FIRST BANK SYSTEM, INC.
EMPLOYEE STOCK PURCHASE PLAN 1984
(As Amended and Restated February 15, 1989 and
As Amended and Restated April 24, 1991
and reflecting further amendments through
August 15, 1996)
ARTICLE I. INTRODUCTION
Section 1.01 Purpose. The purpose of this 1984 Employee Stock
Purchase Plan (amended and restated as of February 15, 1989) (the "Plan") is to
provide employees of First Bank System, Inc., a Delaware corporation (the
"Company"), and certain related corporations with an opportunity to share in the
ownership of the Company by providing them with a convenient means for regular
and systematic purchases of the Company's Common Stock, par value $1.25 per
share, and, thus, to develop a stronger incentive to work for the continued
success of the Company. The Plan shall constitute an amendment and restatement
of the Company's existing 1984 Employee Stock Purchase Plan (as amended January
31, 1987) (the "Former Plan") and as such shall supersede and replace the Former
Plan. No additional offers to purchase shares of the Company's Common Stock or
any other rights or benefits shall be provided or granted under the Former Plan;
provided, however, that the Former Plan shall deem to be outstanding to the
extent necessary solely for the purpose of determining the terms and conditions
of any such purchase offer or other rights previously granted under the Former
Plan.
Section 1.02 Rules of Interpretation. It is intended that the
Plan be an "employee stock purchase plan"as defined in Section 423(b) of the
Internal Revenue Code of 1986, as amended (the "Code"), and Treasury Regulations
promulgated thereunder, if approved by the Company's shareholders. Accordingly,
the Plan will be interpreted and administered in a manner consistent therewith
if so approved. All Participants in the Plan will have the same rights and
privileges consistent with the provisions of the Plan.
Section 1.03 Definitions. For purposes of the Plan, the
following terms will have the meanings set forth below:
(a) "Acceleration Date" means the earlier of the date of
shareholder approval or approval by the Company's Board of Directors of (i) any
consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which shares of Company Stock
would be converted into cash, securities or other property, other than a merger
of the Company in which shareholders immediately prior to the merger have the
same proportionate ownership of stock in the surviving corporation immediately
after the merger; (ii) any sale lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all, of
the assets of the Company; or (iii) any plan of liquidation or dissolution of
the Company.
(b) "Affiliate" means any parent or subsidiary corporation of
the Company, as defined in Sections 425(e) and 425(f) of the Code, whether now
or hereafter acquired or established.
(c) "Committee" means the committee appointed under Section
10.01.
(d) "Company" means First Bank System, Inc. a Delaware
corporation, and its successors by merger or consolidation as contemplated by
Article XI herein.
(e) "Current Compensation" means all gross cash compensation
(including wage, salary, incentive, bonus and overtime earnings) paid by the
Company or an Affiliate to a Participant, but excluding all expense allowances
or reimbursements, stock options and compensation or income payable in a form
other than cash, but including amounts which would have constituted compensation
but for a Participant's election to defer or reduce compensation pursuant to any
deferred compensation, cafeteria, capital accumulation or any other similar plan
provided by the Company.
(f) "Fair Market Value" as of a given date means such value of
the Common Stock as reasonably determined by the committee but which is not less
than the last sale price as reported by the New York Stock Exchange.
(g) "Participant" means a Permanent Full-Time Employee who is
eligible to participate in the Plan under Section 2.01 and who has elected to
participate in the Plan.
(h) "Participating Affiliate" means an Affiliate which has
been designated by the Committee in advance of the Purchase Period in question
as a corporation whose eligible Permanent Full-Time Employees may participate in
the Plan.
(i) "Permanent Full-Time Employee" means an employee of the
Company or a Participating Affiliate as of the first day of a Purchase Period,
including an officer or director who is also an employee, except an employee
whose customary employment is less than 20 hours per week or any employee who
has not been employed by the Company or its Affiliates for more than one (1)
year.
(j) "Plan" means the First Bank System, Inc. 1984 Employee
Stock Purchase Plan as amended and restated as of February 15, 1989), the
provisions of which are set forth herein.
