COMPOSITE COPY
FIRST BANK SYSTEM, INC.
NONQUALIFIED SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
Effective January 1, 1992
And
As Amended By
The FIRST AMENDMENT Adopted October 21, 1991
But Effective January 1, 1992
The SECOND AMENDMENT Adopted January 20, 1993
But Effective January 1, 1992
The THIRD AMENDMENT Adopted January 18, 1995
But Effective January 1, 1992 and January 1, 1995
The FOURTH AMENDMENT Adopted July 17, 1996
And Effective July 17, 1996
NOTE: Material added or modified by the First, Second, Third and Fourth
Amendments is shown in italics. Appendix B was added by the Fourth
Amendment effective July 17, 1996 but is not shown in italics. Modified
section numbers are not generally shown in italics.
FIRST BANK SYSTEM, INC.
NONQUALIFIED SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
Effective January 1, 1992
TABLE OF CONTENTS
PAGE
SECTION 1. INTRODUCTION ................................................. 1
1.1. History
1.2. Definitions
1.2.1. Accrual Percentage
1.2.2. Accrued SERP Benefit
1.2.3. Actuarial Equivalent
1.2.4. Affiliate
1.2.5. Average Compensation
1.2.6. Beneficiary
1.2.7. CAP
1.2.8. Change in Control
1.2.9. Compensation
1.2.10. Effective Date
1.2.11. Employer
1.2.12. FBS
1.2.13. Normal Retirement Age
1.2.14. Organization Committee
1.2.15. Participant
1.2.16. Plan
1.2.17. Plan Statement
1.2.18. PRA
1.2.19. Principal Sponsor
1.2.20. Prior Plans' Offset
1.2.21. Projected Average Compensation
1.2.22. Projected Compensation
1.2.23. Projected PIA
1.2.24. Projected PRA Account
1.2.25. Projected PRA Annuity
1.2.26. SERP Benefit
1.2.27. Service
1.2.28. Social Security Benefit
1.2.29. Survivor Benefit
1.2.30. Termination of Employment
1.3. Rules of Interpretation
SECTION 2. ELIGIBILITY AND PARTICIPATION ................................ 9
2.1. General Eligibility Rule
2.2. Specific Exclusion
SECTION 3. PARTICIPANT'S BENEFIT ........................................ 10
3.1. SERP Benefit
3.2. Suspension of Benefits
3.3. Change in Control Distributions
3.3.1. Accelerated Determination of Participant
Status
3.3.2. Accelerated Payment Upon Request
3.3.3. Forfeitures
3.4. Other Accelerated Distributions
3.4.1. When Available
3.4.2. Amount
3.4.3. Forfeitures
3.5. Effect on Service
SECTION 4. FORM OF PAYMENT .............................................. 13
4.1. Optional Forms of Payment
4.2. Payments in Case of Incompetency or Disability
4.3. Small Benefits
SECTION 5. DEATH BENEFITS ............................................... 14
5.1. Death Benefits
5.1.1. Death Before SERP Benefit Commencement
5.1.2. Death After SERP Benefit Commencement
5.2. Designation of Beneficiaries
5.2.1. Right to Designate
5.2.2. Failure of Designation
5.2.3. Disclaimers by Beneficiaries
5.2.4. Definitions
5.2.5. Special Rules
5.2.6. No Spousal Rights
5.3. Death Prior to Full Distribution
SECTION 6. FUNDING OF PLAN .............................................. 17
6.1. Unfunded Agreement
6.2. Spendthrift Provision
SECTION 7. AMENDMENT AND TERMINATION ................................... 18
SECTION 8. DETERMINATIONS-- RULES AND REGULATIONS ...................... 19
8.1. Determinations
8.2. Rules and Regulations
8.3. Method of Executing Instruments
8.4. Claims Procedure
8.4.1. Original Claim
8.4.2. Claims Review Procedure
8.4.3. General Rules
8.5. Information Furnished by Participants
SECTION 9. PLAN ADMINISTRATION .......................................... 21
9.1. Principal Sponsor
9.1.1. Officers
9.1.2. Chief Executive Officer
9.1.3. Board of Directors
9.2. Conflict of Interest
9.3. Administrator
9.4. Service of Process
9.5. IRC and ERISA Status
SECTION 10. DISCLAIMERS .................................................. 23
10.1. Term of Employment
10.2. Source of Payment
10.3. Delegation
SCHEDULE I .............................................................. SI-1
SCHEDULE II ............................................................. SII-1
APPENDIX A -- ACTUARIALLY EQUIVALENT BENEFITS ........................... A-1
APPENDIX B -- CHANGE IN CONTROL DEFINITIONS ............................. B-1
FIRST BANK SYSTEM, INC.
