay is awarded or agreed
to by the Employer, without regard to mitigation of damages.
Hours of Service will be credited for employment with
other members of an affiliated service group (under IRC Section
414 (m)), a controlled group of corporations (under IRC Section
414(b)), or a group of trades or businesses under common control
(under IRC Section 414(c)) of which the Employer is a member or
any other entity required to be aggregated with the Employer
pursuant to regulations under IRC Section 414(o).
Hours of service will also be credited for any
individual considered an Employee for purposes of this Plan
under IRC Section 414(n).
Notwithstanding subparagraph (b) above, no more than
501 Hours of Service are required to be credited to an Employee
on account of any single continuous period during which the
Employee performs no duties (whether or not such period occurs
in a single computation period), and an hour for which an
Employee is directly or indirectly paid, or entitled to payment,
on account of a period during which no duties are performed is
not required to be credited to the Employee if such payment is
made or due under a plan maintained by the Employer solely for
the purpose of complying with applicable worker's compensation,
unemployment compensation or disability insurance laws. In
addition, Hours of Service are not required to be credited
hereunder for a payment which solely reimburses an Employee for
medical or medically related expenses incurred by the Employee.
The provisions of sections 2530.200b-2(b) and (c) of the
Department of Labor Regulations are incorporated herein by
reference.
For purposes of this Section 2.19, a payment shall be
deemed to be made by or due from the Employer regardless of
whether such payment is made by or due from the Employer
directly or indirectly through a trust, fund or insurer to which
the Employer contributes or pays premiums.
2.2 0 IRC
"IRC" refers to the Internal Revenue Code of 1986, as
amended.
2.21 Leave of Absence
A "Leave of Absence" shall refer to that period during
which the Participant is absent without Compensation and for
which the Administrative Committee, in its sole discretion has
determined the Participant to be on a "Leave of Absence" instead
of having terminated employment. (However, such discretion of
the Administrative Committee shall be exercised in a
nondiscriminatory manner.)
In all events, a Leave of Absence by reason of service
in the armed forces of the United States shall end no later than
the time at which a Participant's re-employment rights as a
member of the armed forces cease to be protected by law and a
Leave of Absence for any other reason shall end after 12 months,
except that if the Participant resumes
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employment with the Employer prior thereto, the Leave of Absence
shall end on such date of resumption of employment. The date
that the Leave of Absence ends shall be deemed the Termination
Date if the Participant does not resume employment with the
Employer. In determining a Year of Service for Accrual of
Benefits, all such Leaves of Absence shall be considered to be
periods when the Employee is a Participant. Notwithstanding any
provision of this Plan to the contrary, effective December 12,
1994, contributions, benefits, and service credit with respect
to qualified military service will be provided in accordance
with Section 414(u) of the Code.
2.21A Net Profits
The "Net Profits" mean the Employer's net profits for
the taxable year of the Employer (coinciding with or within
which the Plan Year ends) as calculated at the end of the
taxable year, in accordance with the Employer' s regular
accounting practices, before state and federal income taxes and
without reduction by reason of the Employer's contributions
under the Plan, and any other plan maintained by the Employer
and described in IRC Section 401(a) and Section 403(a).
The "Net Profits" shall also mean the Employer' s
accumulated net profits for all years prior to the taxable year
of the Employer, described in the preceding paragraph of this
Section. Such accumulated net profits shall be calculated in
accordance with the Employer's regular accounting practices,
before state and federal income taxes which would be refunded
(as a result of contributions to the Plan), without reduction by
reason of the Employer's contributions under the Plan and any
other plan maintained by the Employer and described in IRC
Section 401(a) or Section 403(a).
2.22 Nonhighly Compensated Employee
A "Nonhighly Compensated Employee" means an Employee
who is not a Highly Compensated Employee.
2.23 Normal Retirement Age
The "Normal Retirement Age" shall be the time at which
the Participant attains 65 years of age and five years after
initial participation in the Plan.
2.24 One Year Break in Service
A "One Year Break in Service" means a Plan Year in
which the Participant has not completed more than 500 Hours of
Service.
However, in determining a One Year Break in Service for
a Plan Year in which, or following which, a maternity or
paternity absence (as defined below) occurs, the following shall
apply: the Hours of Service which normally would have been
credited but for the maternity or paternity absence (or 8 Hours
of Service per day if the Administrative Committee is unable to
determine the Hours of service which normally would have been
credited) shall be credited to the Plan Year in which such
absence begins, if the Employee would incur a One Year Break in
Service if the hours were not so credited; in all other cases
the Hours of Service shall be credited to the following Plan
Year. The total Hours of Service credited under a maternity or
paternity absence shall not exceed 501 hours. A "maternity or
paternity absence" is one in which the Employee is absent from
work because of (i) the pregnancy of the Employee, (ii) the
birth of a child of the Employee, (iii) the placement of a child
with the Employee in connection with the adoption of such child
by the Employee, or (iv) the caring for such child immediately
following such birth or placement. As a condition of an
Employee being credited with Hours of Service pursuant to this
paragraph, the Administrative Committee can require that the
Employee timely furnish such information as is reasonably
necessary to establish that the absence from work was
for a cause stated in subparagraphs (i)-(iv) and the number of
days attributable to such cause.
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2.25 Participant
A "Participant" shall refer to every Employee or former
Employee who has met the applicable Participation requirements
of Article III.
2.26 Participant Deferral Account
The "Participant Deferral Account" is the separate
account, if applicable, maintained for each Participant to which
Elective Deferrals are allocated.
2 . 27 Plan
"Plan" refers to the Railroad Savings Bank, F.S.B.
401(k) Savings and Profit-Sharing Plan and Trust Agreement.
2.28 Plan Administrator
The "Plan Administrator" shall be the Employer, unless
a different person is designated Plan Administrator in a
resolution adopted by the board of directors of the Employer,
and such person accepts the designation in writing.
2.29 Plan Year
A "Plan Year" is the period from the first day of
January to the last day of December, annually.
2.30 Retirement
"Retirement" refers to the termination of employment of
an Employee who has attained at least the Normal Retirement Age.
The Employee may work beyond Normal Retirement Age, in which
case Employer contributions and Forfeitures shall continue to be
allocated to the Employer Account of the Employee.
2.30A Rollover Contribution
"Rollover Contribution" means:
(a) amounts transferred to this Plan directly from
another qualified corporate plan;
(b) lump sum distributions received by an Employee
from another qualified plan which are eligible for tax-free
rollover treatment and which are transferred by the Employee to
this Plan within sixty (60) days following receipt thereof;
(c) amounts transferred to this Plan from a conduit
individual retirement account, provided that such account has no
assets other than assets which were previously distributed to
the Employee by another qualified plan; and further provided
that such amounts met the applicable requirements of IRC Section
408 (d) (3) for rollover treatment on transfer to the conduit
individual retirement account; and
(d) amounts distributed to an Employee from a conduit
individual retirement account meeting the requirements of
subparagraph (c) above which are transferred by the Employee to
this Plan within sixty (60) days of his or her receipt from such
account.
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2.30B Social Security Retirement Age
"Social Security Retirement Age" means the age used as
the retirement age under section 216 (1) of the Social Security
Act, which is presently age 65 for a person born before 1939,
age 66 for a person born between 1939 and 1954, and age 67 for a
person born after 1954.
2.31 Termination Date
The "Termination Date" shall be the date on which the
earliest of the following events occurs: (a) a Participant's
retirement, (b) a Participant's termination of employment as a
result of Total and Permanent Disability, (c) a Participant's
death, or (d) a Participant's termination of employment for any
other reason.
2.32 Total and Permanent Disability
"Total and Permanent Disability" shall refer to the
Participant suffering from a physical or mental condition as
determined by the Administrative Committee, based upon
appropriate medical reports and examinations, may be expected to
result in death or be of long and indefinite duration and which
renders the Participant incapable of performing any gainful
activity for purposes of IRC Section 72(m)(7).
2.33 Total Service for Vesting
"Total Service for Vesting" shall mean the sum of each
separate Year of Service for Vesting credited to the
Participant; however, if the Participant incurs at least 5
consecutive One Year Breaks in Service, his or her Years of
Service for Vesting rendered after such break in service shall
only be counted for purposes of determining vested benefits
accruing after such break in service, not for determining vested
benefits accruing before such break.
If, at any time when the Participant is zero percent
vested as to his or her Employer Account, the Participant incurs
a One Year Break in Service or two or more consecutive One Year
Breaks in Service, and the number of such One Year Breaks in
service equals or exceeds his or her Years of Service for
Vesting rendered prior to such break in service, then Total
Service for Vesting shall not include any Years of Service for
Vesting occurring prior to such break in service.
2.34 Trust
"Trust" means the Trust created under the Plan.
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2.35 Trust Fund
The "Trust Fund" consists of the Employer and
Participant contributions held by the Plan and any income or
appreciation thereon.
2.36 Year of Service for Accrual of Benefits
A "Year of Service for Accrual of Benefits" means a
Plan Year during which the Employee had not less than 1,000
Hours of Service as a Participant. If the Participant entered
the Plan other than on the first day of the Plan Year, all Hours
of Service rendered by the Participant during that Plan Year,
whether or not rendered as a Participant, shall be treated as if
they were Hours of Service as a Participant.
2.37 Year of Service for Vesting
A "Year of Service for Vesting" shall mean a Plan Year
during which the Employee had not less than 1,000 Hours of
Service which occurs after the Employee has attained the age of
18.
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ARTICLE III
ELIGIBILITY TO PARTICIPATE
3.1 Initial Entry
All Employees as of October 1, 1991 shall be
immediately eligible to participate in the Plan as of the Plan
Effective Date or their first date of employment, whichever is
later. Thereafter, Employees shall be eligible to participate
in the Plan as of the Entry Date on, or after, completion of six
(6) months of employment with the Employer (regardless of the
number of Hours of Service the Employee performs in such
six-month period).
Notwithstanding the preceding paragraph of this Section
3. 1, an individual shall not be eligible to participate in the
Plan during any time period for which the Employee is included
in a unit of the employees covered by a collective bargaining
agreement between employee representatives and one or more
employers, if there is evidence that retirement benefits were
the subject of good faith bargaining between such employee
representatives and the employer; an individual shall not be
eligible to participate in the Plan during any time period for
which the Employee is a nonresident alien who receives no earned
income (within the meaning of IRC Section 911(b)) from the
Employer which constitutes income from sources within the United
States (within the meaning of IRC Section 861(a)(3)).
3.2 Resumption of Participation
If a Participant incurs at least a One Year Break in
Service, active participation in the Plan shall be suspended
until the Employee completes six (6) months of employment with
the Employer (regardless of the number of Hours of Service the
Employee performs in such six-month period) following such One
Year Break in Service. Following such One Year Break in service
and upon then completing a Year of Service for Participation,
measured from the Employee's re-employment commencement date,
the Participant will be readmitted to active participation in
the Plan retroactive to the beginning of such Year of Service
for Participation.
3.3 Rule for Former Employees of RSL Mortgage Corp.
Each Employee who was a participant in the RSL Mortgage
Corp. 401(k) Savings and Profit-Sharing Plan (the "RSL Plan") on
September 30, 1994 shall become a Participant in this Plan as of
October 1, 1994, and the accrued benefits of each such
Participant under the RSL Plan as of September 30, 1994, shall
be credited to the applicable Employer Account, Employer
Matching Account, and Participant Deferral Account created for
each such Participant as of October 1, 1994. Each employee of
RSL Mortgage Corp. on September 30, 1994 who had not become a
participant in the RSL Plan on or before said date shall be
eligible to participate in the Plan as of the Entry Date on or
after completion of a total of six (6) months of employment with
the Employer. For purposes of determining an Employee's service
for eligibility purposes hereunder and for determining the
Employee's Hours of Service, Years of Service for Accrual of
Benefits, and Years of Service for Vesting, employment with RSL
Mortgage Corp. shall be treated as employment by the Employer.
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ARTICLE IV
CONTRIBUTIONS TO THE TRUST
4.1 Deferral Contributions by Participants
Effective October 1, 1991, for a period of 30 days
prior to each January 1, April 1, July 1 and October 1 of each
Plan Year, and for such other periods as it may establish in a
nondiscriminatory manner, the Administrative Committee will
permit each Participant (including Employees who are expected to
be Participants during the following Plan Year) to elect to
defer between 1% and 15% of the Employee's Compensation in
increments of 1%. Such deferred amount will be contributed to
the Plan and allocated to the Participant Deferral Account. No
Participant shall be required to make a deferral.
A Participant who has received a hardship distribution
pursuant to Section 7.1A shall not be permitted to make an
Elective Deferral for a 12 month period following the date of
receipt of the hardship distribution, nor may the Employee make
Elective Deferral Contributions for the taxable year immediately
following the taxable year of the hardship distribution in
excess of the limit provided under Section 402 (g) (5) of the
IRC (adjusted for the cost of living, which in 1991 is $8,475)
for such next taxable year less the amount of such Participant's
Elective Deferral contribution for the taxable year of the
hardship distribution.
4.lA Matching Contributions
Forfeitures made available pursuant to Section 7.2
shall be allocated first to restore forfeitures pursuant to
Section 7.11, then utilized to reduce the Employer's
contribution pursuant to this Section 4.1A, and finally to be
applied as Employer Contributions pursuant to Section 4.2, if
any forfeitures remain available for allocation.
4.2 Employer Contributions to Participants
Subject to the rights of the Employer under Article XI,
the Employer may within its sole discretion make a contribution
to the Trust from its Net Profits beginning with the first Plan
Year ending on or after the effective date of the Plan. The
amount of the contribution shall be discretionary with the
Employer and shall be paid to the Trustee on or before the time
required by law for filing the Employer's federal income tax
return (including extensions) for the year with respect to which
the contribution is made. However, no Employer contributions
may be made in any Plan Year to the extent that they would not
be deductible.
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All contributions by the Employer for any Plan Year,
and all Forfeitures not previously allocated pursuant to Section
4.1A, if any, during such year, shall be allocated as of the
last day of such year to the Employer Account of each eligible
Participant who has a Year of Service consisting of at least
1,000 Hours of Service for Accrual of Benefits purposes for the
Plan Year, in the same proportion that each such Participant's
Compensation for the Plan Year bears to the total Compensation
of all Participants for the Plan Year.
4.2A Annual Limitation on Participant Deferral Contributions
(a) No Participant shall be permitted to make deferral
contributions under this Plan during any calendar year in excess
of $7,000 (including any other elective deferrals within the
meaning of IRC Section 402 (g) (3) in the case of all other
plans, contracts, or arrangements of the Employer), adjusted in
the manner described in IRC Section 402(g)(5) for the calendar
year.
(b) Notwithstanding any other provision of the Plan,
Excess Deferral Amounts and income allocable thereto shall be
distributed no later than each April 15th to Participants who
claim such Excess Deferral Amounts for the preceding calendar
year. A distribution pursuant to this Subsection 4.2A(b) of
Excess Deferral Amounts and
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income, gains and losses allocable thereto shall be made without
regard to any consent otherwise required under Section 7.3 or
any other provision of the Plan. A distribution pursuant
to this Subsection 4.2A(b) of Excess Deferral Amounts and
income, gains and losses allocable thereto shall not be treated
as a distribution for purposes of determining whether the
distribution required by Section 7.3(b)--(f) is satisfied. Any
distribution under this Subsection 4.2A(b) of less than the
entire Excess Deferral Amount and income, gains and losses
allocable thereto shall be treated as a pro rata distribution of
Excess Deferral Amounts and income, gains and losses allocable
thereto. In no case may an Employee receive from the Plan as a
corrective distribution for a taxable year under this Subsection
4.2A(b) an amount in excess of the individuals total deferral
contributions under the Plan for the taxable year.
(c) "Excess Deferral Amount" shall mean the amount of
deferral contributions for a calendar year which exceeds the
limitation described in Subsection 4.2A(a) and which, in the
event the Participant has made elective deferrals (as defined in
IRC Section 402 (g) (3) ) under another plan, the Participant
allocates to this Plan pursuant to the procedure set forth in
Subsection (d) below.
(d) The Participant's claim made pursuant to
Subsection 4.2A(b) shall be in writing; shall be submitted to
the Administrative Committee no later than March 1 with respect
to the preceding calendar year; shall specify the Participant's
Excess Deferral Amount for the preceding calendar year; and
shall be accompanied by the Participant's written statement that
if such amounts are not distributed, such Excess Deferral
Amount, when added to amounts deferred under other plans or
arrangements described in IRC Sections 401(k), 408(k), or
403(b), exceeds the limit imposed on the Participant by IRC
Section 402(g) for the calendar year in which the deferral
occurred.
