EXHIBIT 10.10.6
WESTCORP
EMPLOYEE STOCK OWNERSHIP PLAN AND SALARY SAVINGS PLAN
(As Amended and Restated Effective as of January 1, 2001)
AMENDMENT NO. SIX
WHEREAS, WESTCORP, a California corporation (the "Company") established the
Westcorp Employee Stock Ownership Plan and Salary Savings Plan (the "Plan"),
effective as of January 1, 1975, for the benefit of its eligible employees and
their beneficiaries; and
WHEREAS, the Company adopted the 2001 Restatement of the Plan effective as of
January 1, 2001 and the Plan was amended thereafter on five separate occasions;
and
WHEREAS, Section 17.1 of the Plan gives the Administrative Committee of
the Plan the authority to amend the Plan; and
WHEREAS, the Administrative Committee has determined that it is in the best
interest of the Plan's participants and their beneficiaries that the Plan be
amended as set forth herein.
NOW, THEREFORE, pursuant to resolutions adopted by the Plan's Administrative
Committee, the Plan is hereby amended effective as of November 1, 2003 as
follows:
1. Section 2.1 is hereby amended in its entirety to read as follows:
"Account. "Account" or "Accounts" shall mean the following Accounts
maintained for each Participant:
(a) Salary Savings Contribution Account,
(b) Rollover Account,
(c) ESOP Contribution Account,
(d) ESOP Dividend Received Account,
(e) ESOP Dividend Reinvestment Account, and
(f) Employer Matching Contribution Account."
2. Section 2.13 is hereby amended in its entirety to read as follows:
"Company. "Company" or "Employer" shall mean Westcorp and any other
Affiliated Companies (or similar entities) which may be included
within the coverage of the Plan with the consent of the
Administrative Committee."
3. Subsections 4.7(b) and (c) and (d) are hereby amended in their entirety to
read as follows:
"(b) Each Participant, or, in the event of his death, his
Beneficiary, shall have the right to instruct the Trustee in writing
as to the manner in which to vote the vested and unvested shares of
Company Stock allocated to his ESOP Contribution Account and ESOP
Dividend Reinvestment Account and his proportionate share of the
shares of Company Stock allocated to all Participants' ESOP
Contribution Accounts and ESOP Dividend Reinvestment Accounts for
which other Participants have not given timely instructions
regarding voting to the Trustee as described herein, at any
shareholders' meeting of the Company.
The Company shall use its best efforts to timely distribute or cause
to be distributed to each Participant or Beneficiary the information
distributed to shareholders of the Company in connection with any
such shareholders' meeting, together with a form requesting
confidential instructions to the Trustee on how such shares of
Company Stock shall be voted on each such matter. Upon timely
receipt of such instructions, the Trustee shall, on each such
matter, vote as directed the appropriate number of shares (including
fractional shares) of Company Stock.
Except as otherwise required by applicable law, the instructions
received by the Trustee from Participants or Beneficiaries shall be
held by the Trustee in strict confidence and shall not be divulged
to any person, including employees, officers and directors of the
Company or any Affiliated Company; provided however, that to the
extent necessary for the operation of the Plan, such instructions
may be relayed by the Trustee to a recordkeeper, auditor or other
persons providing services to the Plan if such person (i) is not the
Company, an Affiliated Company, or any employee, officer or director
thereof, and (ii) agrees not to divulge such directions to any other
person, including employees, officers and directors of the Company
or any Affiliated Company.
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An individuals proportionate share of unvoted shares of Company
Stock for purposes of the first paragraph of this Section 4.7(b)
shall be a fraction, the numerator of which shall be the number of
shares held in such individual's ESOP Contribution and ESOP Dividend
Reinvestment Accounts and the denominator of which shall be the
aggregate number of shares held in all such ESOP Contribution and
ESOP Dividend Reinvestment Accounts for which timely instructions
are provided to the Trustee.
(c) Each Participant, or in the event of his death, his Beneficiary,
shall have the right to instruct the Trustee in writing as to the
manner in which to respond to a tender or exchange offer with
respect to the shares of Company Stock allocated to his ESOP
Contribution and ESOP Dividend Reinvestment Accounts. The Company
shall use its best efforts to timely distribute or cause to be
distributed to each Participant or Beneficiary the information
distributed to shareholders of the Company in connection with any
such tender or exchange offer, together with a form requesting
confidential instructions to the Trustee on how to respond to such
tender or exchange offer.
Upon timely receipt of such instructions, the Trustee shall respond
as directed with respect to such shares of Company Stock. If, and to
the extent that, the Trustee shall not have received timely
instructions from any individual given an right to instruct the
Trustee with respect to shares of Company Stock by the first
sentence of this Section 4.7(c), such individual shall be deemed to
have timely instructed the Trustee not to tender or exchange such
shares of Company Stock. Except as otherwise required by applicable
law, the instructions received by the Trustee from Participants or
Beneficiaries shall be held by the Trustee in strict confidence and
shall not be divulged to any person, including employees, officers
and directors of the Company or any Affiliated Company; provided
however, that to the extent necessary for the operation of the Plan,
such instructions may be relayed by the Trustee to a recordkeeper,
auditor or other persons providing services to the Plan if such
person (i) is not the Company, an Affiliated Company, or any
employee, officer or director thereof, and (ii) agrees not to
divulge such
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directions to any other person, including employees, officers and
directors of the Company or any Affiliated Company.
