<PAGE> 1
As filed with the Securities and Exchange Commission on September 14, 1999.
Registration No. 333-26883
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------
FIRST FEDERAL CAPITAL CORP.
(Exact name of Registrant as Specified in its Charter)
<TABLE>
<CAPTION>
WISCONSIN 6711 39-1651288
------------- -------- ------------
<S> <C> <C>
(State or other jurisdiction of (Primary Standard (I.R.S. Employer
incorporation or organization) Industrial Classification Code Number) Identification No.)
</TABLE>
605 STATE STREET
LA CROSSE, WISCONSIN 54601
(608) 784-8000
-------------------------------
(Address, including Zip Code, and Telephone Number, including Area Code, of
Registrant's Principal Executive Offices)
FIRST FEDERAL SAVINGS BANK
401(K) SAVINGS INVESTMENT PLAN
---------------------------------
(Full title of the plan)
THOMAS W. SCHINI, PRESIDENT
FIRST FEDERAL CAPITAL CORP.
605 STATE STREET
LA CROSSE, WISCONSIN 54601
(608) 784-8000
------------------------------------------------------------------------------
(Name, Address, including Zip Code, and Telephone Number, including Area Code,
of Agent for Service)
Copies to:
TERESA M. LEVY, ESQ.
MICHAEL BEST & FRIEDRICH LLP
100 EAST WISCONSIN AVENUE
SUITE 3300
MILWAUKEE, WISCONSIN 53202
If any of the securities being registered on this Form S-8 are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, check the following box. [X]
<PAGE> 2
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
TITLE OF PROPOSED PROPOSED
SECURITIES MAXIMUM MAXIMUM AMOUNT OF
TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED(1)(2) PER SHARE(3) OFFERING(3) FEE
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$0.10 par value 300,000 $ 15.91 $ 4,733,000 $ 1,408.04
per share
</TABLE>
(1) Represents 300,000 shares reserved for issuance under the
First Federal Savings Bank Savings Investment Plan ("Savings
Investment Plan").
(2) Pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement
covers an indeterminate amount of interests to be offered or
sold pursuant to the Savings Investment Plan (including any
interests in the Savings Investment Plan trust) described
herein.
(3) Estimated solely for the purpose of determining the
registration fee pursuant to Rule 457(h)(1). The proposed
maximum offering price per share is based upon the average of
the high and low prices for the shares of Common Stock as
reported on the NASDAQ National Market System on September 10,
1999.
This Registration Statement shall become effective automatically upon
the date of filing in accordance with Section 8(a) of the Securities Act, and 17
C.F.R. ss. 230.462.
Total Number of Pages: 10
Exhibit Index on Page: 10
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<PAGE> 3
PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information required by Part I will be included in
documents sent or given to participants in First Federal Savings Bank
Savings Investment Plan (the "Savings Investment Plan"). Such documents
are not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 in reliance
on Rule 428.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by First Federal
Capital Corp. (the "Company" or "Registrant") with the Commission are
incorporated herein by reference and made a part hereof:
(a) The Company's latest Annual Report on Form 10-K for
the year ended December 31, 1998, which includes the
consolidated financial statements of the Company as
of December 31, 1998, 1997 and 1996, the related
consolidated statements of operations, equity and
cash flows for each of the three years in the period
ended December 31, 1998, and the consolidated
statements of financial condition at December 31,
1998 and 1997, together with the related notes and
Report of Independent Auditors of the Company (dated
March 17, 1999).
(b) All other reports filed pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since the end of the
last fiscal year for which financial statements were
included in the report referred to in (a) above.
(c) The description of the Company's Common Stock and the
Company's Series A Junior Participating Preferred
Stock and Preferred Stock Purchase Rights contained
in the Company's Registration Statement on Form S-4
(File No. 33-98298) which was declared effective by
the Commission on October 18, 1995.
All documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
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<PAGE> 4
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is incorporated under the Wisconsin Business
Corporation Law ("WBCL"). Under Section 180.0851(1) of the WBCL, the Company is
required to indemnify a director or officer, to the extent such person is
successful on the merits or otherwise in the defense of a proceeding, for all
reasonable expenses incurred in the proceeding if such person was a party
because he or she was a director or officer of the Company. In all other cases,
the Company is required by Section 180.0851(2) to indemnify a director or
officer of the Company, unless it is determined that he or she breached or
failed to perform a duty owned to the Company and the breach or failure to
perform constitutes: (i) a willful failure to deal fairly with the Company or
its shareholders in connection with a matter in which the director or officer
has a material conflict of interest; (ii) a violation of criminal law, unless
the director or officer had reasonable cause to believe his or her conduct was
unlawful; (iii) a transaction from which the director or officer derived an
improper personal profit; or (iv) willful misconduct. Section 180.0858(1)
provides that, subject to certain limitations, the mandatory indemnification
provisions do not preclude any additional right to indemnification or allowance
of expenses that a director or officer may have under the Company's articles of
incorporation, bylaws, a written agreement or a resolution of the Board of
Directors or shareholders.
Section 180.0859 of the WBCL provides that it is the public
policy of the State of Wisconsin to require or permit indemnification, allowance
of expenses and insurance to the extent required to be permitted under Sections
180.0850 to 180.0858 of the WBCL, for any liability incurred in connection with
a proceeding involving a federal or state statute, rule or regulation regulating
the offer, sale or purchase of securities.
Section 180.0828 of the WBCL provides that, with certain
exceptions, a director is not liable to a corporation, its shareholders, or any
person asserting rights on behalf of the corporation or its shareholders, for
damages, settlements, fees, fines, penalties or other monetary liabilities
arising from a breach of, or failure to perform, any duty resulting solely from
his or her status as a director, unless the person asserting liability proves
that the breach or failure to perform constitutes any of the four exceptions to
mandatory indemnification under Section 180.0851(2) referred to above.
Under Article VI of the Company's Bylaws, directors and
officers are indemnified against liability, in both derivative and nonderivative
suits, which they may incur in their capacities as such, subject to certain
determinations by the Board of Directors, independent legal counsel or the
shareholders that the applicable standards of conduct have been met. The scope
of such indemnification is substantially the same as permitted and described in
Section 180.0850 to 180.0858 of the WBCL.
Section 180.0833 of the WBCL provides that with certain
exceptions, directors of the Company against whom claims are asserted with
respect to the declaration of improper dividends or distributions to
shareholders or certain other improper acts which they approved are entitled to
contribution from other directors who approved such actions and from
shareholders who knowingly accepted an improper dividend or distribution, as
provided therein.
The directors and officers of the Company are included in the
directors' and officers' liability insurance policy applicable to First Federal
Savings Bank LaCrosse-Madison, the Company's wholly-owned federally-chartered
stock savings bank subsidiary ("First Federal Savings Bank"). The Company has
not obtained substitute or additional directors' and officers' liability
coverage for liability which may be incurred in their capacity as such. First
Federal Savings Bank's insurance policy provides that, subject to the applicable
liability limits and retention amounts, the insurer will reimburse directors and
officers of First Federal Savings Bank for a "loss" (as defined in the policy)
sustained by a director or officer resulting from any claim made against them
for a "wrongful act" (as defined in the policy). The policy also provides that,
subject to the applicable liability limits and retention amounts, the insurer
will reimburse First Federal Savings Bank for a loss for which First Federal
Savings Bank has lawfully indemnified (or is required or permitted by law to
indemnify) a director or officer resulting from any such claim. Subject to
certain exclusions set forth in the policy, "wrongful act" is defined to mean
any actual or alleged error, misstatement, misleading statement, act or
omission, or neglect or breach of duty by the directors or officers in the
discharge of their duties solely in their capacities as such directors or
officers.
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<PAGE> 5
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the
Exhibit Index on page 9 of this Registration Statement, which Exhibit Index is
incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes as follows:
(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 Securities Act;
(ii) To reflect in the Prospectus any facts or events arising
after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated by reference in the Registration
Statement.
(2) For the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) For purposes of determining any liability under the Securities
Act, each filing of the Registrant's or the 401(k) Plan's
annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(5) The Registrant undertakes to deliver or cause to be delivered
with the prospectus, if not already delivered, the latest
annual report to security holders that is incorporated by
reference in the prospectus and furnished to and meeting the
requirements of Rule 14a-3 or 14c-3 under the Exchange Act,
unless such employee otherwise has received a copy of such
report, in which case the Registrant shall state in the
prospectus that it will promptly furnish, without charge, a
copy of such report on written or oral request of the
employee, and where interim financial information required to
be presented by Article 3 of Regulation S-X is not set forth
in the prospectus, to deliver or cause to be delivered to each
person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial
information.
-5-
<PAGE> 6
(6) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
foregoing 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
Securities Act, and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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<PAGE> 7
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
FIRST FEDERAL CAPITAL CORP. CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE
THAT IT MEETS ALL 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 LA CROSSE, STATE OF WISCONSIN ON
SEPTEMBER 10, 1999.
FIRST FEDERAL CAPITAL CORP.
By: /s/ Thomas W. Schini
---------------------------
Thomas W. Schini,President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Thomas W. Schini and Jack C.
Rusch, and each of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
pre-effective and post-effective amendments) to this registration statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them acting singly, full power and
authority to do and perform each and every act and thing necessary and requisite
to be done, as fully and 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 may lawfully do or cause to be done by virtue hereof.
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<PAGE> 8
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Thomas W. Schini President, Chairman of the Board,
- ------------------------ Chief Executive Officer and Director)
Thomas W. Schini
/s/ Jack C. Rusch Chief Financial Officer
- ------------------------ (Principal Financial Officer)
Jack C. Rusch
/s/ Michael W. Dosland Controller (Principal Accounting
- ------------------------- Officer)
Michael W. Dosland
/s/ Dale A. Nordeen Vice Chairman of the Board and
- ------------------------- Director
Dale A. Nordeen
/s/ Henry C. Funk Director
- -------------------------
Henry C. Funk
/s/ John F. Leinfelder Director September 10, 1999
- -------------------------
John F. Leinfelder
/s/ Richard T. Lommen Director
- -------------------------
Richard T. Lommen
/s/ Phillip J. Quillin Director
- -------------------------
Phillip J. Quillin
/s/ Don P. Rundle Director
- -------------------------
Don P. Rundle
/s/ Patick J. Luby Director
- -------------------------
Patrick J. Luby
/s/ David C. Mebane Director
- -------------------------
David C. Mebane
/s/ Marjorie A. Davenport Director
- -------------------------
Marjorie A. Davenport
</TABLE>
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<PAGE> 9
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED
THE TRUSTEES (OR OTHER PERSONS WHO ADMINISTER THE EMPLOYEE BENEFIT PLAN) HAVE
DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF LACROSSE AND THE STATE OF
WISCONSIN, ON THE 10TH DAY OF SEPTEMBER, 1999.