(e) Income, Gains and Losses Allocable to Excess
Deferrals.
(1) The Excess Deferral Amount distributed to a
Participant with respect to a calendar year shall be adjusted
for income, gains and losses. The income, gains and losses
allocable to the Excess Deferral Amount is equal to the sum of
the allocable gain or loss for the taxable year of the
individual as described in Subsection (e) (2) below and the
allocable gain or loss for the period between the end of the
taxable year and the date of distribution as described in
Subsection (e)(3) below.
(2) The gain or loss allocable to the Excess
Deferral Amount for the taxable year of the individual is
determined by multiplying the income for the taxable year of the
individual allocable to deferral contributions by a fraction.
The numerator of the fraction is the Excess Deferral Amount made
by the Employee for the taxable year. The denominator of the
fraction is equal to the sum of:
(i) the total Account Balance of the
Employee attributable to deferral contributions as of the end of
the taxable year, and amounts treated as deferral contributions
as of the beginning of the taxable year; plus
(ii) The Participant's deferral contributions
for the taxable year and for the period described in Section
4.2A(e)(3).
(3) The gain or loss allocable to the Excess
Deferral Amount for the period between the end of the taxable
year and the date of distribution is equal to 10% of the income
allocable to the Excess Deferral Amount for the taxable year (as
calculated under Subsection (e) (2) above) multiplied by the
number of calendar months that have elapsed since the end of the
taxable year. For purposes of determining the number of
calendar months that have elapsed, a distribution occurring an
or before the 15th day of the month will be treated as having
been made on the last day of the preceding month, and a
distribution occurring after such 15th day will be treated as
having been made on the lst day of the next month.
(f) The Excess Deferral Amount which may be
distributed under Subsection 4.2A(b) with respect to an Employee
for a taxable year shall be reduced by any Excess Contributions
previously distributed with respect to such Employee for the
Plan Year beginning with or within such taxable year. In the
event of a reduction under this
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Subsection 4.2A(f), the amount of Excess Contributions included
in the gross income of the Employee and reported by the Employer
as a distribution of Excess Contributions shall be reduced by
the amount of the reduction under this Subsection 4.2A(f).
4.2B Average Actual Deferral Percentage Limitation
(a) The Average Actual Deferral Percentage for
Eligible Employees who are Highly Compensated Employees may not
exceed the greater of:
(1) the Average Actual Deferral Percentage for
all Eligible Employees who are Non-Highly Compensated Employees
for the Plan Year multiplied by 1.25, or
(2) the Average Actual Deferral Percentage for
all Eligible Employees who are Non-Highly Compensated Employees
for the Plan Year multiplied by 2.0, but not more than 2
percentage points in excess of the Average Actual Deferral
Percentage of Eligible Employees who are Non-Highly Compensated
Employees.
If any Highly Compensated Employee is eligible to make
deferral contributions, to make after-tax contributions or to
receive Employer matching contributions, the disparities between
the Average Actual Deferral Percentages of the respective groups
shall be reduced as described in Section 4.2D.
(b) Should neither limitation (1) nor (2) in
Subsection 4.2B(a) be met with respect to a Plan Year, the
Employee Benefits Committee, subject to applicable law and
regulations, may cause Excess Contributions and income allowable
thereto to be distributed no later than 2-1/2 months following
the end of any Plan Year to Participants on whose behalf such
Excess Contributions were made for the preceding Plan Year.
A distribution of Excess Contributions and income,
gains and losses allocable thereto shall be made without regard
to any consent otherwise required under Section 7.03 or any
other provision of the Plan. A distribution pursuant to
Subsection 4.2B(b) (2) of Excess Contributions and income, gains
and losses allocable thereto shall not be treated as a
distribution for purposes of determining whether the
distribution required by Section 7.03 is satisfied. Any
distribution under Subsection 4.2B(b)(2) of less than the entire
Excess Contribution and income, gains and losses allocable
thereto shall be treated as a pro rata distribution of Excess
Contributions and income, gains and losses allocable thereto.
In no event shall Excess Contributions for a Plan Year remain
unallocated or be allocated to a suspense account for allocation
to one or more employees in any future Plan Year.
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(c) The Actual Deferral Percentage for any Eligible
Employee who is a Highly Compensated Employee for the Plan Year
who is eligible to have deferral contributions allocated to the
Employee's account under two or more plans or arrangements
described in IRC Section 401 (k) that are maintained by the
Employer or an Affiliated Employer shall be determined as if all
such deferral contributions were made under a single
arrangement.
(d) For purposes of determining the Actual Deferral
Percentage of a Participant who is a Highly Compensated
Employee, the deferral contributions and Compensation of such
Participant shall include the deferral contributions and
Compensation of Family Participants, and such Family
Participants shall be disregarded in determining the Actual
Deferral Percentage for Participants who are Non-Highly
Compensated Employees.
(e) For purposes of this Plan, "Excess Contributions"
shall mean, with respect to a Plan Year, the excess of the
deferral contributions made on behalf of eligible Highly
Compensated Employees for the Plan Year over the maximum amount
of such contributions permitted under Subsection 4.2B(a). The
amount of Excess Contributions for a Highly Compensated Employee
for a Plan Year is to be determined under the following method,
under which the Actual Deferral Percentage of the Highly
Compensated Employee with the highest Actual Deferral Percentage
is reduced to the extent required to equal the lesser of the
amount which:
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(1) enables the Plan to satisfy the Average
Actual Deferral Percentage described in Subsection 4.2B(a), or
(2) causes such Highly Compensated Employee's
Actual Deferral Percentage to equal the percentage of the Highly
Compensated Employee with the next highest Actual Deferral
Percentage.
This reduction process shall be repeated until the Plan
satisfies the Average Actual Deferral Percentage described in
Subsection 4.2B(a). For each Highly Compensated Employee, the
amount of Excess Contributions is equal to the deferral
contribution made on behalf of the Employee (determined prior to
the application of this Subsection 4.2B(e)) minus the amount
determined by multiplying the Employee's Actual Deferral
Percentage (determined after application of this Subsection
4.2B(e)) by the Employee's Compensation used in determining such
percentage. In no case shall the amount of Excess Contributions
for a Plan Year with respect to any Highly Compensated Employee
exceed the amount of Deferral Contributions made on behalf of
such Highly Compensated Employee for such Plan Year.
(f) The income, gains and losses allocable to Excess
Contributions for purposes of Subsection 4.2B(b) is equal to the
sum of the allocable gain or loss for the Plan Year described in
Subsection (f) (1) below, and the allocable gain or loss for the
period between the end of the Plan Year and the date of
distribution described in paragraph (f)(2) below.
(1) The gain or loss allocable to Excess
Contributions for the Plan Year is determined by multiplying the
income for the Plan Year allocable to deferral contributions by
a fraction. The numerator of the fraction is the Excess
Contribution by the Employee for the Plan Year. The denominator
of the fraction is equal to the sum of:
(i) the total account balance of the
Employee attributable to deferral contributions as of the end of
the Plan Year, and amounts treated as deferral contributions as
of the beginning of the Plan Year; plus
(ii) the Participant's deferral contributions
and amounts treated as deferral contributions for the Plan Year
and for the period described in Section 4.2B(f) (2).
(2) The gain or loss allocable to Excess
Contributions for the period between the end of the Plan Year
and the distribution date is equal to 10% of the income
allocable to Excess Contributions for the Plan Year (as
calculated under Subsection 4.2B(f) (1) above) multiplied by the
number of calendar months that have elapsed since the end of the
Plan Year. For purposes of determining the number of calendar
months that have elapsed, a distribution occurring on or before
the 15th day of the month will be treated as having been made on
the last day of the preceding month, and a distribution
occurring after such 15th day will be treated as having been
made on the first day of the next month.
(g) Coordination of Excess Contributions with
Distribution of Excess Deferrals.
(1) The amount of Excess Contributions to be
distributed under Subsection 4.2B(b) with respect to a Highly
Compensated Employee for a Plan Year shall be reduced by any
Excess Deferral Amount previously distributed in accordance with
Subsection 4.2A(b) to such Participant for the Participant's
taxable year ending with or within such Plan Year.
(2) The Excess Deferral Amount that may be
distributed under Subsection 4.2A(b) with respect to an Employee
for a taxable year shall be reduced by any Excess Contributions
previously distributed with respect to such Employee for the
Plan Year beginning with or within such taxable year. In the
event of a reduction under this paragraph (g) (2) , the amount
of Excess Contributions included in the gross income of the
Employee and the amount of Excess Contributions reported by the
Employer as includable in the gross income of the Employee shall
be reduced
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by the amount of the reduction under this paragraph (g)(2).
(h) The determination and correction of the Excess
Contributions of a Highly Compensated Employee where the Highly
Compensated Employee is subjected to the family aggregation
rules of IRC Section 414 (q) (6), the combined Actual Deferral
Percentage for the group of Family Members (which will be
treated as one Highly Compensated Employee) is calculated by
reducing the Actual Deferral Percentage of the Highly
Compensated Employee with the highest Actual Deferral Percentage
by the same amounts determined under Section 4.2B(e), and
allocating the Excess Contributions for the Family Member group
among the Family Members in proportion to the Deferral
Contribution of each Family Member that is combined to determine
the Highly Compensated Employee's Actual Deferral Percentage.
4.2C Average Contribution Percentage Limitation
(a) The Average Contribution Percentage for Eligible
Employees who are Highly Compensated Employees may not exceed
the greater of:
(1) the Average Contribution Percentage for all
Eligible Employees who are Non-Highly Compensated Employees for
the Plan Year multiplied by 1.25, or
(2) the Average Contribution Percentage for all
Eligible Employees who are Non-Highly Compensated Employees for
the Plan Year multiplied by 2.0, but not more than 2 percentage
points in excess of the Average Contribution Percentage for
Eligible Employees who are Non-Highly Compensated Employees.
If any Highly Compensated Employee is eligible to make
deferral contributions, to make after-tax contributions or to
receive Employer matching contributions, the disparities between
the Average Contribution Percentages of the respective groups
will be reduced in accordance with Section 4.2D.
(b) The Contribution Percentage for any Eligible
Employee who is a Highly Compensated Employee for the Plan Year
and who is eligible to make after-tax contributions or to
receive Employer matching contributions allocated to his or her
account under two or more plans to which contributions to which
IRC Section 401(m) applies that are maintained by the Employer
or an Affiliated Employer shall be determined as if all such
after-tax contributions and Employer matching contributions were
made under a single plan for purposes of this Section 4.2C.
(c) In the event this Plan satisfies the requirements
of IRC Section 410 (b) only if aggregated with one or more other
plans, or if one or more other plans satisfy the requirements of
IRC Section 410 (b) only if aggregated with this Plan, then this
Section 4.2C shall be applied by determining the Contribution
Percentage of Eligible Employees as if all such plans were a
single plan.
(d) For purposes of determining the Contribution
Percentage of an Eligible Employee who is a Highly Compensated
Employee, the after-tax contributions, Employer matching
contributions and Earnings of such Eligible Employee shall
include the after-tax contributions, Employer matching
contributions and Earnings of Family Members, and such Family
Members shall be disregarded in determining the Contribution
Percentage for Eligible Employees who are Non-Highly Compensated
Employees.
(e) Excess Aggregate Contributions and income
allocable thereto shall be forfeited, if otherwise forfeitable
under the terms of this Plan, or if not forfeitable, shall be
distributed no later than 2 months after the first day of each
Plan Year to Members to whose Accounts' Excess Aggregate
Contributions were allocated for the preceding Plan Year and who
were Highly Compensated Employees for such preceding Plan Year.
A distribution of Excess Aggregate Contributions and income,
gains and losses allocable thereto shall be made without regard
to any consent otherwise required under Section 7.2 or 7.3 or
any other provision of the Plan. A distribution pursuant to
this Subsection 4.2C(e) of Excess Aggregate Contributions and
income, gains and losses allocable thereto shall not be treated
as a distribution
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for purposes of determining whether the distributions required
by Subsections 7.3(b), (c), (d) and (e) are satisfied.
(f) For purposes of this Plan, "Excess Aggregate
Contributions" shall mean, with respect to a Plan Year, the
excess of the aggregate amount of the after-tax contributions
plus Employer matching contributions actually made on behalf of
Highly Compensated Employees for such Plan Year, over the
maximum amount of such contributions permitted under the
limitations of Subsection 4.2C (a) . The amount of Excess
Aggregate Contributions for a Highly Compensated Employee for a
Plan Year is to be determined under the following method, under
which the Contribution Percentage of the Highly Compensated
Employee with the highest Contribution Percentage is reduced to
the extent required to equal the lesser of the amount which:
(1) enables the Plan to satisfy the Average
Contribution Percentage test described in Subsection 4.2C(a),
or
(2) causes such Highly Compensated Employee's
Contribution Percentage to equal the percentage of the Highly
Compensated Employee with the next highest Contribution
Percentage.
This reduction process must be repeated until the
Plan satisfies the Average Contribution Percentage described in
Subsection 4.2C (a). For each Highly Compensated Employee, the
amount of Excess Aggregate Contributions is equal to the total
after-tax contributions and Employer matching contributions
determined prior to the application of this Subsection 4.2C(f)
minus the amount determined by multiplying the Employee's
Contribution Percentage determined after application of this
Subsection 4.2C(f) by the Employee's Earnings used in
determining such percentage. In no case shall the amount of
Excess Aggregate Contributions with respect to any Highly
Compensated Employee exceed the amount of after-tax
contributions and Employer matching contributions made on behalf
of such Highly Compensated Employee for such Plan Year.
(g) The income, gains and losses allocable to Excess
Aggregate Contributions is equal to the sum of the allocable
gain or loss for the Plan Year described in Subparagraph 4.2C(g)
(1) below and the allocable gain or loss for the period between
the end of the Plan Year and the date of distribution described
in Subparagraph 4.2C(g)(2) below.
(1) The gain or loss allocable to Excess
Aggregate Contributions for the Plan Year is determined by
multiplying the income for the Plan Year allocable to After-Tax
Member Contributions and Employer matching contributions, by a
fraction. The numerator of the fraction is the amount of Excess
Aggregate Contributions made on behalf of the Employee for the
Plan Year. The denominator of the fraction is equal to the sum
of:
(i) the total amount account balance of the
Employee attributable to the Employee and matching
contributions, and amounts treated as matching contributions as
of the beginning of the Plan Year; plus
(ii) the Employee and matching contributions,
and amounts treated as matching contributions for the Plan Year
and for the period described in Section 4.2C(g) (2).
(2) The gain or loss allocable for the period
between the end of the Plan Year and the distribution is equal
to l% of the income or loss allocable to Excess Aggregate
Contributions for the Plan Year (as calculated under
Subparagraph 4.2C(g)(1)) multiplied by the number of calendar
months that have elapsed since the end of the Plan Year. For
purposes of determining the number of calendar months that have
elapsed, a distribution occurring on or before the 15th day of
the month will be treated as having been made on the last day of
the preceding month, and a distribution occurring after such
15th day will be treated as having been made on the first day of
the next month.
(h) The determination and correction of Excess
Aggregate Contributions of a Highly Compensated Employee where
the Highly Compensated Employee is subject to the family
aggregation rules of IRC Section 414(q) (6), the combined
Average Contribution Percentage for the group of Family Members
(which will be treated as one Highly Compensated Employee) is
calculated by reducing the Contribution Percentage of the Highly
Compensated Employee
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with the highest Contribution Percentage by the same amounts
determined under Section 4.2C(f), and allocating the Excess
Aggregate Contributions for the Family Member group among the
Family Members in proportion to the Deferral Contributions and
Matching Contributions of each Family Member that is combined to
determine the Highly Compensated Employee's Contribution
Percentage.
(i) Excess Aggregate Contributions shall be
distributed from the After Tax Member Contribution Account and
forfeited if otherwise forfeitable under the terms of the Plan
(or if not forfeitable, distributed) from the Employer Account
of the Member in proportion to the after-tax contributions and
Employer matching contributions for the Plan Year.
(j) Amounts forfeited by Highly Compensated Employees
under this Section 4.2C shall be treated as Annual Additions and
applied to reduce subsequent Employer matching contributions to
the Plan.
(k) Notwithstanding the foregoing, no forfeitures
arising under this Section 4.2C shall be allocated to the
Account of any Highly Compensated Employee.