NONQUALIFIED SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
SECTION 1
INTRODUCTION
FOURTH AMENDMENT-EFFECTIVE JULY 17, 1996
1.1. HISTORY. First Bank System, Inc., a Delaware corporation (hereinafter
"Principal Sponsor") and certain subsidiaries of the Principal Sponsor have
heretofore adopted and currently maintain a tax qualified defined benefit ("cash
balance") pension plan known as the "First Bank System, Inc. Personal Retirement
Account" (hereinafter "PRA") and a tax qualified defined contribution profit
sharing plan (including a qualified cash or deferred arrangement, sometimes
called a ss.401(k) feature) known as the First Bank System, Inc. CapitaL
Accumulation Plan (hereinafter "CAP") for the purpose of developing retirement
benefits for employees. PRA and CAP are subject to the Employee Retirement
Income Security Act of 1974, as amended (hereinafter "ERISA") and they are
intended to qualify under section 401(a) of the Internal Revenue Code of 1986,
as amended (hereinafter "Code").
By operation of section 401(a) of the Code, benefits which may be
paid under PRA are restricted so that they do not exceed certain maximum
limitations established under section 415 of the Code. For benefits accruing
under PRA during plan years beginning after December 31, 1988, the maximum
amount of annual compensation which may be taken into account for any employee
may not exceed a fixed dollar amount which is established under section
401(a)(17) of the Code. Regulations issued under section 401(a)(4) of the Code
limit the amounts and types of remuneration that can be taken into account under
PRA without engaging in discrimination in favor of highly compensated employees
which is prohibited for tax qualified plans under the Code.
ERISA authorizes the establishment of an unfunded, nonqualified plan
of deferred compensation maintained by an employer solely for the purpose of
providing benefits for employees which are in excess of the limitations on
benefits imposed on qualified defined benefit plans by section 415 of the Code.
ERISA also authorizes the establishment of an unfunded, nonqualified plan
maintained primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees. To make provision
for such benefits, effective January 1, 1984, the Principal Sponsor adopted the
"First Bank System, Inc. Excess Benefit Plan" to provide benefits not otherwise
available under PRA. Effective January 1, 1989, that Plan was amended and
restated by the adoption of the "First Bank System, Inc. Excess Benefit Plan
(1989 Restatement)."
It is in the interest of this corporation to provide benefits to
certain executive employees in excess of those available under PRA, to provide
the full allocations for those certain employees under PRA without regard to the
limitations on benefits imposed by section 415, 401(a)(17) and 401(a)(4) of the
Code, to coordinate the benefits provided to them under PRA and the Excess Plan
and that an unfunded nonqualified deferred compensation plan be maintained for
those purposes.
Therefore, this corporation does hereby establish this Plan, the
terms and conditions of which are as follows.
1.2. DEFINITIONS. Words used herein with initial capital letters which are also
defined in Section 1 of PRA shall have the meanings assigned in PRA unless a
contrary intention is expressed herein. When used herein with initial capital
letters, the following words have the following meanings:
1.2.1. ACCRUAL PERCENTAGE -- a number not greater than one (expressed
as either a decimal or a percentage) determined as of a specified date which is
equal to (a) divided by (b) divided by (c):
(a) Fifty-five percent (55%) of the Participant's Projected
Average Compensation determined as of such specified date,
minus the total of:
(i) The Participant's Projected PRA Annuity
determined as of such specified date, and
(ii) Seventy-five percent (75%) of the Participant's
Projected PIA determined as of such specified
date, and
(iii) The Participant's Prior Plans' Offset
determined as of such specified date.
(b) The Participant's Projected Average Compensation
determined as of such specified date.
SECOND AMENDMENT-EFFECTIVE JANUARY 1, 1992
(c) The number (never less than one) of total possible years
of continuous and full time service with the Employer
which the Participant could have completed from his or her
most recent date of hire to his or her Normal Retirement
Age. TO THE SAME EXTENT THAT THE ORGANIZATION COMMITTEE
DETERMINES UNDER SECTION 1.2.11 OF THE PLAN STATEMENT THAT
A BUSINESS ENTITY WAS AN EMPLOYER PRIOR TO THE DATE ON
WHICH THE BUSINESS ENTITY FIRST BECAME AN EMPLOYER, THE
BUSINESS ENTITY SHALL BE CONSIDERED AN EMPLOYER FOR THE
PURPOSES OF THIS SUBPARAGRAPH.
The Accrual Percentage may decrease from time to time.
THIRD AMENDMENT-EFFECTIVE JANUARY 1, 1995
FOURTH AMENDMENT-EFFECTIVE JULY 17, 1996
1.2.2. ACCRUED SERP BENEFIT -- A DOLLAR AMOUNT DETERMINED AS OF A
SPECIFIED DATE WHICH IS EQUAL TO THE PRODUCT OF (a) MULTIPLIED BY (b) MULTIPLIED
BY (c):
(a) THE PARTICIPANT'S ACCRUAL PERCENTAGE DETERMINED AS OF SUCH
SPECIFIED DATE.
(b) THE PARTICIPANT'S AVERAGE COMPENSATION DETERMINED AS OF
SUCH SPECIFIED DATE.