FIRST FEDERAL SAVINGS BANK
SAVINGS INVESTMENT PLAN:
By: /s/ Milne J. Duncan
----------------------------
Milne J. Duncan
Administrator of the Savings
Investment Plan
-9-
<PAGE> 10
EXHIBIT INDEX
<TABLE>
<CAPTION>
PAGE NUMBER IN
REGULATION S-K SEQUENTIALLY
EXHIBIT NO. DESCRIPTION OF DOCUMENT NUMBERED COPY
- ------------- ----------------------- -------------
<S> <C> <C>
Exhibit 4 First Federal Savings Bank Savings Investment
Plan, as amended.......................................................
Exhibit 5 Opinion of Michael Best & Friedrich LLP................................
Exhibit 23.1 Consent of Ernst & Young LLP...........................................
Exhibit 23.2 Consent of Michael Best & Friedrich LLP (included in Exhibit 5)
Exhibit 99 Internal Revenue Service Determination Letter..........................
</TABLE>
- ---------------
-10-
<PAGE> 1
EXHIBIT 4
FIRST FEDERAL SAVINGS OF LACROSSE
SAVINGS INVESTEMENT PLAN
EFFECTIVE JANUARY 1, 1987
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
ARTICLE I - INTRODUCTION AND PURPOSE 1
ARTICLE II - DEFINITIONS 2
ARTICLE III - COVERAGE UNDER THE PLAN
A. PARTICIPATION 8
B. TRANSFER IN EMPLOYMENT STATUS 8
C. TERMINATION AND REEMPLOYMENT 9
ARTICLE IV - ACCOUNTS AND CONTRIBUTIONS
A. ACCOUNTS 10
B. CONTRIBUTIONS 10
C. CHANGES IN CONTRIBUTIONS 16
D. ROLLOVER CONTRIBUTIONS 16
E. LIMITATIONS 17
F. RESTORATION PROCEDURES 19
ARTICLE V - INVESTMENT AND ALLOCATIONS
A. INVESTMENT OF ACCOUNTS 20
B. ALLOCATION OF INCOME OR LOSS 20
C. SUBFUNDS 20
ARTICLE VI - VESTING AND DISTRIBUTIONS
A. VESTING 22
B. DISTRIBUTIONS 23
ARTICLE VII - ADMINISTRATION AND NAMED FIDUCIARY
A. PLAN ADMINISTRATION 29
B. NAMED FIDUCIARY, ADMINISTRATOR AND SERVICE
OF LEGAL PROCESS 30
ARTICLE VIII - TRUST AGREEMENT 32
</TABLE>
2
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE IX - AMENDMENT, TERMINATION, MERGER
A. AMENDMENT 33
B. TERMINATION 34
C. MERGER, CONSOLIDATION OR TRANSFER OF ASSETS
TO OTHER PLANS 34
ARTICLE X - MISCELLANEOUS PROVISIONS
A. BENEFITS NOT ASSIGNABLE 35
B. CONDITIONS OF EMPLOYMENT NOT AFFECTED BY PLAN 35
C. BENEFICIARIES 35
D. FACILITY OF BENEFIT PAYMENT 37
E. APPEALS PROCEDURE 37
F. GENDER 39
G. TOP HEAVY PROVISIONS 39
H. APPLICABLE LAW 41
</TABLE>
3
<PAGE> 4
ARTICLE I
INTRODUCTION AND PURPOSE
First Federal Savings of LaCrosse adopted the First Federal Savings of
LaCrosse Savings and Investment Plan (the "Plan") for its eligible Employees
effective January 1, 1987. The purpose of the plan is to promote the well-being
of eligible Employees by making available the advantages of Section 401(k) and
certain other Sections of the Internal Revenue Code.
ARTICLE II
DEFINITIONS
As herein used:
(1) "Account" shall mean the aggregate of all records maintained by the
Plan Administrator for purposes of determining a Participant's or Beneficiary's
interest in the Trust Fund and shall include the Pre-Tax Contribution Account,
Company Contribution Account, Profit Sharing Account, Loan Account, and Rollover
Account.
(2) "Accumulated Net Earnings" shall mean Annual Net Earnings from Plan
Years prior to the Plan Year for which Annual Net Earnings are determined under
Subsection (4) below.
(3) "Annual Addition" shall mean the addition to a Participant's
account as described in Article IV.E.2.
(4) "Annual Net Earnings" shall mean the net earnings of the Employer
before provisions for federal and state income taxes and before any contribution
to the Trust Fund, as determined by the Employer using generally accepted
accounting principles consistently applied throughout the period involved.
(5) "Beneficiary" shall mean the person or persons, who, in accordance
with the Participant's written nomination of Beneficiary filed with the Plan
Administrator, is entitled to receive any amount of benefit in case of the
Participant's death.
4
<PAGE> 5
(6) "Board" or "Board of Directors" shall mean the Board of Directors of
the Employer, and includes any executive committee thereof authorized to act for
such body.
(7) "Code" shall mean the Internal Revenue Code of 1954, as heretofore
or hereafter amended or supplemented, or as superseded by laws of similar
effect, together with regulations and rulings issued pursuant thereto.
(8) "Committee" shall mean the Committee appointed to administer the
Plan pursuant to Article VII.
(9) "Company Contribution Account" shall mean that portion of a
Participant's Account established under Article IV.A. to which is credited a
Participant's allocations of Company Matching Contributions made under Article
IV.B.2.b, and as adjusted by such amounts properly credited or debited to it
under Article V.B.
(10) "Compensation" shall mean for any Plan Year the total of all
remuneration paid to the Participant by the Employer during such Plan Year.
Compensation shall include all basic salary, overtime pay, commissions,
discretionary bonuses, incentive compensation, amounts contributed by the
Employer to the Participant's Pre-Tax Contribution Account, and amounts
contributed to a Code Section 125 plan and/or a Code Section 403(b) plan.
Compensation for commissioned employees shall be limited to $50,000, which
amount shall be indexed annually for inflation. Compensation shall exclude
reimbursement for expenses or special allowances. Compensation shall also
exclude remuneration paid by the Employer to an Employee for any portions of the
Plan Year during which the Employee was not a Participant, or remuneration paid
to a Participant for any Plan Year which is in excess of a limit of $200,000 as
established and adjusted from time to time pursuant to Section 401(a)(17) of the
Code.
(11) "Disability" shall mean any sickness, accident or other disability
which, in the opinion of the Plan Administrator or a doctor of medicine selected
by the Plan Administrator, substantially prevents the performance and discharge
of duties of customary employment and which condition is likely to be permanent.
Disability shall be deemed to have occurred on the date of delivery to the Plan
Administrator of satisfactory proof of such Disability.
(12) "Early Retirement Date" shall mean any date an Employee severs all
employment with the Employer following attainment of age 55.
(13) "Effective Date" of the Plan shall mean January 1, 1987.
5
<PAGE> 6
(14) "Employee" shall mean a person who is in the employment of the
Employer.
(15) "Employer" shall mean First Federal Savings of LaCrosse, or any
successor thereto as may expressly adopt this Plan and agree in writing to
continue the Plan.
(16) "Hour(s) of Service" shall mean:
(a) Each hour for which an Employee is directly or indirectly
paid or entitled to payment by the Employer for the
performance of duties. These hours shall be credited to
the Employee for the computation period or periods in
which the duties are performed; and
(b) Each hour (up to a maximum of 501 hours for any one
continuous period) for which an Employee is directly or
indirectly paid or entitled to payment by the Employer for
reasons (such as vacation, sickness or disability) other
than for the performance of duties. These hours shall be
credited to the Employee for the computation period or
periods in which payment is made or amounts payable to the
Employee become due; and
(c) Each hour for which back pay, irrespective of mitigation
of damages, has been either awarded or agreed to by the
Employer. These hours shall be credited to the Employee
for the computation period or periods to which the award
or agreement pertains rather than the computation period
in which the award, agreement or payment was made.
With respect to paragraphs (b) and (c) above, no credit shall be
given:
(i) On account of payments made or due under a plan maintained
solely for the purpose of complying with applicable
workers' compensation, unemployment compensation or
disability insurance laws; or
(ii) For payments which solely reimburse an Employee for
medical or medically related expenses incurred by the
Employee.
Hours of Service shall be credited for any customary period of
work, based on a full-time work schedule or pro rata portion thereof, during
which the Employee has been or may be on authorized leave of absence.
A Participant's absence from service by reasons of leave of
absence authorized by the Employer in writing because of illness, military
service, or for any other reason, will not terminate the Participant's service,
provided he returns to active employment with the Employer within the time
specified in his leave, or if not specified therein, within the time which
accords with the Employer's policy with respect to permitted absences. If the
Participant does not return
6
<PAGE> 7
to active employment with the Employer within the time hereinabove prescribed,
his employment will be considered terminated, for all purposes of the Plan, as
of the date on which his leave began except as provided in Article II(21);
provided, however, that nothing in this section shall be applied to deny a
benefit to a Participant under the applicable provisions of the Plan while on
authorized leave of absence, provided he is otherwise eligible therefor.
The Participant's absence from service because of engagement in
military service will be considered a leave of absence granted by the Employer
and will not terminate his service if he returns to active employment within the
period of time during which he has re-employment rights under any applicable
federal law.
Notwithstanding the foregoing provisions of this Article II(16),
the number of Hours of Service a person completes while, although not employed
with the Employer, he is considered to be a "leased employee" of the Employer or
of a "related person" within the meaning of sections 414(n)(2) and 144(a)(3),
respectively, of the Code, shall also be taken into account.
In determining Hours of Service, the rules contained in
paragraphs (b) and (c) of Regulation 2530.200b-2 issued by the Department of
Labor are incorporated herein by reference and shall be applied in a uniform and
nondiscriminatory manner.
(17) "Key Employee" shall mean an Employee or former Employee as
defined in Article X.G.2.
(18) "Loan Account" shall mean an account established in accordance
with the provisions of Article VI.B.4.
(19) "Net Compensation" shall mean the Compensation of an Employee
reduced by any Employer contributions to a Participant's Pre-Tax Contribution
Account.