(l) Nothing contained in this Article IV shall prevent
the Administrative Committee from reducing the rate of after-tax
contributions during the Plan Year for Highly Compensated
Employees in order to meet the test of Subsection 4.2C(a).
4.2D Multiple Use of Alternative Limitation
(a) The Average Actual Deferral Percentage or Average
Contribution Percentage of Highly Compensated Employees shall be
adjusted as described in Subsection 4.2D(b) below if all of the
following conditions of this Subsection 4.2D(a) apply--
(1) One or more Highly Compensated Employees of
the Employer or an Affiliated Employer are eligible to
participate both in an IRC 401(k) arrangement and in a plan
maintained by the Employer or an Affiliated Employer subject to
IRC Section 401(m);
(2) The sum of the Average Actual Deferral
Percentage of all Eligible Employees under the plans described
in paragraph (1) who are Highly Compensated Employees and the
Average Contribution Percentage of the entire group of Eligible
Employees who are Highly Compensated Employees exceeds the
Aggregate Limit described in Subsection 4.2D(e);
<PAGE>
(3) The Average Actual Deferral Percentage of the
entire group of Eligible Employees who are Highly Compensated
Employees exceeds the amount described in Subsection 4.2D(a)(1);
and
(4) The Average Contribution Percentage of the
entire group of Eligible Employees who are Highly Compensated
Employees exceeds the amount described in Subsection 4.2C(a)(1).
(b) The Administrative Committee shall elect to reduce
either the Average Actual Deferral Percentage or the Average
Contribution Percentage of the entire group of Eligible
Employees who are Highly Compensated Employees in accordance
with this Subsection 4.2D(b). The amount of the reduction to the
Average Actual Deferral Percentage of the entire group of
Eligible Employees who are Highly Compensated Employees shall,
if elected, be calculated and accomplished in the manner
described in Subsection 4.2B(e) or the amount of the reduction
to the Average Contribution Percentage of the entire group of
Eligible Employees who are Highly Compensated Employees shall,
if elected, be calculated and accomplished in the manner
described in Subsection 4.2C(f), so that in either case the
Aggregate Limit described in Subsection 4.2D(e) shall not be
exceeded. The Administrative Committee may elect to reduce the
Actual Deferral Percentage or the Contribution Percentage either
for all Highly Compensated Employees
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under the Plan who are subject to reduction or for only those
Highly Compensated Employees who are eligible in both the
arrangements subject to IRC Section 401(k) and the plan subject
to IRC Section 401(m).
(c) The required reduction described in Subsection
4.2D(b) shall be treated as an Excess Contribution or Excess
Aggregate Contribution under the Plan as the case may be.
(d) For purposes of applying Subsection 4.2D(a), the
Average Actual Deferral Percentage and Average Contribution
Percentage of the group of Eligible Employees who are Highly
Compensated Employees shall be determined after any corrective
distribution of Excess Deferral Amounts pursuant to Subsection
4.2A(b) , Excess Contributions pursuant to Subparagraph 4.2B(b)
(2), or Excess Aggregate Contributions pursuant to Subsection
4.2C(e) and after any recharacterization of Excess Contributions
pursuant to Subparagraph 4.2B(b)(1) required without regard to
this Section 4.2D. Only plans and arrangements maintained by the
same Employer or an Affiliated Company shall be taken into
account under this Section 4.2D.
(e) For purposes of this Section 4.2D, the "Aggregate
Limit" shall mean the greater of (1) or (2) where--
(1) is the sum of:
(A) 125% of the greater of (i) the Average
Actual Deferral Percentage of the group of Eligible Employees
who are Non-Highly Compensated Employees for the Plan Year, or
(ii) the Average Contribution Percentage of the group of
Eligible Employees who are Non-Highly Compensated Employees for
the Plan Year, and
(B) two percentage points plus the lesser of
Subparagraphs 4.2D(e) (1) (i) or 4.2D(e) (1) (ii) above. In no
event, however, shall the amount described in this Subparagraph
4.2D(e)(1)(B) exceed 200% of the lesser of Subparagraphs 4-
2D(e)(1)(A)(i) or (ii) above; and
(2) is the sum of:
(A) 125% of the lesser of (i) the Average
Actual Deferral Percentage of the group of Eligible Employees
who are Non-Highly Compensated Employees for the Plan Year, or
(ii) the Average Contribution Percentage of the group of
Eligible Employees who are Non-Highly Compensated Employees for
the Plan Year, and
(B) two percentage points plus the greater
of Subparagraphs 4.2D(e) (1) (i) or 4.2D(e) (1) (ii) above. In
no event, however, shall the amount described in this
Subparagraph 4.2D(e)(1)(B) exceed 200% of the lesser of
Subparagraphs 4.2D(e)(1)(A)(i) or (ii) above.
4.3 Permissible Types of Employer Contributions
Payments on account of the contributions due from the
Employer for any year may be made in cash or in kind; except
that assets may not be contributed if such contribution violates
the prohibited transaction rules of IRC Section 4975, or the
corresponding rules under ERISA Section 406, if applicable.
4.4 Loans to Participants
(a) Pursuant to a written loan program, the
Administrative Committee may authorize the Trustee to loan to
any Participant an amount or amounts which, when added to the
outstanding balance of all prior loans to the Participant under
this Plan and all other plans maintained by the Employer, does
not exceed the lesser of (i) $50,000 (reduced by the excess, if
any, of (A) the highest outstanding balance of loans from the
Plan during the one-year period ending on the day before the
date such loan is made over (B) the outstanding balance of loans
from the Plan on the date on which such loan is made) or (ii)
one-half of such Participant's vested Accrued Benefit. For
purposes of the preceding sentence all qualified retirement
plans maintained by the Employer shall be treated as included
with this Plan for
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purposes of the limitations relating to the dollar amounts of
permissible loans and the length of time of repayment, except
that only Accrued Benefits under this Plan shall be taken into
account, in applying the limitations of (ii). A loan may not be
made to an owner-employee or shareholder-employee, as defined in
IRC Section 4975(d).
(b) Loans may not be made to Participants who are
highly compensated Employees, officers, or shareholders in
percentage amounts greater than amounts made available to other
Participants, and such loans must be made available to all
Participants on a reasonably equivalent basis. However, loans
will not be made in an amount less than $1,000. Any loans made
must bear a reasonable rate of interest, considering all
relevant factors, specifically including current bank interest
rates, and must be adequately secured, as determined by the
Administrative Committee. The Employer and Rollover Account of
the borrower may be pledged as security for such loans. The
loan shall repaid in substantially level amortization (with
payments not less frequently than quarterly) over a term not to
exceed five years. Notwithstanding the preceding sentence, the
repayment of loans may be extended a reasonable time beyond five
years if such loan is used to acquire, a dwelling unit which is
to be used as a principal residence of the Participant. All
costs and expenses in connection with obtaining the loans and
perfecting the Plan's security interest therein, including but
not limited to taxes, recording fees, filing fees and attorney's
fees shall be prepaid by the Participant or shall be deducted
from the total proceeds of the loan.
(c) Any loan shall be allocated to the accounts of the
Participant to whom the loan is made and repayment of principal
and interest on the loan shall be allocated to such accounts in
the proportion in which the funds were borrowed.
4.5 Rollover Contributions
(a) Any Employee may make a Rollover Contribution to
this Plan, subject to the consent of the Employer; provided,
however, that the trust from which the funds are to be
transferred must permit the transfer to be made, and provided,
further, that, in the opinion of the Employer's legal counsel,
such transfer will not jeopardize the tax exempt status of this
Plan or Trust or create adverse tax consequences for the
Employer. Rollover Contributions shall be made by delivery to
the Trustee (or to the Employer for delivery to the Trustee) for
deposit in the Trust. All Rollover Contributions must be in
cash or property satisfactory to the Trustee, whose decision in
this regard shall be final. The Trustee will not accept
rollovers of accumulated deductible employee contributions from
a Simplified Employee Pension Plan.
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(b) If the Administrative Committee accepts such
transfer of funds, it shall allocate them to a separate or
segregated account established for such purpose ("Rollover
Account"). If the funds are allocated to a segregated account,
they shall be invested separately and any appreciation,
depreciation, gain, or loss with respect to such account, and
any related expenses shall be allocated to such account; such
funds shall be 100% vested.
(c) Rollover Contributions shall not be considered to
be Participant contributions for the purpose of calculating the
limitations under Section 5.4.
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ARTICLE V
ADMINISTRATION OF ACCOUNTS
5.1 Investments
The amounts allocated to the Employer and Participant
Accounts shall be invested by the Trustee (except as provided in
section 8.11) in accordance with Article VIII.
5.2 Invest in Single Fund and Reasonable Rules
The Trustee may cause all contributions paid to it by
the Employer and, if applicable the Participant, and the income
therefrom, without distinction between principal and income, to
be held and administered as a single fund, and the Trustee shall
not be required to invest separately any share of any
Participant except as provided in Sections 4.5 and 7.4 and 8.11.
The Trustee may adopt reasonable rules for the administration of
such common fund and for the determination of the proportionate
interest of each Participant in the fund.
5.3 Valuation of Assets and Allocation of Changes
The assets of the Trust Fund will be valued as of the
close of the last day of each Plan Year at their fair market
value and the Employer Account (or Employer Accounts if the
Participant has Accrued Benefits for service incurred both prior
and subsequent to a 5 consecutive Year Break in Service),
including any Employer Account held in suspense, and, if
applicable, the Participant Deferral Account of each
Participant, shall be adjusted for any net appreciation or net
depreciation in the assets of the Plan and any net income or net
loss of the Trust for such year, with each account being
credited or charged in the ratio that the amount of the account
(as of the close of the last day of the Plan Year) bears to the
total (as of the close of the last day of the Plan Year) of all
remaining non-segregated accounts. For the purpose of such
adjustment of accounts, any contribution made by the Employer
with respect to that Plan Year or by the Employer during
the Plan Year shall be considered as having been made
immediately after such evaluation and adjustment. In making the
adjustments required by this Section the cash value of any life
insurance, and the value of any amounts segregated in accordance
with Sections 4.5 and 7.4 and 8.11 shall not be considered in
determining the amount of net appreciation, depreciation, gain
or loss to be allocated to such account. The amount of any net
appreciation, depreciation, gain or loss with respect to such
cash value or segregated account shall be allocated to the
individual account with respect to which it arose. In addition
to the evaluations required by the first sentence of this
Section 5.3, the Trust Fund may be valued at such other times
during the Plan Year as the Administrative Committee deems
appropriate.
5.4 Limitations on Allocations to Each Participant
(a) Defined Contribution Plan Limitations
Notwithstanding any other provision of this Plan the
maximum annual addition for any Plan Year which can be made to
any individual Participant's Employer and Participant accounts,
taken together, is the lesser of $30,000 or 25 percent of the
Participant's Compensation. For purposes of Subsections 5.4(a),
(b), and (c) the annual addition is the sum of the following
amounts allocated to the accounts of the individual Participant
for the Plan Year of the Trust (which shall be the limitation
year for purposes of IRC Section 415, unless the Employer
otherwise elects) under this and all other defined contribution
type plans maintained by the Employer:
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(i) Employer contributions;
(ii) Forfeitures (if applicable);
(iii)Participant contributions;
(iv) Amounts allocated to an individual medical
account (as defined in IRC Section 415 (1) (2)) that is part of
a defined benefit plan maintained by the Employer; and
(v) Amounts derived from contributions paid or
accrued after December 31, 1985, in taxable years ending after
such date, that are attributable to post-retirement medical
benefits allocated to the separate account of a Key Employee (as
defined in IRC Section 419A (d) (3)) under a welfare benefit
fund (as defined in IRC Section 419(e)) maintained by the
Employer.
If Subsections 5.4(a), (b), and (c) limit the total
amount which can be allocated to the Employer Account, Employer
Matching Account, and the Participant Deferral Account of any
Participant for a Plan Year, the amount in excess of such limit
shall be eliminated by reducing, to the extent necessary and in
the sequence set forth herein:
(i) the Employer contributions from Net Profits
allocable to the Participant's Employer account in accordance
with Article 4.2 hereof;
(ii) those Elective Deferrals that were made during the
Plan Year but did not result in a matching contribution by the
Employer in accordance with Article 4.1A hereof;
(iii) a pro rata portion of (A) the Participant's
Elective Deferrals which result in matching contributions made
by the Employer in accordance with Article 4.1A hereof and (B)
such matching contributions made by the Employer.
The reductions directed hereby shall be made: by
holding Employer contributions in a suspense account to be
allocated on the last day of each succeeding Plan Year until the
funds in the suspense account have been completely reallocated,
provided that no further Employer contributions may be made to
the Plan until the suspense account has been completely
reallocated; and by returning Elective Deferrals from the
Participant Deferral Account to the Participant.
Any reductions to a Participant's Deferral Account
shall be appropriately adjusted for investment gains, losses or
other income. No investment gains, losses, or other income
shall be allocated to a suspense account created under this
Article.
For purposes of this section, effective January 1,
1998, "Compensation" includes any elective deferral (within the
meaning of section 402(g)(3)) to section 401(k) plans and
similar arrangements. For purposes of this section,
Compensation for a Participant who is suffers from a Total and
Permanent Disability is the compensation such Participant would
have received for the Plan Year if the Participant had been paid
at the rate of compensation paid immediately before suffering
from such Total and Permanent Disability, with such imputed
compensation being available to all Participants who suffer from
a Total Permanent Disability for a fixed or determinable period
and being nonforfeitable when made.
(b) Defined Benefit Plan Limitations
As to any defined benefit plan maintained by the
Employer for any Plan Year the annual benefit cannot exceed the
lesser of:
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(i) $90,000 (or such other figure as determined
in accordance with the cost of living adjustment procedure of
IRC Section 415(d), but only for the year in which such
adjustment is effective), or
(ii) 100 percent of the Participant's average
annual compensation for the Participant's three highest paid
consecutive Plan Years; however, benefits of up to $10,000 a
Plan Year can be paid without regard to the 100% limitation if
the total retirement benefits payable to an Employee under all
defined benefit plans (as defined in IRC Section 414(j))
maintained by the Employer for the present and any prior Plan
Year do not exceed $10,000 and the Employer has not at any time
maintained a defined contribution plan (as defined in IRC
Section 414(i)) in which the Employee was a Participant.
If the Participant has less than ten years of
participation in the Plan (as defined in IRC Section 415(b)(5)),
the applicable limitation in Section (b) (i) of the preceding
paragraph shall be reduced by multiplying such limitation by a
fraction. The numerator of such fraction shall be the number of
years, or part thereof, of participation in the defined benefit
plan maintained by the Employer; the denominator shall be ten
years.
If the Participant has less than ten years of service
as an employee (as defined in IRC Section 415(b) (5), the
applicable limitation in subparagraph (b) (ii) of this Section
shall be reduced by multiplying such limitation by a fraction.
The numerator of such fraction shall be the number of years, or
part thereof, of service with the Employer; the denominator
shall be ten years.
For purposes of this Subsection 5.4 (b) , the "annual
benefit" means a benefit payable annually in the form of a
straight life annuity with no ancillary or incidental benefits
and with no Employee or Rollover Contributions. To the extent
that ancillary benefits are provided, the limits set forth in
Subparagraphs (a) and (b) of the first paragraph of this Section
will be reduced actuarially, using an interest rate assumption
equal to 5% to reflect such ancillary benefits.
If distribution of retirement benefits begins before
the Social Security Retirement Age, the $90,000 limitation as
described in Subsection 5.4(b) shall be reduced actuarially on
the following basis:
(i) If the Social Security Retirement Age is 65
and distribution of benefits begins after the Participant has
attained age 62 but before the Social Security Retirement Age,
the reduction shall be 5/9 of 1% per month for each month by
which the first distribution precedes the Social Security
Retirement Age;
(ii) If the Social Security Retirement Age exceeds
65 and the distribution of benefits begins after the Participant
has attained age 62, the reduction shall be the sum of (A) and
(B), where
(A) is 5/9 of 1% per month for each of the
first 36 months; and
(B) is 5/12 of 1% per month for each
additional month (up to 24 months) by which benefits commence
before the month of the Participant's Social Security Retirement
Age;
(iii) If the distribution of benefits begins
before the Participant has attained age 62, the limitation will
be the actuarial equivalent of what it would have been if the
first distribution had been made when the Participant had
attained age 62; the assumed interest rate for such calculation
shall be 5%.