(c) THE NUMBER (WHICH MAY BE LESS THAN ONE, BUT MAY NOT EXCEED
THE NUMBER OF YEARS DETERMINED UNDER SECTION 1.2.1(c)) OF
TOTAL YEARS OF CONTINUOUS AND FULL-TIME SERVICE WITH THE
EMPLOYER WHICH THE PARTICIPANT HAS COMPLETED FROM HIS OR
HER MOST RECENT DATE OF HIRE TO THE DATE THE ACCRUED SERP
BENEFIT IS DETERMINED; PROVIDED, HOWEVER, THAT A
PARTICIPANT MAY RECEIVE CREDIT FOR ADDITIONAL YEARS OF
SERVICE, SOLELY FOR PURPOSES OF THIS SECTION 1.2.2(c),
UNDER SUBPARAGRAPH (i), (ii) OR (iii) BELOW, USING THE
GREATEST NUMBER IF MORE THAN ONE APPLIES, BUT NOT UNDER
MORE THAN ONE SUBPARAGRAPH:
(i) IF A PARTICIPANT ATTAINS AGE 60 WHILE EMPLOYED
BY AN EMPLOYER, FIVE ADDITIONAL YEARS OF
SERVICE SHALL BE ADDED TO THE YEARS OF
CONTINUOUS AND FULL-TIME SERVICE OF SUCH
PARTICIPANT.
(ii) IF A PARTICIPANT IS ENTITLED TO RECEIVE
SEVERANCE PAYMENTS UNDER A SEVERANCE PAY PLAN
MAINTAINED BY AN EMPLOYER AND SUCH PAYMENTS ARE
MADE ON ACCOUNT OF A CHANGE IN CONTROL, THERE
SHALL BE INCLUDED WITHIN THE YEARS OF
CONTINUOUS AND FULL-TIME SERVICE OF SUCH
PARTICIPANT THE NUMBER OF YEARS AND FRACTIONS
OF YEARS OF SUCH PAYMENTS (EVEN IF SUCH
PAYMENTS ARE PAID IN A LUMP SUM OR OTHER
ACCELERATED MANNER).
(iii) A PARTICIPANT WHO TERMINATES EMPLOYMENT SHALL
BE CREDITED WITH ADDITIONAL YEARS OF SERVICE TO
THE EXTENT SUCH CREDIT IS EXPRESSLY PROVIDED
UNDER THE TERMS OF AN EMPLOYMENT AGREEMENT OR A
CHANGE IN CONTROL SEVERANCE PLAN OR AGREEMENT
BETWEEN THE PARTICIPANT AND AN EMPLOYER.
THE ACCRUED SERP BENEFIT MAY DECREASE FROM TIME TO TIME. TO THE SAME EXTENT THAT
THE ORGANIZATION COMMITTEE DETERMINES UNDER SECTION 1.2.11 OF THE PLAN STATEMENT
THAT A BUSINESS ENTITY WAS AN EMPLOYER PRIOR TO THE DATE ON WHICH THE BUSINESS
ENTITY FIRST BECAME AN EMPLOYER, THE BUSINESS ENTITY SHALL BE CONSIDERED AN
EMPLOYER FOR THE PURPOSES OF THIS SUBPARAGRAPH.
1.2.3. ACTUARIAL EQUIVALENT -- a benefit of equivalent value computed
on the basis of actuarial tables, factors and assumptions set forth in the
Appendix A to this Plan Statement.
1.2.4. AFFILIATE -- a business entity which is affiliated in
ownership with the Principal Sponsor or an Employer and is recognized as an
Affiliate by the Principal Sponsor for the purposes of this Plan.
1.2.5. AVERAGE COMPENSATION -- a dollar amount which is the annual
average of the Participant's Compensation for each of the thirty-six (36)
calendar months ending with the last day of the calendar month immediately
before the date the Average Compensation is determined. Average Compensation may
decrease from time to time. For this purpose, short term annual incentive
compensation which has been determined in fact by the Employer before the date
as of which the Average Compensation is determined shall be treated as if paid
in fact before such event. If it is not so determined before such date, it shall
be wholly disregarded for the purposes of this Plan. For this purpose, short
term annual incentive compensation, although paid less frequently, shall be
evenly allocated to the calendar months with respect to which it is paid.
Notwithstanding anything apparently to the contrary, in determining Average
Compensation, there shall be taken into account the short term annual incentive
compensation attributable to the thirty-six (36) calendar months preceding the
date as of which the Average Compensation is determined or, if it would produce
a greater Average Compensation, the short term annual incentive compensation
attributable to the thirty-six (36) calendar months ending with the December 31
preceding the date as of which the Average Compensation is determined.
1.2.6. BENEFICIARY -- a person designated by a Participant (or
automatically by operation of this Plan Statement) to receive the Survivor
Benefit in the event of the Participant's death under circumstances when such
benefit is payable under Section 5. A person so designated shall not be
considered a Beneficiary until the death of the Participant.
1.2.7. CAP -- the tax-qualified defined contribution ("ss.401(k)")
profit sharing plan known as the FIRST BANK SYSTEM, INC. CAPITAL ACCUMULATION
PLAN, as the same is existing and may be amended from time to time.
