<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LEHMAN BROTHERS HOLDINGS INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other jurisdiction of Incorporation or Organization)
13-3216325
(I.R.S. Employer Identification No.)
3 World Financial Center
New York, New York 10285
(Address of Principal Executive Offices) (Zip Code)
Lehman Brothers Inc. Employee Ownership Plan
Lehman Brothers Holdings Inc. 1994 Employee Stock Purchase Plan
Lehman Brothers Holdings Inc. 1994 Management Ownership Plan
Lehman Brothers Holdings Inc. 1994 Management Replacement Plan
Lehman Brothers Holdings Inc. Tax Deferred Savings Plan
(Full Title of the Plans)
Thomas A. Russo, Esq.
Chief Legal Officer
Lehman Brothers Holdings Inc.
3 World Fiancial Center
New York, New York 10285
(Name and Address of Agent For Service
(212) 526-7000
(Telephone Number, Including Area Code, of Agent for Service)
Copy to:
Maxine L. Gerson, Esq.
Lehman Brothers Holdings Inc.
Two World Trade Center
New York, New York 10048
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Proposed Maximum
Maximum Aggregate Amount of
Title of Securities to Amount to be Offering Price Offering Price Registration
be Registered Registered Per Share (a) (a) Fee (a)
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.10 par
value per share (b) 3,366,677 $17.9375 $ 60,389,769 $ 20,825
Common Stock, $.10 par
value per share (c) 6,000,000 $17.9375 $107,625,000 $ 37,113
Common Stock, $.10 par
value per share (d) 16,650,000 $17.9375 $298,659,375 $102,987
Common Stock, $.10 par
value per share (e) 3,200,000 $17.9375 $ 57,400,000 $ 19,794
Common Stock, $.10 par
value per share (f) 2,500,000 $17.9375 $ 44,843,750 $ 15,464
---------------------------------------------------------------------------------------------------------
</TABLE>
(a) Pursuant to Rule 457(h) under the Securities Act of 1933, the
proposed maximum offering price per share, the proposed
maximum aggregate offering price and the amount of
registration fee have been computed on the basis of the
average high and low prices per share of Common Stock on the
New York Stock Exchange on May 31, 1994.
(b) Represents Common Stock issued under the Lehman Brothers Inc.
Employee Ownership Plan.
(c) Represents Common Stock issuable under the Lehman Brothers
Holdings Inc. 1994 Employee Stock Purchase Plan.
(d) Represents Common Stock issuable under the Lehman Brothers
Holdings Inc. 1994 Management Ownership Plan.
(e) Represents Common Stock issuable under the Lehman Brothers
Holdings Inc. 1994 Management Replacement Plan.
(f) Represents Common Stock issuable under the Lehman Brothers
Holdings Inc. Tax Deferred Savings Plan.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the Lehman Brothers Holdings Inc. Tax Deferred
Savings Plan described herein.
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If any of the securities being registered in this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. x .
---
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, previously filed by Lehman Brothers Holdings
Inc. (the "Registrant") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934 (the "Exchange
Act")or Rule 424 under the Securities Act of 1933, as amended (the Act"), are
hereby incorporated by reference in this Registration Statement:
(a) the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1993;
(b) the Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1994;
(c) the Registrant's Current Reports on Form 8-K dated February
24, 1994, April 14, 1994 and April 26, 1994;
(d) the description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A dated
April 29, 1994;
(e) the Registrant's Prospectus dated April 29, 1994, filed
pursuant to Rule 424 under the Act; and
(f) the Registrant's Tax Deferred Savings Plan (the "TDSP")
Annual Report on Form 11-K for the plan year ended December
30, 1992.
All documents filed by the Registrant or by the TDSP pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement indicating that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement and to be part
hereof from the date of filing such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Required.
<PAGE> 4
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Karen M. Muller, Esq., Deputy General Counsel of Lehman Brothers Inc.
and counsel to the Registrant, has rendered an opinion to the effect that,
under applicable state law, the shares of Common Stock issued pursuant to the
Lehman Brothers Inc. Employee Ownership Plan are validly issued, fully paid and
nonassessable and the other shares of Common Stock to which this Registration
Statement relates will be, when issued, validly issued, fully paid and
nonassessable.
The consolidated financial statements and financial statement
schedules of the Registrant at December 31, 1993 and 1992 and for each of the
three years in the period ended December 31, 1993 incorporated by reference in
this Registration Statement have been audited by Ernst & Young, independent
auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements and
schedules are, and audited financial statements included in subsequently filed
documents will be, incorporated herein by reference in reliance upon the
reports of Ernst & Young pertaining to such financial statements (to the extent
covered by consents filed with the Commission) given upon the authority of such
firm as experts in accounting and auditing.
The statements of net assets available for plan benefits of the TDSP
as of December 30, 1992 and 1991, the related statements of changes in net
assets available for plan benefits for the years ended December 30, 1992 and
for the period from January 1, 1991 to December 30, 1991, and the accompanying
supplemental schedules incorporated by reference in this Registration Statement
have been audited by Ernst & Young, independent auditors, as set forth in their
report thereon included therein and incoporated herein by reference. Such
consolidated financial statements and schedules are, and audited financial
statements included in subsequently filed documents will be, incorporated
herein by reference in reliance upon the reports of Ernst & Young pertaining to
such financial statements (to the extent covered by consents filed with the
Commission) given upon the authority of such firm as experts in accounting and
auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Restated Certificate of incorporation of the Registrant authorizes
the Registrant to indemnify its directors and officers to the fullest extent
permitted by Delaware General Corporation Law from time to time. In addition,
the directors of the Registrant are insured under officers' and directors'
liability insurance policies purchased by the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
3,366,677 of the shares of Common Stock registered under this
Registration Statement are securities which were issued to the Selling
Stockholders pursuant to the Lehman Brothers Inc. Employee Ownership Plan in an
exchange for phantom shares under Section 3(a)(9) of the Act. Such phantom
shares were offered and issued in a
<PAGE> 5
private placement transaction in reliance upon the exemption provided
by Section 4(2) of the Act and Rule 506 thereunder. The private placement
offering, which was restricted to a limited number of specified employees of
the Registrant and certain of its subsidiaries, was made pursuant to a Private
Placement Memorandum satisfying the requirements of Rule 502(b)(2) under the
Act, and was not made by any form of general solicitation or general
advertising. The private placement offering resulted in no more than 35
purchasers, as calculated pursuant to Rule 501(e) under the Act. The Common
Stock received in exchange for the phantom shares is subject to certain
restrictions on transferability and in certain instances such stock also is
subject to vesting requirements.
ITEM 8. EXHIBITS
The Exhibit Index beginning of page E-1 is hereby incorporated by reference.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement;
(i) To include any prospectus required by Section
10(a(3) of the Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this 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 this
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3, Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that
are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Act, each such post-effective amendment shall be deemed to
be a registration statement relating to the securities offered
therein, and the offering of such
<PAGE> 6
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the forgoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the 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.
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing 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 New York, State of New York, on this 1st day
of June, 1994.
LEHMAN BROTHERS HOLDINGS INC.
(Registrant)
By: Michael R. Milversted
-----------------------
Michael R. Milversted
Treasurer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
Chairman of the Board,
* Chief Executive Officer
------------------ and Director June 1, 1994
Richard S. Fuld, Jr (principal executive officer)
* Chief Financial Officer
------------------ (principal executive officer) June 1, 1994
Robert Matza
* Controller
------------------ (principal accounting officer) June 1, 1994
Stephen J. Bier
* Director June 1, 1994
------------------
Roger S. Berlind
* Director June 1, 1994
------------------
John J. Byrne
* Director June 1, 1994
------------------
Katsumi Funaki
*By /s/ Michael R. Milversted
--------------------------
Michael R. Milversted
(Attorney-in-Fact)
</TABLE>
<PAGE> 8
<TABLE>
<S> <C> <C>
* Director June 1, 1994
------------------
John D. Macomber
* Director June 1, 1994
------------------
Dina Merrill
* Director June 1, 1994
------------------
T. Chrisopher Pettit
* Director June 1, 1994
------------------
Masataka Shimasaki
* Director June 1, 1994
------------------
Malcolm Wilson
*By /s/ Michael R. Milversted
-------------------------
Michael R. Milversted
(Attorney-In-Fact)
</TABLE>
Pursuant to the requirement of the Securities Act of 1933, the
trustees of teh Lehman Brothers Inc. Tax Deferred Savings Plan have duly caused
this Registration Statement to be signed on their behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on this
1st day of June, 1994.
LEHMAN BROTHERS HOLDINGS INC.
TAX DEFERRED SAVINGS PLAN
By: Michael R. Milversted
----------------------
Michael R. Milversted
(Attorney-In-Fact)
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been duly signed by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
* Trustee June 1, 1994
------------------
Stephen J. Balog
*By /s/ Michael R. Milversted
--------------------------
Michael R. Milversted
(Attorney-In-Fact)
</TABLE>
<PAGE> 9
<TABLE>
<S> <C> <C>
* Trustee June 1, 1994
------------------
Eliot M. Fried
* Trustee June 1, 1994
------------------
Allan S. Kaplan
* Trustee June 1, 1994
------------------
Michael R. Milversted
* Trustee June 1, 1994
------------------
MaryAnne Rasmussen
*By /s/ Michael R. Milversted
-------------------------
Michael R. Milversted
(Attorney-In-Fact)
</TABLE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Filed Herewith (--) or
Exhibit Incorporated by
Number Description Reference to
------ ----------- ------------
<S> <C> <C>
4.1 Form of Restated Certificate of Incorporation of Exhibit 3.1 to Amendment No. 1 to
the Registrant the Registrant's Registration
Statement No. 33-52977
4.2 Restated By-Laws of the Registrant Exhibit 3.5 to Amendment No.1 to
the Registrant's Registration
Statement No. 33-52977
4.3 Lehman Brothers Inc. Employee Ownership Plan Exhibit 10.23 to Amendment No.1 to
the Registrant's Registration
Statement No. 33-52977
4.4 Amendment to the Lehman Brothers Inc. Employee Exhibit 10.23 to Amendment No.1 to
Ownership Plan the Registrant's Registration
Statement No. 33-52977
</TABLE>
<PAGE> 10
<TABLE>
<CAPTION>
Filed Herewith (--) or
Exhibit Incorporated by
Number Description Reference to
------ ----------- ------------
<S> <C> <C>
4.5 Lehman Brothers Holdings Inc. Employee Stock Exhibit 10.28 to Amendment No.1 to
Purchase Plan the Registrant's Registration
Statement No. 33-52977
4.6 Lehman Brothers Holdings Inc. 1994 Management Exhibit 10.24 to Amendment No.1 to
Ownership Plan the Registrant's Registration
Statement No. 33-52977
4.7 Lehman Brothers Holdings Inc. 1994 Management Exhibit 10.25 to Amendment No.1 to
Replacement Plan the Registrant's Registration
Statement No. 33-52977
4.8 Lehman Brothers Holdings Inc. Tax Deferred Savings --
Plan
4.9 Amendment to the Lehman Brothers Holdings Inc. Tax --
Deferred Savings Plan
5 Opinion of Karen M. Muller, Counsel to the --
Registrant
23.1 Consent of Ernst & Young, Independent Auditors of --
the Registrant
23.2 Consent of Ernst & Young, Independent Auditors of --
the Registrant's Tax Deferred Savings Plan
23.3 Consent of Karen M. Muller (included in Exhibit 5) --
24 Powers of Attorney --
</TABLE>
<PAGE> 1
Exhibit 4.8
LEHMAN BROTHERS HOLDINGS INC.
TAX DEFERRED SAVINGS PLAN
(as restated effective January 1, 1989
and subsequently amended through August 26, 1993
October 21, 1993 Edition
<PAGE> 2
LEHMAN BROTHERS HOLDINGS INC.
TAX DEFERRED SAVINGS PLAN
As Amended and Restated Effective January 1, 1993
Table of Contents
INTRODUCTION
ARTICLE I DEFINITIONS
1.1 Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.2 Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.3 Alternate Payee . . . . . . . . . . . . . . . . . . . . . . . . . .
1.4 American Express Stock . . . . . . . . . . . . . . . . . . . . . . .
1.5 Basic Contributions . . . . . . . . . . . . . . . . . . . . . . . .
1.6 Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.7 Black Out Period . . . . . . . . . . . . . . . . . . . . . . . . . .
1.8 Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . .
1.9 Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.10 Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.11 Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.12 Company Stock . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.13 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.14 Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.15 Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.16 Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.17 Employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.18 Employer Contributions . . . . . . . . . . . . . . . . . . . . . . .
1.19 Employment Date . . . . . . . . . . . . . . . . . . . . . . . . . .
1.20 Employer Suspense Account . . . . . . . . . . . . . . . . . . . . .
1.21 Highly Compensated Employee . . . . . . . . . . . . . . . . . . . .
1.22 Hour of Service . . . . . . . . . . . . . . . . . . . . . . . . . .
1.23 Investment Fund . . . . . . . . . . . . . . . . . . . . . . . . . .
1.24 Matching Contributions . . . . . . . . . . . . . . . . . . . . . . .
1.25 Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.26 Member's Account . . . . . . . . . . . . . . . . . . . . . . . . . .
1.27 Merger Date . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.28 Month of Service . . . . . . . . . . . . . . . . . . . . . . . . . .
1.29 Participant . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.30 Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.31 Plan Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.32 Qualified Domestic Relations Order . . . . . . . . . . . . . . . . .
1.33 Quarterly Window Date . . . . . . . . . . . . . . . . . . . . . . .
1.34 Restatement Date . . . . . . . . . . . . . . . . . . . . . . . . . .
1.35 Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . . .
1.36 Trust Fund(s) . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.37 Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.38 Valuation Date . . . . . . . . . . . . . . . . . . . . . . . . . . .
(i)
<PAGE> 3
ARTICLE II ELIGIBILITY FOR PARTICIPATION
2.1 Eligibility for Participation . . . . . . . . . . . . . . . . . . . .
2.2 Effective Date of Participation . . . . . . . . . . . . . . . . . . .
2.3 Duration of Participation . . . . . . . . . . . . . . . . . . . . . .
2.4 Reemployment . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE III BEFORE TAX SAVINGS, ROLLOVER CONTRIBUTIONS
AND TRANSFERS
3.1 Before Tax Savings . . . . . . . . . . . . . . . . . . . . . . . . .
3.2 Allocation to Participant's Account . . . . . . . . . . . . . . . . .
3.3 Participant's Election of Before Tax Savings . . . . . . . . . . . .
3.4 Limitation on Before Tax Savings Contributions . . . . . . . . . . .
3.5 Contributions in Excess of Section 401(k) Limit . . . . . . . . . . .
3.6 - Adjustment of Before Tax Savings Contributions . . . . . . . . . . .
3.7 Multiple Arrangements for Highly Compensated
Employees Combined . . . . . . . . . . . . . . . . . . . . . .
3.8 - Rollover Contributions and Other Transfers
from Qualified Plans . . . . . . . . . . . . . . . . . . . . .
ARTICLE IV EMPLOYER CONTRIBUTIONS
4.1 Employer Contributions . . . . . . . . . . . . . . . . . . . . . . .
4.2 Transfer to Trust Fund . . . . . . . . . . . . . . . . . . . . . . .
4.3 Allocation to Participant's Account . . . . . . . . . . . . . . . . .
4.4 Employer In-Kind Contributions . . . . . . . . . . . . . . . . . . .
ARTICLE V LIMITATIONS ON ANNUAL ADDITIONS TO
PARTICIPANT'S ACCOUNT
5.1 Limitations on Annual Additions . . . . . . . . . . . . . . . . . . .
5.2 Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.3 Ordering Rule for Multiple Plans . . . . . . . . . . . . . . . . . .
5.4 Coverage by Defined Benefit Plan . . . . . . . . . . . . . . . . . .
5.5 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.6 Limitation Year . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE VI INVESTMENT OF TRUST FUND AND MEMBER'S ELECTIONS
6.1 Member's Elections - Investment Options . . . . . . . . . . . . . . .
6.2 - Investment Transfers . . . . . . . . . . . . . . . . . . . . . . . .
6.3 - Investing Basic and Matching Contributions . . . . . . . . . . . . .
6.4 Investing of Employer Suspense Account . . . . . . . . . . . . . . .
6.5 Transfer of Assets . . . . . . . . . . . . . . . . . . . . . . . . .
6.6 Voting of Company Stock . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE VII VESTING, DISTRIBUTION TO MEMBERS
7.1 Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.2 Distribution Upon Termination of Employment . . . . . . . . . . . . .
(ii)
<PAGE> 4
7.3 Distribution Upon Death . . . . . . . . . . . . . . . . . . . . . . .
7.4 Delayed Distribution . . . . . . . . . . . . . . . . . . . . . . . .
7.5 Timing of Distribution . . . . . . . . . . . . . . . . . . . . . . .
7.6 Distribution Upon Attainment of Age 70-1/2 . . . . . . . . . . . . .
7.7 Distributions in Cash and Stock . . . . . . . . . . . . . . . . . . .
7.8 Withdrawals After Attainment of 59-1/2 . . . . . . . . . . . . . . .
7.9 Hardship Withdrawals . . . . . . . . . . . . . . . . . . . . . . . .
7.10 Debiting of Investment Fund . . . . . . . . . . . . . . . . . . . . .
7.11 Distributions to Alternate Payees . . . . . . . . . . . . . . . . . .
7.12 Fund to Fund Transfers . . . . . . . . . . . . . . . . . . . . . . .
7.13 Direct Rollover of Eligible Rollover
Distributions . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE VIII FINANCING
8.1 Trust Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.2 Contributions to the Trust . . . . . . . . . . . . . . . . . . . . .
8.3 Contributions in American Express Stock . . . . . . . . . . . . . . .
8.4 Non-Reversion . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.5 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8.6 Rights in the Trust Fund . . . . . . . . . . . . . . . . . . . . . .
8.7 Exclusive Benefit . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE IX ACCOUNTS AND RECORDS OF THE PLAN
9.1 Accounts and Records . . . . . . . . . . . . . . . . . . . . . . . .
9.2 Investment Funds . . . . . . . . . . . . . . . . . . . . . . . . . .
9.3 Adjustments to Member's Account to Reflect the
Net Worth of the Investment Fund . . . . . . . . . . . . . . .
ARTICLE X ADMINISTRATION
10.1 Employee Benefit Plans Committee . . . . . . . . . . . . . . . . . .
10.2 Rules of Administration . . . . . . . . . . . . . . . . . . . . . . .
10.3 Suspense of Investment Elections . . . . . . . . . . . . . . . . . .
10.4 Claims Procedure . . . . . . . . . . . . . . . . . . . . . . . . . .
10.5 Action by Majority . . . . . . . . . . . . . . . . . . . . . . . . .
10.6 Retention of Advisors . . . . . . . . . . . . . . . . . . . . . . . .
10.7 Committee Member Compensation . . . . . . . . . . . . . . . . . . . .
10.8 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . .
10.9 Named Fiduciary and Plan Administrator . . . . . . . . . . . . . . .
10.10 Service in Various Fiduciary Capacities . . . . . . . . . . . . . . .
10.11 Power of Delegation . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE XI BENEFICIARY DESIGNATION, INCOMPETENCY
AND NON-ALIENATION
11.1 Beneficiary Designation . . . . . . . . . . . . . . . . . . . . . . .
11.2 Incompetence . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11.3 Non-Alienation . . . . . . . . . . . . . . . . . . . . . . . . . . .
(iii)
<PAGE> 5
ARTICLE XII AMENDMENT AND TERMINATION
12.1 Amendment to Conform with Law . . . . . . . . . . . . . . . . . . . .
12.2 Other Amendment and Termination . . . . . . . . . . . . . . . . . . .
12.3 Limitations on Amendments . . . . . . . . . . . . . . . . . . . . . .
12.4 Termination of the Plan . . . . . . . . . . . . . . . . . . . . . . .
12.5 Merger or Consolidation or Transfer . . . . . . . . . . . . . . . . .
ARTICLE XII SPECIAL TOP-HEAVY RULES
13.1 Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13.2 Top-Heavy Plan . . . . . . . . . . . . . . . . . . . . . . . . . . .
13.3 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13.4 Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13.5 Present Value and Accounts . . . . . . . . . . . . . . . . . . . . .