(20) "Normal Retirement Date" shall mean the date an Employee
attains age 65 and completes 5 Years of Eligibility Service.
(21) "One Year Break in Service" shall mean a Plan Year during which
an Employee does not complete more than 500 Hours of Service.
If a Participant begins an absence for maternity or paternity
reasons after December 31, 1984, such Participant will be credited with up to
501 Hours of Service either in the Plan Year such absence began or in the
following Plan Year, whichever is appropriate to prevent the
7
<PAGE> 8
occurrence of one One Year Break in Service. An absence from work for maternity
or paternity reasons means an absence due to (1) the pregnancy of the
Participant, (2) the birth of a child of the Participant, (3) the placement of a
(4) caring for such child immediately following the birth or placement for
adoption.
(22) "Participant" shall mean an Employee who becomes a participant in
the Plan as provided in Article III.A.
(23) "Plan" shall mean the First Federal Savings of LaCrosse Savings
Investment Plan as herein set forth or as from time to time amended.
(24) "Plan Administrator" shall mean the Employer or the person or
persons designated and charged with administrative responsibilities pursuant to
Article VII.
(25) "Plan Year" shall mean a twelve month period beginning on
January 1 and ending on the following December 31.
(26) "Pre-Tax Contribution Account" shall mean that portion of a
Participant's Account established under Article IV.A to which is credited a
Participant's allocations of Employer contributions made under Article IV.B.1,
and as adjusted by such amounts properly credited or debited to it under Article
V.B.
(27) "Profit Sharing Account" shall mean that portion of a Participant's
Account established under Article IV.A. to which is credited a Participant's
allocations of Profit Sharing contributions made under Article IV.B.2.c., and as
adjusted by such amounts properly credited or debited to it under Article V.B.
(28) "Retirement Act" or "Act" shall mean those provisions of the
Employee Retirement Income Security Act of 1974, as may hereafter be amended or
supplemented, or as superseded by laws of similar effect, together with
regulations promulgated pursuant thereto.
(29) "Rollover Account" shall mean that portion of an Account
attributable to an Employee's Rollover Contributions, as established under
Article IV.D and as adjusted by such other amounts properly credited or debited
to it under Article V.B.
(30) "Top Heavy Plan" shall mean a plan defined in Article X.G.2.
8
<PAGE> 9
(31) "Trust Agreement" shall mean an agreement as amended, substituted
or replaced from time to time, entered into between the Employer and the Trustee
under which contributions will be received, held, invested and disbursed for the
purposes of the Plan.
(32) "Trustee(s)" shall mean the person or corporation(s) accepting the
appointment of Trustee(s) and acting as such, including any successor
Trustee(s).
(33) "Trust Fund" shall mean all assets of any kind and value, both
principal and income held and administered by the Trustee in accordance with the
terms of the Trust Agreement.
(34) "Valuation Date" shall mean any date upon which a valuation of the
Trust Fund is made. Such valuation shall be made as of each June 30 and December
31 and such other times as the Employer may determine.
(35) "Vested" or "Vested Interest" shall mean the right to receive
benefits from this Plan as described in Article VI.A.
(36) "Year of Eligibility Service" shall mean a twelve consecutive month
period in which an Employee is credited with 1,000 or more Hours of Service. The
first such period is the twelve consecutive month period commencing with an
Employee's date of hire. The second such period is the Plan Year commencing
within the first eligibility computation period. Each subsequent Plan Year shall
be the measuring period for a Year of Eligibility Service.
(37) "Year of Vesting Service" shall mean a twelve consecutive month
period commencing with an Employee's date of hire, or anniversary thereof, in
which an Employee has completed 1,000 or more Hours of Service.
Only one Year of Vesting Service will be credited to an Employee in any
computation period or year regardless of the number of Hours of Service in
excess of 1,000 during that computation period or year.
Years of Vesting Service shall include service before the Effective Date
of the Plan; provided, however, that in determining the Years of Vesting Service
the Committee may rely on the service records of the Employer or may require
each Employer to certify the number of Years of Vesting Service.
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<PAGE> 10
ARTICLE III
COVERAGE UNDER THE PLAN
A. PARTICIPATION
Each Employee shall become a Participant in the Plan on the later of (i)
the Effective Date or (ii) the January 1 or July 1 next following the day the
Employee attained age 20 and completed one Year of Eligibility Service.
An Employee who meets the conditions set forth above may elect to have
the Employer make contributions to his Pre-Tax Contribution Account (subject to
the limitations of Article IV.B) effective as of any January 1 or July 1
following thirty days' written notice on such form as the Plan Administrator may
approve.
If an Employee does not elect to have the Employer make contributions to
his Pre-Tax Contribution Account when first eligible to do so, such Employee may
elect to have such contributions made on any subsequent January 1 or July 1
following thirty days' written notice on such form as the Plan Administrator may
approve.
B. TRANSFER IN EMPLOYMENT STATUS
In the event that an Employee transfers from an affiliate or subsidiary
which is not participating in this plan to an employment status which otherwise
qualifies such Employee to become eligible to participate under the Plan, such
Employee shall become a Participant in this Plan after meeting the requirements
of Article III.A and may elect in writing on a form supplied by the Committee,
to have the Employer make contributions to his Pre-Tax Contribution Account
(subject to the limitations of Article IV) effective as of any January 1 or July
1 following thirty days' written notice to the Committee. Service of the
Employee with an affiliate, subsidiary, or other corporation which is a member
of a controlled group of corporations as defined in Code Section 414(b) or
trades or businesses under common control as defined in Code Section 414(c)
shall constitute service toward a determination of Years of Vesting Service and
Years of Eligibility Service.
In the event that an Employee transfers to an affiliate, subsidiary or
other corporation which is not participating in the Plan, such an Employee shall
no longer be eligible to be a Participant as of the date of transfer.
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<PAGE> 11
C. TERMINATION AND REEMPLOYMENT
A Participant who is reemployed following a One Year Break in Service
shall again become a Participant the January 1 or July 1 following reemployment
provided he otherwise meets the requirements of Article III.A.
Notwithstanding the foregoing provisions of this Article III.C, if an
Employee incurs one or more consecutive One Year Breaks in Service, and if he
was Vested for a benefit under the Plan when he incurred the first One Year
Break in Service, then there shall be added to the total of his Years of Vesting
Service, after he has completed a Year of Vesting Service following the last of
said consecutive One Year Breaks in Service, all of the Years of Vesting Service
he has before he incurred the first One Year Break in Service.
If an Employee incurs one or more consecutive One Year Breaks in Service
and if he was not Vested for a benefit under the Plan when he incurred the first
one Year Break in Service, there shall be added to the total of his Years of
Vesting Service, after he has completed a Year of Vesting Service following the
last of said consecutive One Year Breaks in Service, all of the Years of Vesting
Service he had before he incurred the first One Year Break in Service if the
number of consecutive One Year Breaks in Service is less than the aggregate
number of Years of Vesting Service he had before the first such One Year Break
in Service except if the number of Consecutive One Year Breaks in Service is
less than five.
ARTICLE IV
ACCOUNTS AND CONTRIBUTIONS
A. ACCOUNTS
An Account shall be established on behalf of each Participant. A
Participant's Account shall be comprised of his Pre-Tax Contribution Account,
his Company Contribution Account, his Profit Sharing Account and Rollover
Account, as applicable. Credits or debits to the Participant's Account shall be
determined according to the provisions of this Article IV and Article V. The
Account for each Participant shall be primarily for accounting purposes and
shall not restrict the Trustees in managing and operating the Trust Fund as a
single fund.
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<PAGE> 12
B. CONTRIBUTIONS
1. Pre-Tax Contribution. On or after January 1, 1988, a Participant
may elect in writing, on a form provided by the Committee, a
Compensation reduction through payroll deduction in one percent (1%)
increments by period but in no case an amount in excess of ten percent
(10%) of the Participant's Compensation in a Plan Year. The percentage
reduction shall automatically apply to all Compensation as from time to
time adjusted.
2. Contribution and Allocation. Subject to the limitations set
forth in Articles IV.B.3 and IV.E, the Employer shall contribute to the
Trust Fund for each Plan Year:
a. Pre-Tax Contributions:
The amount by which any Participant's Compensation has been
reduced as set forth in Article IV.B.1 shall be allocated to
such Participant's Pre-Tax Contribution Account.
b. Employer Matching Contributions:
For each Participant during the Plan Year who is an Employee
as of any Valuation Date and has completed 1,000 Hours of
Service during the Plan Year, an amount equal to 50% of the
first 3% of the Participant's Pre-Tax Contribution as set
forth in Article IV.B.1 shall be allocated to each such
Participant's Company Contribution Account.
c. Profit Sharing Contributions:
Subject to the limitations set forth in Articles IV.B.3 and
IV.E, the Employer may contribute to the Trust Fund for any
Plan Year for each Participant, regardless of whether the
Participant has made Pre-Tax Contributions to the Plan
pursuant to Article IV.B.2.a, if the Participant as of the
end of the Plan Year has completed 1,000 Hours of Service
during the Plan Year and is still an active Employee at the
end of the Plan Year, an amount to the Profit Sharing
Account. This contribution may be made in an amount and
manner as may be determined by the Board of Directors.
Participants' Pre-Tax Contributions made under this Article
IV.B.2.a, Employer Matching Contributions in Article IV.B.2.b and Profit
Sharing Contributions in Article IV.B.2.c shall be treated as Employer
contributions for purposes of deductibility and tax treatment under the
Code.
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<PAGE> 13
If a Participant terminates by reason of death, disability or
retirement, such Participant shall receive an Employer Matching
Contribution and Profit Sharing Contribution if the number of Hours of
Service completed by the Participant during the Plan Year equals or
exceeds 83-1/3 times the number of months worked during such Plan Year.
The Employer's contribution allocable to Participants' Pre-Tax
Contribution Account shall be made to the Trust Fund as soon as
administratively possible, but not later than thirty days following the
end of the month in which the Participant would have otherwise received
the Compensation with respect to which such contribution is made. The
Employer's contribution to Participants' Pre-Tax Contribution Accounts
shall be made regardless of whether Annual Net Earnings are sufficient
to provide such a contribution.
The Employer's contribution allocable to Participants' Company
Contribution Account and/or Profit Sharing Account shall be made to the
Trust Fund in one or more installments.
All Employer contributions shall be made in cash to the Trust
Fund on or before the last day for filing the Employer's federal income
tax return for such year, including any extensions of time granted for
such filing.