FOURTH AMENDMENT-EFFECTIVE JULY 17, 1996
1.2.8. CHANGE IN CONTROL -- THE DEFINITION OF CHANGE IN CONTROL, AS
WELL AS CERTAIN OTHER DEFINITIONS RELATING TO CHANGE IN CONTROL USED HEREIN,
APPEAR IN APPENDIX B TO THIS PLAN STATEMENT.
1.2.9. COMPENSATION -- a dollar amount which is the annual amount of
base salary and short term annual incentive compensation paid to the Participant
for services rendered as an employee of the Employer. Compensation may decrease
from time to time.
(a) CAP INCOME. Compensation shall include amounts which the
Participant would have received and would have been
included as Compensation but for section 402(a)(8) of the
Code.
(b) CAFETERIA PLAN CONTRIBUTIONS. Compensation shall include
amounts which the Participant would have received and
which would have been included as Compensation but for
section 125 of the Code.
(c) DEFERRED COMPENSATION. Notwithstanding the foregoing,
Compensation shall include amounts of base salary and
short term annual incentive compensation which were
deferred at the election of the Participant or otherwise
under a nonqualified plan of deferred compensation at the
time such amounts would have been paid but for such
election to defer and not at the time actually received by
the Participant.
1.2.10. EFFECTIVE DATE -- January 1, 1992.
SECOND AMENDMENT-EFFECTIVE JANUARY 1, 1992
1.2.11. EMPLOYER -- the Principal Sponsor and any business entity
affiliated with the Principal Sponsor that employs persons who are designated
for participation in this Plan. UNLESS THE ORGANIZATION COMMITTEE DETERMINES
OTHERWISE, NO BUSINESS ENTITY SHALL BE CONSIDERED AN EMPLOYER FOR ANY PERIOD OF
TIME PRIOR TO THE DATE ON WHICH THE BUSINESS ENTITY FIRST BECAME AN EMPLOYER.
1.2.12. FBS -- FIRST BANK SYSTEM, INC., a Delaware corporation.
1.2.13. NORMAL RETIREMENT AGE -- a date determined as of a specified
date:
(a) for a Participant who is not yet age sixty-five (65) years
as of the specified date, the last day of the calendar
month in which the Participant will attain age sixty-five
(65) years, or
(b) for a Participant who is age sixty-five (65) years or
older as of the specified date, the last day of the
calendar month immediately preceding the date as of which
the Normal Retirement Age is being determined.
1.2.14. ORGANIZATION COMMITTEE -- the committee of that name
constituted by the Board of Directors of the Principal Sponsor.
1.2.15. PARTICIPANT -- an employee of an Employer who becomes a
Participant in the Plan in accordance with the provisions of Section 2. An
employee who has become a Participant shall be considered to continue as a
Participant in the Plan until the date of the Participant's death or, if
earlier, the date when the Participant is no longer employed by an Employer and
upon which the Participant no longer has any SERP Benefit under the Plan (that
is, the Participant has received a distribution of all of the Participant's SERP
Benefit or the Participant's SERP Benefit has been forfeited).
1.2.16. PLAN -- the nonqualified deferred compensation plan of the
Employer established for the benefit of employees eligible to participate
therein, as first set forth in this Plan Statement. (As used herein, "Plan"
refers to the legal entity established by an Employer and not to the document
pursuant to which the Plan is maintained. That document is referred to herein as
the "Plan Statement.") The Plan shall be referred to as the "FIRST BANK SYSTEM,
INC. NONQUALIFIED SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN."
1.2.17. PLAN STATEMENT -- this document entitled "FIRST BANK SYSTEM,
INC. NONQUALIFIED SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN," as adopted by the
Principal Sponsor effective as of January 1, 1992, as the same may be amended
from time to time thereafter.
1.2.18. PRA -- the tax-qualified defined benefit ("cash balance")
pension plan known as the FIRST BANK SYSTEM, INC. PERSONAL RETIREMENT ACCOUNT,
as the same is existing and amended from time to time.
FOURTH AMENDMENT-EFFECTIVE JULY 17, 1996
1.2.19. PRINCIPAL SPONSOR -- FIRST BANK SYSTEM, INC., a Delaware
corporation, OR ANY SUCCESSOR THERETO.
SECOND AMENDMENT-EFFECTIVE JANUARY 1, 1992
1.2.20. PRIOR PLANS' OFFSET -- a dollar amount equal to the product
of the Participant's Projected Average Compensation multiplied by the factor for
that Participant determined from Schedule II to this Plan Statement. The factor
for the participant shall be determined by reference to the Participant's age at
his or her most recent date of hire by the Employer. TO THE SAME EXTENT THAT THE
ORGANIZATION COMMITTEE DETERMINES UNDER SECTION 1.2.11 OF THE PLAN STATEMENT
THAT A BUSINESS ENTITY WAS AN EMPLOYER PRIOR TO THE DATE ON WHICH THE BUSINESS
ENTITY FIRST BECAME AN EMPLOYER, THE BUSINESS ENTITY SHALL BE CONSIDERED AN
EMPLOYER FOR THE PURPOSES OF THIS PARAGRAPH.