(k) "Purchase Period" means a period beginning on such
business day as may be designated by the Committee prior thereto and ending on
the earlier of such business day as may be designated by the Committee prior to
the first business day of such Purchase Period or any Acceleration Date;
provided, however, that in no event shall the Committee designate a Purchase
Period which is less than six (6) months in duration.
(l) "Stock" means the Company's Common Stock, $1.25 par value,
as such stock may be adjusted for changes in the stock or the Company as
contemplated by Article XI herein.
(m) "Stock Purchase Account" means the account maintained on
the books and records of the Company recording the amount received from each
Participant through payroll deductions made under the Plan.
ARTICLE II. ELIGIBILITY AND PARTICIPATION
Section 2.01 Eligible Employees. All Permanent Full-Time
Employees shall be eligible to participate in the Plan beginning on the first
day of the first Purchase Period to commence after such person becomes a
Permanent Full-Time Employee. Subject to the provisions of Article VI, each such
employee will continue to be eligible to participate in the Plan so long as he
or she remains a Permanent Full-Time Employee.
Section 2.02 Election to Participate. An eligible Permanent
Full-Time Employee may elect to participate in the Plan for a given Purchase
Period by filing with the Company, in advance of that Purchase Period and in
accordance with such terms and conditions as the Committee in its sole
discretion may impose, a form provided by the Company for such purpose (which
authorizes regular payroll deductions from Current Compensation beginning with
the first payday in that Purchase Period and continuing until the employee
withdraws from the Plan or ceases to be eligible to participate in the Plan).
Section 2.03 Limits on Stock Purchase. No employee shall be
granted any right to purchase Stock hereunder if such employee, immediately
after such a right to purchase is granted, would own, directly or indirectly,
within the meaning of Section 423(b)(3) and Section 425(d) of the Code, stock
possessing 5% or more of the total combined voting power or value of all the
then classes of the capital stock of the Company or of all Affiliates.
Section 2.04 Voluntary Participation. Participation in the
Plan on the part of the Participant is voluntary and such participation is not a
condition of employment nor does participation in the Plan entitle a Participant
to be retained as an employee.
ARTICLE III. PAYROLL DEDUCTIONS AND
STOCK PURCHASE ACCOUNT
Section 3.01 Deduction from Pay. The form described in Section
2.02 will permit a participant to elect payroll deductions of any whole dollar
amount or whole percentage of Current Compensation for each pay period, subject
to such limitations as the Committee in its sole discretion may impose. A
Participant may cease making payroll deductions at any time, as provided in
Section 6.01.
Section 3.02 Credit to Account. Payroll deductions will be
credited to the Participant's Stock Purchase Account on each payday.
Section 3.03 Interest. No interest will be paid upon payroll
deductions or on any amount credited to, or on deposit in, a Participant's Stock
Purchase Account.
Section 3.04 Nature of Account. The Stock Purchase Account is
established solely for accounting purposes, and all amounts credited to the
Stock Purchase Account will remain part of the general assets of the Company or
the Participating Affiliate (as the case may be).
Section 3.05 No Additional Contributions. A Participant may
not make any payment into the Stock Purchase Account other than the payroll
deductions made pursuant to the Plan.
ARTICLE IV. RIGHT TO PURCHASE SHARES
Section 4.01 Number of Shares. Each Participant will have the
right to purchase on the last business day of the Purchase Period all, but not
less than all, of the largest number of whole shares of Stock that can be
purchased at the price specified in Section 4.02 with the entire credit balance
in the Participant's Stock Purchase Account, subject to the limitations that (a)
no more than 5,000 shares of Stock may be purchased under the Plan by any one
Participant for a given Purchase Period and (b) in accordance with Section
423(b)(8) of the Code, no more than $25,000 in Fair Market Value (determined at
the beginning of each Purchase Period) of Stock and other stock may be purchased
under the Plan and all other employee stock purchase plans (if any) of the
Company and the Affiliates by any one Participant for each calendar year. If the
purchases for all Participants would otherwise cause the aggregate number of
shares of Stock to be sold under the Plan to exceed the number specified in
Section 10.03, however, each Participant shall be allocated a pro rata portion
of the Stock to be sold.