3. Adjustment of Contributions: Notwithstanding the preceding
provisions of this section, to the extent deemed necessary by the
Committee in order to maintain the tax-qualified status of the Plan
under the rules set forth in Sections 401(k), 401(m), and 415 of the
Code, the amount of contributions made to the Trust Fund by the Employer
and allocated to a Participant's Account may be reduced.
Employer contributions to a Participant's Pre-Tax Contribution
Account and Company Contribution Account shall be subjected separately
to the test described below. If necessary to satisfy Sections 401(k) and
401(m) of the Code, the excess Employer contributions to the Pre-Tax
Contribution Account and/or the Company Contribution
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<PAGE> 14
Account of a Highly Compensated Participant shall be adjusted as
described in subparagraph (d) below:
a. Each Plan Year two "deferral percentages" will be
calculated for each Participant, one for the Pre-Tax
Contribution Account and one for the Company
Contribution Account. The deferral percentage is
calculated by dividing the amount of Company Matching
Contributions to the respective Account by the
Participant's Compensation for the Plan Year.
b. Each Plan Year the average deferral percentage for Highly
Compensated Participants and the average deferral
percentage for Participants who are not considered Highly
Compensated Participants shall be calculated.
The average deferral percentage in each case is the
average of the percentages calculated under subsection (a)
for each of the Employees who was a Participant at any
time during the Plan Year in the particular group.
"Highly Compensated Participant" is any eligible
Employee who at any time during the preceding year:
(i) was a 5% owner of the Employer;
(ii) had annual compensation for the Employer of
$75,000 (or such higher amount permitted under
Section 414(q) of the Code) or greater;
(iii) had $50,000 or more in annual compensation (or
such higher amount permitted under Section 414(q)
of the Code) from the Employer and was in the "Top
Paid Group" as defined below; or
(iv) was an officer of the Employer having an annual
compensation greater than 150% of the maximum
Annual Additional amount in effect under Code
Section 415(c)(1)(A) for such Plan Year. For
purposes of this subsection, no more than fifty
Employees (or, if less, the greater of three or
ten percent of the Employees) shall be treated as
officers. If no officer received compensation in
excess of 150% of the Annual Addition limit, the
highest paid officer must be considered Highly
Compensated.
Or who at any time during the current year:
(i) was a 5% owner; or
(ii) falls in one of the last three categories from the
preceding year and was among the top 100 Employees
when ranked by pay.
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<PAGE> 15
A former Employee is also considered a Highly Compensated
Participant if he was a Highly Compensated Participant at
time of termination or any time after age 55.
If an Employee is a family member of either a 5% owner or
one of the top 10 (when rank by pay) Highly Compensated
Participants, then such Employee's compensation and
contributions are aggregated with the highly paid
individual's compensation and contributions and treated as
one plan member for purposes of the above definition.
A family member, with respect to any Employee, is such
Employee's spouse or lineal ascendants or descendants or
the spouses of any lineal ascendants or descendants.
The "Top Paid Group" consists of the top 20% of Employees
when ranked on the basis of compensation during the Plan
Year. To determine the number of Employees to include in
the Top Paid Group, exclude the following Employees:
(i) Former employees;
(ii) Those with less than six months of service;
(iii) Those who work less than 17-1/2 hours per week;
(iv) Those who normally work less than six months per
year;
(v) Those who are covered by a collectively bargained
agreement;
(vi) Those under age 21; and
(vii) Those who are non-resident aliens without U.S.
compensation.
Solely for purposes of determining Highly Compensated
Participants, compensation shall mean total compensation
paid to an Employee by the Employer as defined under
Section 415(c)(3) of the Code, increased by the amount of
any Employee pre-tax contributions made to any plan
qualified under Sections 125 or 401(k) of the Code
sponsored by any member of the Employer.
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<PAGE> 16
c. If the requirements of either paragraph (i) or (ii) are
satisfied, then no further action is needed under this
section:
(i) The average deferral percentage for eligible
Participants who are Highly Compensated
Participants is not more than 1.25 times the
average deferral percentage for all other eligible
Participants.
(ii) The excess of the average deferral percentage for
eligible Participants who are Highly Compensated
Participants over the average deferral percentage
for all other eligible Participants is not more
than two percentage points, and the average
deferral percentage for such Highly Compensated
Participants is not more than 2.0 times the
average deferral for all other eligible
Participants.
For purposes of this subsection (c), "eligible
Participant" means a Participant who is eligible to have
Pre-Tax Contributions made on his behalf for the Plan Year
in question.
d. If neither of the requirements of subsection (c) is
satisfied with respect to either the Pre-Tax Contribution
Account or the Company Contribution Account, then the
appropriate Contributions with respect to Highly
Compensated Participants shall be reduced, beginning with
the contributions representing the highest percent of
Compensation, to the extent necessary to meet the
requirements of paragraph (c)(i) or (c)(ii), whichever is
met first. The reductions do not need to be made in 1%
increments.
e. This subsection applies for plan years beginning after
1988 if:
(i) the sum of the average deferral percentages for
eligible Participants who are Highly Compensated
Participants with respect to the Pre-Tax
Contribution Account and the Company Contribution
Account
is greater than
(ii) 1.25 times the larger of the average deferral
percentages with respect to the Pre-Tax
Contribution Account or the Company Contribution
Account for eligible Participants who are not
Highly Compensated Participants, plus 2 plus the
smaller of the average deferral percentage with
respect to the Pre-Tax Contribution Account or the
Company Contribution Account for eligible
Participants who are not Highly Compensated
Participants,
then either the Pre-Tax Contributions or the
Company Matching Contributions will be reduced as
in subsection (d) above until (i) equals (ii).
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<PAGE> 17
For purposes of this subsection (e), "eligible
Participant" means a Participant who is eligible
to have Pre-Tax Contributions made on his behalf
for the Plan Year in question.
To the extent the Employer's contribution to either the Pre-Tax
Contribution Account or the Company Contribution Account is reduced, the
excess contributions with investment gains attributable thereto shall be
refunded to the Participant no later than March 15 following the close
of the Plan Year in which such excess occurred.
4. Employer to Certify Contributions: The Employer shall certify
to the Trustee the amount of its contributions to the Trust and such
Employer's certification shall be conclusive. In the event that the
Employer is unable to determine the correct amount of its contribution
within the time required for payment under the provisions of the Code or
the applicable regulations and rulings, then it shall pay an estimated
amount. Any deficiency shall be paid as soon as determined.
5. Contributions Irrevocable: The Employer's contributions to the
Trust Fund shall be irrevocable except to the extent permitted by the
Act or Code for reasons of mistake of fact, disallowance of all or part
of a contribution as a tax deduction under the Code, or correction of
the amount of contribution to avoid excisen tax under the Code. The
return of contributions due to mistake of fact shall be within one year
of the original contribution deposit. The return of contributions due to
disallowance as a deduction shall occur within one year of the
disallowance. All contributions to and assets of the Trust Fund shall be
for the exclusive benefit of the Participants and their Beneficiaries;
provided, however, assets of the Trust Fund may be used to defray
reasonable expenses of administering the Plan and Trust, if not paid by
the Employer.
C. CHANGES IN CONTRIBUTIONS
A Participant may elect in writing, on a form supplied by the Committee,
to change the rate of Compensation reduction and Pre-Tax Contributions as
described in Article IV.B. Changes will be allowed as of any January 1 or July 1
following thirty days' written notice to the Committee.
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<PAGE> 18
A Participant may elect in writing, on a form supplied by the Committee,
to suspend all Pre-Tax Contributions at any time during a Plan Year. The
suspension will be effective on the first day of the month following thirty
days' written notice to the Committee of the suspension.
A Participant who suspends compensation reductions may elect in
writing, on a form supplied by the Committee, to begin compensation
reductions again effective as of any subsequent January 1 or July 1 following
thirty days' written notice to the Committee.
D. ROLLOVER CONTRIBUTIONS
The term "Rollover Amount" is defined as the balance to the credit of an
employee in a qualified employees' trust or annuity plan paid to him in one or
more distributions which qualify for treatment as a rollover amount under
Section 402(a)(5) of the Code, or the entire amount (including money and any
other property) in an Individual Retirement Account or Individual Retirement
Annuity (as defined in Section 408 of the Code) maintained for the benefit of
the Employee making the Rollover Contribution, which amount has been distributed
from such Individual Retirement Account or Individual Retirement Annuity. Such
amount will constitute a Rollover Amount only if the amount in such Individual
Retirement Account or Individual Retirement Annuity is solely attributable to a
rollover contribution from either a trust described in Section 401(a) of the
Code or an annuity plan described in Section 403(a) of the Code, plus the
earnings thereon.
The term "Rollover Amount" does not include any amount which is
attributable to a distribution from a trust or annuity plan if the recipient of
the distribution was an employee within the meaning of Section 401(c)(1) of the
Code at the time contributions to such trust or annuity plan were made on his
behalf.
E. LIMITATIONS
1. Limitation of Pre-Tax Contributions. Notwithstanding any other
provisions of this Plan to the contrary, the total Pre-Tax Contributions
made by a Participant to this Plan and any other plan required to be
aggregated under Section 402(g) of the Code in which he participated
during his taxable year may not exceed $7,000 (or such higher amount as
may be established under Section 402(g) of the Code) for such taxable
year.
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<PAGE> 19
In the event this limit is exceeded with respect to any
Participant, the Participant must notify by March 1 following the close
of the Participant's taxable year either the Employer or the employer
sponsoring any other affected plan (at the Participant's discretion) of
the Excess Deferrals. "Excess Deferrals" are the Participant's Pre-Tax
Contributions to this Plan and any other affected plan in excess of the
$7,000 (or such higher amount allowed) limit. The excess amount shall be
eliminated by returning to such Participant, to the extent necessary,
his Pre-Tax Contributions with investment gains attributable to such
excess no later than the April 15 following the close of such taxable
year.
2. Limitation of Annual Additions for This Plan. Notwithstanding
any other provision of this Plan to the contrary, the Annual Addition to
a Participant's Account (exclusive of Rollover Amounts under Article
IV.D) for any Limitation Year shall not exceed the lesser of:
a. 25% of the Participant's Net Compensation (as defined in
regulations under Section 415(c)(3) of the Code but
specifically excluding all amounts which a Participant
elects to defer in the Plan Year as a Pre-Tax Contribution
for such year, or
b. $30,000 (or such higher amount for the Limitation Year as
may be established by regulations under Section 415(d) of
the Code).