1.2.21. PROJECTED AVERAGE COMPENSATION -- a dollar amount which is
the average of the Participant's Compensation or Projected Compensation or both
for each of the three (3) calendar years ending with:
(a) if the date as of which the Projected Average Compensation
is determined is before the Participant's Normal
Retirement Age, the calendar year in which the Participant
would attain Normal Retirement Age, or
(b) if the date as of which the Projected Average Compensation
is determined is on or after the Participant's Normal
Retirement Age, the Plan Year in which the Participant's
SERP Benefit is determined.
Projected Average Compensation may decrease from time to time.
1.2.22. PROJECTED COMPENSATION -- a separate dollar amount determined
for each Plan Year commencing after the date as of which Projected Compensation
is determined, assuming:
(a) the Participant continues to earn short-term incentive
payments at the target levels, and
(b) the annual rate of the Participant's Compensation as of
the first day of the Plan Year in which it is determined
increased at four percent (4%) per annum, compounded
annually, on the first day of each successive Plan Year.
Projected Compensation may decrease from time to time.
1.2.23. PROJECTED PIA -- the dollar amount of annual old age Social
Security benefit expected to be paid to the Participant at the Participant's
Normal Retirement Age, assuming:
(a) that the Participant has had and continues to have taxable
wages at or above the taxable wage base for Social
Security purposes,
(b) that the maximum Social Security taxable wage base
increases at the rate at which Projected Compensation is
deemed to increase under this Plan Statement,
FIRST AMENDMENT-EFFECTIVE JANUARY 1, 1992
(c) THAT THE CONSUMER PRICE INDEX INCREASES AT ONE PERCENTAGE
POINT LESS THAN THE RATE AT WHICH PROJECTED COMPENSATION
IS DEEMED TO INCREASE UNDER THIS PLAN STATEMENT.
1.2.24. PROJECTED PRA ACCOUNT -- a dollar amount equal to the Account
balance the Participant would be expected to have under PRA at his or her Normal
Retirement Age based on the following assumptions:
(a) The initial account balance shall be the balance
determined under PRA as of the last day of the Plan Year
immediately preceding the date as of which the Projected
PRA Account is determined (together with such amounts as
would have been included in such balance if there were no
limitations on benefits under section 415 of the Internal
Revenue Code and no limitations on compensation under
section 401(a)(17) of the Internal Revenue Code).
(b) The Participant shall receive increases in recognized
compensation at the rate Projected Compensation is deemed
to increase under this Plan Statement.
(c) Compensation credits under PRA shall be made under the
terms of PRA as they exist on the last day of the Plan
Year immediately preceding the date as of which the
Projected PRA Account is determined.
(d) Interest credits under PRA shall be made at an annual rate
that is 3 percentage points greater than the rate at which
Projected Compensation is deemed to increase under this
Plan Statement.
(e) Compensation credits and interest credits under PRA have
been and shall be made as if there were no limitations on
benefits under section 415 of the Internal Revenue Code
and no limitations on compensation under section
401(a)(17) of the Internal Revenue Code.
SECOND AMENDMENT-EFFECTIVE JANUARY 1, 1992
(f) SUBJECT TO THE FOLLOWING, THE PARTICIPANT'S INITIAL
ACCOUNT BALANCE SHALL NOT INCLUDE ANY AMOUNTS ATTRIBUTABLE
TO SERVICE WITH A BUSINESS ENTITY PRIOR TO THE DATE THE
BUSINESS ENTITY FIRST BECAME AN EMPLOYER. TO THE SAME
EXTENT THAT THE ORGANIZATION COMMITTEE DETERMINES UNDER
SECTION 1.2.11 OF THE PLAN STATEMENT THAT A BUSINESS
ENTITY WAS AN EMPLOYER PRIOR TO THE DATE ON WHICH THE
BUSINESS ENTITY FIRST BECAME AN EMPLOYER, AMOUNTS
ATTRIBUTABLE TO SERVICE WITH THE BUSINESS ENTITY SHALL BE
INCLUDED IN THE PARTICIPANT'S INITIAL ACCOUNT BALANCE.
(g) Projected PRA Account may decrease from time to time.
1.2.25. PROJECTED PRA ANNUITY -- a dollar amount equal to the
Actuarial Equivalent amount of single life annuity payable at Normal Retirement
Age which the Projected PRA Account will produce.
THIRD AMENDMENT-EFFECTIVE JANUARY 1, 1995
1.2.26. SERP BENEFIT -- A SINGLE, LUMP SUM, DOLLAR AMOUNT WHICH IS
EQUAL TO THE ACTUARIAL EQUIVALENT PRESENT VALUE OF THE PARTICIPANT'S ACCRUED
SERP BENEFIT PAYABLE AS A SINGLE LIFE ANNUITY COMMENCING AT THE PARTICIPANT'S
NORMAL RETIREMENT AGE. THE SERP BENEFIT MAY DECREASE FROM TIME TO TIME. THE SERP
BENEFIT MAY BE PAID IN ANY OF THE OPTIONAL FORMS OF PAYMENT WHICH ARE PERMITTED
UNDER SECTION 4.1.