13.6 Minimum Contribution . . . . . . . . . . . . . . . . . . . . . . . .
13.7 Ceiling on Includable Compensation . . . . . . . . . . . . . . . . .
13.8 Exception for Collectively Bargained Plans . . . . . . . . . . . . .
13.9 Combined Limit on Contributions and
Benefits for Key Employees . . . . . . . . . . . . . . . . . .
13.10 Compliance with Section 416 of the Code . . . . . . . . . . . . . . .
ARTICLE XIV MISCELLANEOUS
14.1 Effect of Mistake . . . . . . . . . . . . . . . . . . . . . . . . . .
14.2 Inability to Locate Payee . . . . . . . . . . . . . . . . . . . . . .
14.3 Conclusiveness of Records . . . . . . . . . . . . . . . . . . . . . .
14.4 Plan Not an Employment Contract
14.5 Gender; Headings . . . . . . . . . . . . . . . . . . . . . . . . . .
14.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14.7 Illegality of Particular Provision . . . . . . . . . . . . . . . . .
14.8 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . .
14.9 Family Members of Highly Compensated
Employees . . . . . . . . . . . . . . . . . .
14.10 Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE XV SPECIAL PROVISIONS APPLICABLE TO SLHMC EMPLOYEES
15.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.2 Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15.3 Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SUPPLEMENT A Special provisions applicable to residents of the
Commonwealth of Puerto Rico
(iv)
<PAGE> 6
INTRODUCTION
The Lehman Brothers Holdings Inc. Tax Deferred Savings Plan (the
"Plan"), previously known as the Shearson Lehman Brothers Holdings Inc. Tax
Deferred Savings Plan, was adopted effective January 1, 1984. The Plan was
thereafter amended from time to time, and has been restated at various
intervals, including a restatement effective January 1, 1988.
The Plan has been further restated effective January 1, 1989 (except
as otherwise expressly provided herein) to reflect additional amendments
adopted since the 1988 restatement, to conform with applicable statutes and
regulatory requirements, and to make other changes deemed desirable in order to
effect the purposes of the Plan.
Except as otherwise expressly provided herein, the rights of any
person with respect to Plan Years ending before January 1, 1989, shall be
determined solely under the terms of the Plan as in effect with respect to
those Plan Years.
This document incorporates all amendments made through August 26, 1993.
(v)
<PAGE> 7
ARTICLE I
DEFINITIONS
Section 1.1
"Act" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time.
Section 1.2
"Affiliate" shall mean any of the following:
(a) Any incorporated or unincorporated trade or business which at
the time of reference is controlled by, or is under common
control with an Employer within the meaning of Section 414(b) or
(c) of the Code and for purposes of Article V, Section 415(h) of
the Code (a "Controlled Group Affiliate").
(b) Any (i) member of an affiliated service group, within the
meaning of Section 414(m) of the Code, that includes an
Employer, or (ii) organization aggregated with an Employer
pursuant to Section 414(o) of the Code, to the extent required
by such Sections.
Section 1.3
I-1
<PAGE> 8
"Alternate Payee" shall mean any spouse, former spouse, child or other
dependent of a Member who is named in a Qualified Domestic Relations Order as
having a right to receive all, or a portion of, a Member's benefits under the
Plan.
Section 1.4
"American Express Stock" shall mean common shares issued by American
Express Company, the parent corporation of the Company.
Section 1.5
"Basic Contributions" shall mean the Employer Contribution made in
accordance with Section 4.1.
Section 1.6
"Beneficiary" shall mean the person designated by a Member to receive
benefits in accordance with Section 11.1.
Section 1.7
"Black Out Period" shall mean any period during which trading in
American Express Stock or any other Investment Fund is prohibited by applicable
law or regulation.
Section 1.8
"Board of Directors" shall mean the Board of Directors of the Company.
I-2
<PAGE> 9
Section 1.9
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
Section 1.10
"Committee" shall mean the Employee Benefit Plans Committee which
administers the Plan in accordance with ARTICLE X.
Section 1.11
"Company" shall mean, effective August 2, 1993, Lehman Brothers
Holdings Inc., a Delaware corporation, and any successor thereto which adopts
the Plan; previously known as Shearson Lehman Brothers Holdings Inc. and
Shearson Lehman Hutton Holdings Inc.
Section 1.12
"Company Stock" shall mean common shares issued by Shearson Lehman
Hutton Holdings Inc. or American Express Company, and effective on the Merger
Date, American Express Stock only.
Section 1.13
"Compensation" shall mean, for any Plan Year in which a Participant is
an Employee, the total Form W-2 earnings, including salary, wages, overtime,
bonuses, incentive
I-3
<PAGE> 10
compensation, commissions and any other form of additional compensation, paid
by the Employer to such Employee for such Plan Year and determined before
giving effect to any salary reduction agreement under this Plan or the
Employer's cafeteria plan and/or medical reimbursement plan for such Plan Year,
but excluding any imputed income and compensation deferred during such Plan
Year under the terms of any nonqualified deferred compensation program,
including but not limited to, The Lehman Brothers Holdings Inc. (formerly The
Shearson Lehman Brothers Holdings Inc.) Voluntary Deferred Compensation Plan
and Executive and Select Employees Plan.
Compensation of each Participant taken into account under the Plan for
any Plan Year shall not exceed $200,000, as adjusted from time to time in
accordance with Section 401(a)(17) of the Code.
For purposes of Sections 3.1 and 4.1, Compensation for any Plan Year
may, in the discretion of the Committee, be limited to such Compensation paid
by an Employer to an individual during the period he is a Participant for
service as an Employee, and excluding any period in which such Participant's
right to make Before Tax Savings contributions is suspended pursuant to Section
7.9.
For purposes of Articles V and XIII, Compensation shall mean total
Form W-2 earnings.
I-4
<PAGE> 11
If, as a result of the application of the family aggregation rules
under Section 14.9, the dollar limitation under Section 401(a)(17) of the Code
is exceeded, then the dollar limitation shall be prorated among the affected
individuals in proportion to each such individual's Compensation as determined
under this Section 1.13 prior to the application of this dollar limitation.
Section 1.14
"Date of Disability" shall mean the date a Participant is determined
to be eligible for long-term disability benefits under the Employer's Long-Term
Disability Plan.
Section 1.15
"Effective Date" shall mean January 1, 1984.
Section 1.16
"Employee" shall mean (i) any person employed by the Employer in the
United States on a salaried or commission basis and (ii) effective with the
Plan Year commencing January 1, 1985, any person employed by the Employer on a
salaried or commission basis outside of the United States if such person
receives his Compensation in United States currency; provided, however, that
such term shall not include any leased employee (as defined in Section 414(n)
of the Code) or any individual who performs services for an Employer under an
agreement or arrangement (which
I-5
<PAGE> 12
may be written, oral and/or evidenced by the Employer's payroll practice) with
such individual (or with another organization that provides the services of
such individual to the Employer) pursuant to which such individual is treated
as a consultant or an independent contractor (or as an employee of an entity
other than the Employer), irrespective of whether he is treated as an employee
of an Employer under common-law employment principles or pursuant to the
provisions of Section 414(m), 414(n) or 414(o) of the Code.
Section 1.17
"Employer" shall mean the Company and any Affiliate that is
designated, by appropriate action of the Finance Committee of the Board of
Directors, as a participating employer under the Plan. As to any Employee, at
any time of reference, "Employer" means his employer.
Any Affiliate or successor Employer that has adopted the Plan shall
cease to be an Employer upon the occurrence of any transaction which causes it
to cease to be a member of the Company's controlled group within the meaning of
Section 414(b) or (c) of the Code, unless specifically provided otherwise by
the Board of Directors or the Committee in connection with such transaction.
Section 1.18
I-6
<PAGE> 13
"Employer Contributions" shall mean Basic and Matching Contributions
made by the Employer in accordance with ARTICLE IV.
Section 1.19
"Employment Date" shall mean an employee's most recent date of
employment with the Employer, or a predecessor thereof, if applicable, or an
Affiliate prior to the Effective Date, as determined in accordance with the
Employer's employment rules and practices, or his initial date of employment
with the Employer or an Affiliate on or after the Effective Date, whichever is
applicable.
Section 1.20
"Employer Suspense Account" shall mean the separate account
established and maintained by the Trustee for Employer Contributions made to
the Plan and for forfeitures under the Plan until such time as they are
allocated to Member's Accounts.
Section 1.21
"Highly Compensated Employee" means a "highly compensated employee" as
defined in Section 414(q) of the Code and applicable regulations, subject to
Section 14.9.
A "highly compensated employee" as so defined includes any employee
who performs services for an Employer or Affiliate during the "determination
year" and who, during the "look-back
I-7
<PAGE> 14
year": (a) received compensation (as determined under Section 414(q) of the
Code) in excess of $75,000 (as adjusted pursuant to Section 415(d) of the
Code); (b) received compensation (as determined under Section 414(q) of the
Code) in excess of $50,000 (as adjusted pursuant to Section 415(d) of the Code)
and was a member of the top-paid group for such year; or (c) was an officer of
an Employer or Affiliate and received compensation (as determined under Section
414(q) of the Code) during such year that is greater than fifty percent (50%)
of the dollar limitation in effect under Section 415(b)(1)(A) of the Code.
The term "highly compensated employee" also includes: (y) employees
who are both (i) described in the preceding paragraph if the term
"determination year" is substituted for the term "look-back year" and (ii)
included in the 100 employees who received the most compensation (as determined
under Section 414(q) of the Code) from the Employer during the "determination
year"; and (z) employees who are five percent (5%) owners (as described in
Section 13.3(a)(iii)) at any time during the "look-back year" or the
"determination year".
If no officer has satisfied the requirements of clause (c) in the
second paragraph of this Section during either a "determination year" or a
"look-back year," the highest-paid officer for such year shall be treated as a
"highly compensated employee".
I-8
<PAGE> 15
For purposes of this Section 1.21, the "determination year" shall be
the Plan Year and the "look-back year" shall be the 12-month period immediately
preceding the "determination year".
The determination of who is a "highly-compensated employee", including
the determinations of the number and identity of employees in the top-paid
group, the top 100 employees and the number of employees treated as officers,
will be made in accordance with Section 414(q) of the Code and applicable
regulations. In determining the identity of "highly compensated employees" for
a "determination year", the Company may make the calendar year election
provided for in Answer 14(b) of Treasury Reg. Section 1.414(q)-IT.
Section 1.22
"Hour of Service" means (a) each hour for which an Employee is
directly or indirectly compensated or entitled to compensation by the Employer
or an Affiliate for the performance of duties; (b) each hour for which an
Employee is directly or indirectly compensated or entitled to compensation by
the Employer or an Affiliate (irrespective of whether the employment
relationship has terminated) for reasons other than performance of duties (such
as vacation, holiday, sickness, jury duty, disability, lay-off, military duty
or leave of absence); (c) each hour for which back pay is awarded or agreed to
by the Employer
I-9
<PAGE> 16
or an Affiliate without regard to mitigation of damages. All Hours of Service
will be counted in accordance with the provisions of Department of Labor
Regulations 2530.200b-2(b) and (c).
Section 1.23
"Investment Fund" shall mean (a) the "American Express Stock Fund",
which shall be principally invested in American Express Stock, (b) prior to the
Merger Date, the "Company Stock Fund" which was principally invested in the
common shares of Shearson Lehman Hutton Holdings Inc.), and (c) any other funds
established by the Committee and held by the Trustee pursuant to Section 9.2.
Section 1.24
"Matching Contributions" shall mean the Employer Contribution made in
accordance with Section 4.1.
Section 1.25
"Member" shall mean either a Participant or a former Participant who
has a Member's Account in the Plan.
Section 1.26
"Member's Account" shall mean the separate account maintained for each
Member which represents his total interest in
I-10
<PAGE> 17
the Trust Fund as of any Valuation Date and which consists of the sum of the
following accounts:
(a) "Before Tax Savings Account" shall mean that portion of the
Member's Account which evidences the value of the Employer
contributions made on his behalf to the Plan under Section 3.1,
and the applicable amounts transferred to the Plan under Section
3.8, including the net worth of the Trust Fund attributable
thereto.
(b) "Employer Contribution Account" shall mean that portion of the
Member's Account which evidences the value of the Employer
Contributions made on his behalf to the Plan under Section 4.1
and the applicable amounts transferred to the Plan under Section
3.8, including the net worth of the Trust Fund attributable
thereto.
(c) "Rollover Account" shall mean that portion of the Member's
Account which evidences the value of his applicable rollover
contributions under Section 3.8, including the net worth of the
Trust Fund attributable thereto.
Section 1.27
I-11
<PAGE> 18
"Merger Date" shall mean August 10, 1990, which is the effective date
of the merger of Shearson Lehman Hutton Holdings Inc. with a subsidiary of
American Express Company, determined in accordance with the merger agreement
dated as of March 26, 1990.
Section 1.28
"Month of Service" means a calendar month during any part of which an
Employee has an Hour of Service.
Section 1.29
"Participant" shall mean any Employee who becomes eligible for and
commences participation in the Plan as provided in ARTICLE II.
Section 1.30
"Plan" shall mean, effective August 2, 1993, the Lehman Brothers
Holdings Inc. Tax Deferred Savings Plan, as embodied herein and as amended from
time to time, previously known as the Shearson Lehman Brothers Holdings Inc.
Tax Deferred Savings Plan.
Section 1.31
"Plan Year" shall mean the calendar year ending each December 31 and
effective January 1, 1991, the fiscal year ending on each December 30.
Section 1.32
I-12
<PAGE> 19
"Qualified Domestic Relations Order" shall mean any judgment, decree
or order, including approval of a property settlement agreement, which relates
to the provision of child support, alimony payments or marital property rights
to a spouse, former spouse, child or other dependent of a Member, is made
pursuant to a state domestic relations law, and which satisfies the provisions
of Section 414(p) of the Code.
Section 1.33
"Quarterly Window Date" shall mean each December 31, April 1, July 1
or October 1, or such other dates as declared by the Committee.
Section 1.34
"Restatement Date" shall mean January 1, 1989.
Section 1.35
"Trust Agreement" shall mean the agreement or agreements entered into
between the Company and Trustee or Trustees to hold and administer the assets
of the Plan.
Section 1.36
"Trust Fund(s)" shall mean the assets or any part thereof of every
kind and description held under the Trust.
Section 1.37
I-13
<PAGE> 20
"Trustee" shall mean the Trustee or Trustees at any time holding the
assets of the Plan as provided in ARTICLE VIII.
Section 1.38
"Valuation Date" shall mean the last day of each month and for the
month of December, December 30, and such other dates as may be declared by the
Committee.
I-14
<PAGE> 21
ARTICLE II
ELIGIBILITY FOR PARTICIPATION
Section 2.1 - Eligibility for Participation
(a) All Employees who were Participants on January 1, 1989 shall
continue to participate in the Plan according to the provisions of the Plan in
effect on and after January 1, 1989.
(b) Each other Employee shall be eligible to become a Participant
upon the expiration of twelve Months of Service beginning on his Employment
Date, provided he is then an Employee. If an Employee has a severance from
service date due to an event described in Section 2.4(d)(i)(A) before
satisfying the twelve Months of Service requirement and then performs an Hour
of Service before incurring a one-year period of severance (as defined in
Section 2.4(d)(iii)), the period of severance will be taken into account in
determining eligibility and will be deemed to be service. If absence from
service occurs due to an event described in Section 2.4(d)(i)(B) and a
severance from service date described in Section 2.4(d)(i)(A) occurs within the
twelve consecutive month period commencing on the first day of such absence,
service shall include the period of severance if an Hour of Service is
performed within the twelve consecutive month period commencing on the first
day of such absence from service described in Section 2.4(d)(i)(B).
II-1
<PAGE> 22
(c) Each Employee on June 1, 1988, who was an employee of E.F.
Hutton & Company, Inc. or any subsidiary or affiliate thereof on December 2,
1987, shall be eligible to become a Participant upon the later of the
expiration of twelve Months of Service beginning on his most recent initial
date of employment with E.F. Hutton & Company Inc. or any subsidiary or
affiliate thereof or June 1, 1988.
(d) Each Employee who was an employee of Drexel, Burnham, Lambert
Inc. and who became an Employee between April 1, 1989 and December 31, 1989,
shall be eligible to become a Participant upon the expiration of twelve Months
of Service beginning on his most recent initial date of employment with Drexel,
Burnham, Lambert Inc. or any subsidiary or affiliate thereof.
(e) Each Employee who was an employee of American Express Company
and who became an Employee on or after January 1, 1990, shall be eligible to
become a Participant upon the expiration of twelve Months of Service beginning
on his most recent initial date of employment with American Express Company.
Section 2.2 - Effective Date of Participation
An eligible Employee must file an enrollment application with the
Committee to have the Employer begin making payroll deductions for Before Tax
Savings contributions to the Plan. Such Employee shall become a Participant as
of the first day of
II-2
<PAGE> 23
the month in which payroll deductions begin. Notwithstanding the foregoing, an
eligible Employee who does not file an enrollment application with the
Committee but who is entitled to receive an Employer contribution pursuant to
Section 4.1, shall become a Participant as of the date the first such
contribution is credited to his Employer Contribution Account.
Effective January 1, 1990, at the election of the Employee pursuant to
Section 3.3, payroll deductions hereunder shall commence at the percentage
elected as soon as administratively practicable following the date on which the
Employee files his enrollment application with the Committee.
Section 2.3 - Duration of Participation
An Employee who becomes a Participant shall continue to be a
Participant until he ceases to be an Employee; provided, however, that such
person shall continue to be a Member for as long as he has an undistributed
Member's Account.
Section 2.4 - Reemployment
(a) A former Member or Member who is reemployed shall be eligible to
recommence participation in the Plan on the date he again becomes an Employee.
Such Employee shall again become a Participant as of the earlier of the date he
files an enrollment application with the Committee or the date a contribution
made by
II-3
<PAGE> 24
the Employer pursuant to Section 4.1 is credited to the Participant's Employer
Contribution Account.
(b) A former employee of an Employer or an Affiliate who had met the
applicable service requirement under Section 2.1 (as in effect at the time of
his severance from service) by his severance from service date (as defined in
Subsection (d) below) shall, upon reemployment as an Employee, become a
Participant as of the earlier of the date he files an enrollment application
with the Committee or the date a contribution made by the Employer pursuant to
Section 4.1 is credited to the Participant's Employer Contribution Account.
(c) If a former employee of an Employer or an Affiliate (1) is not a
former Member or a Member, (2) had not met the applicable service requirement
under Section 2.1 (as in effect at the time of his severance from service) by
his severance from service date (as defined in Subsection (d) below), and (3)
is reemployed as an employee, all Months of Service accrued during the prior
period of employment are counted toward eligibility under Section 2.1;
provided, however, that any service before a period of consecutive one-year
periods of severance (as defined in Subsection (d) below) will not be taken
into account in computing eligibility under Section 2.1 if the number of
consecutive one-year periods of severance equals or exceeds the greater of 5 or
the aggregate number of years of service.
II-4
<PAGE> 25
(d) Definitions:
(i) "Severance from service date" means the earlier of: (A) the
date on which the employee quits, retires or is discharged; or
(B) the first anniversary of the date beginning a period of
absence from service (with or without pay) with all Employers
and Affiliates for any other reason (such as vacation, holiday,
sickness, disability, leave of absence or layoff).
Notwithstanding the foregoing sentence, the severance from
service date of an employee who is absent from service beyond
the first anniversary of such absence by reason of a maternity
or paternity absence is the second anniversary of such absence.
(ii) "Maternity or paternity absence" means an absence from work for
any period by reason of (A) an employee's pregnancy, (B) the
birth of a child of the employee, (C) the placement of a child
with the employee in connection with the adoption of such child
by such employee, or (D) the caring for a natural or adopted
child for a period beginning immediately following such birth or
placement.
(iii) "One-year period of severance" means a 12-consecutive month
period, beginning on the
II-5
<PAGE> 26
employee's severance from service date and ending on the first
anniversary of such date, during which the employee does not
perform an Hour of Service.