(d) Each Participant shall be entitled to the diversification rights
described in subsections (1) and (2) of this section 4.7(d)
whichever will yield the greater number of stock to be diversified.
Diversification rights shall apply to Company Stock allocated to the
Participant's ESOP Contribution and ESOP Dividend Reinvestment
Accounts after December 31, 1986.
(1) Each Participant will have the diversification rights
described in this subsection 4.7(d)(1) beginning with the
first Plan Year in which the Participant has both attained age
thirty-five (35) and has completed ten (10) years of
participation in the Plan.
(i) In the Plan Year in which the Participant has both
attained age thirty-five (35) and completed ten (10)
years of participation in the Plan, such Participant may
elect to transfer an amount of up to ten percent (10%)
of his combined applicable ESOP Contribution and ESOP
Dividend Reinvestment Accounts to the investment options
provided under the Plan for Participants' Salary Savings
Contribution Accounts.
(ii) Each Plan Year thereafter, such Participant may elect to
transfer an additional ten percent (10%) of his combined
applicable ESOP Contribution and ESOP Dividend
Reinvestment Accounts to the investment options provided
under the Plan for Participants' Salary Savings
Contribution Accounts. For these purposes, stock
previously diversified is taken into account for
purposes of determining the number of shares in the
Participant's combined applicable ESOP Contribution and
ESOP Dividend Reinvestment Accounts. The diversification
rights granted in this subsection (1) are not
cumulative, i.e., if a Participant does not elect to
diversify any Company Stock, or diversifies
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less than the number of shares which such Participant is
eligible to diversify, in a year in which the
Participant is eligible to do so, he may not diversify
more than ten percent (10%) of his combined applicable
ESOP Contribution and ESOP Dividend Reinvestment
Accounts in a subsequent Plan Year.
(iii) A diversification election for a Plan Year must be made
in writing and filed with the Administrative Committee
on or before March 31 of the following Plan Year.
(2) Each Participant shall have the diversification rights described in
this subsection 4.7(d)(2) beginning with the first Plan Year in
which the Participant as both attained age fifty-five (55) and
completed ten (10) years of Participation in the Plan. For purposes
of determining the number of shares in the Participant's combined
applicable ESOP Contribution and ESOP Dividend Reinvestment
Accounts, shares previously diversified pursuant to subsection
4.7(d)(1) are taken into account. For purposes of determining shares
previously diversified under this Section 4.7(d)(2), shares
diversified pursuant to subsection 4.7(d)(1) are not taken into
account.
(i) For each of the first five (5) Plan Years the Participant may
elect to transfer an amount up to twenty-five percent (25%) of
his combined applicable ESOP Contribution and ESOP Dividend
Reinvestment Accounts, less any amounts previously diversified
under this Section 4.7(d)(2), to the investment options
provided under the Plan for Participants' Salary Savings
Contribution Accounts.
(ii) For the sixth (6th) Plan Year, the Participant may elect to
transfer an amount up to fifty (50%) of his combined
applicable ESOP Contribution and ESOP Dividend Reinvestment
Accounts, less any amounts previously
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diversified under this subsection 4.7(d)(2), to other
investment options provided under the Plan for Participants'
Salary Savings Contribution Accounts.
(iii) A diversification election for a Plan Year must be made in
writing and filed with the Administrative Committee within
ninety (90) days after the close of such Plan Year.
(3) The proceeds resulting from a diversification election shall be
transferred to the Participant's Salary Savings Contribution
Account."
4. Section 4.7 is hereby amended to add a new subsection 4.7(e) to read as
follows:
"(e) ESOP Dividend Elections.
(i) The election provided in this subsection 4.7(e) shall apply only
to cash dividends paid by the Company on Company Stock credited to
the ESOP Contribution Accounts and ESOP Dividend Reinvestment
Accounts of Participants ("ESOP Dividends"). As soon as
administratively feasible after the Plan's receipt of an ESOP
Dividend, such dividend shall be allocated to Participants' ESOP
Dividend Received Accounts. With respect to an ESOP Dividend, the
allocation to each Participant's ESOP Dividend Received Account
shall be in an amount equal to the cash dividend paid on Company
Stock credited to that Participant's ESOP Contribution and ESOP
Dividend Reinvestment Accounts as determined by the Administrative
Committee as of the record date of the dividend. The "ESOP Dividend
Received Account" of a Participant shall mean a Participant's
individual account in the Trust Fund in which is held his or her
allocated share of ESOP Dividends pending the implementation of the
Participant's ESOP Dividend Election as described in this subsection
4.7(e).