THIRD AMENDMENT-EFFECTIVE JANUARY 1, 1992
1.2.27. SERVICE -- a measure of an employee's service with all
Employers and all Affiliates (stated as a number of years) which is equal to the
number of years of "Vesting Service" determined under the rules of PRA (or any
similar successor plan) as those rules may exist at the time the Participant's
Service is being determined. For this purpose, however, there shall be taken
into account only years of continuous and full time service with the Employer
which the Participant has completed from his or her most recent date of hire.
UNLESS THE ORGANIZATION COMMITTEE DETERMINES OTHERWISE, SERVICE WITH AN EMPLOYER
PRIOR TO THE DATE ON WHICH THE EMPLOYER FIRST BECAME AN EMPLOYER SHALL NOT BE
TAKEN INTO ACCOUNT FOR THIS PURPOSE. ANY DETERMINATION BY THE ORGANIZATION
COMMITTEE UNDER THIS SECTION 1.2.27 SHALL BE INDEPENDENT OF ANY DETERMINATION BY
THE ORGANIZATION COMMITTEE UNDER SECTION 1.2.11 OF THE PLAN STATEMENT.
1.2.28. SOCIAL SECURITY BENEFIT -- the approximate monthly amount
available for the benefit of the Participant at age sixty-five (65) years,
(including amounts available for spouses but excluding amounts available for
other dependents), as an old age or disability insurance benefit under the
provisions of Title II of the Federal Social Security Act in effect on the date
of the Participant's Termination of Employment (or his or her sixty-fifth
birthday if the Termination of Employment is later than the sixty-fifth
birthday) whether or not payment of such amount in delayed, suspended or
forfeited because of failure to apply, accepting other work, or any other
similar reason within the control of the Participant (and determined without any
increases in cost of living, legislated changes or any other similar factors).
For this purpose, the Participant's spouse, if any, shall be deemed to be the
same age as the Participant. Unless the Participant shall have furnished
verified proof of wages before the earlier of his or her Termination of
Employment or death, he or she shall be deemed to have had taxable wages at or
above the taxable wage base in all years prior to the year of his or her
Termination of Employment or death. The determination by the Principal Sponsor
of the Social Security Benefit shall be final and binding upon all parties
interested in this Plan.
THIRD AMENDMENT-EFFECTIVE JANUARY 1, 1995
1.2.29. SURVIVOR BENEFIT -- the lump sum benefit OR SINGLE LIFE
ANNUITY payable to the Beneficiary of a deceased Participant pursuant to Section
5.1.
1.2.30. TERMINATION OF EMPLOYMENT -- a complete severance of an
employee's employment relationship with the Principal Sponsor, all Employers and
all Affiliates, if any, for any reason other than the employee's death. A
transfer from employment with an Employer to employment with an Affiliate of an
Employer shall not constitute a Termination of Employment. If an Employer who is
an Affiliate ceases to be an Affiliate because of a sale of substantially all
the stock or assets of an Employer, then Participants who are employed by that
Employer and who cease to be employed by the Principal Sponsor or that Employer
on account of the sale of substantially all the stock or assets of that Employer
shall be deemed to have thereby had a Termination of Employment for the purpose
of making distributions from this Plan.
1.3. RULES OF INTERPRETATION. An individual shall be considered to have attained
a given age on the individual's birthday for that age (and not on the day
before). The birthday of any individual born on a February 29 shall be deemed to
be February 28 in any year that is not a leap year. Notwithstanding any other
provision of this Plan Statement or any election or designation made under the
Plan, any individual who feloniously and intentionally kills a Participant shall
be deemed for all purposes of this Plan and all elections and designations made
under this Plan to have died before such Participant. A final judgment of
conviction of felonious and intentional killing is conclusive for the purposes
of this Section. In the absence of a conviction of felonious and intentional
killing, the Principal Sponsor shall determine whether the killing was felonious
and intentional for the purposes of this Section. Whenever 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 Statement and not to any
particular paragraph or Section of this Plan Statement unless the context
clearly indicates to the contrary. The titles given to the various Sections of
this Plan Statement are inserted for convenience of reference only and are not
part of this Plan Statement, and they shall not be considered in determining the
purpose, meaning or intent of any provision hereof. Any reference in this Plan
Statement to a statute or regulation shall be considered also to mean and refer
to any subsequent amendment or replacement of that statute or regulation. This
instrument has been executed and delivered in the State of Minnesota and has
been drawn in conformity to the laws of that State and shall, except to the
extent that federal law is controlling, be construed and enforced in accordance
with the laws of the State of Minnesota.
SECTION 2
ELIGIBILITY AND PARTICIPATION
2.1. GENERAL ELIGIBILITY RULE. The status of an employee as a Participant in
this Plan shall be determined only as of Termination of Employment or death.