II-6
<PAGE> 27
ARTICLE III
BEFORE TAX SAVINGS, ROLLOVER CONTRIBUTIONS AND TRANSFERS
Section 3.1 - Before Tax Savings
Each Employer shall contribute to the Plan on behalf of each
Participant an amount equal to one percent (1%) to fifteen percent (15%) of the
Participant's Compensation, in one percent (1%) increments, as elected by each
such Participant as Before Tax Savings contributions pursuant to Section 3.3;
provided, however, that notwithstanding the foregoing, the Committee may, for
any Plan Year, establish a maximum percentage less than fifteen (15%).
No Participant shall be permitted to have Before Tax Savings
contributions during the Participant's taxable year (which shall be presumed to
be the calendar year) in excess of the Elective Deferral Limit in effect at the
beginning of such taxable year. Before Tax Savings contributions during a
Participant's taxable year shall be discontinued for the remainder of that year
when the aggregate Before Tax Savings contributions for the Participant equals
the Elective Deferral Limit for that year.
For purposes of this Section 3.1, the Elective Deferral Limit means
$7,000 (as adjusted from time to time in accordance with Section 402(g)(5) of
the Code) reduced by the amount of "elective deferrals" (as defined in Section
402(g)(3) of the
III-1
<PAGE> 28
Code) made by the Participant during his taxable year under any plans or
agreements maintained by an Employer or Controlled Group Affiliate (described
in Section 1.2(a)) other than this Plan (and, in the sole discretion of the
Committee, any plans or agreements maintained by any other employer, if
reported to the Committee at such time and in such manner as the Committee
shall prescribe).
If the Elective Deferral Limit is exceeded for a Participant's
taxable year, the excess of Before Tax Savings contributions made for such year
over such limit (adjusted for any gain or loss allocable thereto for such year
in accordance with applicable regulations) may be distributed no later than
April 15 following the close of the taxable year in the sole discretion of the
Committee.
The amount of excess contributions to be distributed for a taxable
year shall be reduced by the amount of Before Tax Savings contributions
previously distributed by the Plan on or after the beginning of such taxable
year in order to comply with the limitations of Section 3.4. Such distribution
shall be made (pro rata as described in Section 7.10) from the Investment Fund
or Funds in which such excess contributions were invested.
In order to receive such excess Before Tax Savings contributions, the
Participant must deliver a claim to the Committee, in the form prescribed by
the Committee, by March 1 of
III-2
<PAGE> 29
the year of distribution, which includes (a) a statement that the Participant's
Elective Deferral Limit will be exceeded unless the excess Before Tax Savings
contributions are distributed, and (2) an agreement to forfeit Matching
Contributions made with respect to such excess Before Tax Savings contributions
and allocated to his Employer Contribution Account (if any). Matching
Contributions forfeited pursuant to this Section 3.1 shall be applied to reduce
future Employer Contributions as provided in Section 4.1.
If the "elective deferrals" (as defined in Section 402(g)(3) of the
Code) made by a Participant during his taxable year under this Plan and any
other plans or agreements maintained by an Employer or Controlled Group
Affiliate (described in Section 1.2(a)) shall exceed the Elective Deferral
Limit, the Committee may deem such a claim to have been delivered by the
Participant and may make distribution in accordance with this Section 3.1 no
later than such April 15.
Section 3.2 - Allocation to Participant's Account
The Employer contributions made in accordance with Section 3.1 shall
be credited to the Before Tax Savings Accounts of the Participants on whose
behalf such contributions were made immediately following the Valuation Date
corresponding to the calendar month (or other period as the case may be), in
which such contributions were made; provided, however, that for the
III-3
<PAGE> 30
month of December, contributions shall be credited as of December 30, or if
December 30 is not a business day, the immediately preceding business day.
Such contributions shall be transferred to the Trust Fund as soon as
administratively practicable.
Section 3.3 - Participant's Election of Before Tax Savings
Each Participant shall have the right to make and file with the
Committee, in the form prescribed by the Committee, an election to have the
Employer make Before Tax Savings contributions to the Plan on his behalf
pursuant to Section 3.1. Such election shall be made prior to and be effective
upon becoming a Participant and shall thereafter remain in effect until
changed.
Effective January 1, 1990, an Employee who does not make such an
election upon becoming a Participant may thereafter elect to make Before Tax
Savings contributions at any time by duly filing such election with the
Committee.
A Participant's election under Section 3.1 may be increased or
decreased as of each Quarterly Window Date, by filing a request for such change
with the Committee at least 15 days prior to such date. A Participant may
discontinue his Before Tax Savings contributions to the Plan at any time during
the Plan Year, but may not resume such contributions until the Quarterly Window
Date next following the date of such discontinuance.
III-4
<PAGE> 31
Section 3.4 - Limitation on Before Tax Savings Contributions
Notwithstanding Section 3.1, Before Tax Savings contributions for any
Plan Year for a Participant who is a Highly Compensated Employee for such year
shall be reduced if and to the extent deemed necessary or advisable by the
Committee in order to satisfy either (a) or (b) below:
(a) The actual deferral percentage for Participants who are Highly
Compensated Employees for the Plan Year shall not exceed the
actual deferral percentage for Participants who are not Highly
Compensated Employees for the same Plan Year multiplied by 1.25.
(b) The actual deferral percentage for Participants who are Highly
Compensated Employees for the Plan Year shall not exceed the
actual deferral percentage for Participants who are not Highly
Compensated Employees for the same Plan Year multiplied by 2,
provided that the actual deferral percentage for Participants
who are Highly Compensated Employees is not more than 2
percentage points higher than the actual deferral percentage for
Participants who are not Highly Compensated Employees.
III-5
<PAGE> 32
For purposes of this Section 3.4, the "actual deferral percentage"
for any group of individuals means the average of the individual ratios, for
each person in such group, of (a) his share of Before Tax Savings contributions
(and amounts taken into account as Before Tax Savings contributions) for the
Plan Year to (b) his Compensation for the Plan Year. The individual ratios,
and the actual deferral percentage for any group of individuals, shall be
calculated to the nearest one-hundredth of one percent (0.01%).
For purposes of calculating the actual deferral percentage, Employer
Contributions under Section 4.1 may be taken into account as Before Tax Savings
contributions if the requirements under Treasury Reg. Section 1.401(k)-1(b)(5)
are met.
If a Participant who is a Highly Compensated Employee is subject to
the family aggregation rules of Section 414(q)(6) of the Code, as described in
Section 14.9, because that Employee is either a five-percent (5%) owner or one
of the 10 most highly-paid Highly Compensated Employees, the combined actual
deferral limit for the family group (which is treated as one Highly Compensated
Employee) must be determined by combining the Compensation, Before Tax Savings
contributions (and amounts taken into account as Before Tax Savings
contributions) of all the eligible family members. Family members, with
respect to Highly Compensated Employees, shall be disregarded as separate
employees in determining the actual deferral percentage both for
III-6
<PAGE> 33
Participants who are not Highly Compensated Employees and Participants who are
Highly Compensated Employees.
The Committee shall determine, during and as of the end of each Plan
Year, the actual deferral percentages relevant for purposes of this Section
3.4, based on the actual rate of Compensation and Before Tax Savings
contributions then in effect for Participants in light of their salary
reduction agreements under Section 3.3 and their projected Compensation and
Before Tax Savings contributions (and amounts taken into account as Before Tax
Savings contributions) for the remainder of the Plan Year. If, based on such
determination, the Committee concludes that a reduction in the Before Tax
Savings contributions (and amounts taken into account as Before Tax Savings
contributions) made for any Participant is necessary in order to comply with
the limitations of this Section 3.4, it shall so notify each affected
Participant and his Employer of the reduction it deems necessary or desirable
for this purpose.
In such event, Before Tax Savings contributions and contributions
taken into account as Before Tax Savings contributions shall be reduced pro
rata, and the salary reduction agreement of each Participant affected by such
determination modified accordingly. Any such reduction may apply either to all
Participants, only to Participants who are Highly Compensated Employees, or to
any other group as the Committee shall determine, and in such manner as the
Committee shall determine.
III-7
<PAGE> 34
Section 3.5 - Contributions in Excess of Section 401(k) Limit
For purposes of this Section 3.5, "Excess ADP Contributions" means,
with respect to any Plan Year, the excess of (i) the aggregate amount of Before
Tax Savings contributions (and any amounts taken into account as Before Tax
Savings contributions) actually paid into the Plan on behalf of Highly
Compensated Employees for such year, over (ii) the maximum amount of Before Tax
Savings contributions (and amounts taken into account as Before Tax Savings
contributions) permitted for such year under the limitations set forth in
Section 3.4, determined by reducing the amount of Before Tax Savings
contributions (and amounts taken into account as Before Tax Savings
contributions) to be permitted on behalf of Highly Compensated Employees in the
order of their actual deferral percentages (as defined in Section 3.4),
beginning with the highest of such percentages, to the extent necessary to
satisfy the actual deferral percentage test or cause such percentage to equal
the actual deferral percentage of the Highly Compensated Employee with the next
highest percentage, repeating this process until the actual deferral percentage
test is satisfied.
The amount of Excess ADP Contributions to be distributed shall be
reduced by Before Tax Savings contributions in excess of the Elective Deferral
Limit (as defined in Section 3.1) previously distributed for the taxable year
of the Participant ending in the same Plan Year.
III-8
<PAGE> 35
The calculation and correction of Excess ADP Contributions of a
Highly Compensated Employee whose actual deferral percentage is determined
pursuant to the family aggregation rules under Section 14.9 is accomplished by
reducing the actual deferral percentage of the family group by the leveling
method described in the first sentence of this Section 3.5 and allocating the
Excess ADP Contributions for the family group among the family members in
proportion to the Before Tax Savings contributions (and amounts taken into
account as Before Tax Savings contributions) of each such family member that is
combined to determine the actual deferral percentage.
Any Excess ADP Contributions paid into the Plan for any Plan Year
shall be distributed in cash to the Highly Compensated Employees on whose
behalf they were paid into the Plan, no later than March 15 of the following
Plan Year if at all possible, and in any event not later than the close of such
following Plan Year. Such distribution shall be made pro rata from each
account and pro rata from the Investment Fund or Funds in which such excess
contributions were invested (as described in Section 7.10).
The amount of Excess ADP Contributions distributed to any such
Participant shall be adjusted for any gain or loss attributable under the
allocation rules of Section 9.3 to such excess contributions up to the last day
of the Plan Year in which such excess contributions were made, and for the
period from the
III-9
<PAGE> 36
last day of the Plan Year to the date of distribution, as determined under the
safe harbor rule of Treasury Reg. Section 1.401(k)- 1(f)(4)(ii)(D).
3.6 - Adjustment of Before Tax Savings Contributions
Notwithstanding any of the foregoing provisions to the contrary, a
Participant may, at such time and in such manner as the Committee may
prescribe, or the Committee may, on its own initiative, suspend or change the
amount of reduction in Compensation provided for under any applicable salary
reduction agreement in order to avoid an allocation of contributions to a
Participant's Member's Account which would violate the limitations of Section
3.4 or Article V.
Section 3.7 - Multiple Arrangements for Highly Compensated Employees Combined
If more than one plan providing a cash or deferred arrangement
(within the meaning of Section 401(k) of the Code) is maintained by the
Employer or an Affiliate, the "average deferral percentage" (as defined in
Section 3.4) of any Highly Compensated Employee who participates in more than
one such plan or arrangement shall be determined as if all such arrangements
were a single plan or arrangement. Notwithstanding the foregoing, plans shall
be treated as separate if they are mandatorily disaggregated under Section
401(k) of the Code and applicable regulations.
III-10
<PAGE> 37
In the event that this Plan satisfies the requirements of Sections
401(k), 401(a)(4) or 410(b) of the Code only if aggregated with one or more
other plans, or if one or more other plans satisfy the requirements of such
sections only if aggregated with this Plan, then this Article III shall be
applied by determining the "average deferral percentage" of Employees as if all
such plans were a single plan.
Section 3.8 - Rollover Contributions and Other Transfers from Qualified Plans
(a) Effective January 1, 1990, an Employee or a Participant may make
a contribution, in cash or such other property as the Committee may permit, to
the Plan of any amounts that qualify as rollover amounts under Sections 402(c)
(402(a)(5) for distributions before January 1, 1993), 403(a)(4), or 408(d)(3)
of the Code, including eligible rollover distributions from defined benefit
plans, provided the Committee consents to the Employee's or the Participant's
application to make such contributions following receipt of written
certification from the Employee or Participant (or such other certification as
the Committee may require) that such contribution is eligible for rollover into
this Plan. Any rollover contributions made to the Plan in accordance with this
Section 3.8 shall be deposited in a Rollover Account established in the name of
the Employee or the Participant.
III-11
<PAGE> 38
(b) With the consent of the Committee, amounts may be transferred to
the Plan on behalf of an Employee or Participant from other qualified plans,
provided that the trust from which such funds are transferred permits the
transfer to be made and, in the opinion of legal counsel for the Company, the
transfer will not jeopardize the tax exempt status of the Plan or Trust or
create adverse tax consequences for any Employer.
For purposes of this Section 3.8, amounts which may be transferred
from another qualified plan are amounts transferred to the Plan directly from
any tax qualified plan under Section 401(a) of the Code. Prior to accepting
any transfer to which this Section applies, the Committee may require the
transferor plan to establish that the amounts to be transferred to this Plan
meet the requirements of this Section and may also require the transferor plan
to provide an opinion of counsel satisfactory to the Committee that the amounts
to be transferred meet the requirements of this Section.
Any amounts transferred shall be deposited in an Employer
Contribution Account, a Before Tax Savings Account, and/or a Rollover Account,
as applicable, established in the name of the Employee or the Participant.
(c) Notwithstanding the foregoing, any Employee making a rollover or
transfer contribution pursuant to this Section 3.8
III-12
<PAGE> 39
may not become a Participant hereunder until he satisfies the requirements set
forth in Section 2.1.
(d) With respect to transfers under Section 3.8(b), this Plan shall
not accept any direct or indirect transfers after January 1, 1985 from a
defined benefit plan, money purchase plan (including a target benefit plan),
stock bonus or profit sharing plan which would have provided for a life annuity
form of payment to the Employee or Participant.
III-13
<PAGE> 40
ARTICLE IV
EMPLOYER CONTRIBUTIONS
Section 4.1 - Employer Contributions
(a) For the Plan Year ending on December 31, 1984 and each Plan Year
ending on or before December 31, 1990, if authorized by the Board of Directors
of Shearson Lehman Brothers Inc., each Employer shall contribute to the Plan on
behalf of Participants on the Employer's payroll on the last day of such Plan
Year, the following amounts as applicable:
(1) If the Participant is an Eligible Participant (as defined
below), four hundred dollars ($400), and
(2) For each Participant, one hundred percent (100%) of the first
one hundred dollars ($100) of Before Tax Savings contributions
made in accordance with Section 3.1.
For purposes of this Subsection (a), "Eligible Participant" means any
Participant who is not a (1) salaried Employee whose Compensation (as modified
by Subsection (d) below) exceeds $37,800, (2) salaried Employee who receives
any commissions for the Plan Year, or (3) Branch Manager, Financial Consultant,
Financial Consultant Associate, Institutional Salesperson, or any successor
position or any other position
IV-1
<PAGE> 41
designated to be excluded (as such position is described in the Company's job
classifications).
The amount of each Employer's contribution hereunder shall be
determined by the Board of Directors of Shearson Lehman Brothers Inc.
(b) For Plan Years beginning on or after January 1, 1991 and ending
before December 31, 1992, if authorized by the Board of Directors of Shearson
Lehman Brothers Holdings Inc., each Employer shall contribute to the Plan on
behalf of Participants on the Employer's payroll on the last day of such Plan
Year (or on the latest earlier date during such year which the Committee
determines is necessary or appropriate in order for the Plan to satisfy the
requirements of Section 410(b) of the Code), the following amounts as
applicable:
(1) If the Participant is an Eligible Participant (as defined
below), a Basic Contribution of four hundred dollars ($400) and
a Matching Contribution equal to one hundred percent (100%) of
the first six hundred dollars ($600) of Before Tax Savings
contributions made in accordance with Section 3.1.
(2) If the Participant is not an Eligible Participant (as defined
below), a Matching Contribution in an amount equal to one
hundred percent (100%) of the first one thousand dollars
($1,000) of Before Tax
IV-2
<PAGE> 42
Savings contributions made in accordance with Section 3.1.
For purposes of this Subsection (b), "Eligible Participant" means any
Participant who is not a (1) salaried Employee whose Compensation (as modified
by Subsection (d) below) exceeds $37,800, (2) salaried Employee who receives
more than $1,000 in commissions for the Plan Year, or (3) Branch Manager,
Financial Consultant, Financial Consultant Associate, Institutional
Salesperson, or any successor position or any other position designated to be
excluded (as such position is described in the Company's job classifications).
The amount of each Employer's contribution shall be determined by the
Board of Directors of Shearson Lehman Brothers Holdings Inc.
(c) For Plan Years beginning on or after December 31, 1992, if, and
to the extent authorized by the Board of Directors, each Employer shall
contribute to the Plan on behalf of Participants on the Employer's payroll on
the last day of such Plan Year (or on the latest earlier date during such year
which the Committee determines is necessary or appropriate in order for the
Plan to satisfy the requirements of Section 410(b) of the Code), the following
amounts as applicable:
(1) If the Participant is an Eligible Participant (as defined
below), a Basic Contribution of four
IV-3
<PAGE> 43
hundred dollars ($400) and a Matching Contribution equal to one
hundred percent (100%) of the first six hundred dollars ($600)
of Before Tax Savings contributions made in accordance with
Section 3.1.
(2) To the extent funds remain after contributions are allocated
under (1), for each Participant who is not an Eligible
Participant and whose Compensation (as modified by Subsection
(d) below) does not exceed $100,000, a Matching Contribution in
a uniform amount up to one hundred percent (100%) of the first
one thousand dollars ($1,000) of Before Tax Savings
contributions made in accordance with Section 3.1.
For purposes of this Subsection (c), "Eligible Participant" means any
Participant who is not a (1) salaried Employee whose Compensation (as modified
by Subsection (d) below) exceeds $37,800, (2) salaried Employee who receives
more than $1,000 in commissions for the Plan Year, or (3) Branch Manager,
Financial Consultant, Financial Consultant Associate, Institutional Salesperson
or any successor position or any other position designated to be excluded (as
such position is described in the Company's job classifications).
The amount of each Employer's contribution hereunder shall be
determined by the Board of Directors.
IV-4
<PAGE> 44
(d) Solely for purposes of this Section 4.1, Compensation shall
include any amounts deferred under The Lehman Brothers Holdings Inc. (formerly
The Shearson Lehman Brothers Holdings Inc.) Voluntary Deferred Compensation
Plan or Executive and Select Employees Plan or any other nonqualified deferred
compensation plan of the Employer.
(e) Employer contributions described in this Section 4.1 may be
reduced by any amount forfeited pursuant to Sections 3.1, 5.2 and 14.2.
Section 4.2 - Transfer to Trust Fund
The Employer Contributions under Section 4.1 shall be transferred to
the Trust Fund at such time as the Employer may determine, but in no event
shall the Employer Contributions be paid over to the Trust Fund later than the
time prescribed by law for the Employer to obtain a federal income tax
deduction for the Plan Year for which the contribution is made. Nothing
contained herein shall prohibit the Employer Contributions in advance of that
time.
Section 4.3 - Allocation to Participant's Account
The Employer Contributions made in accordance with Section 4.1 shall
be held in the Employer Suspense Account until such time as they are credited
to the Employer Contribution Account of the respective Participants on whose
behalf such
IV-5
<PAGE> 45
contributions were made; provided, however, that Employer Contributions shall
be credited to Participant's Employer Contribution Accounts no later than the
last day of the Plan Year.
Section 4.4 - Employer In-Kind Contributions
The Employer may make Employer Contributions in American Express
Stock and the Trustees shall be required to accept such Employer Contributions.
IV-6
<PAGE> 46
ARTICLE V
LIMITATIONS ON ANNUAL ADDITIONS TO PARTICIPANT'S ACCOUNT
Section 5.1 - Limitations on Annual Additions
The "Annual Additions" (as hereinafter defined) allocated to a
Participant in respect of any Plan Year shall not exceed in the aggregate the
lesser of (a) twenty-five percent (25%) of such Participant's Compensation for
such Plan Year or (b) thirty thousand dollars ($30,000) (or if greater, 25% of
the dollar limitation in effect under Section 415(b)(1)(A) of the Code pursuant
to applicable regulations).