For purposes of this Subsection 5.4(b) the "average
annual Compensation for a Participant's three highest paid
consecutive years" shall mean the Participant's greatest
aggregate Compensation during the period of three consecutive
Plan Years in which the individual was an active Participant in
the plan.
(c) Combination Defined Benefit and Defined
Contribution Plan Limitations
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If the Employer maintains one or more defined benefit
plans in addition to this Plan (and any other defined
contribution plans) the limitations of this Subsection 5.4(c)
shall apply in addition to those of Subsections 5.4 (a) and 5.4
(b) . The limitation of this Subsection 5.4(c) is that the sum
of the defined benefit plan fraction and the defined
contribution plan fraction for any Plan Year may not exceed 1.0.
The "defined benefit plan fraction" is a fraction:
(i) The numerator of which is the projected
annual benefit of the Participant under the Plan, (determined as
of the close of the Plan Year); and
(ii) The denominator of which (determined as of
the close of the Plan Year) is the lesser of (A) the maximum
dollar limitation, for such year as stated in Paragraph 5. 4 (b)
(i), multiplied by 1.25, or (B) the percentage of compensation
limitation which may be taken into account pursuant to Paragraph
5.4(b)(ii) multiplied by 1.4.
The "defined contribution plan fraction" for any year
is a fraction:
(i) The numerator of which is the sum of the
annual additions (as defined in IRC Section 4 15 (c) (2))to
the Participant's account as of the close of the Plan Year; and
(ii) The denominator of which is the sum, for all
years of an Employee's service with the Employer, of the lesser
for each year of (A) the maximum dollar limitation as stated in
the first paragraph of Subsection 5.4(a) for such year
multiplied by 1.25 or (B) the percentage of Compensation amount
in effect as stated in the first paragraph of Subsection 5.4(a)
for such year multiplied by 1.40.
5.5 Designation of Beneficiary
Each Participant may designate from time to time in
writing one or more Beneficiaries, who will receive the
Participant's vested Accrued Benefit in the event of the
Participant' s death. If the Participant dies without having
made a Beneficiary designation, the Trustee shall distribute
such benefits in the following order of priority to the deceased
Participant s: (a) spouse, (b) lineal descendants, (c) parents,
or (d) estate.
However, in the event of the death of a married
Participant, the surviving spouse must be the sole beneficiary
unless the surviving spouse has consented in writing to a
different election, has acknowledged the effect of such
election, and the consent and acknowledgment are witnessed by a
member of the Administrative Committee or a notary public. The
consent of spouse shall not be necessary if it is established to
the satisfaction of the Administrative Committee that there is
no spouse, the spouse cannot reasonably be located, or for such
other reasons as the regulations may prescribe. The consent of
a spouse as reason for not requiring such consent shall be
applicable only to that spouse. If the spouse of a Participant
becomes locatable or if a Participant remarries, it shall be the
duty of the Participant to bring that fact to the attention of
the Administrative Committee. If the Participant so notifies
the Administrative Committee, the Administrative Committee shall
then, if applicable, proceed to make available to such spouse
the consent of spouse procedures described in this Section.
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ARTICLE VI
VESTING
6.1 Participant Deferral Account 100 Percent Vested
The Accrued Benefit in the Participant Deferral Account
and Rollover Account shall be 100 percent vested at all times.
6. 2 Employer Account Vesting on Death, Retirement, or Total
Permanent Disability
If a Participant's employment is terminated for death,
on or after Normal Retirement Age, or for Total and Permanent
Disability, 100 percent of the Accrued Benefit in the
Participant's Employer Account, shall vest in the Participant
(or in his or her Beneficiary, as the case may be) and shall be
distributed or set aside in accordance with the provisions of
Article VII.
6. 3 Employer Account and Employer Matching Account Vesting
on Termination
If a Participant's employment is terminated except for
death, Total and Permanent Disability, or on or after Normal
Retirement Age the following percentages of the Accrued Benefit
in the Employer Account and Employer Matching Account of the
Participant shall vest in the Participant and shall be
distributed to or set aside for the Participant in accordance
with the provisions of Article VII:
Total Years of Service Cumulative Vested percentage
for Vesting of Employer Account
- ---------------------- ----------------------------
Less than 1 0%
1 25%
2 50%
3 or more 100%
The Accrued Benefit of a Participant which is not
vested as above provided shall be retained by the Trustee for
allocation as a Forfeiture, in accordance with the provisions of
Sections 4.2 and 7.11.
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ARTICLE VII
DISTRIBUTION OF BENEFITS
7.1 Method of Distribution of Benefits
The normal form of annuity payable under the plan shall
be either a Qualified Joint and Survivor Annuity under section
7.14 of the Plan or a Qualified Pre-retirement Survivors Annuity
under section 7.15 of the Plan; provided, however, that a
Participant may waive the right to receive such an annuity and
elect instead to receive any benefits payable under the Plan
either in (i) a lump sum, (ii) installments over a period up to
10 years, (iii) any combination of (i) or (ii), or (iv) an
annuity over the life of the Participant, over the life of the
Participant and the Participant's designated beneficiary, or
over a specified period of time not extending beyond the joint
life and last survivor expectancy of the Participant and the
Participant's designated beneficiary.
With the approval of the Administrative Committee
distributions may also be payable in the form of Hardship
Distributions or Loans.
7.lA Hardship Distribution
A Participant may apply in writing to the
Administrative Committee for a hardship withdrawal of part or
all of his or her Participant Deferral Account balance,
excluding any earnings thereon after December 31, 1988. The
Administrative Committee in its discretion and in accordance
with the provisions of this Section 7.lA shall determine what
portion or all of such vested Account Balance is necessary to
alleviate the hardship. A distribution is on account of
hardship only if the distribution both is made on account of an
immediate and heavy financial need of the Participant as
determined in accordance with Subsection (a) below and is
necessary to satisfy such financial need as determined
in accordance with Subsections (b) and (c) below. The
determination by the Administrative Committee of the existence
of an immediate and heavy financial need and of the amount
necessary to meet the need shall be made in a nondiscriminatory
and uniform manner. The determination of hardship by the
Administrative Committee shall be final and binding.
(a) The determination by the Administrative Committee
of whether a Participant has an immediate and heavy financial
need is to be made on the basis of all relevant facts and
circumstances, and must be for one of the reasons specified in
(i) - (iv), below. A financial need shall not fail to qualify
as immediate and heavy merely because such need was reasonably
foreseeable or voluntarily incurred by the Participant. A
distribution will be deemed to be made on account of an
immediate and heavy financial need of the Participant if the
distribution is on account of:
(i) medical expenses (deductible within the
meaning of IRC Section 213(d)) incurred by the Participant, the
Participant's spouse, or any dependents of the Participant;
(ii) the purchase (excluding mortgage payments) of
a principal residence of a Participant;
(iii) tuition and related educational fees for the
next 12 months of post-secondary education for the Participant,
or the Participant's spouse, children or dependents (as defined
in IRC Section 152); or
(iv) the need to prevent the eviction of the
Participant from his or her principal residence or foreclosure
on the-mortgage of the Participant's principal residence.
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(b) A distribution will not be treated as necessary to
satisfy an immediate and heavy financial need of a Participant
to the extent the amount of the distribution is in excess of the
amount required to relieve the financial need or to the extent
such need may be satisfied from other sources that are
reasonably available to the Participant. This determination by
the Administrative Committee is to be made on the basis of all
relevant facts and circumstances. A distribution generally may
be treated as necessary to satisfy a financial need if the
Administrative Committee reasonably relies upon the
Participant's representation that the need cannot be relieved--
(i) through reimbursement or compensation by
insurance or otherwise,
(ii) by reasonable liquidation of the
Participant's assets, to the extent such liquidation would not
itself cause an immediate and heavy financial need,
(iii) by cessation of Elective Deferrals under the
Plan,
(iv) by other distributions or nontaxable (at the
time of the loan) loans from plans maintained by the Employer or
by any other employer, or
(v) by borrowing from commercial sources on
reasonable commercial terms.
For purposes of this Subsection (b), the Participant's
resources shall be deemed to include those assets of his or her
spouse and minor children that are reasonably available to the
Participant. Property owned by the Participant and the
Participant's spouse, whether as community property, joint
tenants, tenants by the entirety, or tenants in common, will be
deemed a resource of the Participant. However, property held
for the Participant's child under an irrevocable trust or under
the Uniform Gifts to Minors Act will not be treated as a
resource of the Participant.
(c) A distribution will be deemed to be necessary to
satisfy an immediate and heavy financial need of a Participant
if all of the following requirements are satisfied:
(i) the distribution is not in excess of the
amount of the immediate and heavy financial need of the
Participant,
(ii) the Participant has obtained all
distributions, other than hardship distributions, and all
nontaxable loans currently available under all plans maintained
by the Employer, and
(iii) the Participant does not make an Elective
Deferral for a 12 month period following the date of receipt of
the hardship distribution, nor does the Participant make
Deferral Contributions for the taxable year immediately
following the taxable year of the hardship distribution in
excess of the limit specified at Section 402(g) (5) of the IRC
(adjusted for the cost of living) for such next taxable year
less the amount of such Participant's Deferral Contribution for
the taxable year of the hardship distribution.
7.2 Cash-out Distribution of Account
Notwithstanding anything herein to the contrary, if a
Participant's vested Accrued Benefit at the time of termination
of employment (through severance, death, or Total and Permanent
Disability) does not exceed $5,000, the entire amount of such
Accrued Benefit shall be distributed in the form of a Cash-Out
within 90 days after such termination of employment, or as soon
as administratively feasible thereafter, and the non-vested
portion will be treated as a forfeiture.
7.3 Time of Distribution
(a) After the Participant has attained the Normal
Retirement Age, has died, or has terminated employment, then the
lump-sum payment shall be made no more than 90 days after the
end of the Plan Year in which the event occurs; provided,
however, unless the distribution is made in the form of a
Cash-Out, the distributions shall be made no earlier than the
time at which the Participant has incurred a One Year Break in
Service or is 100 percent vested as
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to his or her Employer Account. If the distribution is made
prior to the time the Participant attains the later of age 62 or
the Normal Retirement Age under the Plan, the Participant must
consent to the distribution, unless it is in the form of an
involuntary Cash-out. If the distribution is delayed until the
Participant incurs a One Year Break in Service or is 100%
vested, it shall be made within 90 days of the occurrence of
such event. If the Participant is 0% vested in his or her
Accrued Benefit, the account balance will be deemed to have been
distributed in the form of a Cash-Out. However, in all events
such distributions shall begin no later than 60 days after the
end of the Plan Year in which occurs the latest of the
following:
(i) the date on which the Participant attains the
earlier of age 65 or the Normal Retirement Age;
(ii) the fifth anniversary of the year in
which the Participant commenced participation in the Plan;
(iii) the Termination Date.
(b) The payment of a Participant's benefit will
commence not later than April 1 of the calendar year following
the later of the calendar year in which the Employee attains age
70-1/2 or the calendar year in which the Employee retires (or
age 70-1/2 if the Participant so elects), provided that in the
case of a Participant who is a Five-Percent Owner of the
Employer, payment of the Participant's benefit will begin by
April 1 of the calendar year following the calendar year in
which he attains age 70-1/2. All required distributions shall
be determined and made in accordance with the minimum
distribution requirements of IRC Section 401(a) (9) and the
regulations thereunder, including the minimum distribution
incidental benefit rules found at Proposed Treasury
Regulation Section 1.401(a)(9)-2.
(c) If the Participant dies after distributions have
begun but before distribution of his or her entire Accrued
Benefit, the remaining portion of his or her Accrued Benefit
shall be distributed from the Plan at least as rapidly as under
the method of distribution previously established for the
Participant, if such method is irrevocable at the time of death.
(d) If the Participant dies before distribution of his
or her interest commences, then distributions of the
Participant's remaining Accrued Benefit must be completed by the
end of the fifth calendar year following the year of death.
However, installment distributions to a designated Beneficiary
which begin not later than the end of the calendar year
following the death of the Participant shall be treated as
complying with this 5 year distribution requirement (even though
the installment payments are not completed within 5 years of the
Participant's death) if the distributions are made at a rate
which is not longer than that calculated (in the manner
described in paragraph (c) of this Section) to provide payment
of all the Participant's Accrued Benefit during the anticipated
life expectancy of the designated Beneficiary. Provided that if
the designated Beneficiary is the surviving spouse of the
deceased Participant, the distributions can begin as long after
the Participant's death as the date on which the deceased
Participant would have attained the age of 70-1/2; if the
surviving spouse dies before distributions to the surviving
spouse have begun, the Plan may make distributions at such times
as described in this Section as it would have if the surviving
spouse had been a deceased Participant.
(e) For purposes of this Section 7.3, any amount paid
to a child of a Participant will be treated as if it had been
paid to the surviving spouse of the Participant if such
remaining amount becomes payable to the surviving spouse when
the child reaches the age of majority.
(f) Notwithstanding any provision to the contrary, a
Participant who attains age 55 and completes 10 Years of Service
may retire at such time (or, at his election, as of the first
day of any month thereafter prior to his Normal Retirement Age)
and shall thereupon be entitled to receive his Accrued Benefit,
payable pursuant to the provisions of this Article.
7.4 Segregation if Installment Distribution
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The Administrative Committee may determine that the
Employer and Employee Accounts of a Participant who is no longer
an Employee shall be segregated and set aside, in which event
the Administrative Committee shall direct the Trustee to
segregate the vested portion (as defined in Article VI) of the
entire balance of the Participant's Employer Account and
Participant Deferral Account, if applicable, and to deposit such
portion in a separate interest bearing account at a bank or
savings and loan association, and said account shall cease to
participate in the income or net loss or appreciation or
depreciation of the Trust Fund, as of the beginning of the Plan
Year in which such segregation occurs, and instead will be
credited with the full amount of interest earned thereon.
7.5 Non-segregation if Installment Distribution
In the event the Administrative Committee does not
segregate (as provided in Section 7.4) the Employer Account and
Participant Deferral Account, if applicable, of a Participant,
said account shall continue to be treated, without interruption,
in the same manner as when the Participant was an Employee, in
which case the installment distributions shall be adjusted
upward or downward to reflect appreciation or depreciation, or
income or loss in the account balance.
7.6 Distribution After Death of Participant
In the event of the death of a Participant after
installment payments have begun, but prior to completion of such
payments, the full amount of such unpaid benefits shall continue
to be paid in the form of the previously established
installments except that the Beneficiary may request that the
remaining Accrued Benefit be paid in a lump sum.
In the event of the death of the Participant prior to
the start of any payments of his or her Accrued Benefit,
distributions shall be made in the form and at the time or times
selected by the Beneficiary pursuant to Sections 7.2 and 7.3.
7.7 Distribution After Death of Beneficiary
In the event of the death of a Beneficiary (or a
contingent Beneficiary, if applicable) prior to the completion
of payment of benefits due the Beneficiary from the Plan, the
full amount of such unpaid benefits shall at once vest in and
become the property of the estate of said Beneficiary. In
determining the amount of such unpaid benefits, no adjustment
shall be made by reason of any net income, or net loss, of the
Trust, or any net appreciation or net depreciation by the
Trust's assets subsequent to the beginning of the Plan Year in
which such final distribution occurs.
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7.8 Rollover from Plan
The Administrative Committee may, but only with the
prior written consent of the Participant, transfer part or all
of the funds credited to the Participant's Employer and
Participant Deferral Accounts to a retirement plan, as described
in IRC Section 401(a) or Section 403(a) as to which the
individual is a Participant at the time of such distribution.
7.8A Rollover from Plan After January 1, 1993
(a) This Section 7.8A applies to distributions made
on or after January 1, 1993. Notwithstanding any provision of
the Plan to the contrary that would otherwise limit a
distributee's election under Section 7.8, a distributee may
elect, at the time and in the manner prescribed by the Plan
Administrator, to have any portion of an eligible rollover
distribution paid directly to an eligible retirement plan
specified by the distributee in a direct rollover.
(b) Definitions under Section 7.8A.
(i) Eligible rollover distribution: An eligible
rollover distribution is any distribution of all or
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any portion of the balance to the credit of the distributee,
except that an eligible rollover distribution does not include:
any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a special period of
ten years or more; any distribution to the extent such
distribution is required under IRC Section 401(a) (9), and the
portion of the distribution that is not includable in gross
income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).
(ii) Eligible retirement plan. An eligible
retirement plan is an individual retirement account described in
IRC Section 408(a), an individual retirement annuity described
in IRC Section 408(b), an annuity plan described in Section
403(a), that accepts the distributee's eligible rollover
distribution. However, in the case of an eligible rollover to
the surviving spouse, an eligible retirement plan is an
individual retirement account or individual retirement annuity.