Section 4.02 Purchase Price. The purchase price for any
Purchase Period shall be that price as announced by the Committee prior to the
first business day of that Purchase Period, which price may, in the discretion
of the Committee, be a price which is not fixed or determinable as of the first
business day of that Purchase Period; provided, however, that in no event shall
the purchase price for any Purchase Period be less than (a) 85% of the Fair
Market Value of the Stock on the first business day of that Purchase Period or
(b) 85% of the Fair Market Value of the Stock on the last business day of that
Purchase Period, in each case rounded up to the next higher full cent, whichever
is lower.
ARTICLE V. EXERCISE OF RIGHT
Section 5.01 Purchase of Stock. On the last business day of a
Purchase Period, the entire credit balance in each Participant's Stock Purchase
Account will be used to purchase the largest number of whole shares of Stock
purchasable with such amount (subject to the limitations of Section 4.01),
unless the Participant has filed with the Company, in advance of that date and
subject to such terms and conditions as the Committee in its sole discretion may
impose, a form provided by the Company (which elects to receive the entire
credit balance in cash).
Section 5.02 Cash Distributions. Any amount remaining in a
Participant's Stock Purchase Account after the last business day of a Purchase
Period will be paid to the Participant in cash within 30 days after the end of
that Purchase Period.
Section 5.03 Notice of Acceleration Date. The Company shall
use its best efforts to notify each Participant in writing at least ten days
prior to any Acceleration Date that the then current Purchase Period will end on
such Acceleration Date.
ARTICLE VI. WITHDRAWAL FROM PLAN
Section 6.01 Voluntary Withdrawal. A Participant may, in
accordance with such terms and conditions as the Committee in its sole
discretion may impose, withdraw from the Plan and cease making payroll
deductions by filing with the Company a form provided for this purpose. In such
event, the entire credit balance in the Participant's Stock Purchase Account
will be paid to the Participant in cash within 30 days. A Participant who
withdraws from the Plan will not be eligible to reenter the Plan until the
beginning of the next Purchase Period.
Section 6.02 Death. Subject to such terms and conditions as
the Committee in its sole discretion may impose, upon the death of a
Participant, no further amounts shall be credited to the Participant's Stock
Purchase Account. Thereafter, on the last business day of the Purchase Period
during which such Participant's death occurred and in accordance with Section
5.01, the entire credit balance in such Participant's Stock Purchase Account
will be used to purchase Stock, unless Participant's estate has filed with the
Company, in advance of that day and subject to such terms and conditions as the
Committee in it sole discretion may impose, a form provided by the Company which
elects to have the entire credit balance in such Participant's Stock Purchase
Account will be used to purchase Stock, unless Participant's estate has filed
with the Company, in advance of that day and subject to such terms and
conditions as the Committee in its sole discretion may impose, a form provided
by the Company which elects to have the entire credit balance in such
participant's Stock Account distributed in cash, in accordance with Section 5.02
or at such earlier time as the Committee in its sole discretion may decide. Each
Participant, however, may designate one or more beneficiaries who, upon death,
are to receive the stock or the amount that otherwise would have been
distributed or paid to the Participant's estate and may change or revoke any
such designation from time to time. No such designation, change or revocation
will be effective unless made by the Participant in writing and filed with the
Company during the Participant's lifetime. Unless the Participant has otherwise
specified in the beneficiary designation, the beneficiary or beneficiaries so
designated will become fixed as of death so that, if a beneficiary survives the
Participant but dies before the receipt of the payment due such beneficiary, the
payment will be made to such beneficiary's estate.
Section 6.03 Termination of Employment. Subject to such terms
and conditions as the Committee in its sole discretion may impose, upon a
Participant's normal or early retirement with the consent of the Company under
any pension or retirement plan of the Company or Participating Affiliate, no
further amounts shall be credited to the Participant's Stock Purchase Account.