The Limitation Year shall be the Plan Year.
"Annual Addition" shall mean the sum for the Limitation Year to
which the allocation pertains (whether or not allocated in such year)
of:
a. Employer contributions to the Plan as set forth in
Article IV.B.2.a, Article IV.B.2.b and Article IV.B.2.c;
and
b. Forfeitures; and
c. Amounts allocated, after March 31, 1984, to an individual
medical account, as defined in section 415(1)(1) of the
Code, which is part of a defined benefit plan maintained
by the Employer, and amounts derived from contributions
paid or accrued after December 31, 1985, in taxable years
ending after such date, which are attributable to
post-retirement medical benefits allocated to
19
<PAGE> 20
the separate account of a Key Employee, as defined in
Section 419A(d)(3), under a welfare benefit fund, as defined
in Section 419(e), maintained by the Employer.
In the event that a reasonable error was made in estimating a
Participant's Compensation or other limited facts and circumstances
which the Internal Revenue Service finds to be applicable, any amount
which would otherwise be allocated which would result in the Annual
Addition limitation being exceeded with respect to any Participant, the
excess amount shall be eliminated first, by returning to such
Participant, to the extent necessary, the contributions to his or her
Pre-Tax Contribution Account; and second, by holding any remaining
excess in a Limitation Account to be reallocated among the Accounts of
Participants pursuant to Article IV.B.2.b and Article IV.B.2.c as of the
last day of each succeeding Plan Year until the excess is exhausted,
provided that the Annual Addition limit with respect to any Participant
may not be exceeded in any Limitation Year and provided further that no
allocation of contributions which would be applicable to the Annual
Addition may be credited to such Participant's Account until such excess
has been exhausted.
3. Aggregation of Benefits from Defined Benefit and Defined
Contribution Plans. After a Participant's benefits have been
adjusted (if necessary) to comply with this Article IV.E, then
the sum of (a) and (b) will be computed in accordance with the
rules under Code Section 415(e):
a. The Participant's benefit from the Employer's defined benefit
program(s) divided by the lesser of (a) 1.25 multiplied by the
dollar limitation in effect under Section 415(b)(1)(A) of the
Code for such year and (b) 1.40 multiplied by the maximum benefit
in effect under Section 415(b)(1)(B) of the Code for such year.
b. The sum of the Annual Additions to the Participant's account
balance under the Employer's defined contribution program(s)
divided by the sum of the lesser of the following amounts
determined for such Limitation Year and each prior Year of
Vesting Service (a) 1.25 multiplied by the dollar
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<PAGE> 21
limitation of Code Section 415(c)(1)(A) and (b) 1.40
multiplied by the maximum addition under Code Section
415(c)(1)(B).
If the sum exceeds 1.0, the Participant's benefits under this
Plan will be reduced until the sum does not exceed 1.0 by returning
contributions to the Participant in accordance with the procedures set
forth in Article IV.E.2.
F. RESTORATION PROCEDURES
In the event that a Participant's Account was improperly excluded in any
year from an allocation of Employer contributions pursuant to Article IV.B.2,
such Participant's Account shall be restored to its correct status in an amount
as follows:
1. First, an amount which is computed on the same basis as
was the allocation of Employer contributions which were
properly allocated to Participants under Article IV.B.2 in
each year for which restoration is necessary, and
2. Second, an amount of Trust Fund income, gain or loss which
is computed on the same basis as was the allocation of
Trust Fund income, gain or loss which was properly
allocated to Participants' Accounts under Article V.B in
each year for which restoration is necessary.
The Employer shall contribute an amount which is necessary to fully
restore each improperly excluded Account, whether or not sufficient Annual Net
Earnings existed in the applicable year to cover such additional contribution.
ARTICLE V
INVESTMENT AND ALLOCATIONS
A. INVESTMENT OF ACCOUNTS
The Trustee shall be responsible for the investment of the assets of the
Trust Fund as provided in the Trust Agreement.
B. ALLOCATION OF INCOME OR LOSS
As of each Valuation Date, the net income and expenses of the Trust Fund
and the increase or decrease in the current market value of the corpus of the
Trust Fund for the valuation period shall be allocated to each Participant's
Pre-Tax Contribution Account, Company Contribution Account, Profit Sharing
Account, and Rollover Account in the same ratio as such Participant's accounts
bear to the total of all Participants' accounts invested in the Trust Fund as
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<PAGE> 22
of the Valuation Date. The basis for allocation will be the balance in the
Participant's accounts as of the most recent Valuation Date reduced by any
withdrawals, including distributions and loans, made during the period and
increased by the time-weighted value of any additions to the Participant's
account during the period, including any Employer contributions and loan
principal repayments.
The payment by the Trust Fund to a Participant of a withdrawal,
distribution, or loan as of a Valuation Date shall follow the allocation and
adjustments described in this Article V.B.
C. SUBFUNDS
1. Establishment of Subfunds. At the direction of the Employer, the
Trustee may divide the Trust Fund into two or more subfunds which shall
serve as vehicles for the investment of the individual accounts under
the Trust Fund. Any such subfunds shall be managed either by the Trustee
or by an investment manager or managers appointed by the Employer. The
Employer shall determine with the advice of the Trustee and/or the
investment manager, the general investment characteristics and
objectives of each subfund. The Trustee or investment manager, as the
case may be, shall have complete investment discretion over each subfund
assigned to it, subject only to the general investment characteristics
and objectives established for the particular subfund. The Employer
shall have the power to direct that additional subfunds be established,
and under uniform rules, to withdraw or limit participation in a
particular subfund. In the event of the establishment of such subfunds,
a segregation of the assets of the Trust Fund with regard to individual
accounts shall be required to the extent of the investment elections
made by Participants under Article V.C.2.
2. Participant Elections. At the discretion of the Employer, and in
accordance with rules and procedures established by the Employer and
applied uniformly to Participants, the Employer may provide under the
Trust Fund for investment elections by Participants. If the Employer so
provides, a Participant may elect in writing, on a form provided by the
Committee, the percentage of his accounts under the Trust Fund, in
increments of 10%, which will be invested in any subfunds within the
Fund. Two types of elections will be available: (i) the direction of
future Pre-Tax Contributions, Company Matching Contributions and Profit
Sharing Contributions to the Plan; and (ii) the re-allocation of
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<PAGE> 23
existing account balances under the Plan. A Participant will be allowed
to change such elections as of any January 1 or July 1 thirty days after
the receipt of written election by the Committee.
ARTICLE VI
VESTING AND DISTRIBUTIONS
A. VESTING
The term "Vested" or "Vested Interest" shall mean a nonforfeitable,
noncontingent right of the Participant or his Beneficiaries to a present or
future enjoyment of all or any part of any allocation to the Participant's
accounts, including subsequent Employer contributions allocated thereto. Each
Participant shall always be fully Vested in all amounts credited to the
Participant's Pre-Tax Contribution Account, Rollover Account and Loan Account.
Amounts credited to a Participant's Company Contribution Account and
Profit Sharing Account shall become fully Vested when the Participant attains
his Normal Retirement Date while an Employee, or upon his termination of
employment by reason of death or Disability.
Except as provided above, a Participant shall acquire a fully Vested
Interest in his Company Contribution Account and Profit Sharing Account
according to the following schedule:
<TABLE>
<CAPTION>
Years of Vested
Vesting Service Percentage
--------------- ----------
<S> <C>
less than 1 0
1 - 2 20
2 - 3 40
3 - 4 60
4 - 5 80
5 or more 100
</TABLE>
All determinations required to be made as to the amount of a
Participant's Vested Interest, except in the case of termination of the Plan,
shall be made as of the Valuation Date immediately following the date on which
such determination is required to be made.
After a Participant's Vested Interest is determined because of
termination of employment for whatever reason, such Vested Interest shall be
distributed according to the provisions of Article VI.B.
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<PAGE> 24
Any remainder of a terminating Participant's Company Contribution
Matching Account and Profit Sharing Account which is not Vested in accordance
with the foregoing vesting schedule shall be transferred to a Suspense Account.
In the event more than one subfund exists as provided in Article V, the
Committee shall determine which one subfund all Suspense Accounts shall be
invested in regardless of Participant elections under Article V.C.2. The
disposition of such Suspense Account shall be as follows:
a. If the Participant has not been reemployed, the balance in
the Suspense Account shall be forfeited as of the earlier
of the last day of the Plan Year in which the Participant
incurs a One Year Break in Service, or the date the
Participant receives a distribution from the Plan due to
termination of employment.
b. Suspense Accounts shall share in the allocation of Trust
Fund income or loss on every Valuation Date unless
forfeited on or prior to such date.
c. If the Participant is reemployed before incurring five
consecutive One Year Breaks in Service, the amount
originally transferred to the Suspense Account and such
undistributed Vested Interest shall be credited to the
Participant's Company Contribution Account as of his
reemployment date. In the event the Participant is
reemployed after the Suspense Account has been forfeited,
the forfeited portion of his Account shall be restored.
Such restored amount shall be provided first from the
amount to be forfeited as provided under Article VI.A.d.
below, and to the extent such amounts are insufficient, by
an additional Company Contribution to the Plan.
d. Forfeitures attributable to Company Contribution and
Profit Sharing Accounts as of the last day of the Plan
Year shall first be netted against any reinstatement in
accordance with this Article VI.B.2.c. above. Any
remaining amounts shall be used to reduce the Company
Contribution and Profit Sharing Accounts which are
described in Article IV.B.2.
e. In the event more than one Employer adopts this Plan, only
those amounts from the Accounts of its own former
Employees shall be used as described above for each such
Employer.
B. DISTRIBUTIONS
1. Time of Distribution. Upon termination of employment, distributions
shall be made or commence as of the next Valuation Date following thirty
days after receipt by the Committee of the Participant's or
Beneficiary's written request for distribution on a form provided by the
Plan Administrator. In no event shall distribution of a Participant's
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Vested Interest be made or commence later than the 60th day following
the close of a Plan Year in which there occurs the later of the
following events:
a. A Participant's retirement at age 65 or later.
b. Death of an actively employed Participant prior to his
Normal Retirement Date.
c. Disability of an actively employed Participant prior to his
Normal Retirement Date.
d. The Participant's termination with a Vested Interest prior
to his Normal Retirement Date.
Notwithstanding the above, if a Participant whose employment has
terminated has not submitted a written request for distribution prior to
the April 1 following the Plan Year during which the Participant
attained age 70-1/2, distribution shall be made as of such April 1.