(iii) Distributee. A distributee includes an
employee or former employee. In addition, the employee's or
former employee's surviving spouse and the employee's or former
employee's spouse or former spouse who is the alternate payee
under a qualified domestic relations order, as defined in IRC
Section 414(p), are distributees with regard to the interest of
the spouse or former spouse.
(iv) Direct rollover. A direct rollover is a
payment by the plan to the eligible retirement plan specified by
the distributee.
7.10 Unable to Locate Participant or Beneficiary
If the Participant or Beneficiary to whom benefits are
to be distributed cannot be located, and reasonable efforts have
been made to find him or her, including the sending of
notification by certified or registered mail to the last known
address, the Administrative Committee may direct the Trustee to
take any of the following actions:
(i) Distribute the benefits in question to an interest
bearing savings account established in the name of the
Participant or Beneficiary; or, if the benefits are payable to a
Participant (as reasonably determined by the Administrative
Committee) the Administrative Committee may instruct the Trustee
to distribute the funds to the Participant by placing them in a
savings account in the Participant's name or by purchasing U.S.
Savings Bonds in the Participant's name and holding them for the
Participant;
(ii) If the Administrative Committee has taken the
reasonable efforts, as described in the preceding sentence, to
locate the Participant, the Administrative Committee may
allocate the Participant's Accrued Benefits to a segregated
account in the manner described in Section 7.4, as if an
installment distribution were being made; however, such funds
shall be held in the segregated account for distribution to the
Participant when located;
(iii) The Participant's Accrued Benefits may be
forfeited and reallocated pursuant to Sections 6.4, 4.lA and
4.2, in that order of priority; if the Participant subsequently
returns, such Forfeiture shall be restored pursuant to Section
6.4 and the restoration shall be made first out of Forfeitures,
if any, and then by additional Employer contributions.
The participant's Accrued Benefits may be forfeited and
reallocated pursuant to Sections 4.1A and 4.2, in that order of
priority; if the Participant subsequently returns, such
Forfeiture shall be restored pursuant to Section 7.11 and the
restoration shall be made first out of Forfeitures, if any, and
then by additional Employer contributions.
7.11 Repayment of Cash-Out
If a participant receives a Cash-Out distribution from
the Plan as a result of ceasing to be an Employee, and is less
than 100 percent vested as to his or her Accrued Benefit at such
time, the Participant shall have the right, to repay to the Plan
the Cash-Out distribution received from it, prior to the sooner
of (i) five years from the individual again
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becoming an Employee, or (ii) the completion of five consecutive
One Year Breaks in Service following the date of distribution of
the Cash-Out to the Participant. If the Participant makes such
payment within the time specified in the preceding sentence, the
Participant's forfeited amounts of his or her Accrued Benefit
will be restored to the amount on the date of such Cash-Out
distribution. If a Participant is deemed to receive a
distribution pursuant to Section 7.3, and the Participant
resumes employment covered under this Plan before the date the
Participant incurs five consecutive One Year Breaks in Service,
upon the reemployment of such Participant, the Participant's
forfeited amounts of his or her Accrued Benefit will be restored
to the amount on the date of such deemed distribution. The
permissible sources of restoration of the forfeited portion of a
Cash-Out distribution are: income or gains from Plan
investments, Forfeitures and Employer contribution.
7.12 Qualified Domestic Relations Orders
Notwithstanding any other provisions of Article VII,
any Accrued Benefit of a Participant may be apportioned between
the Participant and the alternate payee (as defined in IRC
Section 414 (p) (8)) either through separate Accounts or by
providing the alternate payee a percentage of the Participant's
Account. The Administrative Committee may direct distributions
to an alternate payee pursuant to a qualified domestic relations
order as defined in IRC Section 414 (p) (1) (A) prior to the
date on which the Participant attains the earliest Retirement
Age, provided that the Administrative Committee has properly
notified the affected Participant and each alternate payee of
the order and has determined that the order is a qualified
domestic relations order as defined in IRC Section 414 (p) (1)
(A) . The alternate payee shall be paid his or her separate
Account or his or her percentage of the Participant's Account,
computed as of the valuation date described in Section 5.3, in a
lump sum payment notwithstanding the value of such lump sum
payment unless the domestic relations order specifies a
different manner of payment permitted by the Plan; the
alternate payee shall not be required to consent to such lump
sum payment. The Administrative Committee shall adopt
reasonable procedures to determine the qualified status of
domestic relations orders and to administer the distributions
thereunder. In no event will a domestic relations order which
provides that a former spouse is to be treated as the current
spouse of a Participant be considered a qualified domestic
relations order under this Plan notwithstanding that such
domestic relations order is a qualified domestic relations order
as defined in IRC Section 414(p)(1)(A).
7.13 Distributions Attributable to Elective Deferrals
In the event distributions attributable to Elective
Deferrals are made, such distributions may not be distributed
earlier than upon one of the following events: (i) the
Participant's retirement, death, disability, or separation from
service or (ii) the Participant's attainment of age 59-1/2 or
the Participant's hardship. In the event such distribution is
made in the form of a lump sum then such distributions may not
be distributed earlier than upon one of the following events:
(i) the termination of the Plan without establishment or
maintenance of another defined contribution plan (other than an
ESOP or SEP); (ii) the sale or other disposition by the Employer
to an unrelated corporation of substantially all of the assets
used in the Employer's trade or business (or its interest in a
subsidiary), but only with respect to Participants who continue
employment with the acquiring corporation (or the subsidiary)
and the acquiring corporation does not maintain the Plan after
the disposition.
7.14 Joint and Survivor Annuity Option for Married
Participants.
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Notwithstanding anything in this Article VII to the
contrary, the normal form of annuity payable to a married
Participant shall be a Qualified Joint and Survivor Annuity.
The term "Qualified Joint and Survivor Annuity" shall mean an
annuity for the life of the Participant and a survivor annuity
for the life of his spouse which is not less than 50% of (and is
not greater than 100% of) the amount of the annuity which is
payable during the joint lives of the Participant and his
spouse. Such annuity will be the amount of benefit which can be
purchased with the Participant's total account balances under
this Plan. A married Participant may waive the Qualified Joint
and Survivor Annuity option in accordance with the provisions of
this Section 7.14.
(a) On or about the date nine months prior to each
Participant's Normal Retirement Age, the Plan Administrator
shall provide him with a written notice and explanation of the
form of benefits under the Plan, including such information
required under Section 401(a) (11) of the Code and the
regulations thereunder, an explanation of the rights of a
Participant's spouse, and notice of his right to elect to forego
the normal form of annuity for married Participants. The
Participant may exercise his right to elect an optional form of
annuity in lieu of the normal form at any time during an
election period specified below; provided, however, that such
election (or any revocation of a previous election) shall be
effective only if made in writing on a form provided by the Plan
Administrator for that purpose, signed by the Participant and
delivered to the Plan Administrator during the election period.
(b) The election period shall commence on the date
that the Plan Administrator is required to provide the
Participant with notice of his right to make the election, as
described above, and shall terminate on the date sixty (60) days
prior to the commencement of his benefits, but in no event
earlier than ninety (90) days after his receipt from the Plan
Administrator of notice of this election. At any time before
the end of the election period, the Participant may file a
written request with the Plan Administrator for additional
written explanations of the terms and conditions of the form of
benefits which would result from his election of an optional
form of annuity. If such additional information is requested,
the foregoing election period shall terminate no earlier
than the date sixty (60) days after such additional material is
supplied to the Participant. In no event shall benefits
commence to any Participant, without his consent, prior to the
end of the election period described above. Subject to the
provisions of this Section 7.14(b), the election of an optional
form of annuity shall become effective at Normal Retirement
Age (regardless of whether the Participant continues in active
employment after such date), and shall remain in full force and
effect thereafter notwithstanding the reemployment or continued
employment of the Participant after his Normal Retirement Age.
(c) Subject to the provisions of this Section
7.14 (b), the Participant may revoke any previous election
under this Section and/or make a new election at any time during
the election period; provided, however, that any election shall
be subject to the notarized consent of the Participant's spouse.
7.15 Surviving Spouse's Benefit: Qualified Pre-retirement
Survivors Annuity
(a) Notwithstanding any provisions of this Plan to the
contrary, the following rules shall apply with respect to
benefits payable in the form of an annuity.
(1) If an actively employed Participant dies
prior to his Normal Retirement Age, and (2) he has, at that time
of his death, been married for at least 12 consecutive months to
his then present spouse, then his surviving spouse shall
be entitled to receive a death benefit in the form of a
Qualified Pre-retirement Survivor Annuity. The Qualified Pre-
retirement Survivor Annuity payable to the spouse shall
be a survivor annuity for the life of the spouse under which
payments to such spouse shall be equal to the amount which
would have been payable to such spouse as a survivor annuity
under Section 7.14, as though the Participant had attained
the earliest retirement age under the Plan and been
entitled to receive the benefit described at Section 7.14 on the
date preceding the date of his death. The Qualified Pre-
retirement Survivor Annuity shall be payable as a monthly
benefit commencing on the first day of the month next following
the Participant's death and continuing for the spouse's
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life. The Qualified Pre-retirement Survivor Annuity shall be
actuarially adjusted to reflect early commencement of payments.
(2) Notwithstanding the foregoing, a
surviving spouse's benefit shall not be payable under Section
7.15(a)(1) if the Participant has made a qualified election to
waive such benefit. Such election must be made during, and may
be revoked (and re-elected) during, the election period
described below, and shall be automatically waived upon the
death of the Participant's spouse prior to the death of the
Participant. The election period shall begin on the first day
of the Plan Year in which the Participant attains age 35 and
shall end on the date of the Participant's death prior to the
commencement of benefit payments to him under this Plan. If a
Participant separates from Service prior to the first day of the
Plan Year in which he attains age 35, the election period shall
begin on the date of separation. The Plan Administrator shall
provide each Participant within the period beginning on the
first day of the Plan Year in which the Participant attains
age 32 and ending with the close of the Plan Year in which the
Participant attains age 35, a written explanation of the
Qualified Pre-retirement Survivor Annuity. The written
explanation shall include: (i) the terms and conditions of the
Qualified Pre-retirement Survivor Annuity; (ii) the
Participant's right to make, and the effect of, an election to
waive the Qualified Pre-retirement Survivor Annuity; (iii) the
rights of a Participant's spouse; and (iv) the right to make,
and the effect of, a revocation of the previous election to
waive the Qualified Pre-retirement Survivor Annuity.
(b) If a married Participant (or a married Former
Participant, if applicable) dies (1) while actively employed
after his Normal Retirement Age, (2) after Retirement, but
before his benefit commencement date, then, unless the
Participant, pursuant to Section 7.14, has elected not to
take the joint and survivor option, his surviving spouse
shall be entitled to receive, in lieu of any other annuity
under this Plan, a monthly benefit commencing on the first
day of the month next following the Participant's death and
continuing for the spouse's life, in an amount which is the
actuarial equivalent of the benefit to which the Participant
would have been entitled had he retired and had his benefits
commenced on the day before his death.
(c) A partial or a total cash-out under this Plan
may not be made when the present value of the Qualified Joint
and Survivor Annuity or Qualified Pre-retirement Survivors
Annuity exceeds $5,000, unless the cash-out is consented to in
writing by the Participant and his spouse, if any, or in the
event that the participant predeceases his spouse, by the
surviving spouse. A partial or total cash-out may not
be made after the annuity starting date, where the present value
of the Qualified Joint and Survivor Annuity or Qualified
Pre-retirement Survivor Annuity does not exceed $5,000, unless
the cash-out is consented to in writing by the Participant and
Participant's spouse, if any, or in the event that the
Participant predeceases his spouse, by the surviving spouse.
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ARTICLE VIII
DUTIES AND AUTHORITY OF TRUSTEE
8.1 Receive Payments
The Trustee shall receive from the Employer the
payments made by it on account of its contributions under the
Plan, and made by Participants, if any, but the Trustee shall
have no duty to compute any amount due from the Employer or to
collect the same.
8.2 Evaluate Assets
The Trustee shall evaluate the assets of the Trust Fund
as of the close of the last day of each Plan Year at their fair
market value and the Administrative Committee or its agent will
allocate the sums contributed by the Employer and by
Participants, if any, plus the net income or minus the net loss
of the Trust Fund and plus the net appreciation or minus the net
depreciation in the trust assets to separate bookkeeping
accounts in the names of the respective Participants under the
Plan in accordance with the provisions of Article V.
Notwithstanding the foregoing, the Administrative Committee may
direct the Trustee to value the Trust Fund more frequently, as
it shall deem appropriate.
8.3 Segregation of Accounts
When directed in writing by the Administrative
Committee, the Trustee shall segregate the accounts of
terminated Participants in accordance with the provisions of
Sections 7.4 or 7.5, and make payments out of the Trust Fund
from time to time to the Participants or their Beneficiaries,
such payments to be made in the manner and in the amounts as may
be specified in the written instructions of the Administrative
Committee.
8.4 Tax Returns and Reports
If the Trustee is a corporate fiduciary, then such
Trustee shall prepare or cause to have prepared and filed, all
tax returns, reports, and related documents, except as otherwise
specifically provided in this Plan or unless the Administrative
Committee, in writing, relieves the Trustee of such obligation,
in part or entirely, in which case the Administrative Committee,
or the person or persons it designates, shall be responsible for
filing the tax returns, reports, and related filings, as
provided by the Administrative Committee. The Trustee shall be
entitled to rely on the accuracy of any written statement from
the Administrative Committee or from an officer of the Employer
as to those matters provided in Article IX.
8.5 Powers
The Trustee is authorized and empowered to:
(a) Invest and reinvest the Trust Fund, without
distinction between principal and income, in bank accounts,
certificates of deposit, common stocks, preferred stocks, bonds,
notes, debentures, mortgages, U.S. retirement plan bonds, and in
other property, real or personal, so long as the incidents of
ownership of such property are within the jurisdiction of the
United States, and so long as such investments do not violate
applicable law;
(b) Sell, exchange, convey, transfer, or otherwise
realize the value of any property held by it;
(c) Convert any stocks, bonds, or other securities; to
give general or special proxies or powers of attorney with or
without power of substitution; to exercise any warrants,
conversion privileges, subscription rights, or other options and
to make any payment incidental thereto; to consent to or
<PAGE>
otherwise
participate in corporate reorganizations or other
changes affecting corporate securities and to delegate
discretionary powers to pay any assessments or charges
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in connection therewith; and generally to exercise any of the
powers of an owner with respect to stocks, bonds, securities or
other properties held in the Trust Fund. The Trustee shall vote
"Qualifying Employer Securities" as directed by the
Administrative Committee which shall have the discretion, to
be exercised on a uniform and nondiscriminatory basis, to permit
Participants to direct such voting.
(d) Make, execute, acknowledge, and deliver any and
all documents of transfer and conveyance and any other
instruments that may be necessary or appropriate to carry out
the powers herein granted;
(e) Register any investments held in the Trust Fund in
its own name or in the name of a nominee or nominees and to hold
any investment in bearer form, but the books and records of the
Trustee shall at all times show that all such investments are
part of the Trust Fund;
(f) Invest all or a part of the Trust Fund in deposits
which bear a reasonable rate of interest in a bank or similar
financial institution, even though such institution is a Trustee
or other fiduciary, as defined in IRC Section 4975(e)(3);
(g) Invest in a common or collective trust fund or
pooled investment fund maintained by a bank or trust company or
a pooled investment fund of an insurance company qualified to do
business in the State of Kansas or elsewhere even though such
bank, trust company or insurance company is a disqualified
person, as defined in IRC Section 4975(e)(2);
(h) Make distributions to Participants or
Beneficiaries in cash, insurance policies or any other property;
(i) Perform all such acts, although not specifically
mentioned herein, as the Trustee may deem necessary to
administer the Trust Fund and to carry out the purpose of the
Trust; and
(j) Loan to Participants such amounts as are permitted
pursuant to Section 4.4, provided that no amount may be loaned
to an owner-employee or shareholder-employee, as defined in IRC
Section 4975(d).
8.6 Expenses
All brokerage costs, transfer taxes and similar
expenses incurred in connection with the investment and
reinvestment of the Trust Fund and all taxes of any kind
whatsoever which may be levied or assessed under existing or
future laws upon or in respect of the Trust Fund, and any
interest which may be payable on money borrowed by the Trustee
for the purpose of the Trust, shall be paid from the Trust Fund,
and, until paid, shall constitute a charge upon the Trust Fund.