Section 5.2 - Application
(a) In the event that the Annual Additions allocated to a
Participant under this Plan and all other Defined Contribution Plans maintained
by an Employer exceed in the aggregate the limitations set forth in Section
5.1, the Employer shall first reduce the Annual Additions to such other Defined
Contribution Plans to the extent necessary so that the aggregate Annual
Additions to this Plan and to such other Defined Contribution Plans do not
exceed such limitations for that Plan Year.
(b) If the allocations to a Participant's Member's Account otherwise
required under this Plan for any Plan Year would cause the limitations of this
Article V to be exceeded for
V-1
<PAGE> 47
that Plan Year, contributions otherwise required with respect to such
Participant under Articles III and IV shall be reduced to the extent necessary
to comply with those limitations. Such reductions shall be made first to
Employer Contributions and second to Before Tax Savings contributions.
If such reduction is not effected in time to prevent such allocations
for any Plan Year from exceeding such limitations, any such reduction in Before
Tax Savings contributions (adjusted for any gain attributable under the
allocation rules of Section 9.3 to such excess contributions up to the last day
of the Plan Year in which such contributions were made) shall be effected by
distributing such excess Before Tax Savings contributions to the affected
Participant. Distribution shall be made pro-rata from the Investment Fund or
Funds in which such excess contributions were invested.
Any such distribution of excess Before Tax Savings contributions
shall be limited to the extent such excess Before Tax Savings contributions
were the result of a reasonable error in determining the amount of Before Tax
Savings contributions permitted with respect to an individual under the limits
of Section 415 of the Code after taking into consideration other Annual
Additions for the year.
Excess Employer Contributions shall be used to reduce contributions
for such Participant in the next Plan Year and each
V-2
<PAGE> 48
succeeding Plan Year if necessary; provided, that if the Participant is not
covered by the Plan at the end of the current Plan Year, the portion exceeding
the limitation of this Article V shall be held unallocated in a subaccount of
the Employer Suspense Account for such Plan Year and shall be allocated and
reallocated to the Member's Accounts of all Participants in the next Plan Year
before any other contributions are allocated to the Member's Accounts of such
Participants. This subaccount of the Employer Suspense Account will reduce
future contributions for all remaining Participants in the next Plan Year, and
each succeeding Plan Year if necessary.
In the event of a termination of the Plan, unallocated amounts held
in such subaccount of the Employer Suspense Account shall be allocated to the
extent possible under this Article V for the Plan Year of termination. Any
amount remaining in such subaccount upon termination of the Plan shall then be
returned to the Employer, notwithstanding any other provision of the Plan or
Trust Agreement.
Section 5.3 - Ordering Rule for Multiple Plans
Reductions in benefits under this Article V arising by reason of a
Participant's participation in multiple plans shall be effected as follows:
(1) benefits and contributions under continuing plans shall be reduced before
benefits under any terminated plan, and (2) benefits and contributions under
V-3
<PAGE> 49
continuing plans shall be reduced in the reverse order in which benefits or
contributions would otherwise accrue, except as any other such plan may
otherwise expressly provide.
Section 5.4 - Coverage by Defined Benefit Plan
In the case of any Participant who is also a participant in a Defined
Benefit Plan maintained by an Employer or an Affiliate, retirement benefits
under such Defined Benefit Plan shall be first reduced in accordance with the
provisions thereof before the allocation of any contributions on behalf of such
Participant under a Defined Contribution Plan are reduced, so that the overall
limitations on benefits and contributions contained in Section 415(e) of the
Code will not be exceeded. For this purpose, the Committee shall compute the
"Defined Contribution Plan Fraction" (as hereinafter defined) and adjust the
"Defined Benefit Plan Fraction" (as hereinafter defined) so that the sum of
these fractions shall not exceed 1.0.
Section 5.5 - Definitions
For purposes of this Article V, the following definitions shall apply:
(a) "Annual Additions" shall mean the sum for any Plan Year of (1)
contributions and forfeitures allocated to a Participant's
Member's Account under this Plan for any Plan Year, (2) the
V-4
<PAGE> 50
contributions and forfeitures allocated to his account under any
other Defined Contribution Plan (or portion thereof) of any
Employer or Affiliate, (3) employee contributions under all such
plans (or portions thereof), and (4) amounts described in
Section 419A(d)(2) of the Code (relating to post-retirement
medical benefits of key employees) or allocated to a pension
plan individual medical account described in Section 415(l) of
the Code, to the extent includable for purposes of Section
415(c)(2) of the Code. The employee contributions described in
clause (3) hereof shall be determined without regard to (A) any
rollover contributions, or (B) any repayment of loans. Employer
and employee contributions taken into account shall include
"excess contributions" as defined in Section 401(k)(8)(B) of the
Code, "excess aggregate contributions" as defined in Section
401(m)(6)(B) of the Code, and "excess deferrals" as described in
Section 402(g) of the Code (to the extent such "excess
deferrals" are not distributed to the Participant by the April
15th following the close of the taxable year of the Participant
in which such deferrals were made), regardless of whether such
amounts are distributed or forfeited. The Annual Additions for
any Plan Year beginning
V-5
<PAGE> 51
before January 1, 1987 shall be determined under the Plan as
then in effect and shall not be recomputed to treat all employee
contributions as Annual Additions.
(b) "Defined Benefit Plan" shall mean any "Retirement Plan" (as
hereinafter defined) that does not meet the definition of a
Defined Contribution Plan.
(c) "Defined Benefit Plan Fraction" shall mean a fraction, the
numerator of which is the aggregate of the projected annual
benefits (determined as of the last day of the Plan Year) of the
Participant under all Defined Benefit Plans maintained by an
Employer or an Affiliate, and the denominator of which is the
lesser of (1) the dollar limitation in effect under Section
415(b)(1)(A) of the Code pursuant to applicable regulations for
such year multiplied by 1.25 or (2) the amount that may be taken
into account under Section 415(b)(1)(B) of the Code with respect
to the Participant under all such Defined Benefit Plans for such
year multiplied by 1.4.
(d) "Defined Contribution Plan" shall mean a Retirement Plan that
provides for an individual account for each Participant and for
benefits
V-6
<PAGE> 52
based solely on the amount contributed to the Participant's
account (and any income, expenses, gains and losses attributable
thereto) and any forfeitures of accounts of other Participants
that may be allocated to such Participant's account. For this
purpose, employee contributions made pursuant to a Defined
Benefit Plan maintained by an Employer or an Affiliate shall be
treated as a separate Defined Contribution Plan.
(e) "Defined Contribution Plan Fraction" shall mean a fraction, the
numerator of which is the aggregate of the Annual Additions to
the Participant's Member's Account and any other Defined
Contribution Plan maintained by an Employer or an Affiliate for
such Plan Year and all prior Plan Years, and the denominator of
which is the lesser of the following amounts determined for such
Plan Year and each prior year of Service with an Employer or
Affiliate: (1) the dollar limitation in effect under Section
415(c)(1)(A) of the Code for such year pursuant to applicable
regulations (determined without regard to Section 415(c)(6) of
the Code) multiplied by 1.25 or (2) the amount that may be taken
into account under Section 415(c)(1)(B) of the Code with respect
to the
V-7
<PAGE> 53
Participant under all such Defined Contribution Plans for such
year multiplied by 1.4.
(f) "Retirement Plan" shall mean (1) any profit sharing, pension or
stock bonus plan described in Sections 401(a) and 501(a) of the
Code, (2) any annuity plan or annuity contract described in
Section 403(a) or 403(b) of the Code, (3) any individual
retirement account or individual retirement annuity described in
Section 408(a) or 408(b) of the Code, or (4) a simplified
employee pension described in Section 408(k) of the Code.
Section 5.6 - Limitation Year
All determinations under this Article V shall be made by reference to
the Plan Year. The limitations imposed by this Article V shall be administered
in accordance with any rulings and regulations that are issued by the Secretary
of Treasury under Section 415 of the Code.
V-8
<PAGE> 54
ARTICLE VI
INVESTMENT OF TRUST FUND AND MEMBER'S ELECTIONS
Section 6.1 - Member's Elections - Investment Options
Except as otherwise provided in Section 6.3, each Participant shall
elect with respect to contributions credited to a Member's Account to have such
contributions invested in increments of twenty-five percent (25%) (or such
other percentage prescribed by the Committee) of the total in any one or more
of the Investment Funds, provided, however, that no more than fifty percent
(50%) of the total of such contributions, may be invested in the American
Express Stock Fund.
Each Participant shall file elections with the Committee, in the form
prescribed by the Committee, upon becoming a Participant. Before January 1,
1990, such elections could be changed as of each January 1 or July 1.
Effective January 1, 1990, such elections may be changed as of each Quarterly
Window Date, by filing new elections with the Committee at least 15 days prior
to such dates, in the form prescribed by the Committee. If a Participant
initially fails to make an election pursuant to the provisions of this Section
6.1, his Account shall be invested in the Investment Fund or Funds designated
from time to time by the Committee. Investment elections will be given effect
as soon as administratively practicable after each Quarterly Window Date.
Section 6.2 - Investment Transfers
VI-1
<PAGE> 55
Except as otherwise provided in Section 6.3, each Member may
elect with respect to a Member's Account to have the assets of such Account
invested in any Investment Fund or Funds, transferred, in increments of
twenty-five percent (25%) (or such other percentage prescribed by the
Committee) of the total, to any other Investment Fund or Funds; provided,
however, that no such transfer shall result in more than fifty percent (50%) of
the total amount in the Member's Account, being invested in the American
Express Stock Fund as of the effective date of transfer.
Before January 1, 1990, a Member could elect to make an
investment transfer as of each January 1 or July 1. Effective January 1, 1990,
each Member may elect to make an investment transfer as of the date preceding
each Quarterly Window Date by filing such election, in the form prescribed by
the Committee, at least 15 days prior to such dates. Investment transfers shall
be given effect as soon as administratively practicable.
Section 6.3 - Investing Basic and Matching Contributions
Basic and Matching Contributions made in American Express Stock
shall be invested in the American Express Stock Fund until the quarter
immediately following the date such Basic and Matching Contributions are
credited to Participants' Employer Contribution Accounts, at which time each
Participant may elect to transfer all or a portion of such Basic and Matching
Contributions in accordance with the provisions of Section 6.2.
VI-2
<PAGE> 56
Basic and Matching Contributions made in American Express Stock after December
31, 1990 shall not be taken into account for purposes of determining the fifty
percent (50%) limitation on investments in the American Express Stock Fund
until such time as the Participant elects to transfer these Employer
Contributions into another Investment Fund.
Section 6.4 - Investing of Employer Suspense Account
All amounts held in the Employer Suspense Account shall be
invested as directed by the Committee.
Section 6.5 - Transfer of Assets
The Committee shall direct the Trustee to transfer moneys or
other property from the appropriate Investment Fund to the other Investment
Funds as may be necessary due to Members' elections to carry out the aggregate
transfer transactions after such Committee has caused the necessary entries to
be made in the Member's Accounts in the Investment Funds and has reconciled
offsetting transfer elections, in accordance with uniform rules established
therefor by such Committee. All such transfers shall be effected as soon as
administratively practicable after receipt of such transfer instructions.
Section 6.6 - Voting of Company Stock
All American Express Stock, including fractional shares in a
Member's Account, shall be voted by the Trustee. To the
VI-3
<PAGE> 57
extent American Express Stock is not voted by the Trustee, such stock shall be
voted by the Participants.
VI-4
<PAGE> 58
ARTICLE VII
VESTING, DISTRIBUTION TO MEMBERS
Section 7.1 - Vesting
A Member's interest in his Member's Account shall at all times be
fully vested and nonforfeitable.
Section 7.2 - Distribution Upon Termination of Employment or Disability
(a) Except as otherwise provided in Subsection (b) below, in
the event a Participant terminates his employment for any reason other than
death or incurs a Date of Disability, there shall be distributed to him the
full amount of his Member's Account. Unless the Participant is eligible for
and elects a delayed distribution in accordance with Section 7.4, such
distribution shall be made as a single sum payment based on the Member's
Account adjusted as of a Valuation Date reasonably following the date of such
termination or Date of Disability, with payment to be made as soon as
administratively practicable following such Valuation Date.
If a Member ceases to be employed by an Employer or Affiliate
because of a sale or other disposition of all or part of the assets or business
operations of such Employer or Affiliate but continues in the employ of a
purchaser or affiliate thereof (or any of their successors) to whose plan the
assets and liabilities attributable to such Member are (or are to be)
VII-1
<PAGE> 59
transferred in a transaction described in Section 12.5, such Member shall not
thereby be deemed to retire or terminate employment for purposes of this Plan.
If a Member ceases to be employed by an Employer or Affiliate
because of the withdrawal of such entity from membership in the Company's
controlled group within the meaning of Section 414(b) or (c) of the Code (such
as by reason of the sale or other disposition of the stock of such Employer or
Affiliate) and such entity or an affiliate thereof (or any of their successors)
establishes or maintains a plan to which the assets and liabilities
attributable to such Member are (or are to be) transferred in a transaction
described in Section 12.5, such Member shall not thereby be deemed to retire or
terminate employment for purposes of this Plan.
(b) Upon a Participant's Date of Disability or termination of
employment for any reason other than death, if the value of his Member's
Account exceeds $3,500, distribution shall be made to him in accordance with
Subsection (a) above only if such Participant consents to the distribution in
writing. In the event a terminated or disabled Participant fails to so
consent, distribution of his Member's Account shall be made to the former
Participant or his Beneficiary as the case may be upon the earliest of:
(1) death of the former Participant;
VII-2
<PAGE> 60
(2) attainment of age 65 by the former Participant; or
(3) submission of a written consent by the former
Participant (or, in the case of an Alternate Payee,
submission of a written consent by the Alternate
Payee).
(c) A Member shall not be considered to have terminated his
employment if he is employed by an Affiliate. A Member must actually terminate
employment with the Company, and any Employer or Affiliate prior to entitlement
to a distribution due to termination of employment.
Section 7.3 - Distribution Upon Death
In the event of a Member's death there shall be distributed to
his Beneficiary or Beneficiaries (determined in accordance with the provisions
of Section 11.1) the full amount of his Member's Account.
Unless such Beneficiary or Beneficiaries elects a delayed
distribution in accordance with Section 7.4, distribution shall be made as soon
as administratively practicable in a single sum payment based on the Member's
Account adjusted as of the Valuation Date immediately following the date the
Member's death is reported to the Committee on forms acceptable to the
Committee. If the Beneficiary is the Member's spouse, distribution shall be
made within ninety (90) days of the
VII-3
<PAGE> 61
Member's death if reasonably practicable and otherwise as soon as practicable.
Payment to said Beneficiary or Beneficiaries will be made as soon
as administratively practicable following receipt of any forms required by the
Committee for distribution.
Section 7.4 - Delayed Distribution
In the event a Member terminates his employment on account of
death or retirement, his Member's Account shall be distributed to him or to his
Beneficiary or Beneficiaries, as the case may be, in the amount and at the time
specified in Sections 7.2 and 7.3. Notwithstanding the preceding sentence, the
Member or his Beneficiary or Beneficiaries may elect to defer the distribution
of the Member's Account until no later than the end of the first calendar
quarter of the next succeeding Plan Year, in which event such Member's Account
shall be adjusted at the Valuation Date next preceding the delayed distribution
date.
Section 7.5 - Timing of Distribution
A distribution of the Member's Account shall be made as soon as
administratively feasible following the applicable Valuation Date described in
Sections 7.2, 7.3 or 7.4. However, in no event shall the distribution of the
Member's Account in accordance with Sections 7.2(a) and 7.4 be made to the
Member later than sixty (60) days after the close of the Plan Year in
VII-4
<PAGE> 62
which such termination of employment occurs, or, if later, within sixty (60)
days after the earliest date on which the amount to be distributed can be
determined or the date on which a Member, whose whereabouts were previously not
reasonably ascertainable, has been located.
Section 7.6 - Distribution Upon Attainment of Age 70-1/2
(a) Notwithstanding any provision of this Article VII to the
contrary but subject to Subsection (b) below, distribution of a Member's
Account shall commence no later than April 1 of the calendar year following the
calendar year in which the Member attains age 70-1/2 ("Required Beginning
Date").
(b) The Required Beginning Date of a Member who attained age
70-1/2 prior to January 1, 1988 shall be determined in accordance with (1) or
(2) below:
(1) The Required Beginning Date of such a Member who is not a
five percent (5%) owner (as described in Subsection (c)
below) is April 1 of the calendar year following the
calendar year in which the Member retires.
(2) The Required Beginning Date of such a Member who is a five
percent (5%) owner (as described in Subsection (c) below)
is the April 1 of the calendar year following the earlier
of:
VII-5
<PAGE> 63
(i) the calendar year with or within which ends the Plan
Year in which the Member becomes a five percent (5%)
owner (as described in Subsection (c) below); or
(ii) the calendar year in which the Member retires.
(c) A Member is treated as a five percent (5%) owner for
purposes of this Section 7.6 if he is a five percent (5%) owner as described in
Prop. Treasury Reg. Section 1.401(a)(9)-1(Q&A B-2)(d).
(d) Distribution of a Member's Account pursuant to this Section
7.6 shall be made in a single sum payment based on the Member's Account
adjusted as of the last Valuation Date of the Plan Year, with payment to be
made as soon as administratively practicable following such Valuation Date.
Effective January 1, 1993, a Member subject to the distribution
requirements of this Section 7.6 may elect to receive distributions from his
Member's Account over his life expectancy in accordance with Treasury
Regulations. Such distributions shall be made pro rata from the Investment
Fund or Funds in which such account is invested.
(e) The benefit of a Member who begins receiving benefits
pursuant to this Section 7.6 shall be adjusted,
VII-6
<PAGE> 64
effective on the January 1 following the Plan Year in which the Member's
benefit commenced and on each succeeding January 1 prior to the Member's
termination of employment, to reflect the effect of changes in the Member's
Account since the previous January 1. Adjustments required by this Subsection
(e) shall include a reduction equal to the benefit payments already made with
respect to the Member. In no event, however, will the benefit payable to the
Member be reduced as a result of this Subsection (e).
(f) Even though such Member's benefits have commenced under
this Section 7.6, upon his termination of employment his Member's Account shall
be distributed to him as a single sum payment based on the Member's Account
adjusted as of a Valuation Date reasonably following the date of such
termination, with payment to be made as soon as administratively practicable
following such Valuation Date.
Section 7.7 - Distributions in Cash and Stock
If a Member so elects, all distributions to be made pursuant to
the foregoing sections of this ARTICLE VII from the American Express Stock Fund
or Company Stock Fund shall be in whole shares of Company Stock, provided that
the Member will be receiving at least twenty-five (25) whole shares of Company
Stock. Any distribution comprising less than twenty-five (25) shares and any
fractional shares shall be paid in cash. To receive Company Stock, a Member
(or any Beneficiary or
VII-7
<PAGE> 65
Beneficiaries) must provide written notice to the Committee prior to the
effective date of such distribution. If a Member fails to so elect, or will be
receiving less than twenty-five (25) whole shares, the distribution shall be
made in cash in lieu of Company Stock, the amount of such cash to be computed
at the last reported sale price of such Company Stock on the principal national
securities exchange on which shares of the stock are traded on the applicable
Valuation Date.
Section 7.8 - Withdrawals After Attainment of 59-1/2
Any Member employed by an Employer or Affiliate who has attained
the age of 59-1/2 may elect to withdraw all or part of his Member's Account
subject to the following restrictions. Withdrawals shall be allowed only once
in any consecutive twelve (12) month period and application therefor shall be
made in the form prescribed by the Committee. Any withdrawal under this
Section 7.8, must be in an amount of not less than $1,000 (or such larger
amount as may be established by the Committee from time to time under
nondiscriminatory rules) and will be withdrawn from the Member's Account (and
pro rata from the Investment Funds each such account is invested in) in the
following order of priority: (a) Rollover Account; (b) Before Tax Savings
Account; and (c) Employer Contribution Account. Distribution of such
withdrawals shall be made in a single sum payment by check, or, effective
January 1, 1990 and subject to the provisions of Section 7.7, in Company Stock,
based on the Member's Account
VII-8
<PAGE> 66
adjusted as of the Valuation Date coinciding with or immediately preceding the
date on which distribution is made and all such distributions shall be made as
soon as administratively practicable after the appropriate Valuation Date.