Each employee who:
(a) has not less than five (5) years of Service with FIRST
BANK SYSTEM, INC. and its subsidiaries at Termination of
Employment or death; and
FIRST AMENDMENT-EFFECTIVE JANUARY 1, 1992
(b) WAS ACTIVELY EMPLOYED AT GRADE 18 OR ABOVE FOR AT LEAST
ONE YEAR IMMEDIATELY PRIOR TO TERMINATION OF EMPLOYMENT OR
DEATH; AND
(c) is a "highly compensated employee" as defined in Code
section 414(q) at the time of Termination of Employment or
death; and
(d) was actively employed by an Employer on or after January
1, 1992,
shall be a Participant in this Plan at his or her Termination of Employment or
death (subject to Section 2.2 and all other rules of this Plan Statement).
Notwithstanding the foregoing, the Chief Executive Officer of the Principal
Sponsor may exclude any individual who would otherwise be Participant from being
a Participant and such determination shall be effective if such person receives
notice of such determination in writing before his or her Termination of
Employment.
2.2. SPECIFIC EXCLUSION. Notwithstanding anything apparently to the contrary in
this Plan or in any written communication, summary, resolution or document or
oral communication, no individual shall be a Participant in this Plan, develop
benefits under this Plan or be entitled to receive benefits under this Plan
(either for himself or his or her survivors) unless such individual is a member
of a select group of management or highly compensated employees (as that
expression is used in ERISA). If a court of competent jurisdiction, any
representative of the U.S. Department of Labor or any other governmental,
regulatory or similar body makes any direct or indirect, formal or informal,
determination that an individual is not a member of a select group of management
or highly compensated employees (as that expression is used in ERISA), such
individual shall not be (and shall not have ever been) a Participant in this
Plan at any time. If any person not so defined has been erroneously treated as a
Participant in this Plan, upon discovery of such error such person's erroneous
participation shall immediately terminate AB INITIO and upon demand such person
shall be obligated to reimburse the Principal Sponsor for all amounts
erroneously paid to him or her.
SECTION 3
PARTICIPANT'S BENEFIT
THIRD AMENDMENT-EFFECTIVE JANUARY 1, 1995
3.1. SERP BENEFIT. UPON TERMINATION OF EMPLOYMENT, THE PARTICIPANT SHALL RECEIVE
A SERP BENEFIT DETERMINED AS OF THE DATE OF THE TERMINATION OF EMPLOYMENT. THE
SERP BENEFIT SHALL BE PAID IN A SINGLE LUMP SUM UNLESS AN ELECTION OF AN
OPTIONAL FORM OF PAYMENT IS IN EFFECT UNDER SECTION 4.1. PAYMENT SHALL BE MADE
OR COMMENCED AS SOON AS MAY BE PRACTICABLE ON OR AFTER THE FIFTEENTH DAY OF THE
SECOND CALENDAR MONTH FOLLOWING TERMINATION OF EMPLOYMENT. SUCH PAYMENT SHALL BE
IN FULL AND COMPLETE DISCHARGE OF ALL BENEFITS PAYABLE TO, OR WITH RESPECT TO,
THE PARTICIPANT UNDER THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, ANY SURVIVOR
BENEFIT TO WHICH HIS OR HER BENEFICIARY MIGHT OTHERWISE HAVE BEEN ENTITLED. THE
CONSENT OF A SPOUSE OR BENEFICIARY SHALL NOT BE REQUIRED BEFORE MAKING THE
SINGLE LUMP SUM PAYMENT OR OPTIONAL FORM OF PAYMENT HEREIN DESCRIBED.
3.2. SUSPENSION OF BENEFITS. The SERP Benefit shall not be paid during
employment, reemployment or continued employment under rules adopted by the
Principal Sponsor. Until such rules are adopted, the suspension of benefits
rules of PRA shall apply.
FIRST AMENDMENT-EFFECTIVE JANUARY 1, 1992
FOURTH AMENDMENT-EFFECTIVE JULY 17, 1996
3.3. CHANGE IN CONTROL DISTRIBUTIONS.
3.3.1. ACCELERATED DETERMINATION OF PARTICIPANT STATUS.
NOTWITHSTANDING ANYTHING APPARENTLY TO THE CONTRARY IN THIS PLAN STATEMENT, UPON
THE OCCURRENCE OF A FULL CHANGE IN CONTROL ALL EMPLOYEES WHO WOULD BE CONSIDERED
PARTICIPANTS IF THEY HAD A TERMINATION OF EMPLOYMENT ON THE DATE OF THE FULL
CHANGE IN CONTROL SHALL BE CONSIDERED PARTICIPANTS; AND NOTWITHSTANDING
ANYTHING APPARENTLY TO THE CONTRARY IN THIS PLAN STATEMENT, UPON THE OCCURRENCE
OF A QUALIFYING TERMINATION ANY EMPLOYEE WHO WOULD BE CONSIDERED A PARTICIPANT
IF SUCH EMPLOYEE HAD A TERMINATION OF EMPLOYMENT ON THE DATE OF SUCH QUALIFYING
TERMINATION SHALL BE A PARTICIPANT. THIS DETERMINATION SHALL BE MADE WITHOUT
REGARD TO WHETHER SUCH EMPLOYEES HAVE FIVE (5) OR MORE YEARS OF SERVICE WITH
FIRST BANK SYSTEM, INC. AND ITS SUBSIDIARIES AT THE DATE OF SUCH FULL CHANGE IN
CONTROL OR QUALIFYING TERMINATION AND WITHOUT REGARD TO WHETHER SUCH EMPLOYEES
WERE ACTIVELY EMPLOYED AT GRADE 18 OR ABOVE FOR AT LEAST ONE YEAR IMMEDIATELY
PRIOR TO THE DATE OF SUCH FULL CHANGE IN CONTROL OR QUALIFYING TERMINATION (IF
SUCH EMPLOYEES WERE ACTIVELY EMPLOYED AT GRADE 18 OR ABOVE IMMEDIATELY PRIOR TO
THE DATE OF SUCH FULL CHANGE IN CONTROL OR QUALIFYING TERMINATION).