All other administrative expenses incurred by the Trustee in the
performance of its duties, including such compensation to the
Trustee as may be agreed upon from time to time between the
Employer and the Trustee (in accordance with the Trustee's
standard schedule of fees in effect from time to time during the
time it administers this Trust, if applicable) and all proper
charges and disbursements of the Trustee, shall be paid by
the Employer, but until paid shall constitute a charge upon the
Trust Fund. If the Employer advises the Trustee in writing of
its determination to make no further contribution to this Trust,
the expenses of the Trustee shall thereafter be charged against
and paid out of the Trust Fund and a lien for the payment
thereof shall be impressed upon the assets of the Trust to be
charged proportionately against the amount standing to the
credit of each Participant. However, no person who is a
disqualified person (as defined in IRC Section 4975(e)(2)) and
who received full-time pay from the Employer, may receive
compensation from the Trust, except for reimbursement of
expenses properly and actually incurred.
The Trustee may inspect the records of the Employer
whenever such inspection may be reasonably necessary in order to
determine any fact pertinent to the performance of its duties as
the Trustee. The Trustee, however, shall not be required to
make such inspection, but may, in good faith, rely on any
statement of the Employer or any of its officers.
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8.7 Litigation
The Trustee shall not be required to participate in any
litigation either for the collection of monies or other property
due the Trust Fund, or in defense of any claim against the Trust
Fund unless the Trustee shall have been indemnified to its
satisfaction against all expenses and liability to which the
Trustee might become subject.
8.8 Written Instructions
When any act of the Trustee is based upon instructions
of the Employer or the Administrative Committee, the Trustee may
rely upon instructions in writing, signed by an officer of the
Employer, or upon written instructions from the Administrative
Committee, as appropriate.
8.9 Appointment of Investment Manager
The Trustee, with the written concurrence of the
Administrative Committee, may appoint an Investment Manager (as
defined in ERISA Section 3 (38)) , who shall have responsibility
for investment of the Trust Fund. The Investment Manager shall
have the investment powers granted the Trustee in Section 8.5
except to the extent the Investment Manager' s powers are
specifically limited by an agreement between the Trustee and
Investment Manager.
8.10 Removal and Resignation of the Trustee
The Employer may at any time remove any Trustee acting
hereunder or appoint a corporation and/or an individual or
individuals to be successor Trustee hereunder in the place of
any removed or resigning Trustee. Any Trustee may at any time
resign by giving written notice to the Employer, which
resignation shall take effect on the date therein specified and
which shall not be less than 30 days from the date of notice
unless the Employer shall agree to an earlier date.
8.11 Directed Investment Account
(a) Notwithstanding Section 5.2 herein, all
Participants may direct the Trustee as to the investment of all
or a portion of any one or more of their individual account
balances. Participants may direct the Trustee in writing to
invest their account in specific assets as permitted by the
Administrative Committee provided such investments are in
accordance with the Department of Labor regulations and are
permitted by the Plan. That portion of the account of any
Participant so directed will thereupon be considered a Directed
Investment Account.
<PAGE>
(b) A separate Directed Investment Account shall be
established for each Participant who has directed an investment.
The Directed Investment Account shall not share in Trust Fund
earnings, but it shall be charged or credited as appropriate
with the net earnings, gains, losses and expenses as well as any
appreciation or depreciation in market value during each Plan
Year attributable to such account. Such Directed Investment
Accounts may be valued more frequently if provided for by the
Administrative Committee.
(c) The Administrative Committee shall establish a
procedure, to be applied in a uniform and nondiscriminatory
manner, setting forth the permissible investment options under
this Section, how often changes between investments may be made,
and any other limitations that the Administrative Committee
shall impose on a Participant's right to direct investments.
(d) Elective Deferral Contributions made pursuant to
Section 4.1, Rollover Contributions made pursuant to Section
4.5, Company Matching Contribution made pursuant to Section 4.1A
and Employer Contributions made pursuant to Section 4.2 shall be
permitted to be invested in "Qualifying Employer Securities" as
such term is defined under ERISA, if so directed by the
Participant and permitted pursuant to guidelines adopted by the
Administrative Committee.
Neither the Trustee nor the Administrative Committee
will be held liable for the Participant's investment choice, so
long as the investment is made in accordance with this Section
8.11.
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ARTICLE IX
DUTIES AND AUTHORITY OF ADMINISTRATIVE COMMITTEE
9.1 Appointment
This Plan shall be administered by an Administrative
Committee, which shall consist of at least 2 but not more than 5
persons appointed by the board of directors of the Employer, who
shall signify in writing their acceptance of such appointment.
Any member of the Administrative Committee may resign upon
giving written notice to the board of directors of the Employer.
Each appointee shall hold office at the pleasure of the board of
directors. Members of the board of directors of the Employer
may be appointed members of the Administrative Committee.
Vacancies arising in the Administrative Committee from death,
resignation, removal or otherwise, shall be filled by the board
of directors, but the Administrative Committee may act
notwithstanding the existence of vacancies so long as there is
at least one member of the Administrative Committee.
At any time the board of directors of the Employer may
adopt a resolution abolishing the Administrative Committee and
assigning all of the duties of the Administrative Committee to
the Trustee; such resolution shall be effective as soon as it is
communicated in writing to both the Administrative Committee and
Trustee, or at any such subsequent effective date as is provided
in the resolution. Whenever such a resolution is effective as
to the Plan, the term "Trustee" shall be deemed to replace the
term "Administrative Committee." Such a resolution may be
rescinded by the board of directors and shall be effective as
soon as it is communicated in writing to the Trustee, or shall
be effective at such later date as is provided in the
resolution.
9.2 No Discrimination
The Administrative Committee shall not take any action
nor direct the Trustee to take any action that would result in
benefitting one Participant or group of Participants at the
expense of another, or discriminating between Participants
similarly situated, or applying different rules to substantially
similar sets of facts.
9.3 Majority Action
The Administrative Committee shall act by a majority
(or by all members if there be only one or two members) of the
number of members constituting the Administrative Committee at
the time of such action, and such action may be taken either by
vote at a meeting or in writing without a meeting.
<PAGE>
9.4 Powers
Except as otherwise provided in the Plan, the
Administrative Committee shall have control of the
administration of the Plan, with all powers necessary to enable
it to carry out its duties in that respect. Not in limitation,
but in amplification of the foregoing, the Administrative
Committee shall have power to amend the Plan, to interpret or
construe the Plan and to determine all questions that may arise
hereunder as to the status and rights of Participants and others
hereunder. The Administrative Committee may inspect the records
of the Employer or Trustee whenever such inspection may be
reasonably necessary in order to determine any fact pertinent to
the performance of the duties of the Administrative Committee.
The Administrative Committee, however, shall not be required to
make such inspection, but may, in good faith, rely on any
statement of the Trustee or Employer or any of its officers or
employees.
9.5 Filing Reports
The Administrative Committee shall furnish, or shall
see that the Employer furnishes, a summary of this Plan to all
Employees, as required by applicable Federal law. The
Administrative Committee shall furnish to the Trustee the names
of all Employees who become eligible as Participants, and the
Administrative Committee shall notify each
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Employee of his or her eligibility.
9.6 Records and Information
The Administrative Committee shall keep a complete
record of all its proceedings and all data necessary for the
administration of the Plan.
9.7 Information to Participants
The Administrative Committee shall direct the
maintenance of separate accounts of the Participants. It shall
give each Participant, at least once every year, information as
to the balance of his or her Employer Account and Participant
Deferral Account, if applicable.
9.8 Compensation of Members
The members of the Administrative Committee shall serve
without compensation for their services as such, but shall be
reimbursed by the Employer for all-necessary expenses incurred
in the discharge of their duties. If the Employer advises the
Administrative Committee in writing of its determination to make
no further contributions to the Plan, the expenses of the
Administrative Committee shall thereafter be charged against and
paid out of the Trust Fund and a lien for the payment thereof
shall be impressed upon the assets of the Trust to be charged
proportionately against the amount standing to the credit of
each Participant.
9.9 Review of Participant's Claims
In case the claim of any Participant or Beneficiary for
benefits under the Plan is denied, the Administrative Committee
shall provide adequate notice in writing to such claimant,
setting forth the specific reasons for such denial. The notice
shall be written in a manner calculated to be understood by the
claimant. The Administrative Committee shall afford a
Participant or Beneficiary, whose claim for benefits has been
denied, 60 days from the date notice of such denial is delivered
or mailed in which to appeal the decision in writing to the
Administrative Committee. If the Participant or Beneficiary
appeals the decision in writing within 60 days, the
Administrative Committee shall review the written comments and
any submissions of the Participant or Beneficiary and render its
decision regarding the appeal, all within 60 days of such
appeal.
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ARTICLE X
MODIFICATIONS FOR TOP HEAVY PLANS
10.1 Application of Article
The provisions in this Article X shall take precedence
over any other provisions in the Plan with which they conflict.
10.2 Definitions
(a) Top Heavy Plans. This Plan shall constitute a Top
Heavy Plan for a Plan Year if, as of the last day of the
preceding Plan Year, (or in the case of the Plan Year in which
occurs the effective date of this Plan, the last day of such
Plan Year) (i) the aggregate of the Employer and Participant
Deferral Accounts of Key Employees exceeds 60% of the aggregate
of the Employer and Participant Deferral Accounts of all
Employees under the Plan all valued as of the last day of the
preceding Plan Year (or in the case of the Plan Year in which
occurs the effective date of this Plan, the last day of such
Plan Year) , or (ii) if the Plan is part of a Top Heavy Group.
(b) Top Heavy Group. This Plan shall be deemed to be
a part of a Top Heavy Group if the plans which make up the group
of which this Plan is considered a part are such that, when
aggregated, the sum of (i) the present value of the cumulative
accrued benefits of Key Employees under all defined benefit
plans in the group and (ii) the cumulative accrued benefits in
the plan accounts of Key Employees under all defined
contribution plans in the group, exceeds 60% of the sum of such
amounts for all employees who participate in the plans of such
group. The group of plans of which this Plan shall be
considered a part includes: (i) all plans of the Employer in
which a Key Employee participates; (ii) all plans which enable a
plan in which a Key Employee participates to meet the
qualification requirements of IRC Section 401 (a) (4) or IRC
Section 410; and, (iii) all plans which the Employer, in its
discretion, decides to include, provided that the inclusion of
such plan or plans would not prevent the group of plans from
meeting the qualification requirements of IRC Section 401(a) (4)
and IRC Section 410.
(c) Key Employee. "Key Employee" means an Employee or
former Employee (or his or her Beneficiaries) who, at any time
during the Plan Year or any of the preceding four Plan Years, is
any of the following:
(i) An officer of the Employer if such
individual's annual Compensation exceeded 50% of the dollar
limitation under IRC Section 415(b)(1)(A).
(ii) one of the ten Employees owning (or
considered as owning within the meaning of IRC Section 318) the
largest interests in the Employer if such individuals
Compensation exceeded 100% of the dollar limitation under IRC
Section 415(c)(1)(A).
(iii) A "five percent owner" of the Employer.
"Five percent owner" means any person who owns (or is considered
as owning within the meaning of IRC Section 318) more than 5% of
the outstanding stock of the Employer or stock possessing more
than 5% of the total combined voting power of all stock of the
Employer.
(iv) A "one percent owner" of the Employer
receiving annual Compensation from the Employer of more than
$150,000. "One percent owner" means any person who owns (or is
considered as owning within the meaning of IRC Section 318) more
than 1% of the outstanding stock of the Employer or stock
possessing more than 1% of the total combined voting power of
all stock of the Employer.
In determining percentage ownership hereunder,
employers that would otherwise be aggregated under IRC Section
414(b), (c), (m) and (o) shall be treated as separate employers.
However, in determining whether an individual receives
compensation of more than $150,000 compensation from each
employer required to be aggregated under IRC
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Section 414 (b), (c) and (m) shall be taken into account.
(d) Amounts Included for Computation Purposes. In
determining, for the purposes of this Section 10.2, the amount
an Employee's accrued benefits and account balances, there shall
included therein the present value of all distributions made
within a five year period ending on the date such determination
is made, including distributions from terminated plans required
to be considered pursuant to Section 10.2(b). Furthermore, the
accrued benefits and account balances of any Employee who is not
a Key Employee for the Plan Year in question, but was a Key
Employee in any previous Plan Year, shall not be taken into
consideration in making any of the computations required in this
Section 10.2. The accrued benefit of any individual who has not
performed any service for the Employer within the five year
period ending on the date such determination is made shall not
be taken into account for purposes of Section 10.2. Except to
the extent provided in regulations of the Secretary of the
Treasury, any rollover contributions (or similar transfers) made
to the Plan after December 31, 1983 shall not be taken into
consideration in making any of the computations required by this
Section 10.2.
(e) Non-Key Employee. A "Non-Key Employee" shall mean
any Employee who is not a Key Employee.
(f) Solely for the purpose of determining if the Plan,
or any other plan included in a Top Heavy Group of which this
Plan is a part, is top-heavy, the accrued benefit of a
Participant other than a Key Employee shall be determined under
(i) the method, if any, that uniformly applies for accrual
purposes under all plans maintained by the Employer or by other
members of an affiliated service group (under IRC Section 414
(m)), a controlled group of corporations (under IRC Section 414
(b)), a group of trades or businesses under common control
(under IRC Section 414(c)) of which the Employer is a member and
any other entity required to be aggregated with the Employer
pursuant to regulations under IRC Section 414(o), or (ii) if
there is no such method, as if such benefit accrued not more
rapidly than the slowest accrual rate permitted under the
fractional accrual rate of IRC Section 411(b)(1)(C).
10.3 Top-Heavy Vesting
For any Plan Year in which this Plan is deemed to be a
Top Heavy Plan, the vesting schedule contained in Section 6.3
shall remain in force.
10.4 Minimum Contributions
For any Plan Year in which this Plan is determined to
be a Top Heavy Plan, either (i) a minimum Employer contribution
shall be made, pursuant to this Plan or another defined
contribution plan maintained by the Employer, to the account of
each non-Key Employee (except those who are separated from
service with the Employer at the end of the Plan Year), or (ii)
a minimum non-integrated benefit must be provided to each
non-Key Employee (except those who are separated from service
with the Employer at the end of the Plan Year), pursuant to a
defined benefit plan maintained by the Employer.
For the purposes of the first sentence of this Section
10. 4, the minimum Employer contribution provided to each
non-Key Employee (except those who are separated from service
with the Employer at the end of the Plan Year) shall be equal to
3% of such non-Key Employee's Compensation. If, however, the
Employer contribution, under this and any other defined
contribution plan required to be included in the Top Heavy Group
and maintained bythe Employer, for any Key Employee for such
Plan Year is less than 3% of such Key Employee's total
Compensation not in excess of $200,000 (for Plan Years beginning
before 1989), then, the Employer contribution to each
Participant (except those who are separated from service with
the Employer at the end of the Plan Year) shall equal the amount
which results from multiplying such Participant's Compensation
times the highest contribution rate of any Key Employee covered
by the Plan and shall include amounts elected to be deferred by
the Key Employee pursuant to an IRC Section 401(k) provision.
For the purposes of the first sentence of this Section
10.4, the minimum non-integrated benefit provided by
39
<PAGE>
<PAGE>
the Employer to each non-Key Employee (except those who are
separated from service with the Employer at the end of the Plan
Year) is an amount, which when expressed as an annual retirement
benefit, shall be no less than 2% of such non-Key Employee's
average annual Compensation for his or her 5 highest consecutive
years of service, multiplied by the Employee's years of service
with the Employer, not to exceed 10 years. For the purposes of
the preceding sentence, years of service with the Employer shall
not include years of service completed during any Plan Year
which begins before January 1, 1984, or years of service
completed during a Plan Year for which the Plan is not a Top
Heavy Plan. For the purposes of this Section 10.4, the minimum
benefit provided above shall be computed in the form
of a single life annuity, with no ancillary benefits, beginning
at Normal Retirement Age.
For the purposes of this Article X, "Compensation"
shall have the same meaning as it does throughout the Plan;
provided that it shall include such additional compensation as
is required to meet the requirements of IRC Section 415(c)(3).
10.5 Limitation on Compensation Taken into Account Under
Plan
For any Plan Year prior to Plan Years beginning before
January 1, 1989, in which this Plan is deemed to be a Top Heavy
Plan the definition of Compensation contained in Section 2.7
shall exclude amounts in excess of $200,000.