Section 7.9 - Hardship Withdrawals
(a) Any Member employed by an Employer or Affiliate may, by
applying in the manner prescribed by the Committee, withdraw so much of his
Member's Account as the Committee shall in a uniform and nondiscriminatory
manner determine to be necessary (based on such representations or other
information as the Committee may request in its discretion) to meet any
condition of "financial hardship" described in Subsection (e) below affecting
such Member, to the extent necessary to satisfy such financial hardship.
Any withdrawal under this Section 7.9, must be in an amount of
not less than $500 (or such larger amount as may be established by the
Committee from time to time under nondiscriminatory rules) and will be
withdrawn from the Member's Account (and pro rata from the Investment Funds
each such account is invested in) first from the Rollover Account and then from
the Before Tax Savings Account. Hardship withdrawals from a Member's Employer
Contributions Account and of post-1988 investment earnings on Before Tax
Contributions are not permitted. A Member may not return any amounts withdrawn
hereunder.
VII-9
<PAGE> 67
(b) No withdrawal under this Section 7.9 will be permitted
unless the Member first withdraws, to the extent permitted under such plans,
the total amount standing to his credit under The Lehman Brothers Holdings Inc.
(formerly The Shearson Lehman Brothers Holdings Inc.) Voluntary Deferred
Compensation Plan, any other nonqualified deferred compensation plan which
permits hardship withdrawals, and such other programs or plans as determined by
the Committee on a nondiscriminatory basis.
(c) Effective January 1, 1990, application for withdrawals, in
the form prescribed by the Committee, shall be allowed only once in any
consecutive twelve month period.
(d) If a withdrawal from a Member's Before Tax Savings Account
is made by the Member pursuant to this Section 7.9, no contributions shall be
made to such Member's Before Tax Savings Account under this Plan for the twelve
(12)-month period commencing on the date of payment to the Member.
(e) For purposes of this Section 7.9, "financial hardship"
means immediate and significant financial needs occurring in the personal
affairs of a Member which continue to exist after all other financial resources
have been exhausted, and which are found to be both acceptable to the Committee
and in accordance with rules and regulations promulgated by the Internal
Revenue Service. In making its determination, the Committee
VII-10
<PAGE> 68
shall take into consideration the following factors, including but not limited
to:
(1) Costs (other than mortgage payments) directly
related to the purchase of the Member's primary
residence;
(2) Payments of tuition and related educational fees
(but not to include room, board or books) for the
next twelve (12) months of post-secondary education
of the Member or the Member's spouse, child(ren) or
dependents (as defined in Section 152 of the Code);
(3) Expenses for medical care described in Section
213(d) of the Code previously incurred by the Member
or the Member's spouse, child(ren) or dependents (as
defined in Section 152 of the Code) or expenses
necessary in order for such persons to obtain such
care, provided that such expenses have not been and
will not in the future be covered by insurance;
(4) Prevention of eviction or foreclosure on the Member's
primary residence;
VII-11
<PAGE> 69
(5) Exceptional circumstances, as determined in the sole
discretion of the Committee; or
(6) Payment of federal, state or local income taxes or
penalties reasonably anticipated to result from the
Member's hardship withdrawal under this Section 7.9
(but not to exceed twenty-five percent (25%) of the
withdrawal amount).
For these purposes, general indebtedness, ordinary taxes, settling margin
calls, or similar reasons, do not constitute exceptional circumstances.
Section 7.10 - Debiting of Investment Fund
If a Member makes a partial withdrawal of his Member's Account
under Section 7.8 or Section 7.9 or other specified sections of this Plan and
his Member's Account is invested in more than one Investment Fund, then the
amount withdrawn from his Member's Account shall be debited, on a pro rata
basis, against each Investment Fund in which such Member's Account is invested.
Section 7.11 - Distributions to Alternate Payees
(a) The Committee shall recognize and honor any judgment,
decree or order entered on or after January 1, 1985 under a state domestic
relations law which the Committee
VII-12
<PAGE> 70
determines to be a Qualified Domestic Relations Order in accordance with
reasonable procedures to determine such status as the Committee shall
establish.
Without limitation of the foregoing, the Committee shall notify a
Member and the Alternate Payee under a judgment, decree or order which purports
to be a Qualified Domestic Relations Order of (1) the receipt thereof, (2) the
Plan's procedures for determining whether such judgment, decree or order is a
Qualified Domestic Relations Order, and (3) any determination made with respect
to such status.
During any period which the Committee is determining whether any
judgment, decree or order is a Qualified Domestic Relations Order, any amount
which would have been payable to an Alternate Payee pursuant to such order
shall be separately accounted for (and adjusted to reflect its appropriate
share of the gains, losses or expenses of the Investment Funds as of each
Valuation Date pursuant to Section 9.3, but shall still be subject to the
investment elections made by the Member pursuant to Section 6.2) pending
payment to the proper recipient thereof.
If the Committee determines such judgment, decree or order to be
a Qualified Domestic Relations Order within eighteen (18) full calendar months
commencing with the date on which the first payment would be required to be
made under such judgment, decree or order, the separately accounted for amount,
as
VII-13
<PAGE> 71
adjusted, shall be placed in a separate account ("Alternate Payee's Account")
until such account is distributed to the Alternate Payee.
If the Committee is unable to make such a determination within
the eighteen (18)-month time period, payment under the Plan shall be made as if
such judgment, decree or order did not exist and any such determination made
after such time period shall be applied prospectively only.
Distribution to an Alternate Payee under a Qualified Domestic
Relations Order shall be made from the Alternate Payee's Account in accordance
with the directions of the Qualified Domestic Relations Order, and to the
extent not so designated, on a pro rata basis from the Alternate Payee's
Account (and Investment Funds thereunder as described in Section 7.10).
(b) Except as otherwise provided in Subsection (c) below,
distribution to an Alternate Payee shall be made in a single sum payment as
soon as administratively feasible following the date specified in the Qualified
Domestic Relations Order, which may not be earlier than the "earliest
retirement date" (as such term is defined in Section 414(p) of the Code) under
the Plan. Payment shall be made only after such Alternate Payee has consented
to the payment, and in the absence of such consent, no later than the date as
determined in Section 7.2(b).
VII-14
<PAGE> 72
(c) Notwithstanding the provisions of Subsection (b) above, if
the value of the Alternate Payee's Account is $3,500 or less, payment shall be
made as soon as practicable following the determination that an order is a
Qualified Domestic Relations Order.
If the Alternate Payee and the Committee enter into an agreement
providing for distribution, payment of benefits to the Alternate Payee under
the order may be made (i) at any time after the date of the order, (ii) as if
the Participant had retired on the date on which such payment is to begin under
such order.
(d) Until the Alternate Payee's Account is distributed to the
Alternate Payee, it shall be adjusted to reflect its appropriate share of the
gains, losses and expenses of the Investment Funds as of each Valuation Date
pursuant to Section 9.3 and shall be subject to the transfer elections
(described in Section 6.2) made by the Alternate Payee as though he were the
Member.
Section 7.12 - Fund to Fund Transfers
With the consent of the Committee, amounts may be transferred
from the Plan on behalf of a Member to other qualified plans, provided that the
trust to which such funds are transferred permits the transfer to be made and,
in the opinion of legal counsel for the Company, the transfer will not
VII-15
<PAGE> 73
jeopardize the tax exempt status of the Plan or Trust or create adverse tax
consequences for any Employer.
Section 7.13 - Direct Rollover of Eligible Rollover Distributions
(a) This Section 7.13 applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a Distributee's election under this Section, a
Distributee may elect, at the time and in the manner prescribed by the
Committee, to have any portion of an Eligible Rollover Distribution paid
directly to an Eligible Retirement Plan specified by the Distributee in a
Direct Rollover.
(b) For purposes of this Section 7.13, the following
definitions shall apply:
(1) "Eligible Rollover Distribution" shall mean any
distribution of all or any portion of the balance to
the credit of the Distributee, except that an
Eligible Rollover Distribution does not include: any
distribution to the extent such distribution is
required under Section 401(a)(9) of the Code; and
the portion of any distribution that is not
includable in gross income (determined without
regard to the exclusion for net
VII-16
<PAGE> 74
unrealized appreciation with respect to employer
securities).
(2) "Eligible Retirement Plan" means an individual
retirement account described in Section 408(a) of
the Code, an individual retirement annuity described
in Section 408(b) of the Code, an annuity plan
described in Section 403(a) of the Code, or a
qualified trust described in Section 401(a) of the
Code, that accepts the Distributee's Eligible
Rollover Distribution. However, in the case of an
Eligible Rollover Distribution to the surviving
spouse, an Eligible Retirement Plan is an individual
retirement account or individual retirement annuity.
(3) "Distributee" includes an employee or former
employee. In addition, the employee's or former
employee's surviving spouse and the employee or
former employee's spouse or former spouse who is the
Alternate Payee under a Qualified Domestic Relations
Order are distributees with regard to the interest
of the spouse or former spouse.
VII-17
<PAGE> 75
(4) "Direct Rollover" means a payment by the Plan to the
Eligible Retirement Plan specified by the
Distributee in accordance with procedures
established by the Committee.
(c) No more than one Direct Rollover may be elected by a
Distributee for each Eligible Rollover Distribution.
(d) Default Procedure. If the value of a terminated Member's
vested interest in his Member's Account does not exceed $3,500 (and did not
exceed $3,500 at the time of any prior distribution under the Plan), and such
Member does not make a timely election whether or not to directly roll over his
distribution, such distribution shall be made directly to the Member.
(e) This Section 7.13 applies to all distributions under the
Plan as described above whether made under this Article VII or under any other
Article of the Plan.
VII-18
<PAGE> 76
ARTICLE VIII
FINANCING
Section 8.1 - Trust Funds
All of the contributions to the Plan shall be held by a Trustee
or Trustees, appointed from time to time by the Board of Directors, in one or
more trusts, under a trust instrument or instruments approved or authorized by
the Board of Directors for use in providing the benefits of the Plan and in
paying any expenses of the Plan not paid directly by the Company.
Section 8.2 - Contributions to the Trust
Each Employer shall make such contributions to the Trustee under
the Trust Agreement as is required by the provisions of the Plan as long as the
Plan is in effect.
If more than one Employer participates in this Plan during a
particular Plan Year, each such Employer shall make its own contributions only
for the benefit of its own Employees who are Participants in the Plan, unless
and to the extent that a particular Employer is permitted to contribute for the
benefit of the Employees of another Employer who are Participants pursuant to
Section 404(a)(3)(B) of the Code, and such Employer, by action of its board of
directors, agrees to do so.
Section 8.3 - Contributions in American Express Stock
VIII-1
<PAGE> 77
If the Employer determines to make Employer Contributions and
Before Tax Contributions previously elected to be invested in the American
Express Stock Fund in the form of American Express Stock, the Employer may
acquire such American Express Stock directly from American Express Company.
The fair market value of American Express Stock shall be equal to the average
of the high and low as reported on the New York Stock Exchange Composite
Transaction Tape on the date of purchase by the Trustees. If the Employer is
unable to acquire American Express Stock from American Express Company due to a
Black Out Period, the Employer may make a cash contribution and the Committee
may direct the Trustee to hold such cash contribution in the Employer Suspense
Account until the expiration of such Black Out Period. Upon the expiration of
a Black Out Period, the Trustee shall, as soon as administratively practicable,
acquire American Express Stock from American Express Company and allocate such
shares to Member's Accounts.
Section 8.4 - Non-Reversion
The Employers shall have no right, title or interest in the
contributions made to the Trust Fund under the Trust and no part of the Trust
Fund shall revert to the Company, except that:
(a) If a contribution is made to the Trust Fund by an Employer
by mistake of fact, then such contributions may be returned
to the Employer
VIII-2
<PAGE> 78
within one year after the payment of the contribution; and
(b) Every contribution by the Employer to the Trust Fund is
conditioned on its current deductibility under Section 404
of the Code, and to the extent that the contribution is
disallowed as a deduction, it may be returned to the
Employer within one year after the disallowance. A
contribution returned to an Employer pursuant to this
paragraph shall be adjusted to reflect its proportionate
share of the Trust Fund's loss, if any, but not profit.
Section 8.5 - Expenses
Unless paid by the Employer, the expenses of administering the
Plan, other than compensation of persons on the payroll of the Employer, but
including fees of the Trustee, counsel, accountants or other experts appointed
under the Plan, shall be paid out of the Trust Fund to the extent allowed by
law.
Section 8.6 - Rights in the Trust Fund
Persons eligible for benefits under the Plan are entitled to look
only to the Trust Fund for the payment of such benefits and have no claim
against an Employer, the Committee, or any other person. No person shall have
any right, title or
VIII-3
<PAGE> 79
interest in the Trust Fund except as expressly provided in the Plan.
Section 8.7 - Exclusive Benefit
The Trust Fund shall be used to provide the benefits and pay the
expenses of this Plan and of the Trust Fund and, except as otherwise provided
in Section 5.2 and Section 8.4, no part of the corpus or income shall be used
for or diverted to purposes other than for the exclusive benefit of
Participants, Members and their Beneficiaries and the payment of the expenses
of this Plan.
Notwithstanding the fact that an Employer may make contributions
to the Plan on behalf of Participants employed by another Employer pursuant to
Section 8.2, on an ongoing basis, the contributions made by or on behalf of
each Employer may only be used to pay benefits hereunder to those Participants
for whom such contributions were made.
VIII-4
<PAGE> 80
ARTICLE IX
ACCOUNTS AND RECORDS OF THE PLAN
Section 9.1 - Accounts and Records
The accounts and records of the Plan shall be maintained by the
Committee or its designee and shall accurately disclose the status of the
accounts of each Member or his Beneficiary in the Plan.
Each Member shall be advised from time to time, at least once
each Plan Year, as to the status of his Member's Account and the portions
thereof attributable to his Before Tax Savings Account, Employer Contribution
Account and Rollover Account.
Section 9.2 - Investment Funds
The Trust Fund shall consist of the Investment Funds in which
each Member, who has any interest therein, shall have an undivided
proportionate interest. The Committee shall have the right to establish and
disestablish Investment Funds from time to time to implement and carry out
investment objectives and policies established by the Committee. Each Member's
undivided proportionate interest in each Investment Fund of the Trust Fund
shall be measured by the proportion that the value of such part of his Member's
Account as is invested in that Fund bears to the total of such parts of all
Member's Accounts as are invested in that Fund on the date that such interest
is being determined.
IX-1
<PAGE> 81
The Trustee shall maintain in cash, without obligation to credit
interest thereon, such part of the Trust Fund as the Committee specifies for
the proper administration of the Plan. At the Committee's direction, the
Trustee shall invest such cash in short-term obligations as determined by the
Trustee, which shall be treated as cash for purposes of the Plan.
Section 9.3 - Adjustments to Member's Account to Reflect the Net Worth of the
Investment Fund
As of each Valuation Date, or more frequently as determined by
the Committee, the Committee shall adjust the net credit balances of the
Members' Accounts, in the respective Investment Funds of the Trust Fund, upward
or downward, pro rata, so that the aggregate of such net credit balances will
equal the net worth of each Investment Fund of the Trust Fund as of that
Valuation Date, or as determined by the Committee, using fair market values as
determined by the Trustee and reported to the Committee, after such net worth
for the appropriate Investment Fund has been reduced by any expenses,
withdrawals, distributions and transfers chargeable to that Investment Fund
which have been incurred but not yet paid. All determinations made by the
Trustee with respect to fair market values and net worth shall be made in
accordance with generally accepted principles of trust accounting, and such
determinations by the Committee based thereon shall be conclusive and binding
upon all persons having an interest under the Plan.
IX-2
<PAGE> 82
ARTICLE X
ADMINISTRATION
Section 10.1 - Employee Benefit Plans Committee
The complete authority and discretion to control and manage the
operation and administration of the Plan shall be placed in the Employee
Benefit Plans Committee. The Committee shall consist of at least three members
appointed from time to time by the Finance Committee of the Board of Directors
or its delegatee(s) to serve at the pleasure thereof. Any member of the
Committee may resign by delivering his written resignation to the Company.
Section 10.2 - Rules of Administration
Subject to the limitations of the Plan, the Committee from time to
time shall establish rules for the administration of the Plan. The Committee
shall have the discretion and exclusive right to determine any question arising
in connection with the interpretation, application or administration of the
Plan, and its interpretation in good faith shall be conclusive and binding on
all parties concerned, including without limitation, any and all Employees,
Members, spouses, Beneficiaries, heirs, distributees, estates, executors,
administrators and assigns. All actions, decisions and interpretations of the
Committee in administering the Plan shall be performed in a uniform and
nondiscriminatory manner.
X-1
<PAGE> 83
Section 10.3 - Suspense of Investment Elections
If the Committee determines that there is a Black Out Period or
specific circumstances so require, investment elections and transfers shall be
suspended until the Black Out Period expires or the specific circumstances
cease to exist, at which time the Committee shall direct the Trustee to
promptly comply with the Participants' investment elections.
Section 10.4 - Claims Procedure
Any Member or Beneficiary who believes that he is then entitled to
receive a benefit under the Plan, including one greater than that determined by
the Committee, may file a claim in writing with the Committee in accordance
with the claims review procedure set forth in the Summary Plan Description of
this Plan.
Section 10.5 - Action by Majority
Any act which the Plan authorizes or requires the Committee to do
may be done by a majority of its members. The action of such majority,
expressed from time to time by a vote at a meeting or in writing without a
meeting, shall constitute the action of the Committee and shall have the same
effect for all purposes as if assented to by all members of the Committee at
the time in office. The members of the Committee may authorize one or more of
their number to execute or deliver any instrument,
X-2
<PAGE> 84
make any payment or perform any other act which the Plan authorizes or requires
the Committee to do.
Section 10.6 - Retention of Advisors
The Committee or any fiduciary designated by the Committee pursuant
to Section 10.11 may employ counsel and other agents and may procure such
clerical, accounting, actuarial and other services as they may require in
carrying out the provisions of the Plan.
Section 10.7 - Committee Member Compensation
No member of the Committee shall receive any compensation for his
services as such.
Section 10.8 - Indemnification
The Company shall indemnify and save harmless each member of the
Committee against all expenses and liabilities arising out of membership on the
Committee, excepting only expenses and liabilities arising from his own gross
negligence or willful misconduct, as determined by the Board of Directors.
Section 10.9 - Named Fiduciary and Plan Administrator
For purposes of the Act, the "Named Fiduciary" for operation and
administration of the Plan and the "Plan Administrator" shall be the Committee,
and the Committee is hereby designated as agent for service of legal process.
X-3
<PAGE> 85
Section 10.10 - Service in Various Fiduciary Capacities
Any person or group of persons may serve in more than one fiduciary
capacity with respect to the Plan.
Section 10.11 - Power of Delegation
The Committee may designate in writing other persons to carry out a
specified part or parts of its responsibilities hereunder (including the power
to designate other persons to carry out a part of such designated
responsibility).
X-4
<PAGE> 86
ARTICLE XI
BENEFICIARY DESIGNATION, INCOMPETENCY AND NON-ALIENATION
Section 11.1 - Beneficiary Designation
(a) Each Member may designate, in the form prescribed by the
Committee, a Beneficiary or Beneficiaries to receive his interest in the Plan
in the event of his death, and may direct that payments be made in specific
proportion to certain primary Beneficiaries if living at the date of his death,
or if not so living, to certain secondary Beneficiaries, in specified portions,
but such designation shall not be effective for any purpose until it has been
filed by him during his lifetime with the Committee. He may, from time to time
during his lifetime, in the form prescribed by and filed with the Committee,
change the Beneficiary or Beneficiaries.