Thereafter, on the last business day of the Purchase Period during which such
Participant's approved retirement occurred and in accordance with Section 5.01,
the entire credit balance in such Participant's Stock Purchase Account will be
used to purchase Stock, unless such Participant has filed with the Company, in
advance of that day and subject to such terms and conditions as the Committee in
its sole discretion may impose, a form provided by the Company which elects to
receive the entire credit balance in such Participant's Stock Purchase Account
in cash, in accordance with Section 5.02; provided, however, that such
Participant shall have no right to purchase Stock in the event that the last day
of such a Purchase Period occurs more than three (3) months following the
termination of such Participant's employment with the Company by reason of such
an approved retirement. In the event of any other termination of employment
(other than death) with the Company or a Participatory Affiliate by a
Participant, participation in the Plan will cease on the date the Participant
ceases to be a Permanent Full-Time Employee for any reason. In such event, the
entire credit balance in such Participant's Stock Purchase Account will be paid
to the Participant in cash within 30 days. For purposes of this Section, a
transfer of employment to any Affiliate, or a leave of absence which has been
approved by the Committee, will not be deemed a termination of employment as a
Permanent Full-Time Employee.
ARTICLE VII. NONTRANSFERABILITY
Section 7.01 Nontransferable Right to Purchase. The right to
purchase Stock hereunder may not be assigned, transferred, pledged or
hypothecated (whether by operation of law or otherwise), except as provided in
Section 6.02, and will not be subject to execution, attachment or similar
process. Any attempted assignment, transfer, pledge, hypothecation or other
disposition or levy of attachment or similar process upon the right to purchase
will be null and void and without effect.
Section 7.02 Nontransferable Account. Except as provided in
Section 6.02, the amounts credited to a Stock Purchase Account may not be
assigned, transferred, pledged or hypothecated in any way, and any attempted
assignment, transfer, pledge, hypothecation or other disposition of such amount
will be null and void and without effect.
ARTICLE VIII. STOCK CERTIFICATES
Section 8.01 Delivery. Promptly after the last day of each
Purchase Period and subject to such terms and conditions as the Committee in its
sole discretion may impose, the Company will cause to be delivered to or for the
benefit of the Participant a certificate representing the Stock purchased on the
last business day of such Purchase Period.
Section 8.02 Securities Laws. The Company shall not be
required to issue or deliver any certificate representing Stock prior to
registration under the Securities Act of 1933, as amended, or registration or
qualification under any state law if such registration is required. The Company
will use its best efforts to accomplish such registration (if and to the extent
required) not later than a reasonable time following the Purchase Period, and
delivery of certificates may be deferred until such registration is
accomplished.
Section 8.03 Completion of Purchase. A Participant will have
no interest in the Stock purchased until a certificate representing the same is
issued to or for the benefit of the Participant.
Section 8.04 Form of Ownership. The certificates representing
Stock issued under the Plan will be registered in the name of the Participant or
jointly in the name of the Participant and another person, as the Participant
may direct on a form provided by the Company.
ARTICLE IX. EFFECTIVE DATE AND AMENDMENT OR
TERMINATION OF PLAN
Section 9.01 Effective Date. The Plan will become effective on
February 15, 1989, but only if the Plan is approved by the Company's
shareholders at their 1989 annual meeting.
Section 9.02 Powers of Board. The Board of Directors of the
Company may at any time amend or terminate the Plan, except that no amendment
will be made without prior approval of the shareholders which would (a)
authorize an increase in the number of shares of Stock which may be purchased
under the Plan, except as provided in Section 11.01, (b) permit the issuance of
Stock before payment therefor in full, or (c) reduce the price per share at
which the Stock may be purchased.
Section 9.03 Automatic Termination. No Purchase Period shall
begin after May 1, 2001.
ARTICLE X. ADMINISTRATION
Section 10.01 Appointment of Committee. The Board of Directors
of the Company shall appoint a Committee to administer the Plan consisting of
two or more persons (who may, but need not be, directors of the Company or of a
Participating Affiliate). The Board will determine the size of the Committee
from time to time and will have the power to remove and replace members thereof.