10.6 Modification of Defined Benefit and Defined
Contribution Plan Fraction
For any Plan Year in which the Plan is deemed to be a
Top Heavy Plan, the denominators of the defined benefit plan
fraction and the defined contribution plan fraction contained in
Section 5.4(c) (if such Section is included in this Plan) shall
be deemed to be modified by substituting 1.0 for 1.25.
Notwithstanding the above, if this Plan would not be deemed to
be a Top Heavy Plan if 90% were substituted for 60% in Section
10.2 and if the Employer provides benefits and/or makes
contributions to the Employer Accounts of non-Key Employees who
participate in defined benefit and/or defined contribution plans
maintained by the Employer, in amounts at least equal to that
which would be required by Section 10.4 after substituting 4%
for 3% in the second paragraph thereof, and by substituting 3%
for 2% in the third paragraph thereof, then the reduction in the
defined benefit plan fraction and the defined contribution plan
fraction as set forth in the preceding sentence, shall not be
made.
40
<PAGE>
<PAGE>
ARTICLE XI
AMENDMENT AND TERMINATION
11.1 Rights to Suspend or Terminate Plan
It is the present intention of the Employer to maintain
this Plan throughout its corporate existence. Nevertheless, the
Employer reserves the right, at any time, to discontinue or
terminate the Plan, to terminate the Employer's liability to
make further contributions to this Plan, to suspend
contributions for a fixed or indeterminate period of time. In
any event, the liability of the Employer to make contributions
to this Plan shall automatically terminate upon its legal
dissolution or termination, upon its adjudication as a bankrupt,
upon the making of a general assignment for the benefit of
creditors, or upon its merger or consolidation with any other
corporation or corporations.
11.2 Successor Corporation
In the event of the termination of the liability of the
Employer to make further contributions to this Plan, the
Employer's liability may be assumed by any other corporation or
organization which employs a substantial number of the
Participants of this Plan. Such assumption of liability shall
be expressed in an agreement between such other corporation or
organization and the Trustee under which such other corporation
or organization assumes the liabilities of this Trust with
respect to the Participants employed by it.
11.3 Amendment
To provide for contingencies which may require the
clarification, modification, or amendment of this Plan, the
Employer reserves the right to amend this Plan at any time. The
Employer, however, shall not have the right to amend this Plan
in any way which would deprive any Participant of the right to
receive his or her Accrued Benefits under the Plan, or which
would alter the basic purpose of the Plan, or which would give
the Employer any rights in the Trust Fund, or with respect to
Article III, and to Sections 4.1, 4.1A and 4.2, more than once
every six months (other than to comport with changes in the
Code, ERISA, or the rules and regulations thereunder).
Each Participant having at least three Years of Service
for Vesting at the time of the adoption of any amendment
changing any vesting schedule under the Plan, or prior to the
end of the election period set forth by this paragraph, shall
have the right to elect at any time, but no later than 60 days
after the later of (a) the date the amendment is adopted, (b)
the date on which the amendment is effective or (c) the date on
which the Participant is given written notice of the amendment,
to have his or her vested percentage computed under the Plan
without regard to such amendment.
11.4 100% Vesting on Termination of Plan
Upon termination or partial termination of the Plan and
Trust by formal action of the Employer or for any other reason,
or if Employer contributions to the Plan and Trust are
permanently discontinued for any reason, there shall be vested
100 percent in each Participant directly affected by such action
the amount allocated to the accounts of each such Participant,
and payment to such Participant shall be made in cash as soon as
practicable after liquidation of the assets of the Trust.
<PAGE>
11.5 Plan Merger or Consolidation
In the case of any merger or consolidation with, or
transfer of any assets or liabilities to, any other plan, each
Participant in this Plan must be entitled to receive (if the
surviving plan is then terminated) a benefit immediately after
the merger, consolidation, or transfer which is equal to or
greater than the benefit he would have been entitled to receive
immediately before the merger, consolidation, or transfer (if
this Plan had terminated).
41
<PAGE>
<PAGE>
ARTICLE XII
MISCELLANEOUS
12.1 Laws of Nebraska to Apply
This Plan shall be construed according to the laws of
the State of Nebraska, to the extent Federal laws do not
control.
12.2 Participant Cannot Transfer or Assign Benefits
None of the benefits, payments, proceeds, claims, or
rights of any Participant hereunder shall be subject to any
claim of any creditor of the Participant, nor shall any
Participant have any right to transfer, assign, encumber, or
otherwise alienate, any of the benefits or proceeds which he or
she may expect to receive, contingently or otherwise under this
Plan, except as specifically permitted in Section 4.4.
Notwithstanding any other provisions of this Section
12.2, the Trustee may make distributions pursuant to a qualified
domestic relations order (as defined in IRC Section 414(p)),
provided that the Plan Administrator has properly notified the
Participant and any alternate payee of the order and has
determined that the order is a qualified domestic relations
order. The Plan Administrator shall adopt reasonable procedures
to determine the qualified status of such orders and to
administer distributions thereunder. Notwithstanding any
restrictions on the time of distribution which would otherwise
apply under this Plan, distributions with respect to a qualified
domestic relations order may be made at any time required by the
order.
12.3 Right to Perform Alternative Acts
In the event it becomes impossible for the Employer,
the Administrative Committee or the Trustee to perform any act
required by this Plan, then the Employer, the Administrative
Committee or the Trustee may perform such alternative act which
most clearly carries out the intent and purpose of this Plan.
.
12.4 Reversion of Contributions Under Certain Circumstances
If this Plan shall not be initially approved and
qualified by the Internal Revenue Service as meeting the
requirements of IRC Section 401 and IRC Section 501, the
Employer may, at its election, either (a) cause the Trustee to
return to the Employer any amounts previously contributed by the
Employer to the Trust and the Participants, if any amounts have
been contributed by them, and immediately terminate the Plan or
(b) effect such amendments to the Plan as are necessary to
obtain the approval and qualification of the Plan by the
Internal Revenue Service.
All contributions made pursuant to Article IV are
conditioned on deductibility of such contributions under IRC
Section 404. To the extent that the deduction under IRC Section
404 for any year is disallowed, the contribution shall be
returned to the Employer within one year after disallowance of
the deduction.
If a contribution is made by an Employer by a mistake
of fact, the contribution may be returned to the Employer within
one year after the payment of the contribution.
Notwithstanding the above, earnings attributable to
amounts described in paragraphs two and three of this Section
12.4 shall not be returned to the Employer; losses attributable
to such amounts shall reduce the amount returned.
12.5 Plan Administrator Agent for Service of Process
The Plan Administrator is designated agent to receive
service of legal process on behalf of the Plan.
42
<PAGE>
<PAGE>
12.6 Filing Tax Returns and Reports
If the Trustee is not a corporate fiduciary, the Plan
Administrator shall prepare, or cause to have prepared, all tax
returns, reports, and related documents, except as otherwise
specifically provided in this Plan or unless the Administrative
Committee provides to the contrary in the manner prescribed in
Section 8.4.
12.7 Indemnification
The Employer agrees to indemnify all Directors,
Officers and Employees, who serve as members of the
Administrative Committee or who serve as Trustee, against all
liability arising in connection with their duties under the
Plan, except that this indemnification shall not include acts of
embezzlement, or diversion of Trust Funds by the Director,
Officer or Employee, nor shall it include acts of gross
negligence.
12.8 Number and Gender
When appropriate the singular as used in this Plan
shall include the plural and vice versa; and the masculine shall
include the feminine.
IN WITNESS WHEREOF, the parties have executed this
agreement this 31st day of December, 1991.
EMPLOYER
By ____________________ ATTEST: ________________
TRUSTEES
_______________________________
_______________________________
_______________________________
November 16, 1999
Board of Directors
Commercial Federal Corporation
2120 South 72nd Street
Omaha, Nebraska 68101
Re: Registration Statement on Form S-8
----------------------------------
Commercial Federal 401(k) Plan for Acquired Companies
Dear Board Members:
We have acted as special counsel to Commercial Federal
Corporation, a Nebraska corporation (the "Company"), in
connection with the preparation of the above-referenced
Registration Statement (the "Registration Statement") being
filed herewith under the Securities Act of 1933, as amended,
relating to participation interests in the Commercial Federal
401(k) Plan for Acquired Companies (the "Plan") and the sale to
Plan participants of 48,480 shares of common stock, par value
$.01 per share (the "Common Stock") of the Company, all as more
fully described in the Registration Statement. You have
requested the opinion of this firm with respect to certain legal
aspects of the proposed offering.
We have examined such documents, records and matters of
law as we have deemed necessary for purposes of this opinion and
based thereon, we are of the opinion that the Common Stock when
issued will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement on Form S-8 and to
references to our firm included under the caption "Legal
Opinion" in the Prospectus which is part of the Registration
Statement.
Very truly yours,
Housley Kantarian & Bronstein, P.C.
By: /s/ Gary R. Bronstein
-----------------------------
Gary R. Bronstein, Esquire
<PAGE>
INTERNAL REVENUE SERVICE DEPARTMENT OF TREASURY
DISTRICT DIRECTOR
P.O. BOX 2508
CINCINNATI, OH 45201
Employer Identification Number:
47-0658852
Date: APR 02 1999 DIN:
COMMERCIAL FEDERAL CORPORATION 17007004006019
C/O J MARK POERIO Person to Contact:
HOUSLEY KANTARIAN & BRONSTEIN PC MS. RHEE ID#75226
1220 19TH ST NW STE 700 Contact Telephone Number:
WASHINGTON, DC 20036 (312) 886-9587
Plan Name:
RAILROAD SAVINGS BANK FSB 401K
SAVINGS AND PROFIT SHARING PLAN
Plan Number: 001
Dear Applicant:
We have made a favorable determination on your plan,
identified above, based on the information supplied. Please
keep this letter in your permanent records.
Continued qualification of the plan under its present form
will depend on its effect in operation. (See section 1.401-
1(b)(3) of the Income Tax Regulations.) We will review the
status of the plan in operation periodically.
The enclosed document explains the significance of this
favorable determination letter, points out some events that may
affect the qualified status of your employee retirement plan,
and provides information on the reporting requirements for your
plan. It also describes some events that automatically nullify
it. It is every important that you read the publication.
This letter relates only to the status of your plan under
the Internal Revenue Code. It is not a determination regarding
the effect of other federal or local statutes.
This determination also applies to the proposed amendments
dated 12-22-98.
This plan has been mandatorily disaggregated, permissively
aggregated, or restructured to satisfy the nondiscrimination
requirements.
This plan satisfies the nondiscrimination in amount
requirement of section 1.401(a)(4)-1(b)(2) of the regulations on
the basis of a design-based safe harbor described in the
regulations.
This plan satisfies the nondiscriminatory current
availability requirements of section 1.401(a)(4)-4(b) of the
regulations with respect to those benefits, rights and features
that are currently available to all employees in the plan's
coverage group. For this purpose, the plan's coverage group
consists of those employees treated as currently benefitting for
purposes of demonstrating that the plan satisfies the minimum
coverage requirements of section 410(b) of the Code.
This letter considers the amendments required by the Tax
Reform of 1986, except as otherwise specified in this letter.
<PAGE>
<PAGE>
-2-
COMMERCIAL FEDERAL CORPORATION
This letter considers the changes in the qualifications
requirements made by the Uruguay Bound Agreements Act (GATT),
Pub. L. 103-465, and the Taxpayer Relief Act of 1997, Pub. L.
105-34, and the changes in the qualifications requirements made
by the Small Business Job Protection Act of 1996, Pub. L. 104-
188, that are effective before the first day of the first plan
year beginning after December 31, 1998.
The information on the enclosed Publication 794 is an
integral part of this determination. Please be sure to read and
keep it with this letter.
The requirement for employee benefit plans to file summary
plan description (SPD) with the U.S. Department of Labor was
eliminated effective August 5, 1997. For more details, call 1-
800-998-7542 for a free copy of the SPD card.
We have sent a copy of this letter to your representative
as indicated in the power of attorney.
If you have questions concerning this matter, please
contact the person whose name and telephone number are shown
above.
Sincerely yours,
/s/ Glenn E. Henderson
District Director
Enclosures:
Publication 794
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Commercial Federal Corporation on Form
S-8, regarding the Commercial Federal 401(k) Plan for Acquired
Companies, of our report dated August 12, 1999, appearing in and
incorporated by reference in the Annual Report on Form 10-K of
Commercial Federal Corporation for the year ended June 30, 1999,
and to the reference to us under the heading "Experts" in the
Prospectus.
/s/ Deloitte & Touche LLP
-----------------------------
Deloitte & Touche LLP
Omaha, Nebraska
Date: November 15, 1999
<PAGE>
<TABLE>
<CAPTION>
Form 5500-C/R Return/Report of Employee Benefit Plan OMB
Nos. 1210-0016
Department of the Treasury (With fewer than 100 participants)
1210-0089
Internal Revenue Service This form is required to be filed under sections 104 and 4065 of the Employee
---------- Retirement Income Security Act of 1974 and sections 6039D, 6047(e),
- -------------------
Department of Labor 6057(b), and 6058(a) of the Internal Revenue Code.
1998
Pension and Welfare Benefits Administration See separate instructions.
- -------------------
---------- This
Form is Open
Pension Benefit Guaranty Corporation to Public
Inspection.
- ------------------------------------------------------------------------------------------------------------------------
- ------------
For the calendar plan year 1998 or fiscal plan year beginning , 1998 and ending
,19
- ------------------------------------------------------------------------------------------------------------------------
- ------------
<S> <C> <C>
<C>
If A(1) through A(4), B, C, and/or D do not apply to this year's return/report For IRS Use Only
leave the boxes unmarked. EP-ID
You must check either box A(5) or A(6), whichever is applicable. See instructions.
- -------------------------------------------
A This return/report is: (5) Form 5500-C filer check
here. . . . [_]
(1) [_] the first return/report filed for the plan; (Complete only pages 1 and
3 through 6)
(2) [_] an amended return/report (Code section 6039D filers
see
(3) [_] the final return/report filed for the plan; or instructions on page 5.)
(4) [_] a short plan year return/report (less than 12 months). (6) Form 5500-R filer check
here. . . . [X]
(Complete only pages 1 and
2. Detach
pages 3 through 6 before
filing.) If
you checked box (1) or (3),
you must
file a Form 5500-C. (See
page 5 of the
instructions.)
B Check here if any information reported in 1a, 2a, 2b, or 5a changed since the last return/report for this plan . . .
. . [_]
C If your plan year changed since the last return/report, check here. . . . . . . . . . . . . . . . . . . . . . . . .
. . . [_]
D If you filed for an extension of time to file this return/report, check here and attach a copy of the approved
extension. [_]
- ------------------------------------------------------------------------------------------------------------------------
- --------
1a Name and address of plan sponsor (employer, if for a single-employer plan) 1b Employer identification
number (EIN)
(Address should include room or suite no.) 47-0130810
- ---------------------------------------
1c Sponsor's telephone
number
Commercial Federal Bank (402) 390-5246
2120 S. 72nd St., TWR 14
- ---------------------------------------
Omaha, NE 68124 1d Business code (see
instructions,
page 18)
522110
- ---------------------------------------
1e CUSIP issuer number
201647
- ------------------------------------------------------------------------------------------------------------------------
- --------
2a Name and address of plan administrator (if same as plan sponsor, enter "Same") 2b Administrator's EIN
SAME
- ---------------------------------------
2c Administrator's
telephone number
- ------------------------------------------------------------------------------------------------------------------------
- ---------
3 If the name, address, and EIN of the plan sponsor or plan administrator has changed since the last return/report
filed for
this plan, enter the information from the last return/report on lines 3a and/or 3b and complete line 3c.
a Sponsor ________________________________________________ EIN _________________ Plan number ________________
b Administrator ________________________________ EIN ____________________________________________
c If line 3a indicates a change in the sponsor's name, address, and EIN, is this a change in sponsorship only? (See
line 3c on
page 8 of the instructions for the definition of sponsorship.) Enter "Yes" or "No."
- ------------------------------------------------------------------------------------------------------------------------
- ------------
4 ENTITY CODE. (If not shown, enter the applicable code from page 8 of the instructions.) B
- ------------------------------------------------------------------------------------------------------------------------
- -----------
5a Name of plan Railroad Savings Bank, F.S.B. 401(k) Savings and Profit Sharing Plan 5b Effective date of plan
-------------------------------------------------------------------- (mo., day, yr.)