In the event that a Member fails to designate a Beneficiary, or if
for any reason such designation shall be legally ineffective, or if no
designated Beneficiaries survive to the date that a distribution is payable,
distribution shall be made to his estate. If more than one Beneficiary of a
particular class (primary or secondary) is entitled to benefits, payments shall
be made in equal shares to such Beneficiaries, unless some other specific
proportions are clearly designated. If more than one Beneficiary of a
particular class (primary or secondary) is named, the interest of any deceased
Beneficiary of that class
XI-1
<PAGE> 87
shall pass to the surviving Beneficiary or Beneficiaries of that class except
to the extent that the designation provides for payment to any secondary
Beneficiary(s) upon the death of a primary Beneficiary.
(b) Notwithstanding anything in this Section 11.1 to the contrary,
for a Member who was legally married on the date of his death which occurs on
or after August 23, 1984, and prior to distribution of his Member's Account,
the Beneficiary shall be his surviving spouse unless such Member designates
some other Beneficiary and (i) the spouse waives the right to be the Member's
Beneficiary, (ii) the Member establishes to the satisfaction of the Committee
that the spouse cannot be located or has abandoned the Member within the
meaning of local law, or (iii) the Member has no surviving spouse. In such
event, the designation of a Beneficiary other than the surviving spouse shall
be in the form prescribed by the Committee.
Any such designation may be revoked solely by the Member by written
notice to the Committee; provided, however, the Member's spouse must consent in
writing to any such change or revocation. Any consent by a Member's spouse to
waive the rights provided under this Section 11.1 must be in writing,
acknowledge the effect of such waiver, and be witnessed by a notary public.
Further, a spouse's consent is irrevocable and must identify the designated
non-spouse Beneficiary by name or class.
XI-2
<PAGE> 88
If a Member has failed effectively to designate a Beneficiary to
receive the Member's death benefits, or a Beneficiary previously designated has
predeceased the Member and no alternative designation has become effective,
such benefits shall be distributed to the Member's surviving spouse, if any, or
if no spouse survives the Member, to the Member's estate.
(c) Before making distribution to a Beneficiary, the Committee may
require such proof of death and such evidence of the right of any person to
receive all or part of the death benefit of a deceased Member as the Committee
may deem desirable. The Committee's determination of the fact of death of a
Member and of the right of any person to receive distributions as a result
thereof shall be conclusive upon such person or persons having or claiming any
right in the Trust Fund on account of such Member.
(d) If distribution in respect of any Member's Account is made to
a person reasonably believed by the Committee or its delegate (taking into
account any document purporting to be a valid consent of the Member's spouse,
or any representation by the Member that he is not married) to properly qualify
as the Member's Beneficiary under the foregoing provisions of this Article XI,
the Plan shall have no further liability with respect to such Member's Accounts
(or the portion thereof distributed).
Section 11.2 - Incompetence
XI-3
<PAGE> 89
Whenever and as often as any person entitled to receive a
distribution under the Plan shall be under a legal disability or, in the sole
judgment of the Committee, shall otherwise be unable to care for such
distributions to his own best interest and advantage, the Committee, in the
exercise of its discretion, may direct such distributions to be made in any one
or more of the following ways:
(a) To the spouse;
(b) To the legal guardian or conservator; or
(c) To any other person to be held and/or used for such person's
benefit.
The decision of the Committee shall, in each case, be final and
binding upon all parties, and any distribution made pursuant to the power
herein conferred on the Committee shall, to the extent so made, be a complete
discharge of the obligations under the Plan of the Employer, the Trustee, and
the Committee in respect of such Member.
Section 11.3 - Non-Alienation
(a) The right to receive funds under the Plan may not be
anticipated, alienated, sold, transferred, assigned, pledged, encumbered, or
subjected to any charge or legal process; and if any attempt is made to do so,
or a person eligible for any funds becomes bankrupt, the interest under the
Plan of the person affected may be terminated by the Committee, and such
Committee
XI-4
<PAGE> 90
may cause the same to be held or applied for the benefit of such person or one
or more of his dependents in such manner as it deems proper.
(b) The provisions of Subsection (a) shall not apply to a
"qualified domestic relations" order as defined in Section 414(p) of the Code
and any other domestic relations order permitted to be so treated by the
Committee in accordance with Section 7.11. The Committee shall establish a
written procedure to determine the qualified status of domestic relations
orders and to administer distributions under such qualified orders.
XI-5
<PAGE> 91
ARTICLE XII
AMENDMENT AND TERMINATION
Section 12.1 - Amendment to Conform with Law
The Company reserves the right to make by amendment such changes in,
additions to, and substitutions for the provisions of this Plan, to take effect
retroactively or otherwise, as is deemed necessary or advisable from time to
time to qualify the Plan under Sections 401(a) and 401(k) of the Code, to
continue the Plan as so qualified, or to comply with any other provision of law
relating to trusts and plans of this or a similar nature, and administrative
regulations promulgated thereunder.
Section 12.2 - Other Amendment and Termination
The Company also reserves the right to amend this Plan at any time,
and from time to time, in any manner it deems desirable including, but not
limited to, changing or modifying contributions under the Plan, or changing any
provision relating to the distribution or withdrawal, or both, with respect to
any account balances. The Company further reserves the right to terminate this
Plan at any time by resolution of its Board of Directors.
Section 12.3 - Limitations on Amendments
XII-1
<PAGE> 92
The provisions of this ARTICLE XII are subject to and limited by the
following restrictions:
(a) No such amendment shall operate either directly or indirectly
to give any Employer any interest whatsoever in any funds or
property held by the Trustee under the terms hereof, or to
permit corpus or income of the Trust to be used for or
diverted to purposes other than the exclusive benefit of
persons who are at any time on or after the date hereof,
Members or Beneficiaries.
(b) Except to the extent necessary to produce conformity to the
laws and regulations described in Section 12.1, no such
amendment shall operate either directly or indirectly to
deprive any Member of his nonforfeitable beneficial interest
as it is constituted at the time of the amendment.
Section 12.4 - Termination of the Plan
Upon complete or partial termination of the Plan, the rights of all
affected Members to their Member's Accounts as of the date of such termination
shall be nonforfeitable. If the Plan is completely terminated, the assets
attributable to each Member's Account shall either be distributed to the Member
(or his Beneficiary), or transferred to a successor plan, as the Board of
Directors or the Committee shall direct in accordance
XII-2
<PAGE> 93
with applicable law. Until all Member's Accounts are fully distributed or
transferred, any remaining accounts held in the Trust Fund shall continue to be
adjusted in accordance with Section 9.3, and to reflect their proportionate
share of the expenses of termination to the extent such expenses are not paid
by an Employer.
Section 12.5 - Merger or Consolidation or Transfer
No merger or consolidation of the Plan with, or any transfer of
assets or liabilities of the Plan to or from any other plan, shall occur unless
each Member in the Plan would be entitled to receive a benefit immediately
after the merger, consolidation or transfer (if the Plan then terminated) which
is equal to or greater than the benefit he would have been entitled to receive
immediately before the merger, consolidation or transfer (if the Plan had then
terminated).
XII-3
<PAGE> 94
ARTICLE XIII
SPECIAL TOP-HEAVY RULES
Section 13.1- Application
If this Plan is or becomes a Top-Heavy Plan (as hereinafter defined)
in any Plan Year, the provisions of this Article XIII shall apply
notwithstanding any conflicting provisions of this Plan. For purposes of this
Article XIII, the term "Employer" shall include all Affiliates.
The date for determining the applicability of this Article (the
"Determination Date") is the last day of the preceding Plan Year.
Other plans shall be included in determining whether this Plan is
"Top-Heavy" based on the determination date as defined in Section 416(g)(4)(C)
of the Code for each such plan which occurs in the same calendar year as such
Determination Date for this Plan.
Section 13.2 - Top-Heavy Plan
The Plan shall constitute a Top-Heavy Plan if, as of the
Determination Date, (a) the Plan is not part of an Aggregation Group (as
hereinafter defined) and the aggregate of the Accounts of Key Employees (as
hereinafter defined) under the Plan exceeds sixty percent (60%) of the
aggregate of the Accounts
XIII-1
<PAGE> 95
of all Employees under the Plan or (b) the Plan is included in an Aggregation
Group and such Group is a Top-Heavy Group (as hereinafter defined).
Section 13.3 - Definitions
For purposes of this Article XIII, the following definitions shall
apply:
(a) "Key Employee" in this Plan means an employee (including a
former employee, whether or not deceased) of an Employer or
Affiliate who, at any time during a given Plan Year or any of
the four (4) preceding Plan Years is one or more of the
following --
(i) An officer of an Employer or an Affiliate having
Compensation greater than fifty percent (50%) of the
dollar amount in effect under Section 415(b)(1)(A) of
the Code for any such Plan Year; provided, however, that
no more than the lesser of (A) fifty (50) employees or
(B) the greater of three (3) employees or ten percent
(10%) of all employees are to be treated as officers
(exclusive of employees described in Section 414(q)(8)
of the Code);
XIII-2
<PAGE> 96
(ii) One of the ten (10) employees (A) having Compensation
greater than the dollar limit described in Subsection
5.1, and (B) owning (or considered as owning, within the
meaning of Section 416(i) of the Code), the largest
percentage interest in value of an Employer or
Affiliate, provided that such percentage interest
exceeds one-half percent (0.5%) in value. If two (2)
employees have the same interest in an Employer or
Affiliate, the employee having greater Compensation
shall be treated as having a larger interest;
(iii) A person owning (or considered as owning, within the
meaning of Section 416(i) of the Code), more than five
percent (5%) of the outstanding stock of an Employer or
Affiliate, or stock possessing more than five percent
(5%) of the total combined voting power of all stock of
an Employer or Affiliate (or having more than five
percent (5%) of the capital or profits interest in any
Employer or Affiliate
XIII-3
<PAGE> 97
that is not a corporation, determined under similar
principles); or
(iv) A one percent (1%) owner of an Employer or Affiliate
having Compensation of more than $150,000. A "one
percent (1%) owner" means any person who would be
described in clause (iii) hereof if "one percent (1%)"
were substituted for "five percent (5%)" in each place
where it appears in clause (iii).
For each other plan included in the Aggregation Group, "Key
Employee" is as defined in Section 416(i) of the Code.
(b) "Aggregation Group" means the group of plans that includes (i)
any plan maintained by an Employer or an Affiliate in which a
Key Employee participates during the five (5)-year period
ending on such plan's Determination Date, and (ii) each other
plan of an Employer or Affiliate which, during such period,
enables any plan in clause (i) of this sentence to meet the
requirements of Sections 401(a)(4) and 410 of the Code.
Collectively bargained plans that cover a Key Employee shall
be included for this purpose. Aggregation Group may
XIII-4
<PAGE> 98
include terminated plans, frozen plans and, to the extent that
benefits are provided with respect to service with an Employer
or Affiliate, multiemployer plans (described in Section 414(f)
of the Code) and multiple employer plans (described in Section
413(c) of the Code) to which an Employer or Affiliate makes
contributions. In any Plan Year, in testing for top-heaviness
under Subsection (c) below, the Committee may in its
discretion expand the Aggregation Group to take into account
any other plan maintained by an Employer or Affiliate, but
only if such expanded Aggregation Group does not as a result
of such expansion, fail to meet the requirements of Sections
401(a)(4) and 410 of the Code. Collectively bargained plans
that do not cover a Key Employee may be included for this
purpose.
(c) The term "Top-Heavy Group" means an Aggregation Group as to
which, as of the Determination Date, the sum of -- (i) the
present value of the cumulative accrued benefits for Key
Employees under all defined benefit plans included in such
Group (determined based on the actuarial assumptions set forth
in the "top-heavy" provisions of such plans), and (ii) the
aggregate
XIII-5
<PAGE> 99
of the accounts of Key Employees under all defined contribution
plans included in such Group -- exceeds sixty percent (60%) of
a similar sum determined for all participants of such plans.
Section 13.4 - Beneficiaries
The terms "Key Employee" and "participant" include their
Beneficiaries.
Section 13.5 - Present Value and Accounts
For purposes of Sections 13.2 and 13.3(c), the following rules shall
apply in determining the present value of the cumulative accrued benefit for
any employee and the amount of the account of any employee:
(a) The present value of accrued benefits and the value of
accounts shall be determined as of the most recent Valuation
Date that falls within, or on the last day of, the twelve
(12)-month period ending on the Determination Date;
(b) Employer contributions and employee contributions, with the
exception of accumulated deductible employee contributions,
shall be taken into account;
XIII-6
<PAGE> 100
(c) All amounts distributed to an employee within the five
(5)-year period ending on the Determination Date shall be
taken into account, including any amount distributed from a
terminated plan that would have been required to be included
in the Aggregation Group had it not been terminated;
(d) With respect to a transferee plan, any rollover contribution
or similar transfer initiated by an employee and made after
December 31, 1983, shall be disregarded (except to the extent
provided in regulations issued by the Secretary of the
Treasury);
(e) If an employee ceases to be a Key Employee, such employee's
accrued benefit and account shall be disregarded (for purposes
of determining the present value of cumulative accrued
benefits and the amount of the accounts of both Key Employees
and all employees) for any Plan Year after the last Plan Year
for which he was treated as a Key Employee; and
(f) The benefits and accounts of persons who have not performed
services for an Employer or Affiliate for the five (5)-year
period ending on the Determination Date shall be disregarded.
XIII-7
<PAGE> 101
Section 13.6 - Minimum Contribution
(a) If this Plan is determined to be a Top-Heavy Plan in any Plan
Year, then the Employer contribution for such Plan Year for each Participant
who is employed by an Employer or Affiliate on the last day of the Plan Year
and is not a Key Employee shall be at least three percent (3%) of such
Participant's Compensation. The Employer contribution shall not, however,
exceed the percentage of each Participant's Compensation that is equal to the
highest percentage of Compensation at which contributions are made for the Plan
Year for any Key Employee (i) under the Plan or (ii) if the Plan is part of an
Aggregation Group, under any defined contribution plan in such Group; provided,
however, that this sentence shall not apply if the Plan is required to be
included in an Aggregation Group and enables a defined benefit plan to meet the
requirements of Section 401(a)(4) or 410 of the Code. For purposes of the
preceding sentence, the percentage of Compensation at which contributions are
made for a Key Employee shall be computed without regard to Compensation in
excess of the ceiling on includable Compensation set forth in Section 13.7.
(b) For purposes of this Section 13.6:
(1) Contributions made pursuant to Chapter 21 of Title II of
the Social Security Act shall be disregarded; and
XIII-8
<PAGE> 102
(2) For Plan Years beginning on or after January 1, 1989,
(A) Employer contributions attributable to a salary
reduction or similar arrangement (which are made with
respect to a Key Employee) shall be taken into account
in determining the minimum contribution under this
Section 13.6; and (B) Matching Contributions for a
non-Key Employee that are taken into account to meet the
minimum contribution requirements of this Section 13.6
shall be disregarded in applying the provisions of
Section 3.4.
(c) The provisions of Subsection (a) above shall apply without
regard to Section 4.1.
(d) The provisions of Subsection (a) above shall not apply with
respect to any Participant who, for the Plan Year in question, receives the
minimum contribution set forth in Subsection (a) above under another Defined
Contribution Plan (as defined in Section 5.5(d)) maintained by the Employer or
an Affiliate or receives the minimum benefit prescribed in Section 416(c) of
the Code under a Defined Benefit Plan (as defined in Section 5.5(b)) maintained
by the Employer or an Affiliate.
Section 13.7 - Ceiling on Includable Compensation
XIII-9
<PAGE> 103
If the Plan is determined to be a Top-Heavy Plan in any Plan Year,
then only the Participant's Compensation up to the maximum amount described in
Section 1.13, as adjusted from time to time, shall be taken into account in
determining the allocation to the Member's Account of such Participant for the
Plan Year.
Section 13.8 - Exception for Collectively Bargained Plans
Section 13.6 shall not apply to any employee who is included in a
collective bargaining unit if there is evidence that retirement benefits were
the subject of good faith bargaining between the representatives of such unit
and the Employer or an Affiliate, except as to those employees who are
Employees.
Section 13.9 - Combined Limit on Contributions and Benefits for Key Employees
If the Plan is determined to be a Top-Heavy Plan in any Plan Year,
then Article V shall be applied by substituting 1.0 for 1.25 in the
denominators of the Defined Benefit Plan Fraction (as defined in Section
5.5(c)) and the Defined Contribution Plan Fraction (as defined in Section
5.5(e)); provided, however, that this Section 13.9 shall not apply if both of
the following conditions are satisfied:
(a) the Employer contribution for such Plan Year for each
Participant who is not a Key Employee is not
XIII-10
<PAGE> 104
less than four percent (4%) of such Participant's Compensation
and the minimum benefit provided under the Defined Benefit
Plan is increased (over the minimum benefit prescribed in
Section 416(c) of the Code) by one percentage point for each
year for which such plan was taken into account under Section
416(h) of the Code, up to a maximum of ten percentage points;
and
(b) the Plan would not be a Top-Heavy Plan if "ninety percent
(90%)" were substituted for "sixty percent (60%)" in Sections
13.2 and 13.3(c).
Section 13.10 - Compliance with Section 416 of the Code
The calculation of the "Top-Heavy" ratio, and the extent to which
distributions, rollovers and transfers from this Plan or any other plan
included in the Aggregation Group shall be taken into account, will be made in
accordance with Section 416 of the Code and applicable regulations thereunder.
XIII-11
<PAGE> 105
ARTICLE XIV
MISCELLANEOUS
Section 14.1 - Effect of Mistake
In the event of a mistake or misstatement as to age or eligibility
of any person, or the amount or kind of contributions, withdrawals or
distributions made or to be made to a Member or other person, the Committee
shall, to the extent it deems possible, make such adjustment as will in its
judgment accord to such Member or other person the credits or distributions to
which he is properly entitled under the Plan.
Section 14.2 - Inability to Locate Payee
If any benefit becomes payable to any person, or to the executor or
administrator of any deceased person, and if that person or his executor or
administrator does not file a claim in writing with the Committee in accordance
with the claims review procedure set forth in the Summary Plan Description of
this Plan within five years (two years on or after January 1, 1990) after the
Committee mails written notice of eligibility to his last known address, that
benefit will be forfeited at such time as the Committee shall determine in its
sole discretion (but in all events prior to the time such benefit would
otherwise escheat under any applicable law). However, the payee later may file
a claim for that benefit under Section 10.4, provided the Plan has not been
terminated. If that claim is approved, the benefit will
XIV-1
<PAGE> 106
be restored; provided, however, that no interest or other earnings shall be
paid with respect to such benefit.
Amounts forfeited pursuant to this Section 14.2 shall be used to
reduce Employer contributions to the Plan under Section 4.1 or to pay expenses
of the Plan.
Section 14.3 - Conclusiveness of Records
In administering the Plan, the Committee may conclusively rely upon
an Employer's payroll and personnel records maintained in the ordinary course
of business.
Section 14.4 - Plan Not an Employment Contract
This Plan is not a contract to employ nor a consideration or
inducement for the employment of any person and does not give to any person the
right to be continued in employment.
Section 14.5 - Gender; Headings
(a) The masculine pronoun, wherever used herein, shall include the
feminine pronoun, the singular as used herein shall include the plural, and the
plural shall include the singular, unless the context clearly indicates a
different meaning.
(b) The headings of Sections and Subsections are included solely
for convenience of reference and in no way define, limit, enlarge or describe
the scope or intent of the
XIV-2
<PAGE> 107
Plan nor in any way shall affect the Plan or the construction of any provision
thereof.
Section 14.6 - Counterparts
This Plan may be executed in any number of counterparts, each of
which shall be deemed to be an original. All the counterparts shall constitute
but one and the same instrument and may be sufficiently evidenced by any one
counterpart.
Section 14.7 - Illegality of Particular Provision
The illegality, invalidity or unenforceability of any particular
provision of the Plan or Trust Agreement shall not affect any other provisions
of the Plan or Trust Agreement, and the Plan and Trust Agreement shall be
construed as if such provision had not been included therein.
Section 14.8 - Applicable Law
The Plan shall be governed by and construed according to the laws of
the State of New York except to the extent pre-empted by the Act or any other
applicable federal law.