Section 10.02. Powers of Committee. Subject to the provisions
of the Plan, the Committee will have full authority to administer the Plan,
including authority to interpret and construe any provision of the Plan, to
establish deadlines by which the various administrative forms must be received
in order to be effective, and to adopt such other rules and regulations for
administering the Plan as it may deem appropriate. The Committee shall have full
and complete authority to determine whether all or any part of the Stock
acquired pursuant to the Plan shall be subject to restrictions on the
transferability thereof or any other restrictions affecting in any manner a
Participant's rights with respect thereto but any such restrictions shall be
contained in the form by which a Participant elects to participate in the Plan
pursuant to Section 2.02. Decisions of the Committee will be final and binding
on all parties who have an interest in the Plan.
Section 10.03 Stock to be Sold. The Stock to be issued and
sold under the Plan may be treasury stock or authorized but unissued Stock, or
the Company may purchase Stock in the market for sale under the Plan. Except as
provided in Section 11.01, the aggregate number of shares of Stock to be sold
under the Plan will not exceed 4,600,000 shares.
Section 10.03. Notices. Notices to the Committee should be
addressed as follows:
First Bank System, Inc.
1200 First Bank Place East
Minneapolis, Minnesota 55480
Attn: Employee Stock Purchase Plan Committee
ARTICLE XI. ADJUSTMENT FOR CHANGES
IN STOCK OR COMPANY
Section 11.01 Stock Dividend or Reclassification. If the
outstanding shares of Stock are increased, decreased, changed into or exchanged
for a different number or kind of securities of the Company, or shares of a
different par value or without par value, through reorganization,
recapitalization, reclassification, stock dividend, stock split, amendment to
the Company's Articles of Incorporation, reverse stock split or otherwise, an
appropriate adjustment shall be made in the maximum numbers and/or kind of
securities to be sold under this Plan with a corresponding adjustment in the
purchase price to be paid therefor.
Section 11.02 Merger or Consolidation. If the Company is
merged into or consolidated with one or more corporations during the term of the
Plan, appropriate adjustments will be made to give effect thereto on an
equitable basis in terms of issuance of shares of the corporation surviving the
merger or of the consolidated corporation, as the case may be.
ARTICLE XII. APPLICABLE LAW
Rights to purchase Stock granted under this Plan shall be
construed and shall take effect in accordance with the laws of the State of
Minnesota.
ARTICLE XIII. PARTICIPATION OF NON-EMPLOYEE DIRECTORS
Section 13.01 Eligible Directors. Each director of the Company
is eligible to participate in the Plan pursuant to this Article XIII unless such
director is an employee of the Company or Affiliate. An eligible director is
herein referred to as a "non-employee Director." A Non-employee Director shall
be eligible to participate in the Plan beginning on the first day of the first
Purchase Period to commence after such person becomes a Non-employee Director.
Subject to the provisions of this Article XIII, each such Non-employee Director
will continue to be eligible to participate in the Plan so long as he or she
remains a Non-employee Director.
Section 13.02 Election to Participate. A Non-employee Director
may elect to participate in the Plan for a given Purchase Period by filing with
the Company, in advance of that Purchase Period and in accordance with such
terms and conditions as the Committee in its sole discretion may impose, a form
provided by the Company for such purpose (which authorizes the Company to deduct
for the purchase of Stock hereunder all or a portion of the Director
Compensation (as defined below) that such Non-employee Director is entitled to
receive for the period beginning with the first day in that Purchase Period and
continuing until the Non-employee Director withdraws from the Plan or ceases to
be eligible to participate in the Plan.) "Director Compensation" shall mean all
amounts which the director would be entitled to receive for serving as a
director in the relevant Purchase Period, including fees for attendance at
meetings of the Board of Directors or any committee of the Board of Directors or
for any other services as a director of the Company.
Section 13.03. Deduction from Director Compensation. The form
described in Section 13.02 will permit a Non-employee Director to elect
deductions of any whole dollar amount or whole percentage of Director
Compensation to be used to purchase Stock hereunder. Director Compensation will
be credited to the Non-employee Director's Stock Purchase Account on each day
that Director Compensation would otherwise be paid to such Non-employee
Director, subject to Section 3.04.
Section 13.04 Interest. No interest will be paid upon
deductions from Director Compensation or on any amount credited to, or on
deposit in, a Non-employee Director's Stock Purchase Account.
Section 13.05 No Additional Contributions. A Non-employee
Director may not make any payment into the Stock Purchase Account other than the
deductions from Director Compensation made pursuant to the Plan.