01/01/1991
---------------------------------------------------------------------------------
- ---------------------------------------
5c Three-digit
All filers must complete 6a through 6d, as applicable. plan number 004
6a [_] Welfare benefit plan 6b [X] Pension benefit plan
- ---------------------------------------
(Enter the applicable codes from page 9 of the information in the boxes.) ] [2] [_] [_] [_] [_] [_] [_]
[_]
in the boxes.) ] [_] [_] [_] [_] [_] [_] [_]
[_]
6c Pension plan features. (Enter the applicable pension plan feature codes from page 9 of
instruction in the boxes.) [C] [G] [_] [_] [_] [_] [_]
[_]
6d [_] Fringe benefit plan. Attach Schedule F (Form 5500). See instructions.
- ------------------------------------------------------------------------------------------------------------------------
- ------------
Caution: A penalty for the late or incomplete filing of this return/report will be assessed unless reasonable cause is
established.
- ------------------------------------------------------------------------------------------------------------------------
- ------------
Under penalties of perjury and other penalties set forth in the instructions, I declare that I have examined this
return/report,
including accompanying schedules and statements, and to the best of my knowledge and belief, it is true, correct, and
complete.
Signature of employer/plan sponsor Date
--------------------------------------------------------------
- ----------------------------
Type or print name of individual above
- ----------------------------------------------------------------
Signature of plan administrator _____________________________________________________ Date _________________________
Type or print name of individual signing above
- ------------------------------------------------------------------------------------------------------------------------
- ------------
For Paperwork Reduction Act Notice, see the instructions for Form 5500-C/R Form
5500-C/R (1998)
</TABLE>
<PAGE>
<TABLE>
Form 5500-C/R (1998) Form 5500-R filers, complete pages 1 and 2 only. Form 5500-C filers, complete page
1, Page 2
skip page 2, and complete pages 3 through 6.
- ---------------------------------------------------------------------------------------------------------
- -----------
<S> <C> <C>
<C>
6e Check investment arrangement(s):
(1) [_] Master trust (2) [_] Common/Collective trust (3) [_] Pooled separate account
- ---------------------------------------------------------------------------------------------------------
- -----------
7a Total participants: (1) At the beginning of plan year 90 (2) At the end of plan
year 80
b Enter number of participants with account balances at the end of the plan year (defined benefit plans
do not
complete this item) 80
c (1) Were any participants in the pension benefit plan separated from service with a deferred vested
benefit for which a Schedule SSA (Form 5500) is required to be attached? (see instructions)7c(1) (X)Yes (_)No
(2) If "Yes," enter the number of separated participants required to be reported 4
- ---------------------------------------------------------------------------------------------------------
- -----------
8a Was this plan terminated during this plan year or any prior plan year? If "Yes," enter the year8a (_)Yes (X)No
b Were all the plan assets either distributed to participants or beneficiaries, transferred to another
plan, or brought under the control of PBGC? . . . . 8b (_)Yes (_)No
c If line 8a is "yes" and the plan is covered by PBGC, is the plan continuing to file PBGC Form 1 and
pay premiums until the end of the plan year in which assets are distributed or brought under the
control of PBGC?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8c (_)Yes (_)No
- ---------------------------------------------------------------------------------------------------------
- ----------
9 Is this a plan established or maintained pursuant to one or more collective bargaining agreements?. 9
(_)Yes(X)No
- ---------------------------------------------------------------------------------------------------------
- ----------
10 If any benefits are provided by an insurance company, insurance service, or similar organization,
enter the number of Schedules A (Form 5500), Insurance Information, that are attached.
If none, enter - 0 -. - 0 -
- ---------------------------------------------------------------------------------------------------------
- ----------
11a (1) Were any plan amendments adopted during this plan year?11a(1) (_)Yes (X)No
(2) Enter the date the most recent amendment was adopted Month 03 Day 18 Year 94
b If line 11a is "Yes," did any amendment result in a retroactive reduction of accrued benefits for any
participant? . . . . . . . . . . . . . . . . . . . . . . . 11b ___
c If line 11a is "Yes," did any amendment change the information contained in the latest summary plan
description
or summary description of modifications available at the time of the amendment?11c ___
d If line 11c is "Yes," has a summary plan description or summary description of modifications that
reflects the
plan amendments referred to on line 11c been both furnished to participants? (see instructions)11d ___
- ---------------------------------------------------------------------------------------------------------
- -----------
12a If this is a pension benefit plan subject to the minimum funding standards, has the plan experienced
a funding
deficiency for this plan year? (see instructions)12a (_)Yes (X)No
b If line 12a is "Yes," have you filed Form 5330 to pay the excise tax?12b (_)Yes (_)No
c Is the plan administrator making an election under section 412(c)(8) for an amendment adopted after
the end of the plan year? (see instructions). . .12c (_)Yes (X)No
d If a change in the actuarial funding method was made for the plan year pursuant to a Revenue
Procedure
providing automatic approval for the change, indicate whether the plan sponsor/administrator agrees
to
the change . . . . . . . . . . . . . . . . . . . .12d (_)Yes (_)No
- ---------------------------------------------------------------------------------------------------------
- ----------
13a Total plan assets as of the beginning 2,891,239 and end 2,306,424 of the plan year
b Total liabilities as of the beginning 0 and end 0 of the plan year
c Net assets as of the beginning 2,891,239 and end 2,306,424 of the plan year
- ---------------------------------------------------------------------------------------------------------
- ----------
14 For this plan year, enter: a Plan income (429,837) d Plan contributions
0
b Expenses 154,978 e Total benefits paid
145,465
c Net income (loss)(subtract 14b from 14a) (584,815)
- ---------------------------------------------------------------------------------------------------------
- ----------
15 You may NOT use N/A in response to lines 15a through 15o. If you check "Yes," you must enter a
dollar amount
in the amount column. During this plan year:
a Was this plan covered by a fidelity bond?15a (X)Yes (_)No 500,000Amount
b If line 15a is "Yes," enter the name of the surety company Insurance Mgmt Association, Inc.
c Was there any loss to the plan, whether or not reimbursed, caused by fraud or dishonesty?15c (_)Yes (X)No
d Was there any sale, exchange, or lease of any property between the plan and the employer, any
fiduciary, any of
the five most highly paid employees of the employer, any owner of a 10% or more interest in the
employer, or
relatives of any such persons? . . . . . . . . . .15d (_)Yes (X)No
e Was there any loan or extension of credit by the plan to the employer, any fiduciary, any of the five
most
highly paid employees of the employer, any owner of a 10% or more interest in the employer, or
relatives of
any such persons?. . . . . . . . . . . . . . . . .15e (_)Yes (X)No
f Did the plan acquire or hold any employer security or employer real property?15f (_)Yes (X)No
g Has the plan granted an extension on any delinquent loan owed to the plan?15g (_)Yes (X)No
h Were any participant contributions transmitted to the plan more than 31 days after receipt or
withholding by the
employer?. . . . . . . . . . . . . . . . . . . . .15h (_)Yes (X)No
i Were any loans by the plan or fixed income obligations due the plan classified as uncollectible or in
default as of the close of the plan year?. . . . .15i (_)Yes (X)No
j Has any plan fiduciary had a financial interest in excess of 10% in any party providing services to
the plan or received anything of value from any such party?15j (_)Yes (X)No
k Did the plan at any time hold 20% or more of its assets in any single security, debt, mortgage,
parcel of real estate, or partnership/joint venture interests?15k (_)Yes (X)No
l Did the plan at any time engage in any transaction or series of related transactions involving 20%
or more of the current value of plan assets? . . .15l (_)Yes (X)No
m Were there any noncash contributions made to the plan the value of which was set without an appraisal
by an independent third party? . . . . . . . . . .15m (_)Yes (X)No
n Were there any purchases of nonpublicly traded securities by the plan the value of which was set
without an appraisal by an independent third party?15n (_)Yes (X)No
o Has the plan reduced or failed to provide any benefit when due under the plan because of insufficient
assets? . . . . . . . . . . . . . . . . . . . . .15o (_)Yes (X)No
- ---------------------------------------------------------------------------------------------------------
- -----------
16a Is the plan covered under the Pension Benefit Guaranty Corporation termination insurance program?
(_)Yes (X)No
(_)Not determined
b If line 16a is "Yes" or "Not determined," enter the employer identification number and the plan
number used to
identify it.
Employer identification number Plan number
- ---------------------------------------------------------------------------------------------------------
- -----------
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
OMB No.
1210-0016
----------
- -----------
SCHEDULE P ANNUAL RETURN OF FIDUCIARY
1998
(FORM 5500) OF EMPLOYEE BENEFIT TRUST ----------
- -----------
Department of the Treasury > Files as an attachment to Form 5500, 5500-C/R, or 5500-EZ This Form
is Open to
Internal Revenue Service > For the Paperwork Reduction Notice, see the Form 5500 instructions. Public
Inspection
<S> <C> <C>
<C>
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For trust calendar year 1998 or fiscal year beginning , 1998 and ending
, 199__
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1a Name of trustee or custodian
Intrust Bank, N.A.
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b Number, street, and room or suite no. (If a P.O. box, see the instructions for Form 5500, 500-C/R,
or 500-EZ.)
Box One
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c City or town, state, and ZIP Code
Wichita, KS 67201-5001
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2a Name of trust b Trust's employer
identification number
Railroad Savings Bank, F.S.B. 401(k) Savings and Profit Sharing Trust 48 1113510
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3 Name of plan if different from name of trust
Railroad Savings Bank, F.S.B. 401(k) Savings
and Profit Sharing Plan
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4 Have you furnished the participating employee benefit plan(s) with the trust financial information
required to be reported by the plan(s)?. . . . . [x] Yes [_] No
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5 Enter the plan sponsor's employer identification number as shown of Form 5500,
5500-C/R, or 5500-EZ. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 0130810
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Under penalties of perjury, I declare that I have examined this schedule, and to the best of my knowledge
and under it is true, contract, and complete.
Signature of fiduciary /s/ Lee Anne Thompson AVP & To Date 7-20-99
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INSTRUCTIONS
Section references are to the Internal Revenue Code.
PURPOSE OF FORM
You may use this schedule to satisfy the requirements under section 6033(a) for an annual
information return from every section 401(a) organization exempt from tax under section 501(a).
Filing this form will start the running of the statute of limitations under section 6501(a)
for any trust described in section 401(a), which is exempt from tax under section 501(a).
WHO MAY FILE
1. Every trustee of a trust created as part of an employee benefit plan as described in section
401(a).
2. Every custodian of a custodial account described in section 401(f).
HOW TO FILE
File Schedule P (Form 5500) for the trust year ending with or with any participating plan's plan
year.
Attach it to the Form 5500, 5500-C/R, or 5500-EZ filed by the plan for that plan year. A
separately filed Schedule P (Form 5500) will not be adopted.
If the trust or custodial account is used by more than one plan, file one Schedule P (Form 5500).
If a plan uses more that one trust, or custodial account for its funds, file one Schedule P (Form
5500) for each trust or custodial account.
TRUST'S EMPLOYER IDENTIFICATION NUMBER
Enter the trust employer identification number (EIN) assigned to the employee benefit trust or
custodial account, if one has been issued to you. The trust EIN should be used for transactions
conducted for the trust. If you do not have a trust EIN, enter the EIN you would use on Form
1099-R to report distributions from employee benefit plans and on Form 945 to report withheld
amounts of income tax from those payments.
NOTE: Trustees who do not have an EIN may apply for one on FORM SS-4, Application for Employer
Identification Number. You must be consistent and use the same EIN for all trust reporting
purposes.
SIGNATURE
The fiduciary (trustee or custodian) must sign this schedule. If there is more than one
fiduciary, the fiduciary authorized by the others may sign.
OTHER RETURNS AND FORMS THAT MAY BE REQUIRED
. FORM 990-T - For trusts described in section 401(a), a tax is imposed on income derived from
business that is unrelated to the purpose for which the trust received a tax exemption. Report
this income and tax on FORM 990-T, Exempt Organization Business Income Tax Return. (See sections
511 through 514 and the related regulations.)
. Form 1099-R If you made payments or distributions to individual beneficiaries of a plan,
report those payments on Form 1099-R. (See the instructions for Forms 1099, 1098, 5498, and W-
2G.)
FORM 945 - If you made payments or distributions to individual beneficiaries of a plan, you may
be required to withhold income tax from those payments. Use Form 945, Annual Return of Withheld
Federal Income Tax, to report taxes withheld from nonpayroll items. (See Circular E, Employer's
Tax Guide (Pub. 15), for more information.)
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MGA Schedule P (Form
5500) 1998
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
OMB No. 1210-0016
SCHEDULE SSA ANNUAL REGISTRATION STATEMENT IDENTIFYING SEPARATED ---
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(Form 5500) PARTICIPANTS WITH DEFERRED VESTED BENEFITS
1998
Under Section 6057(a) of the Internal Revenue Code -------
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File as an attachment to Form 5500 or 5500-C/R This
Form is NOT
Department of the Treasury For Paperwork Reduction Act Notice-, see the instructions for Open to
Public
Internal Revenue Service Form 5500 or 5500-C/R
Inspection
<S> <C>
<C>
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For the calendar year 1998 or fiscal year beginning , 1998 and pending
,19
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1a Name of plan sponsor (employer if for a single employer plan) 1b Sponsor's employer
identification number (EIN)
Commercial Federal Bank 47 0130810
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2a Name of plan Railroad Savings Bank, F.S.B. 401(k) Savings 2b Three digit
and Profit Sharing Plan plan number
001 ----------------------------------------------------------------------------------------------
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3 Enter one of the following Entry Codes in column (a) for each separated participant with deferred
vested
benefits that:
Code A - has not previously been reported.
Code B - has previously been reported under the above plan number but requires revisions to the
information
previously reported.
Code C - has previously been reported under another plan number but will be receiving their benefits
from the
plan listed above instead.
Code D - has previously been reported under the above plan number but is no longer entitled to those
deferred
vested benefits.
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</TABLE>
<TABLE>
<CAPTION>
USE WITH ENTRY CODE USE WITH ENTRY CODE
"A","B","C",or "D" "A" or "B"
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Enter Code for
nature and Amount of vested benefit
(a) (b) (c) form of -------------------------------------
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Entry Code|Social Security| Name of participant benefit | | Defined
|
Code | number | --------------------| (f) | contribution plan
|
| | | (d) | (b) |Defined benefit| -------------------
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| | |Type of | Payment |plan - periodic| (g) | (h)
|
| | |annuity | frequency| payment |Units or | Total
|
| | | | | | Shares | value
of|
| | | | | | |
account|
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<S> <C> <C> <C> <C> <C> <C> <C>
A | ###-##-#### |Richard Carpenter | A | A | 0 | 0 | 8,479
|
A | ###-##-#### |Janice M. Corcoran | A | A | 0 | 0 | 28
|
A | ###-##-#### |Marilyn J. Neill | A | A | 0 | 0 | 1,788
|
A | ###-##-#### |Nedra Ybarra | A | A | 0 | 0 | 4,278
|
D | ###-##-#### |Elizabeth Campbell | | | | |
|
D | ###-##-#### |Debbie Sandell | | | | |
|
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---------------------------------
USE WITH ENTRY CODES
"C"
--------------------------------
(I) | (j)
Previous sponsor's | Previous
employer | plan
identification | number
number |
--------------------------------
Richard Carpenter
Janice M. Corcoran
Marilyn J. Neill
Nedra Ybarra
Elizabeth Campbell
Debbie Sandell
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<PAGE>
[ ] Check here if additional participants are shown on attachments. All statements must include the
sponsor's
name, EIN, name of plan, plan number, and column identification letter for each column completed
for
line 3.
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[ ] Check here if plan is a government, church or other plan that elects to voluntarily file Schedule
SSA.
If so, complete lines 4 through 5c, and the signature area. Otherwise, complete the signature
area
only.
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4 Plan sponsor's address (number, street, and room or suite no.) (If a P.O. box, see the
instructions
for line 4.)
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City or town, state, and Zip code
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5a Name of plan administrator (if other than sponsor) | 5b Administartor's EIN
|
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5c Number, street, and room or suite no. (If a P.O. box, see the Instructions for line 4.)
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City or town, state, and Zip code
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Under penalties or perjury, I declare that I have examined this report, and to the best of my knowledge
and belief, it is true, correct, and complete.
Signature of plan administrator > . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Phone number of plan administrator > (402) 390-5246 Date >
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MGA Schedule SSA (Form 5500) (1998)
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