Section 14.9 - Family Members of Highly Compensated Employees
In determining the identity of Highly Compensated Employees and
employees who are not Highly Compensated Employees, and their treatment under
the Plan, and for purposes of Section
XIV-3
<PAGE> 108
401(a)(17) of the Code, if an employee is, during a "determination year" or a
"look-back year" (as such terms are defined in Section 1.21), a "family member"
of either a five-percent (5%) owner (as described in Section 13.3(a)(iii)) who
is an active or former employee or a Highly Compensated Employee who is one of
the 10 most highly compensated employees ranked on the basis of compensation
(as that term is defined in Section 415(c)(3) of the Code, determined before
giving effect to any agreement to make Before Tax Savings contributions under
this Plan or to any salary reduction arrangement under any cafeteria plan
(within the meaning of Section 125 of the Code)) for such year, then the
"family member" and the five-percent (5%) owner or top-10 Highly Compensated
Employee shall be aggregated in the manner provided in Sections 414(q)(6) and
401(a)(17) of the Code and applicable regulations.
In such case, the "family member" and five-percent (5%) owner or
top-10 Highly Compensated Employee shall be treated as a single employee
receiving Compensation and Plan contributions equal to the sum of such
Compensation and contributions of the "family member" and five- percent (5%)
owner or top-10 Highly Compensated Employee.
For purposes of this Section 14.9, "family member" means (i) with
respect to the determination of who is a Highly Compensated Employee, the
spouse and lineal ascendants and descendants of the employee or former employee
and the spouses of
XIV-4
<PAGE> 109
such lineal ascendants and descendants and (ii) with respect to the application
of Section 401(a)(17) of the Code in any Plan Year, the spouse of the employee
and any lineal descendants of the employee who have not attained age 19 before
the close of the Plan Year.
Section 14.10 - Limitation of Liability
Subject to Section 10.8, no liability shall attach to or be incurred
by any stockholder, officer or director of an Employer or any Affiliate under
or by reason of the terms, conditions and provisions contained in the Plan or
Trust Agreement or for the acts or decisions taken or made thereunder or in
connection therewith; and as a condition precedent to his participation in the
Plan or the receipt of benefits thereunder, or both, such liability, if any, is
expressly waived and released by each Member, spouse or Beneficiary, and by any
and all persons claiming under or through such persons, such waiver and release
to be conclusively evidenced by any act or participation in or the acceptance
of benefits or the making of elections under the Plan.
XIV-5
<PAGE> 110
ARTICLE XV
SPECIAL PROVISIONS APPLICABLE TO SLHMC EMPLOYEES
Section 15.1 - Definitions
As used in this Article XV, the following terms shall have the meanings
hereinafter set forth:
(a) "Closing" shall mean the closing to take place on or about August
31, 1993 in accordance with, and pursuant to, the transactions
contemplated by the Purchase Agreement.
(b) "GE Capital" shall mean GE Capital Mortgage Services, Inc., a New
Jersey corporation.
(c) "Purchase Agreement" shall mean the stock purchase agreement dated
as of July 29, 1993 wherein Shearson agreed to sell to GE Capital
the issued and outstanding shares of SLHMC and certain subsidiaries
of SLHMC.
(d) "Shearson" shall mean Shearson Holdings, Inc., a Delaware
corporation.
(e) "SLHMC" shall mean Shearson Lehman Hutton Mortgage Corporation, a
Delaware corporation, and its subsidiary companies immediately after
the Closing.
XV-1
<PAGE> 111
Section 15.2 - Contributions
Notwithstanding anything in Section 4.1 to the contrary, any
Employer contribution to be made on behalf of SLHMC employees under this Plan
pursuant to Section 4.1 for the Plan Year beginning in 1993 shall be made with
respect to each eligible Participant employed by SLHMC on the Closing and
without regard to whether such Participant is employed on the last day of such
Plan Year; provided, however, in determining the amount of the contribution to
be allocated to each such Participant, the threshold dollar amounts of $37,800
and $100,000 set forth in Section 4.1(c) shall be multiplied by a fraction
where the numerator shall equal the number of days in such Plan Year prior to
the Closing and the denominator shall equal 365.
Section 15.3 - Distributions
Each Member who is employed by GE Capital or any member of the GE
Capital controlled group, within the meaning of Section 414(b), (c), (m) or (o)
of the Code, on the Closing (or within six months thereafter in accordance with
the terms of the Purchase Agreement) shall be entitled to receive a lump sum
distribution of his Member's Account in accordance with the applicable
provisions of Section 7.2, provided the distribution otherwise satisfies the
applicable requirements of Section 401(k)(10) of the Code and the regulations
thereunder.
XV-2
<PAGE> 112
SUPPLEMENT A TO
LEHMAN BROTHERS HOLDINGS INC.
TAX DEFERRED SAVINGS PLAN
Special provisions applicable to
residents of the Commonwealth of Puerto Rico
A-1 Purpose and Effect - The purpose of this Supplement A is to amend the Plan
in order to comply with the requirements of Section 165(a) and (e) of the
Puerto Rico Income Tax Act of 1954 (the "PRITA"). The provisions of this
Supplement A shall be effective January 1, 1993 and shall only apply to
any resident of the Commonwealth of Puerto Rico ("Supplement A
Participant") who is employed by the Company or any corporation, business
association, partnership or proprietorship which shall be designated, by
appropriate action of the Finance Committee of the Board of Directors of
the Company as a participating employer under the Plan (the "Employer").
A-2 Type of Plan - It is the intent of the Company that the Plan be a profit
sharing plan as defined in Article 165-1 of the Puerto Rico Income Tax
Regulations and that it include a qualified cash or deferred arrangement
pursuant to Section 165(e) of PRITA.
A-3 Compensation - Compensation received from sources in Puerto Rico and which
is excludable from the gross income of a Supplement A Participant under
Section 933 of the Internal
SUPPLEMENT A - Page 1
<PAGE> 113
Revenue Code of 1986 shall be considered Compensation under Section 1.13
of the Plan.
A-4 Before Tax Savings Contributions - A Supplement A Participant's Before
Tax Savings contributions under the Plan may not in any event exceed the
lesser of ten percent (10%) of the Supplement A Participant's Compensation
or $7,000, as adjusted under PRITA.
A-5 Actual Deferral Percentage Limits - In addition to the limitations
described in Section 3.4 of the Plan, the "actual deferral percentage" (as
defined in Section 3.4 of the Plan) for "Highly Compensated Supplement A
Participants" (as defined below) for each Plan Year shall not exceed the
limitations of Section 3.4(a) and (b) of the Plan by substituting the
terms "Highly Compensated Employees" and "not Highly Compensated
Employees" with the terms "Highly Compensated Supplement A Participants"
and "Not Highly Compensated Supplement A Participants", respectively. For
purposes of this paragraph A-5, the term "Highly Compensated Supplement A
Participant" means any Supplement A Participant who is eligible to
participate in the Plan and is more highly compensated than two-thirds of
all other Supplement A Participants eligible to participate in the Plan
and employed by the same Employer. Any other
SUPPLEMENT A - Page 2
<PAGE> 114
Supplement A Participant is a "Not Highly Compensated Supplement A
Participant."
For purposes of this paragraph A-5, if more than one plan providing a cash
or deferred arrangement (within the meaning of Section 165(e) of PRITA) is
maintained by the Employer or an Affiliate, the "actual deferral
percentage" (as defined in Section 3.4 of the Plan) of any Highly
Compensated Supplement A Participant who participates in more than one
such plan or arrangement shall be determined as if all such arrangements
were a single plan or arrangement.
If two or more plans are aggregated for purposes of Sections 165(a)(3) or
165(a)(4) of PRITA, such plans shall be aggregated for purposes of
determining the "actual deferral percentage" of Supplement A Participants
as if all such plans were a single plan.
A-6 Distribution of Puerto Rico Excess Contributions - To the extent permitted
under applicable laws and regulations, Puerto Rico Excess Contributions
for a Plan Year, plus any income or minus any loss allocable thereto,
shall be distributed no later than the close of the following Plan Year.
For purposes of this paragraph A-6, the term "Puerto Rico Excess
Contributions" means the Before Tax Savings contributions by Highly
Compensated Supplement A
SUPPLEMENT A - Page 3
<PAGE> 115
Participants in excess of the limitations of Section 3.4(a) and (b) of the
Plan.
A-7 Matching Contributions Only for Permissible Before Tax Savings
Contributions - To the extent permitted by applicable laws and
regulations, no Matching Contributions shall be made with respect to
Puerto Rico Excess Contributions distributable pursuant to paragraph A-6
or Before Tax Savings contributions in excess of the limitations of
paragraph A-4.
A-8 Contributions May Not Exceed Amount Deductible - In no event shall
Employer contributions under Article IV of the Plan for any taxable year
exceed the maximum amount (including amounts carried forward) deductible
for that taxable year under Section 23(p) of PRITA.
A-9 Contributions Conditioned on Deductibility and Savings Plan Qualification
- Each contribution by an Employer under Article IV of the Plan is
conditioned on the deductibility of such contribution under Section 23(p)
of PRITA for the taxable year for which contributed, and on the initial
qualification of the Plan under Section 165(a) of PRITA.
A-10 Rollover Contributions - Contributions by a Supplement A Participant under
Section 3.8 of the Plan are limited to amounts distributed from an
employee retirement plan that also qualifies under Section 165(a) of
PRITA.
SUPPLEMENT A - Page 4
<PAGE> 116
A-11 Payment of Contributions - Contributions to the Plan by an Employer
engaged in business in Puerto Rico shall be paid to the Trustee not later
than the due date for filing its Puerto Rico Income Tax Return for the
taxable year in which such payroll period falls, including any extension
thereof.
A-12 Use of Terms - All terms and provisions of the Plan shall apply to this
Supplement A, except that where the terms and provisions of the Plan and
this Supplement A conflict, the terms and provisions of this Supplement A
shall govern.
SUPPLEMENT A - Page 5
<PAGE> 1
Exhibit 4.9
DRAFT
FIRST AMENDMENT TO THE RESTATED
LEHMAN BROTHERS HOLDINGS INC.
TAX DEFERRED SAVINGS PLAN
WHEREAS, Lehman Brothers Holdings Inc. (previously known as Shearson
Lehman Brothers Holdings Inc. and Shearson Lehman Hutton Holdings Inc.) (the
"Company") established the Lehman Brothers Holdings Inc. Tax Deferred Savings
Plan (the "Plan") effective January 1, 1984 for the benefit of eligible
employees of the Company and participating affiliated companies; and
WHEREAS, the Plan was restated effective January 1, 1989, incorporating
all amendments made through August 23, 1993; and
WHEREAS, the Company has reserved the right to amend the Plan pursuant to
Section 12.2 thereof; and
WHEREAS, the Company has delegated authority to the Employee Benefit Plans
Committee (the "Committee") to act on its behalf in connection with certain
matters relating to the Plan, including amendment of the Plan;
NOW, THEREFORE, pursuant to the authority granted to the Committee, the
Plan is hereby clarified or amended as follows:
1. Section 3.3 is amended by adding at the end the following paragraph:
"Effective April 1, 1994, (a) a Participant's election under
Section 3.1 may be increased or decreased as of the first day of any
month, by filing a
<PAGE> 2
request for such change with the Committee, in the form prescribed by
the Committee, by the 10th day of the month preceding the month in
which the change is to take effect; (b) a Participant may discontinue
his Before Tax Savings contributions to the Plan by filing a request
with the Committee in the prescribed form (such contributions to
cease as soon as practicable after the Committee receives the
request); and (c) a Participant may thereafter resume making Before
Tax Savings contributions to the Plan as of the first day of any
month, by making and filing with the Committee an election in the
prescribed form by the 10th day of the month preceding the month in
which Before Tax Savings contributions are to resume."
2. Section 4.1(c) is amended by inserting "and, effective August 2, 1993,
Investment Representative and Investment Representative trainee," after
the words "(3) Branch Manager, Financial Consultant, Financial Consultant
Associate, Institutional Salesperson".
3. Effective April 1, 1994, Section 6.1 is amended to provide as follows:
"Except as otherwise provided in Section 6.3, each Participant
shall elect with respect to contributions credited to a Member's
Account to have such contributions invested in increments of
twenty-five percent (25%) (ten percent (10%) on and after April 1,
1994), or such other percentage prescribed by the Committee, of the
total in any one or more of the Investment Funds, provided, however,
that no more than fifty percent (50%) of the total of such
contributions may be invested in the American Express Stock Fund. If
a
-2-
<PAGE> 3
Participant initially fails to make an election pursuant to the
provisions of this Section 6.1, his Account shall be invested in the
Investment Fund or Funds designated from time to time by the
Committee.
Each Participant shall file elections with the Committee, in the
form prescribed by the Committee, upon becoming a Participant.
Before January 1, 1990, such elections could be changed as of each
January 1 or July 1. Effective January 1, 1990, such elections may
be changed as of each Quarterly Window Date, by filing new elections
with the Committee at least 15 days prior to such dates, in the form
prescribed by the Committee. Investment elections will be given
effect as soon as administratively practicable after each Quarterly
Window Date.
Effective April 1, 1994, a Participant may change his Investment
Fund elections as of the first day of any month by filing new
elections with the Committee, in the form prescribed by the
Committee, by the 10th day of the month preceding the month in which
the change is to take effect. Investment elections will be given
effect as soon as administratively practicable."
4. Effective April 1, 1994, Section 6.2 is amended to provide as follows:
"Except as otherwise provided in Section 6.3, each Member may
elect with respect to a Member's Account to have the assets of such
Account invested in any Investment Fund or Funds, transferred, in
increments of twenty-five percent (25%) (ten percent (10%) on and
after April 1, 1994), or such other percentage prescribed by the
Committee, of the total, to any other
-3-
<PAGE> 4
Investment Fund or Funds; provided, however, that no such transfer
shall result in more than fifty percent (50%) of the total amount in
the Member's Account, being invested in the American Express Stock
Fund as of the effective date of transfer.
Before January 1, 1990, a Member could elect to make an
investment transfer as of each January 1 or July 1. Effective
January 1, 1990, each Member may elect to make an investment transfer
as of the date preceding each Quarterly Window Date by filing such
election, in the form prescribed by the Committee, at least 15 days
prior to such dates. Investment transfers shall be given effect as
soon as administratively practicable.
Effective April 1, 1994, a Member may generally elect to make an
investment transfer as of the first day of any month by filing such
election, in the form prescribed by the Committee, by the 10th day of
the month preceding the month in which the transfer is to take
effect. Investment transfers shall be given effect as soon as
administratively practicable.
Notwithstanding the foregoing, the Committee may impose limits
on transfer in and out of any Investment Fund."
5. Section 6.3 is amended by adding at the end the following paragraph:
"Effective April 1, 1994, a Participant may elect to transfer
Basic and Matching Contributions made in American Express Stock which
have been
-4-
<PAGE> 5
credited to his Participant's Employer Contribution Account, in
accordance with the provisions of Section 6.2."
6. Section 7.2(a) is clarified by replacing the first paragraph with the
following:
"Except as otherwise provided in Subsection (b) below, in the
event a Participant terminates his employment for any reason other
than death or incurs a Date of Disability, there shall be distributed
to him the full amount of his Member's Account. Unless the
Participant is eligible for and elects a delayed distribution in
accordance with Section 7.4, such distribution shall be made as a
single sum payment based on the Member's Account adjusted as of the
Valuation Date coincident with or immediately following the date of
such termination or Date of Disability or, if Subsection (b) below is
applicable, as of the Valuation Date coincident with or immediately
following the date on which appropriate consent to the distribution
is given to the Committee on forms acceptable to the Committee."
7. Section 7.3 is clarified by inserting the words "coincident with or" after
the words "based on the Member's Account adjusted as of the Valuation
Date" in the second paragraph.
8. Section 7.4 is clarified by replacing the second sentence with the
following:
"Notwithstanding the preceding sentence, the Member or his
Beneficiary or Beneficiaries may elect to defer the distribution of
the Member's Account until no later than the end of the first
calendar quarter of
-5-
<PAGE> 6
the next succeeding Plan Year, in which event such Member's Account
shall be adjusted as of the Valuation Date coincident with or
immediately preceding such delayed distribution date."
9. Section 7.8 is clarified to provide as follows:
"Any Member employed by an Employer or Affiliate who has
attained the age of 59-1/2 may elect to withdraw all or part of his
Member's Account subject to the following restrictions. Withdrawals
shall be allowed only once in any consecutive twelve (12) month
period and application therefor shall be made in the form prescribed
by the Committee. Any withdrawal under this Section 7.8, must be in
an amount of not less than $1,000 (or 100% of the Member's Account
balance if less than $1,000), or such larger amount as may be
established by the Committee from time to time under
nondiscriminatory rules, and will be withdrawn from the Member's
Account (and pro rata from the Investment Funds each such account is
invested in) in the following order of priority: (a) Rollover
Account; (b) Before Tax Savings Account; and (c) Employer
Contribution Account. Distribution of such withdrawals shall be made
in a single lump sum payment by check, or, effective January 1, 1990
and subject to the provisions of Section 7.7, in Company Stock, based
on the Member's Account adjusted as of the Valuation Date coincident
with or immediately following the date on which the Member's properly
completed withdrawal request is received by the Committee, and all
such distributions shall be made as soon as administratively
practicable after the appropriate Valuation Date."
-6-
<PAGE> 7
11. Section 7.9(a) is clarified by adding at the end the following new
paragraph:
"Distribution of a hardship withdrawal shall be made in a single
sum payment by check, based on the value of the Member's Account
adjusted as of the Valuation Date immediately preceding the date on
which the Member's withdrawal request is received and approved by the
Committee. In the event a hardship withdrawal is made in more than
one payment, any subsequent payment shall be based on the Member's
Account (less the previously distributed hardship withdrawal amount)
adjusted as of the Valuation Date coincident with or immediately
following the date on which the Member's hardship withdrawal request
is approved."
12. Section 12.1 is clarified by adding in the first sentence the phrase ",
acting through the Committee," after the words "The Company".
13. Section 12.2 is clarified to provide as follows:
"The Company, acting through the Committee, also reserves the
right to amend this Plan at any time, and from time to time, in any
manner it deems desirable including, but not limited to, changing or
modifying contributions under the Plan, or changing any provision
relating to the distribution or withdrawal, or both, with respect to
any account balances. The Company further reserves the right to
terminate this Plan at any time by resolution of the Finance
Committee of its Board of Directors."
-7-
<PAGE> 1
Exhibit 5
LEHMAN BROTHERS
June 1, 1994
Lehman Brothers Holdings Inc.
3 World Financial Center
New York, NY 10285
Re: Lehman Brothers Holdings Inc.
Common Stock
Ladies and Gentlemen:
I am a Deputy General Counsel of Lehman Brothers Inc. and I have acted
as counsel to Lehman Brothers Holdings Inc., a Delaware corporation (the
"Company"), in connection with the registration under the Securities Act of
1933 (the "1933 Act"), of 31,716,677 shares of Common Stock par value $.10 per
share (the "Common Stock"), of which (i) 16,650,000 shares of Common Stock (the
"MOP Stock") will be distributed from time to time to employees and
non-employee directors of the Company under the Company's 1994 Management
Ownership Plan (the "MOP"), (ii) 3,200,000 shares of Common Stock (the "MRP
Stock") will be distributed to employees of the Company under the Company's
1994 Management Replacement Plan (the "MRP") in connection with the
cancellation of certain awards by American Express Company (the "MRP Stock"),
(iii) 6,000,000 shares of Common Stock (the "ESPP Stock") will be offered by
the Company from time to time to its employees under the Company's 1994
Employee Stock Purchase Plan (the "ESPP"), (iv), 2,500,000 shares of Common
Stock (the "TDSP Stock") will be offered by the Company from time to time under
the Company's Tax Deferred Savings Plan (the "TDSP") and (v) 3,000,000 shares
of Common Stock (the "EOP Stock") may be offered from time to time by employees
of the Company who received such shares upon exchange of phantom shares of the
Company acquired under the Lehman Brothers Inc. Employer Ownership Plan (the
"EOP"). The MOP Stock, the MRP Stock, the ESPP Stock, the TDSP Stock and the
EOP Stock are collectively referred to herein as the "Shares." The MOP, MRP,
ESPP, TDSP and EOP are collectively referred to herein as the "Plans."
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K.
<PAGE> 2
Lehman Brothers Holdings Inc.