Section 13.06 Purchase of Shares; Purchase Price.
(a) Each Non-employee Director will automatically purchase on
the last day of the Purchase Period all of the largest number of whole shares of
stock that can be purchased at the purchase price specified in Section 13.06(b)
with the entire credit balance in the Non-employee Director's Stock Purchase
Account, unless the Non-employee Director has filed with the Company, in advance
of that date and subject to such terms and conditions as the Committee in its
sole discretion may impose, a form provided by the Company (which elects to
receive the entire credit balance in cash). Any amount remaining in a
Non-employee Director's Stock Purchase Account after the last business day of a
Purchase Period will be paid to the Non-employee Director in cash within 30 days
after the end of that Purchase Period.
(b) The purchase price for Non-employee Directors for any
Purchase Period shall be the lower of (i) 85% of the Fair Market Value of the
Stock on the first business day of that Purchase Period or (b) 85% of the Fair
Market Value of the Stock on the last business day of that Purchase Period, in
each case rounded up to the next higher full cent.
Section 13.07 Voluntary Withdrawal. A Non-employee Director
may, in accordance with such terms and conditions as the Committee in its sole
discretion may impose, withdraw from the Plan and cease having deductions made
from Director Compensation by filing with the Company a form provided for this
purpose. In such event, the entire credit balance in the Non-employee Director's
Stock Purchase Account will be paid to the Non-employee Director in cash within
30 days. A Non-employee Director who withdraws from the Plan will not be
eligible to reenter the Plan until the beginning of the next Purchase Period.
Section 13.08 Death. Upon the death of a Non-employee
Director, no further amounts shall be credited to the Non-employee Director's
Stock Purchase Account. Thereafter, on the last business day of the Purchase
Period during which such Non-employee Director's death occurred and in
accordance with Section 13.06, the entire credit balance in such Non-employee
Director's Stock Purchase Account will be used to purchase Stock. Each
Non-employee Director, however, may designate one or more beneficiaries who,
upon death, are to receive the stock and any amount that otherwise would have
been distributed or paid to the Non-employee Director's estate and may change or
revoke any such designation from time to time. No such designation, change or
revocation will be effective unless made by the Non-employee Director in writing
and filed with the Company during the Non-employee Director's lifetime. Unless
the Non-employee Director has otherwise specified in the beneficiary
designation, the beneficiary or beneficiaries so designated will become fixed as
of death so that, if a beneficiary survives the Non-employee Director but dies
before the receipt of the payment due such beneficiary, the payment will be made
to such beneficiary's estate.
Section 13.10 Termination as a Director. Participation in the
Plan will cease on the date the Non-employee Director ceases to be eligible to
participate in the Plan pursuant to Section 13.01. In such event, on the last
business day of the Purchase Period during which such Non-employee Director
ceased to be eligible under Section 13.01 and in accordance with Section 13.06
the entire credit balance in such Non-employee Director's Stock Purchase Account
will be used to purchase Stock.
Section 13.11 Nontransferable Right to Purchase. The right to
purchase Stock hereunder may not be assigned, transferred, pledged or
hypothecated (whether by operation of law or otherwise), except as provided in
Section 13.08 and will not be subject to execution, attachment or similar
process. Any attempted assignment, transfer, pledge, hypothecation or other
disposition or levy of attachment or similar process upon the right to purchase
will be null and void and without effect.
Section 13.12 Nontransferable Account. Except as provided in
Section 13.08 the amounts credited to a Stock Purchase Account may not be
assigned, transferred, pledged or hypothecated in any way, and any attempted
assignment, transfer, pledge, hypothecation or other disposition of such amounts
will be null and void and without effect.
Section 13.13 Stock Certificates. All matters pertaining to
the issuance and delivery of and the Non-employee Director's interest in the
Stock purchased pursuant to this Plan and the certificates representing such
Stock shall be governed by Article VIII.
Section 13.14 Tax Matters. This Article XIII is not subject to
Section 423 of the Code or any other provision of the Plan which refers to, or
is based upon, such section. For tax purposes, this Article XIII shall be
treated as separate and apart from the balance of the Plan.