If a Participant is a 5% owner of the Employer within the meaning
of Code Section 416(i) at any time during the five Plan Years ending
with the Plan Year during which the Participant attains age 70-1/2,
distribution shall be made not later than the April 1 following the
close of the Plan Year during which such Participant attained age 70-1/2
whether or not the Participant has terminated at such time, provided
however, if such Participant had made a proper designation before
January 1, 1984 in accordance with Section 242(b)(2) of the Tax Equity
and Fiscal Responsibility Act of 1982 (TEFRA) and such designation
remains in effect, the distribution may be made pursuant to such proper
designation.
For Plan Years beginning January 1, 1989 and after, distribution
shall be made not later than the April 1 following the close of the Plan
Year during which a Participant, regardless of ownership, attained age
70-1/2 whether or not the Participant has terminated at such time.
However, if the Participant had attained age 70-1/2 as of January 1,
1988 and was not a 5% owner within the meaning of the preceding
paragraph, this paragraph shall not apply.
In the event distribution is due because of the death of the
Participant, distribution shall be made within one year of the death of
the Participant unless the Beneficiary is the
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Surviving Spouse (within the meaning of Article X.C) of the Participant,
in which case such Surviving Spouse may elect to defer distribution
until what would have been the date the Participant attained age 70-1/2.
In the event of the death of the Surviving Spouse before distribution is
made, the distribution shall be paid within one year of the death of the
Surviving Spouse.
2. Methods of Payments. Distribution of benefits shall be made by the
Trustee in accordance with one or more of the following methods:
a. Single sum payment.
b. Installments from the Trust Fund over a stated period of
time without life contingency, not to exceed the period of
the joint life expectancy of the Participant and his
spouse.
The method of payment shall be elected by the Participant;
however, the Plan Administrator shall have discretion to direct a single
sum method of payment if it decides that the Participant's benefit is
not great enough to warrant the installment method of payment. If no
method has been elected, the normal method of payment shall be the
single sum payment. In the absence of any other election by the
Participant or Beneficiary, death benefits shall be paid in a single sum
payment. A Participant may elect a single sum payment or make a new
election with respect to the remaining balance after installments have
begun.
3. Distribution Upon Death. Upon the death of the Participant, the
following distribution provisions shall take effect:
a. If the Participant dies after distribution of his or her
interest has commenced, the remaining portion of such
interest will continue to be distributed as elected by the
Beneficiary. Such election may be an immediate lump sum or
an installment which distributes the account at least as
rapidly as under the method of distribution being used
prior to the Participant's death.
b. If the Participant dies before distribution of his or her
interest commences, the Participant's entire interest will
be distributed no later than five years after the
Participant's death except to the extent that an election
is made to receive distributions in accordance with (1) or
(2) below:
(1) if any portion of the Participant's interest is
payable to a designated beneficiary, distributions
may be made in a lump sum or in substantially
equal installments over a time not to exceed the
life or
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life expectancy of the designated
Beneficiary and commencing no later than one year
after the Participant's death;
(2) if the designated Beneficiary is the Participant's
Surviving Spouse, the date distributions are
required to begin will be in accordance with (1)
above but can be deferred to a date which shall
not be earlier than the date on which the
Participant would have attained age 70-1/2, and,
if the same spouse dies before payments begin,
subsequent distributions shall be made as if the
spouse had been the Participant.
c. For purposes of Article VI.3.b above, payments will be
calculated by use of the return multiples specified in
Section 1.72-9 of the Code regulations. Life expectancy of
a Surviving Spouse may be recalculated annually, however,
in the case of any other designated beneficiary, such life
expectancy will be calculated at the time payment first
commences without further recalculation.
d. For purposes of a., b. and c. above, any amount paid to a
child of the Participant will be treated as if it had been
paid to the Surviving Spouse if the amount becomes payable
to the Surviving Spouse when the child reaches the age of
majority.
4. Loans. Loans to Participants shall be allowed if, and only if,
the Committee determines that such loans are to be made.
All loans shall be subject to uniform rules established by the
Committee within the following guidelines:
a. The maximum amount a Participant may borrow will be 50% of
the sum of the Participant's balance in his Pre-Tax
Contribution Account, Rollover Account, Company
Contribution Account and Profit Sharing Account.
b. The minimum dollar amount a Participant may borrow will be
$1,000 and the maximum will be $50,000.
The $50,000 maximum loan limit is reduced by the maximum
outstanding loan balance of the Participant during the last 12 months
preceding the effective date of any new loan.
Each such loan shall be evidenced by a written executed
promissory note. Each loan shall be secured by a pledge of such
Participant's Vested Interest in this Plan or such other security as
deemed adequate by the Trustee at the date of issuance.
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Each such loan shall bear a reasonable interest rate to be
determined by the Trustee at the date of issuance and shall be repayable
according to a schedule determined by the Trustee at the date of
issuance. Such schedule shall not be for a period greater than five
years nor shall such period extend beyond the Participant's Normal
Retirement Date.
For the purpose of determining the extent to which a
Participant's accounts are entitled to share in income, gains or losses
of the Trust Fund, or of any subfund within the Trust Fund pursuant to
Article V.C, the Participant's Company Contribution Account, Profit
Sharing Account, Pre-Tax Contribution Account, as appropriate, shall be
reduced by the unpaid balance of any outstanding loans.
A Loan Account shall be established for each Participant
receiving a loan disbursement. The Loan Account shall be adjusted by the
amount of any principal repayments.
In the event a Participant terminates employment with the
Employer prior to repayment of the loan in full, any outstanding
principal plus interest due shall become due and payable in full
immediately upon termination. If the Participant does not repay the
amount due in full, his entire Vested Interest in the Plan, reduced by
the amount of principal and interest due, shall be paid to him
immediately.
5. Withdrawals While Employed: A Participant may request in writing,
on a form provided by the Committee a withdrawal of all or a potion
of his Vested Interest under the Plan while still employed by the
Employer subject to the terms and conditions of this Article VI.B.5.
A withdrawal of the Participant's Vested balance from the
Participant's Company Contribution Account, Pre-Tax Contribution Account
or Profit Sharing Account while still employed shall be available only
after attaining age 59-1/2, or if before age 59-1/2, upon proof of
financial hardship. A financial hardship withdrawal shall enable a
Participant to meet immediate and heavy needs for which the Participant
does not have other reasonably available sources of funds.
Effective January 1, 1989, financial hardship withdrawals shall
be allowed from the Participant's Pre-Tax contributions and investment
earnings on those contributions through December 31, 1988. Financial
hardship withdrawals shall not be allowed from
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investment earnings on Pre-Tax contributions after December 31, 1988 or
from the Company Contribution Account.
A Participant shall be presumed to have incurred a financial
hardship for which other sources of funds are not reasonably available
for the following reasons:
a. Payment of uninsured medical expense described in Code
Section 213(d) for the Participant, the Participant's
spouse, or his dependents.
b. Purchase of a principal residence for the Participant.
c. Payment of next term's tuition for post-secondary
education for the Participant, the Participant's spouse,
or his dependents.
d. Payment necessary to prevent eviction or foreclosure on
the Participant's principal residence.
A Participant will not be deemed to have other reasonably
available sources of funds if the Participant certifies that the
financial hardship cannot be relieved through:
a. Reimbursement or compensation by insurance.
b. Reasonable liquidation of the Participant's, the
Participant's spouse, or his dependents assets.
c. Suspension of pre-tax contributions to the Plan.
d. Distributions or loans available from any plan of the
Employer or former employer.
e. Loans from commercial sources on reasonable commercial
terms.
In addition, such hardship withdrawal may not exceed the amount
necessary to relieve the hardship.
The Committee may rely on a notarized affidavit of a Participant
which states that he has a financial need -- which is specified as to
nature and amount -- and that he has no other funds which are
reasonably available from other sources, except to the extent that the
persons to whom the Committee has delegated the responsibility of
administering this provision have actual knowledge that such
representations are not true.
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The amount of any withdrawal shall be determined as of the
Valuation Date thirty days following receipt by the Committee of the
Participant's written withdrawal request. Payment of the withdrawal
amount to the Participant shall be made as soon as administratively
possible following the Valuation Date.
ARTICLE VII
ADMINISTRATION AND NAMED FIDUCIARY
A. PLAN ADMINISTRATION
1. Appointment of Committee Permitted. The Employer shall be the
Plan Administrator and shall assume those responsibilities and possess
those rights set forth in this Article VII.A, provided however, in order
to assist the Employer in the administration of the Plan, the Board
reserves the power to create at any time hereafter by resolution, a
Committee which shall be appointed and shall serve at the pleasure of
the Board. Any member may resign by delivering his written resignation
to the Board and to the Committee. Vacancies in the Committee arising by
resignation, death, removal or otherwise, shall be filled by the Board.
Names of the current members of the Committee are to be made available
from the Employer.
2. Powers and Duties. The Committee, if established by the board,
shall be the Plan Administrator, and shall have all powers necessary
to carry out the provisions of the Plan as set forth in this Article
VII.A. Any determination by the Committee shall be conclusive and
binding on all persons, except as provided in the Plan.
3. Organization and Operation of Committee. The Committee shall act
by a majority of its members at the time in office, and such action may
be taken either by a vote at a meeting or in writing without a meeting.
The Committee may authorize any one or more of its members to
execute any document or documents on behalf of the Committee, in which
event the Committee shall notify the Trustees in writing of such action
and the name or names of its member or members so designated. The
Trustees shall be instructed to accept and rely upon any documents
executed by such member or members as representing action by the
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Committee until the Committee shall file with the Trustee a written
revocation of such designation.
The Committee may adopt such by-laws and regulations as it deems
desirable for the conduct of its affairs, and may appoint such
accountants, counsel, specialists, and other persons as it deems
necessary or desirable in connection with the administration of this
Plan. The Committee shall be entitled to rely conclusively upon, and
shall be fully protected in any action taken by it in good faith in
relying upon any opinions or reports which shall be furnished to it by
any such accountant, counsel, or other specialist.
4. Records and Reports. The Committee shall keep a record of all its
proceedings and acts, and shall keep all such books of account, records
and other data as may be necessary for proper administration of the
Plan. The Committee shall notify the Trustees and the Employer of any
action taken by the Committee, and when required, shall notify any other
interested person or persons.
5. Payment of Expenses. Unless otherwise determined by the
Employer, the members of the Committee shall serve without compensation
for services as such, but all expenses of the Committee shall be paid by
the Employer but if not paid by the Employer shall be paid by the Trust.