June 1, 1994
Page 2
In connection with this opinion, I or members of my staff have
examined (i) the Registration Statement filed with the Securities and Exchange
Commission (the "Commission") on June 1, 1994 under the Securities Act of 1993,
as amended (the "1933 Act"); (ii) the Certificate of Incorporation and the
By-laws of the Company, in each case as amended to the dated hereof, (iii)
certain resolutions of the Board of Directors of the Company relating to the
issuance of the shares; (iv) certain resolutions of the Board of Directors
approving the terms and provisions of the Plans; (v) a specimen certificate
evidencing the Common Stock; (vi) the Plans; and (vii) such other documents as
I have deemed necessary or appropriate as a basis for the opinions set forth
below.
In such examination, I have assumed the genuineness of all signatures,
the legal capacity of all natural persons, the authenticity of all the
documents submitted to me as original, the conformity to original documents as
certified or photostatic copies and the authenticity of the originals of such
copies. As to any facts material to the opinions expressed herein which were
not independently established or verified, I have relied upon oral or written
statements and representations of officers and other representatives of the
Company and others.
I understand that the TDSP received a determination letter from the
Internal Revenue Service (the "IRS") dated March 23, 1987 stating that the
TDSP, as amended, is a qualified plan under Section 401(a) of the Internal
Revenue Code (the "Code"), that the cash or deferred feature of the TDSP is
qualified under Section 401(k) of the Code, and that its related Trust is
exempt from income tax under Section 501(a) of the Code.
The TDSP was restated effective January 1, 1989, incorporating all
amendments made through August 23, 1993, and has been subsequently amended.
The restated TDSP, as amended, will be filed in a timely manner with the IRS to
request a further determination that the TDSP continues to be qualified under
the Code. I understand that all changes required by the IRS will be made to
qualify the TDSP.
I am admitted to the Bar in the State of New York and I express no
opinion as to laws of any jurisdiction other than the laws of the Sate of New
York, the General Corporation Law of the State of Delaware, and the laws of the
United States of America.
Based upon and subject to the forgoing, I am of the opinion that:
1. The issuance of the EOP Stock is duly authorized and the EOP Stock
is validly issued, fully paid and nonassessable.
<PAGE> 3
Lehman Brothers Holdings Inc.
June 1, 1994
Page 3
2. The issuance of the MOP Stock, MRP Stock, ESPP Stock and TDSP
Stock has been duly authorized and newly issued shares when (a) contributed to
the MOP, MRP and TDSP and (b) purchased for the ESPP and the TDSP, in each case
in accordance with the terms of the applicable Plan, will be validly issued,
fully paid and nonassessable.
3. The restated TDSP, as amended, complies as to form with the
applicable provisions of the Employee Retirement Income Security Act of 1974,
as amended.
4. There has been no change to the restated and amended TDSP that
would cause the TDSP not to qualify under Section 401 of the Code.
5. Interests in the TDSP, when issued in accordance with the terms of
the TDSP, will be duly authorized and validly issued.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the heading "Legal
Matters" in each of the prospectuses which are issued under the Registration
Statement. In giving such consent, I do not thereby admit that I am in the
category of persons whose consent is required under Section 7 of the 1933 Act
or the rules and regulations of the Commission thereunder.
Very truly yours,
Karen M. Muller
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-8 and the Prospectuses contained therein and
to the incorporation by reference in such Prospectuses of our report dated
February 3, 1994, except for Note 2, as to which the date is April 4, 1994,
with respect to the consolidated financial statements and schedules of Lehman
Brothers Holdings Inc. and Subsidiaries included in its Current Report on Form
8-K dated April 14, 1994, which supersedes in its entirety the consolidated
financial statements and schedules included in the Company's Annual Report on
Form 10-K for the year ended December 31, 1993, filed with the Securities and
Exchange Commission.
Ernst & Young
New York, New York
May 31, 1994
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-8 and the Prospectus relating to the Lehman
Brothers Holdings Inc. Tax Deferred Savings Plan (formerly the Shearson Lehman
Brothes Holdings Inc. Tax Deferred Saving Plan) issued under such Registration
Statement and to the incorporation by reference in such Prospectus of our
report dated May 21, 1993, with respect to the financial statements and
schedules of the Lehman Brothers Holdings Inc. Tax Deferred Savings Plan,
included in such Plan's Annual Report on Form 11-K for the year ended December
31, 1992, filed with the Securities and Exchange Commission.
Ernst & Young
New York, New York
May 31, 1994
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Thomas A. Russo, Robert Matza and
Michael R. Milversted and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in the capacity set forth below in any and all
capacities, to execute and file any of the documents referred to below relating
to the proposed registration of 31,716,677 shares of Common Stock, par value
$.10 per share, of Lehman Brothers Holdings Inc. ("Lehman Brothers") that may
be contributed or purchased with contributions, as the case may be, under the
Lehman Brothers 1994 Management Ownership Plan, 1994 Management Replacement
Plan, 1994 Employee Stock Purchase Plan, Tax Deferred Savings Plan (the "TDSP")
and the Lehman Brothers Inc. Employee Ownership Plan and an indeterminate
amount of interests under the Lehman Brothers TDSP: a registration statement
on Form S-8 under the Securities Act of 1933, as amended, including any and all
amendments (including post-effective amendments) and supplements to this
registration statement, and to file the same on behalf of Lehman Brothers, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: May 31, 1994
/s/ Richard S. Fuld, Jr.
-------------------------
Richard S. Fuld, Jr.
Chairman of the Board
Chief Executive Officer
and Director
(principal executive officer)
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Thomas A. Russo, Robert Matza and
Michael R. Milversted and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in the capacity set forth below in any and all
capacities, to execute and file any of the documents referred to below relating
to the proposed registration of 31,716,677 shares of Common Stock, par value
$.10 per share, of Lehman Brothers Holdings Inc. ("Lehman Brothers") that may
be contributed or purchased with contributions, as the case may be, under the
Lehman Brothers 1994 Management Ownership Plan, 1994 Management Replacement
Plan, 1994 Employee Stock Purchase Plan, Tax Deferred Savings Plan (the "TDSP")
and the Lehman Brothers Inc. Employee Ownership Plan and an indeterminate
amount of interests under the Lehman Brothers TDSP: a registration statement
on Form S-8 under the Securities Act of 1933, as amended, including any and all
amendments (including post-effective amendments) and supplements to this
registration statement, and to file the same on behalf of Lehman Brothers, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: May 31, 1994
/s/ Robert Matza
-----------------
Robert Matza
Chief Financial Officer
Controller
(principal financial officer)
<PAGE> 3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Thomas A. Russo, Robert Matza and
Michael R. Milversted and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in the capacity set forth below in any and all
capacities, to execute and file any of the documents referred to below relating
to the proposed registration of 31,716,677 shares of Common Stock, par value
$.10 per share, of Lehman Brothers Holdings Inc. ("Lehman Brothers") that may
be contributed or purchased with contributions, as the case may be, under the
Lehman Brothers 1994 Management Ownership Plan, 1994 Management Replacement
Plan, 1994 Employee Stock Purchase Plan, Tax Deferred Savings Plan (the "TDSP")
and the Lehman Brothers Inc. Employee Ownership Plan and an indeterminate
amount of interests under the Lehman Brothers TDSP: a registration statement
on Form S-8 under the Securities Act of 1933, as amended, including any and all
amendments (including post-effective amendments) and supplements to this
registration statement, and to file the same on behalf of Lehman Brothers, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: May 31, 1994
/s/ Stephen J. Bier
--------------------
Stephen J. Bier
(principal accounting officer)
<PAGE> 4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Thomas A. Russo, Robert Matza and
Michael R. Milversted and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in the capacity set forth below in any and all
capacities, to execute and file any of the documents referred to below relating
to the proposed registration of 31,716,677 shares of Common Stock, par value
$.10 per share, of Lehman Brothers Holdings Inc. ("Lehman Brothers") that may
be contributed or purchased with contributions, as the case may be, under the
Lehman Brothers 1994 Management Ownership Plan, 1994 Management Replacement
Plan, 1994 Employee Stock Purchase Plan, Tax Deferred Savings Plan (the "TDSP")
and the Lehman Brothers Inc. Employee Ownership Plan and an indeterminate
amount of interests under the Lehman Brothers TDSP: a registration statement
on Form S-8 under the Securities Act of 1933, as amended, including any and all
amendments (including post-effective amendments) and supplements to this
registration statement, and to file the same on behalf of Lehman Brothers, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: May 31, 1994
/s/ Roger S. Berlind
-------------------------
Roger S. Berlind
Director
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Thomas A. Russo, Robert Matza and
Michael R. Milversted and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in the capacity set forth below in any and all
capacities, to execute and file any of the documents referred to below relating
to the proposed registration of 31,716,677 shares of Common Stock, par value
$.10 per share, of Lehman Brothers Holdings Inc. ("Lehman Brothers") that may
be contributed or purchased with contributions, as the case may be, under the
Lehman Brothers 1994 Management Ownership Plan, 1994 Management Replacement
Plan, 1994 Employee Stock Purchase Plan, Tax Deferred Savings Plan (the "TDSP")
and the Lehman Brothers Inc. Employee Ownership Plan and an indeterminate
amount of interests under the Lehman Brothers TDSP: a registration statement
on Form S-8 under the Securities Act of 1933, as amended, including any and all
amendments (including post-effective amendments) and supplements to this
registration statement, and to file the same on behalf of Lehman Brothers, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: May 31, 1994
/s/ John J. Byrne
------------------
John J. Byrne
Director
<PAGE> 6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Thomas A. Russo, Robert Matza and
Michael R. Milversted and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in the capacity set forth below in any and all
capacities, to execute and file any of the documents referred to below relating
to the proposed registration of 31,716,677 shares of Common Stock, par value
$.10 per share, of Lehman Brothers Holdings Inc. ("Lehman Brothers") that may
be contributed or purchased with contributions, as the case may be, under the
Lehman Brothers 1994 Management Ownership Plan, 1994 Management Replacement
Plan, 1994 Employee Stock Purchase Plan, Tax Deferred Savings Plan (the "TDSP")
and the Lehman Brothers Inc. Employee Ownership Plan and an indeterminate
amount of interests under the Lehman Brothers TDSP: a registration statement
on Form S-8 under the Securities Act of 1933, as amended, including any and all
amendments (including post-effective amendments) and supplements to this
registration statement, and to file the same on behalf of Lehman Brothers, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: May 31, 1994
/s/ Katsumi Funaki
-------------------------
Katsumi Funaki
Director
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Thomas A. Russo, Robert Matza and
Michael R. Milversted and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in the capacity set forth below in any and all
capacities, to execute and file any of the documents referred to below relating
to the proposed registration of 31,716,677 shares of Common Stock, par value
$.10 per share, of Lehman Brothers Holdings Inc. ("Lehman Brothers") that may
be contributed or purchased with contributions, as the case may be, under the
Lehman Brothers 1994 Management Ownership Plan, 1994 Management Replacement
Plan, 1994 Employee Stock Purchase Plan, Tax Deferred Savings Plan (the "TDSP")
and the Lehman Brothers Inc. Employee Ownership Plan and an indeterminate
amount of interests under the Lehman Brothers TDSP: a registration statement
on Form S-8 under the Securities Act of 1933, as amended, including any and all
amendments (including post-effective amendments) and supplements to this
registration statement, and to file the same on behalf of Lehman Brothers, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: May 31, 1994
/s/ John D. Macomber
---------------------
John D. Macomber
Director
<PAGE> 8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Thomas A. Russo, Robert Matza and
Michael R. Milversted and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in the capacity set forth below in any and all
capacities, to execute and file any of the documents referred to below relating
to the proposed registration of 31,716,677 shares of Common Stock, par value
$.10 per share, of Lehman Brothers Holdings Inc. ("Lehman Brothers") that may
be contributed or purchased with contributions, as the case may be, under the
Lehman Brothers 1994 Management Ownership Plan, 1994 Management Replacement
Plan, 1994 Employee Stock Purchase Plan, Tax Deferred Savings Plan (the "TDSP")
and the Lehman Brothers Inc. Employee Ownership Plan and an indeterminate
amount of interests under the Lehman Brothers TDSP: a registration statement
on Form S-8 under the Securities Act of 1933, as amended, including any and all
amendments (including post-effective amendments) and supplements to this
registration statement, and to file the same on behalf of Lehman Brothers, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: May 31, 1994
/s/ T. Christopher Pettit
--------------------------
T. Christopher Pettit
Director
<PAGE> 9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Thomas A. Russo, Robert Matza and
Michael R. Milversted and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in the capacity set forth below in any and all
capacities, to execute and file any of the documents referred to below relating
to the proposed registration of 31,716,677 shares of Common Stock, par value
$.10 per share, of Lehman Brothers Holdings Inc. ("Lehman Brothers") that may
be contributed or purchased with contributions, as the case may be, under the
Lehman Brothers 1994 Management Ownership Plan, 1994 Management Replacement
Plan, 1994 Employee Stock Purchase Plan, Tax Deferred Savings Plan (the "TDSP")
and the Lehman Brothers Inc. Employee Ownership Plan and an indeterminate
amount of interests under the Lehman Brothers TDSP: a registration statement
on Form S-8 under the Securities Act of 1933, as amended, including any and all
amendments (including post-effective amendments) and supplements to this
registration statement, and to file the same on behalf of Lehman Brothers, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: May 31, 1994
/s/ Masataka Shimasaki
---------------------------------------
Masataka Shimasaki
Director
<PAGE> 10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Thomas A. Russo, Robert Matza and
Michael R. Milversted and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in the capacity set forth below in any and all
capacities, to execute and file any of the documents referred to below relating
to the proposed registration of 31,716,677 shares of Common Stock, par value
$.10 per share, of Lehman Brothers Holdings Inc. ("Lehman Brothers") that may
be contributed or purchased with contributions, as the case may be, under the
Lehman Brothers 1994 Management Ownership Plan, 1994 Management Replacement
Plan, 1994 Employee Stock Purchase Plan, Tax Deferred Savings Plan (the "TDSP")
and the Lehman Brothers Inc. Employee Ownership Plan and an indeterminate
amount of interests under the Lehman Brothers TDSP: a registration statement
on Form S-8 under the Securities Act of 1933, as amended, including any and all
amendments (including post-effective amendments) and supplements to this
registration statement, and to file the same on behalf of Lehman Brothers, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: May 31, 1994
/s/ Malcolm Wilson
---------------------------------------
Malcolm Wilson
Director
<PAGE> 11
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Thomas A. Russo, Robert Matza and
Michael R. Milversted and each of them, her true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for her and in
her name, place and stead, in the capacity set forth below in any and all
capacities, to execute and file any of the documents referred to below relating
to the proposed registration of 31,716,677 shares of Common Stock, par value
$.10 per share, of Lehman Brothers Holdings Inc. ("Lehman Brothers") that may
be contributed or purchased with contributions, as the case may be, under the
Lehman Brothers 1994 Management Ownership Plan, 1994 Management Replacement
Plan, 1994 Employee Stock Purchase Plan, Tax Deferred Savings Plan (the "TDSP")
and the Lehman Brothers Inc. Employee Ownership Plan and an indeterminate
amount of interests under the Lehman Brothers TDSP: a registration statement
on Form S-8 under the Securities Act of 1933, as amended, including any and all
amendments (including post-effective amendments) and supplements to this
registration statement, and to file the same on behalf of Lehman Brothers, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: May 31, 1994
/s/ Dina Merrill
---------------------------------------
Dina Merrill
Director
<PAGE> 12
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Karen M. Muller, Robert Matza and
Michael R. Milversted and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in his capacity as trustee of the Lehman Brothers
Holdings Inc. ("Lehman Brothers") Tax Deferred Savings Plan Trust, in any and
all capacities, to execute and file any of the documents referred to below
relating to the proposed registration of an indeterminate amount of interests
under the Lehman Brothers Holdings Inc. Tax Deferred Savings Plan (the "TDSP")
and up to 2,500,000 shares of Common Stock, par value $.10 per share, of Lehman
Brothers that may be contributed or purchased with contributions to the TDSP: a
registration statement on Form S-8 under the Securities Act of 1933, as
amended, including any and all amendments (including post-effective amendments)
and supplements to such registration statement, and to file the same on behalf
of the TDSP, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: May 31, 1994
/s/ Michael R. Milversted
---------------------------------------
Michael R. Milversted
Trustee
Lehman Brothers Holdings Inc.
Tax Deferred Savings Plan
<PAGE> 13
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Karen M. Muller, Robert Matza and
Michael R. Milversted and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in his capacity as trustee of the Lehman Brothers
Holdings Inc. ("Lehman Brothers") Tax Deferred Savings Plan Trust, in any and
all capacities, to execute and file any of the documents referred to below
relating to the proposed registration of an indeterminate amount of interests
under the Lehman Brothers Holdings Inc. Tax Deferred Savings Plan (the "TDSP")
and up to 2,500,000 shares of Common Stock, par value $.10 per share, of Lehman
Brothers that may be contributed or purchased with contributions to the TDSP: a
registration statement on Form S-8 under the Securities Act of 1933, as
amended, including any and all amendments (including post-effective amendments)
and supplements to such registration statement, and to file the same on behalf
of the TDSP, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: May 31, 1994
/s/ Eliot M. Fried
----------------------------
Eliot M. Fried
Trustee
Lehman Brothers Holdings Inc.
Tax Deferred Savings Plan
<PAGE> 14
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Karen M. Muller, Robert Matza and
Michael R. Milversted and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in his capacity as trustee of the Lehman Brothers
Holdings Inc. ("Lehman Brothers") Tax Deferred Savings Plan Trust, in any and
all capacities, to execute and file any of the documents referred to below
relating to the proposed registration of an indeterminate amount of interests
under the Lehman Brothers Holdings Inc. Tax Deferred Savings Plan (the "TDSP")
and up to 2,500,000 shares of Common Stock, par value $.10 per share, of Lehman
Brothers that may be contributed or purchased with contributions to the TDSP: a
registration statement on Form S-8 under the Securities Act of 1933, as
amended, including any and all amendments (including post-effective amendments)
and supplements to such registration statement, and to file the same on behalf
of the TDSP, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: May 31, 1994
/s/ Stephen J. Balog
-----------------------------
Stephen J. Balog
Trustee
Lehman Brothers Holdings Inc.
Tax Deferred Savings Plan
<PAGE> 15
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Karen M. Muller, Robert Matza and
Michael R. Milversted and each of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in his capacity as trustee of the Lehman Brothers
Holdings Inc. ("Lehman Brothers") Tax Deferred Savings Plan Trust, in any and
all capacities, to execute and file any of the documents referred to below
relating to the proposed registration of an indeterminate amount of interests
under the Lehman Brothers Holdings Inc. Tax Deferred Savings Plan (the "TDSP")
and up to 2,500,000 shares of Common Stock, par value $.10 per share, of Lehman
Brothers that may be contributed or purchased with contributions to the TDSP: a
registration statement on Form S-8 under the Securities Act of 1933, as
amended, including any and all amendments (including post-effective amendments)
and supplements to such registration statement, and to file the same on behalf
of the TDSP, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: May 31, 1994
/s/ Allan S. Kaplan
-----------------------------
Allan S. Kaplan
Trustee
Lehman Brothers Holdings Inc.
Tax Deferred Savings Plan
<PAGE> 16
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Karen M. Muller, Robert Matza and
Michael R. Milversted and each of them, her true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for her and in
her name, place and stead, in his capacity as trustee of the Lehman Brothers
Holdings Inc. ("Lehman Brothers") Tax Deferred Savings Plan Trust, in any and
all capacities, to execute and file any of the documents referred to below
relating to the proposed registration of an indeterminate amount of interests
under the Lehman Brothers Holdings Inc. Tax Deferred Savings Plan (the "TDSP")
and up to 2,500,000 shares of Common Stock, par value $.10 per share, of Lehman
Brothers that may be contributed or purchased with contributions to the TDSP: a
registration statement on Form S-8 under the Securities Act of 1933, as
amended, including any and all amendments (including post-effective amendments)
and supplements to such registration statement, and to file the same on behalf
of the TDSP, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Dated: May 31, 1994
/s/ MaryAnne Rasmussen
-----------------------------
MaryAnne Rasmussen
Trustee
Lehman Brothers Holdings Inc.
Tax Deferred Savings Plan