(ii) Subject to the provisions of this subsection 4.7(e),
Participants shall have the right to elect to (a) receive a cash
payment from the Plan equal to the ESOP Dividends received by the
Plan with respect to that number of shares of Company Stock credited
to their ESOP Contribution
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Accounts and ESOP Dividend Reinvestment Accounts as determined by
the Administrative Committee as of the record date of such a
dividend (a "Cash Payment Election") or (b) direct that such
dividends be reinvested in Company Stock which shall be credited to
their ESOP Dividend Reinvestment Accounts (a "Reinvestment
Election"). Such an election shall be referred to herein as an ESOP
Dividend Election. The "ESOP Dividend Reinvestment Account" of a
Participant shall mean a Participant's individual account in the
Trust Fund in which is held his or her allocated share of Company
Stock and cash, as determined pursuant to subsection 4.7(e)(vii)
below, attributable to ESOP Dividends for which such Participant
made a Reinvestment Election.
(iii) A Participant's ESOP Dividend Election shall be irrevocable as
of Noon Pacific Standard Time on the day preceding the date such a
dividend is paid by the Company.
(iv) Subject to the provisions of the preceding paragraph, a
Participant may make an ESOP Dividend Election at any time on a form
provided by the Administrative Committee for such purpose or by such
other means as may be determined by the Administrative Committee and
such election shall apply to all ESOP Dividends paid by the Company
after the date such election is received by the Company's Human
Resources Department unless the Participant submits a new ESOP
Dividend Election.
(v) If a Participant does not submit a valid ESOP Dividend Election
on the form or using other means as may be determined by the
Administrative Committee for such purpose so that it is received by
the Company's Human Resources Department on or before the date and
time specified in subsection (iii) above, the Participant shall be
deemed to have made a Reinvestment Election.
(vi) Participants shall at all times be 100% vested in balance of
their ESOP Dividend Reinvestment and ESOP Dividend Received
Accounts.
(vii) The aggregate of all ESOP Dividends received by the Plan for
which Participants have made Reinvestment Elections shall be
invested in
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whole shares of Company Stock as soon as administratively feasible
following the date on which such elections become irrevocable. No
fractional shares shall be purchased. If the Committee determines
that it is not prudent to purchase all of such shares on the same
day and at the same price, all of such shares will be deemed to have
been purchased at the Average Share Price of such shares. The
Average Share Price shall be determined by dividing the aggregate
purchase price of such shares by the number of such shares. Such
shares and any cash remaining out of such ESOP Dividends shall be
allocated to the ESOP Dividend Reinvestment Accounts of those
Participants who made a Reinvestment Election with respect to such
ESOP Dividend in the same proportion as each Participant's ESOP
Dividend bears to the aggregate ESOP Dividend of all Participant's
ESOP Dividend's for which a Reinvestment Election was made.
(viii) The amount allocated to a Participant's ESOP Dividend
Received Account with respect to an ESOP Dividend for which such
Participant has made a Cash Payment Election shall be paid out of
such account to the Participant as soon as administratively feasible
following the date upon which such election becomes irrevocable with
respect to such dividend."
5. Section 7.3 is hereby amended in its entirety to read as follows:
"Fully Vested Accounts. A Participant shall always be one hundred
percent (100%) vested in his Salary Savings Contribution, Rollover
Contribution, ESOP Dividend Received, ESOP Dividend Reinvestment and
Hammond Company Matching Accounts."
6. Subsection 8.9(d)(ii) is hereby amended in its entirety to read as
follows:
"The Participant has obtained all distributions, other than Hardship
Distributions, and all nontaxable loans currently available under
all tax-qualified retirement plans maintained by the Company and has
made a Cash Payment Election pursuant to Section 4.7(d) of this Plan
with respect to all ESOP Dividends currently available.
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7. In adopting this Amendment, the Company's intent is to maintain the qualified
status of the Plan and the tax exemption of its related trust under the Code.
Accordingly, the provisions of this Amendment shall be interpreted in a manner
consistent with the continued qualification of the Plan and the tax exemption of
the trust. Additionally, nothing in this Amendment shall be deemed or be applied
to reduce or eliminate any benefit that is protected under section 411(d)(6) of
the Code or the corresponding provisions of Title I of the Employee Retirement
Income Security Act of 1974. The approval and adoption of this amendment is
conditioned upon receipt of a determination letter from the Internal Revenue
Service that the Plan, as amended herein, meets the requirements of Section
401(a) of the Internal Revenue Code of 1986, as amended.
IN WITNESS WHEREOF, the Administrative Committee of the Westcorp Employee Stock
Ownership Plan and Salary Savings Plan has adopted this Amendment No. Six on the
_______ day of October, 2003.
ADMINISTRATIVE COMMITTEE OF THE
WESTCORP EMPLOYEE STOCK OWNERSHIP PLAN
AND SALARY SAVINGS PLAN
By:
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Shaunna Monticelli, Chairman
Administrative Committee
Westcorp Employee Stock
Ownership Plan
and Salary Savings Plan
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