Such expenses shall include any expenses incident to the functioning of
the Committee, including, but not limited to, fees of accountants,
counsel, and other specialists, and other costs of administering the
Plan.
6. Immunity from Liability. No member of the Committee shall incur
any liability for any act or failure to act, excepting only liability
for his own gross negligence or willful misconduct.
The Employer shall indemnify each member of the Committee against
any and all claims, loss, damages, expense, and liability arising from
any act or failure to act, except when the same is judicially determined
to be due to the gross negligence or willful misconduct of such member.
The provisions of this Article VII.A shall not relieve members of
the Committee from any responsibility or liability for any
responsibility, obligation, or duty they may have pursuant to the
provisions of the Retirement Act or Code.
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B. NAMED FIDUCIARY, ADMINISTRATOR AND SERVICE OF LEGAL PROCESS
The Employer shall be the named fiduciary and "administrator", as
defined in the Retirement Act, and shall be responsible for the performance of
all reporting, disclosure and other obligations required or permitted to be
performed by the Plan Administrator under the provisions of the Retirement Act
or Code. However, as set forth in Article VII.A, the Plan Administrator or a
Committee may be appointed to perform some or all of the administrative
functions.
In any legal proceeding, including arbitration, involving the Plan, the
Employer shall be the designated agent for service of legal process.
The Trustees shall be the named fiduciaries with respect to the control,
management and disposition of the assets of the Trust fund.
ARTICLE VIII
TRUST AGREEMENT
The Employer has entered or concurrently will enter into an agreement
under which a Trustee shall receive, hold, invest and disburse the contributions
of the Employer to the Trust Fund, all in accordance with the terms and
provisions set forth in the Trust Agreement. The Employer, its directors,
officers and the Plan Administrator shall not be liable for any loss or
diminution of the Trust Fund.
The Board of Directors of the Employer shall have the power to remove
the Trustee and appoint a successor at any time in the manner set forth in the
Trust Agreement.
ARTICLE IX
AMENDMENT, TERMINATION, MERGER
A. AMENDMENT
It is the expectation of the Employer that it will continue the Plan and
the payments of its contributions hereunder indefinitely, but continuance of the
Plan is not assumed as a contractual obligation of the Employer, and the right
is reserved by the Board at any time to reduce, suspend or discontinue its
contributions hereunder. While the Employer may suspend its contributions
hereunder without terminating the Plan, a discontinuance of contributions as
defined by
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<PAGE> 33
applicable provisions of the Code and the Retirement Act and
regulations promulgated thereunder, will result in fully vesting the rights of
the Participants of such Employer as if there were an actual termination of the
Plan.
Except as herein limited, the Employer may, by resolution of its Board,
amend the Plan at any time to any extent that it may deem advisable. Upon
delivery of such resolution to the Trustees, the Plan shall be deemed to have
been amended in the manner set forth and Participants shall be bound thereby;
provided, however:
(1) that no amendment shall increase the duties or liabilities of the
Trustees without their written consent;
(2) that no amendment shall have the effect of vesting in the
Employer any interest in or control over any of the Funds or
properties subject to the terms of the Trust Agreement;
(3) that no amendment shall have the retroactive effect so as to
deprive any Participant of any benefit already accrued; and
(4) that no amendment made after July 30, 1984 shall eliminate an
optional form of distribution unless permitted by regulations
issued under Code Section 411(d)(6); provided, however, that any
amendment may be made retroactively which is necessary to bring
the Plan into conformity with governmental regulations in order
to continue to qualify the Plan for tax exemption.
B. TERMINATION
The Plan shall continue for such time as may be necessary to accomplish
the purpose for which it was created but may be terminated at any time with
respect to the Employer by action of its Board. Notice of such termination shall
be given to the Trustee by an instrument in writing executed by the Employer and
acknowledged in the same form as the Trust Agreement, together with a certified
copy of the resolution of the Board of the Employer authorizing such
termination. Upon such termination of the Plan with respect to the Employer,
provided that the Trustee has not received instructions to the contrary, the
Trustee shall liquidate the portion of the Trust applicable to such Employer
and, after paying the reasonable expenses of the Trust, including expenses
involved in the termination, distribute the balance thereof according to written
directions from the Employer or the Plan Administrator.
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<PAGE> 34
Upon termination or partial termination of the Plan with respect to the
Employer, the rights of all Employees of such Employer to the amounts credited
to the Participants' accounts, shall be nonforfeitable and administered and
distributed to or for the benefit of the Participants and their Beneficiaries.
In no eve shall any part of the principal or income of the Trust Fund be paid to
or for the benefit of the Employer, its successors or creditors.
C. MERGER, CONSOLIDATION OR TRANSFER OF ASSETS TO OTHER PLANS
In the case of any merger or consolidation with, or transfer of assets
or liabilities to, any other plan, each Participant in the Plan shall receive a
benefit immediately after the merger, consolidation, or transfer which is (if
the Plan were then terminated) equal to or greater than the benefit such
Participant would have been entitled to receive immediately before the merger,
consolidation or transfer (if the Plan were then terminated).
ARTICLE X
MISCELLANEOUS PROVISIONS
A. BENEFITS NOT ASSIGNABLE
The benefits provided hereunder are intended for the personal security
of persons entitled to payments under the Plan, and are not subject in any
manner to their debts or other obligations, and such benefits may not be sold,
transferred, assigned or encumbered in any manner, either voluntarily or
involuntarily except as may be required by law. The preceding sentence shall
also apply to the creation, assignment, or recognition of a right to any benefit
payable with respect to a Participant pursuant to a domestic relations order,
unless such order is determined to be a qualified domestic relations order as
defined in Code Section 414(p), or any domestic relations order entered before
January 1, 1985.
B. CONDITIONS OF EMPLOYMENT NOT AFFECTED BY PLAN
The establishment and maintenance of the Plan will not be construed as
conferring any legal rights upon any person to the continuation of employment
with the Employer, nor will the Plan interfere with the right of the
Employer to discharge any person from its employment.
C. BENEFICIARIES
1. Designation. Each Participant may, from time to time during his
lifetime, designate the Beneficiary(ies) to receive the benefits which
may be payable under the
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<PAGE> 35
Plan in the event of his death. Each such designation will revoke all prior
designations by such Participant and shall be in writing on a form provided for
that purpose and filed with the Plan Administrator. Such designation may name
one or more primary Beneficiaries.
If a Participant dies on or after August 23, 1984 and such death
occurs prior to the distribution of benefits under the Plan, such
Beneficiary shall automatically be the Surviving Spouse of the Participant
unless such Surviving Spouse consented in writing to the Participant's
designation of an alternate Beneficiary, and such consent was witnessed by a
Plan representative or notarized.
Prior to the time the Committee accepts the designation of any
non-Spouse Beneficiary, the Participant shall be provided with a written
explanation of:
(1) the terms and conditions of death benefits under the Plan,
(2) the Participant's right to make and the effect of an
election to waive the Surviving Spouse as the Beneficiary,
(3) the rights of the Participant's Spouse, and
(4) the right to make and the effect of a revocation of a previous
election waiving the Surviving Spouse as Beneficiary.
If the Participant establishes to the satisfaction of the Committee
that a Spouse's written consent cannot be obtained because there is no Spouse
or the Spouse cannot be located, the Spouse's consent requirements shall be
waived.
There shall be no limit on the number of times a Participant may
change a Beneficiary designation in accordance with the above rules prior to the
time of distribution.
2. Disposition of Death Benefits on Failure to Designate Beneficiary.
In the event a Participant shall fail to designate a Beneficiary to receive his
death benefits, or having designated a Beneficiary, shall thereafter revoke such
designation without naming another Beneficiary, or having named a Beneficiary,
such designation shall fail, in whole or in part, by reason of the prior death
of such Beneficiary or by reasons of the death of the Beneficiary and any
contingent Beneficiaries before the receipt of all payments due, or for any
other cause, the aforementioned death benefit of such Participant or the part
thereof as to which such Participant's designation shall fail, as the case may
be, shall be
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<PAGE> 36
payable upon such failure to the Surviving Spouse of the Participant, if
the Spouse shall then survive; but if not, then in equal shares to such
of the Issue of the Participant as then survive Per Stirpes and not per
capita; but if no Spouse or Issue then survive, then to the father and
mother of such Participant in equal shares or all thereof to the
survivor of them if only one parent then survives, then to such of the
brothers and sisters of such Participant as then survive in equal
shares; but if no Spouse, Issue, parent, brother or sister of the
Participant shall then survive, then such death benefit or the part
thereof as to which such Participant's designation shall fail, as the
case may be, shall be paid to the executor or administrators of the
estate of the deceased Participant.
For purposes of this Article X.C "Surviving Spouse" and "Spouse"
mean a spouse who has been married to the Participant for at least one
year at the date of death and who survives the Participant. Also "Per
Stirpes" means in equal shares among living children and the issue of
deceased children, the latter taking by right of representation, and
"Issue" means all natural or legal adopted children.
D. FACILITY OF BENEFIT PAYMENT
1. Applications Required for Benefits. Notwithstanding any provision
of the Plan to the contrary, payment of benefits shall not commence
under the Plan unless and until a proper application therefor shall have
been filed with the Plan Administrator. Each application for benefits
shall be in writing on a form provided by the Plan Administrator for
such purpose and shall be filed with the Plan Administrator within the
period, if any, specified in the applicable provisions of the Plan.
2. Payment of Benefits to Persons under Legal Disability. Whenever
and as often as any person entitled to payments hereunder shall be under
a legal disability, or in the sole judgment of the Plan Administrator,
shall otherwise be unable to apply such payments to his own best
interest and advantage, the Plan Administrator, in his discretion, may
direct all or any portion of such payment to be made to such person, to
such person's legal guardian or conservator, or to such person's spouse
or to any other person, to be expended for his benefit. The decision of
the Plan Administrator shall, in each case, be final and binding upon
all persons, and the Plan Administrator shall not be obliged to see to
the proper application or expenditure of any payments so made. Any
payments made
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pursuant to the power herein conferred upon the Plan Administrator
shall operate as a complete discharge of the obligations under the Plan
in respect thereof of the Employer, the Plan Administrator, and the
Trustee.
E. APPEALS PROCEDURE
In the event the Plan Administrator determines that a person is not
entitled to benefits or is not a Participant in this Plan, or if the Plan
Administrator makes any decision or interpretation adversely affecting the right
of any Participant or Beneficiary, written notice of such determination,
decision or interpretation shall be given to such adversely affected person
within 90 days after such determination, decision or interpretation. If special
circumstances require an extension of time for processing, a decision shall be
rendered as soon as possible but not later than 180 days after a claim for
benefits. Such notice shall be written in a manner calculated to be understood
by the Participant or Beneficiary and shall set forth:
(1) The specific reason or reasons for the determination,
decision or interpretation;
(2) Specific reference to the pertinent Plan provisions on
which the determination, decision or interpretation is
based;
(3) A description of any additional material or information
necessary for the adversely affected party to perfect his
right or an explanation of why such material or
information is necessary; and
(4) An explanation of the Plan's claim review procedures.
In the event a Participant, Beneficiary or other interested person or
party feels himself aggrieved by any determination, decision or interpretation
of the Plan Administrator, except with respect to matters of investment of the
Trust Fund or matters herein expressed to be within the discretion of the
Employer, the Plan Administrator, or the Trustee, the aggrieved party or his
authorized representative may file with the Plan Administrator in writing,
within 60 days of receipt of notice of such determination, decision or
interpretation, a request by the aggrieved party for a full and fair review by
the Plan Administrator of the determination, decision or interpretation. The
aggrieved party or his authorized representative may inspect all pertinent
documents and may submit issues and comments in writing to the Plan
Administrator. The Plan Administrator's decision, on review, shall be in
writing, in a manner calculated to be understood
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<PAGE> 38
by the aggrieved party, and shall include specific reasons for the decision and
specific references to the pertinent Plan provisions on which the decision is
based. The decision by the Plan Administrator shall be made promptly and not
later than 60 days after the Plan's receipt of a request for review, unless
special circumstances require an extension of time for processing, in which case
a decision shall be rendered as soon as possible but not later than 120 days
after receipt of a request for review.
Any ambiguities arising on account of the interpretation rendered to
Hours of Service, Years of Service, and One Year Break in Service, shall be
resolved in the favor of the Participant.
F. GENDER
Wherever appropriate, words used herein in the singular may be read in
the plural, or words used herein in the plural may be read in the singular; the
masculine may include the feminine; and the words "hereof", "herein", or
"hereunder", or other similar compounds of the word "here" shall mean and refer
to the entire Plan and not to any particular paragraph or Section of this Plan
unless the context clearly indicates to the contrary.
G. TOP HEAVY PROVISIONS
1. Effective Date. The provisions of this Article X.G may be effective
only for the Plan Years commencing on and after January 1, 1984. The
provisions of this Article X.G will be effective for any Plan Year if
and only if the Plan is deemed to be a Top Heavy Plan for that Plan
Year.
2. Top Heavy Plan. The Plan is deemed to be a Top Heavy Plan for
any Plan Year if as of the Determination Date the present value of
accrued benefits for Key Employees is greater than or equal to sixty
percent (60%) of the present value of accrued benefits for all
Employees. The Determination Date for any Plan Year is the last day of
the preceding Plan Year.
The present value of accrued benefits consists of the sum of the
Employee's Pre-Tax Contribution Account, Company Matching Account, and
Profit Sharing Account under this Plan plus the actuarial equivalent of
the accrued benefit under any other plan maintained by the Employer
which is required to be aggregated with this Plan under Code Section
416(g) ("other plans"). It also includes distributions from this Plan
and the other
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plans made during the Plan Year containing the Determination Date and
the four preceding Plan Years. For the Plan Years beginning January 1,
1985 and after, the accrued benefit for any individual who has not
received any Compensation (other than benefits under the Plans) at any
time during the five Plan Years ending on the Determination Date shall
not be included in the present value of accrued benefits. Payments made
to the Beneficiary of a Key Employee shall be treated as if made to a
Key Employee.
The "required aggregation group" of an Employer consists of (i)
each plan of the Employer in which a Key Employee participates, and (ii)
each other plan of the Employer that enables a plan in which a Key
Employee participates to meet the nondiscrimination requirements of
Sections 401(a)(4) and 410 of the Code. A "permissive aggregation group"
consists of those plans that are required to be aggregated and one or
more plans (providing comparable benefits or contributions) that are not
required to be aggregated, which, when taken together, satisfy the
requirements of Sections 401(a)(4) and 410 of the Code.
A Key Employee is any Employee or former Employee falling within
the definition of key employee under Section 416 of the Code. Subject to
such definition, an Employee or former Employee is deemed to be a Key
Employee for the Plan Year if at any time during the Plan Year or the
four preceding years the Employee is described by one of the following
four items.
a. An officer of the Employer having an annual compensation
greater than 150% of the maximum annual addition amount in
effect under Code Section 415(c)(1)(A) for such Plan Year.
For purposes of this subsection, no more than fifty
Employees (or, if less, the greater of three or ten
percent of the Employees) shall be treated as officers.
b. One of the ten Employees owning (or considered to own)
both more than a 1/2% interest and the largest interests
in the Employer, who has an annual compensation greater
than the maximum annual addition amount in effect under
Code Section 415(c)(1)(A) for such Plan Year. If two
Employees have the same interest in the Employer, the
Employee having greater annual compensation from the
Employer shall be treated as having a larger interest.
c. A 5% owner of the Employer.
39
<PAGE> 40
d. A 1% owner of the Employer with W-2 compensation of more
than $150,000.
3. Compensation. If an Employee is a Key Employee for the Plan Year no
more than $200,000 of Compensation or such larger dollar amount
permitted under the Code shall be recognized for that Plan Year in the
determination of benefits under the Plan.
4. Maximum Benefits. If the Plan is deemed to be a Top Heavy Plan for
the Plan Year for the purposes of determining the maximum benefits
payable from this Plan and the defined benefit plan as described in
Article IV.E.3, all instances of 1.25 (inferred through reference to
Code section 415(e)) in Article IV.E.3 are replaced with 1.00.
5. Minimum Contribution. If the Plan is deemed to be a Top Heavy Plan
for the Plan Year, all Participants who are not Key Employees are
entitled to a minimum contribution for the Plan Year of 5% of
Compensation. The Employer Contribution set forth in Article IV.B.4
shall provide the minimum contribution.
6. Minimum Vesting. Notwithstanding the provisions of Article VI.A, if
a Participant received contributions under the Plan pursuant to
Article IV during a Plan Year in which the Plan was Top Heavy, such
Participant's vested percentage in his Account shall not be less than
the percentage determined in accordance with the following table:
<TABLE>
<CAPTION>
Years of Vested Service Vested Percentage
------------------------ -----------------
<S> <C>
Less than 2 0%
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
5 but less than 6 80%
6 or more 100%
</TABLE>
H. APPLICABLE LAW
The situs of the Trust hereunder is the State of Minnesota, and the
provisions hereof shall be construed, enforced, and administered in accordance
with the Retirement Act and Code, and, to the extent applicable, the laws of the
State of Minnesota.
40
<PAGE> 1
EXHIBIT 5
[MICHAEL BEST & FRIEDRICH LLP LETTERHEAD]
September 13, 1999
First Federal Capital Corp.
605 State Street
LaCrosse, WI 54602-1868
RE: AMENDMENT NO 1 TO REGISTRATION STATEMENT ON FORM S-8
(REGISTRATION STATEMENT NO. 333-26883)
Gentlemen:
You have requested our opinion as to the legality of 300,000 shares of
common stock, $0.10 par value per share ("Common Stock"), of First Federal
Capital Corp. (the "Company") being registered with the Securities and Exchange
Commission pursuant to an Amendment No. 1 to a Registration Statement on Form
S-8. As your counsel, we have examined such records and other documents as we
deemed necessary for the purposes of this opinion and considered such questions
of law as we believe to be involved. Based upon such examination and
consideration, it is our opinion that the shares of Common Stock will, when
issued and sold in accordance with the respective provisions of the First
Federal Savings Bank Savings Investment Plan, be validly issued, fully paid and
nonassessable shares of Common Stock of the Company.
We give our consent to the filing of this opinion as an Exhibit to the
Registration Statement on Form S-8 and the use of our name in connection
therewith.
Very truly yours,
MICHAEL BEST & FRIEDRICH LLP
<PAGE> 1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Amendment 1 to the Registration
Statement on Form S-8 pertaining to the First Federal Savings Bank Savings
Investment Plan of our report, dated January 22, 1999, with respect to the
consolidated financial statements of First Federal Capital Corp included in its
Annual Report on Form 10-K for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
September 13, 1999
Milwaukee, Wisconsin /s/ Ernst & Young LLP
<PAGE> 1
EXHIBIT 99
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P.O. BOX 2508
CINCINNATI, OH 45201
Employer Identification Number:
Date: Jun 09 1997 39-0280325
DLN:
FIRST FEDERAL SAVINGS BANK 365157010
C/O SCOTT S WILLMAN Person to Contact:
C/O THE WYATT CO CINDY PERRY
8400 NORMANDALE LAKE BLVD 15TH FL Contact Telephone Number:
MINNEAPOLIS, MN 55437 (513) 241-5199
Plan Name:
SAVINGS INVESTMENT PLAN
Plan Number: 002
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend on
its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some events that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal
or local statutes.
This determination letter is applicable for the plan adopted on July 30,
1992.
This plan satisfies the nondiscrimination in amount requirement of section
1.401(a)(4)-1(b)(2) of the regulations on the basis of a design-based safe
harbor described in the regulations.
This letter is issued under Rev. Proc. 93-39 and considers the amendments
required by the Tax Reform Act of 1986 except as otherwise specified in this
letter.
This plan qualifies for Extended Reliance described in the last paragraph
of Publication 794 under the caption "Limitations of a Favorable Determination
Letter".
Except as otherwise specified this letter may not be relied upon with
respect to whether the plan satisfies the qualification requirements as amended
by the Uruguay Round Agreements Act, Pub. L. 103-465 and by the Small Business
Job Protection Act of 1996 (SBJPA), Pub. L. 104-108, other than the
requirements of Code section 401(a)(26).
<PAGE> 2
-2-
FIRST FEDERAL SAVINGS BANK
The information on the enclosed addendum is an integral part of this
determination. Please be sure to read and keep it with this letter.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
If you have questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
/s/ Bobby G. Scott
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide
for Employee Benefit Plans
Addendum
<PAGE> 3
-3-
FIRST FEDERAL SAVINGS BANK
This determination letter is in place of the letter that should have been
issued on September 7, 1995.