THIRD AMENDMENT-EFFECTIVE JANUARY 1, 1995
FOURTH AMENDMENT-EFFECTIVE JULY 17, 1996
3.3.2. ACCELERATED PAYMENT UPON REQUEST. A PARTICIPANT WHO HAS NOT
YET COMMENCED TO RECEIVE PAYMENTS OF THE SERP BENEFIT MAY RECEIVE A DISTRIBUTION
OF HIS OR HER ENTIRE SERP BENEFIT (AFTER REDUCTION FOR THE FORFEITURE DESCRIBED
IN SECTION 3.4.3) IF A FULL CHANGE IN CONTROL OR A QUALIFYING TERMINATION HAS
OCCURRED.
FIRST AMENDMENT-EFFECTIVE JANUARY 1, 1992
3.3.3. FORFEITURES. UPON THE APPROVAL OF A CHANGE IN CONTROL
DISTRIBUTION, THERE SHALL BE IRREVOCABLY FORFEITED FROM THE SERP BENEFIT OF THE
PARTICIPANT AN AMOUNT EQUAL TO FIVE PERCENT (5%) OF THE SERP BENEFIT. A
PARTICIPANT RECEIVING THIS DISTRIBUTION OF THE SERP BENEFIT ON ACCOUNT OF A
CHANGE IN CONTROL SHALL NOT THEREAFTER EVER BE A PARTICIPANT IN THE PLAN AGAIN.
THIRD AMENDMENT-EFFECTIVE JANUARY 1, 1995
3.4. OTHER ACCELERATED DISTRIBUTIONS.
3.4.1. WHEN AVAILABLE. AT ANY TIME FOLLOWING THE PARTICIPANT'S
TERMINATION OF EMPLOYMENT, THE PARTICIPANT OR THE BENEFICIARY OF A DECEASED
PARTICIPANT WHO HAS ELECTED AN OPTIONAL FORM OF PAYMENT UNDER SECTION 4.1 MAY
ELECT TO RECEIVE AN ACCELERATED DISTRIBUTION OF THE SERP BENEFIT IN A LUMP SUM
PAYMENT DETERMINED UNDER THIS SECTION 3.4 PAYABLE SIXTY (60) DAYS AFTER GIVING
THE PRINCIPAL SPONSOR WRITTEN NOTICE OF THE ELECTION ON A FORM FURNISHED BY AND
FILED WITH THE PRINCIPAL SPONSOR.
IN THE EVENT OF THE SEVERE FINANCIAL HARDSHIP OF A PARTICIPANT
FOLLOWING TERMINATION OF EMPLOYMENT OR OF A BENEFICIARY, THE PARTICIPANT OR
BENEFICIARY MAY ELECT TO RECEIVE AN ACCELERATED DISTRIBUTION OF PART OF THE SERP
BENEFIT IN A LUMP SUM PAYMENT DETERMINED UNDER THIS SECTION 3.4. THE PRINCIPAL
SPONSOR SHALL DETERMINE WHETHER A SEVERE FINANCIAL HARDSHIP EXISTS IN ITS SOLE
DISCRETION, IN GOOD FAITH, AND ON A UNIFORM, NONDISCRIMINATORY AND REASONABLE
BASIS.
3.4.2. AMOUNT. SUBJECT TO PENALTIES UNDER SECTION 3.4.3, THE AMOUNT
OF ANY ACCELERATED LUMP SUM DISTRIBUTION SHALL BE DETERMINED AS FOLLOWS:
(a) BEFORE THE COMMENCEMENT OF PAYMENT OF THE SERP BENEFIT,
THE LUMP SUM PAYMENT TO A PARTICIPANT SHALL EQUAL THE LUMP
SUM VALUE OF THE PARTICIPANT'S ACCRUED SERP BENEFIT.
(b) AFTER THE COMMENCEMENT OF PAYMENT OF THE SERP BENEFIT, THE
LUMP SUM PAYMENT TO A PARTICIPANT SHALL EQUAL THE
DIFFERENCE BETWEEN (i) MINUS (ii) BELOW, DETERMINED AS OF
THE DATE FOR THE COMMENCEMENT OF SERP BENEFIT PAYMENTS
(THE "COMMENCEMENT DATE") AND ACCUMULATED TO THE DATE OF
THE LUMP SUM PAYMENT USING THE SAME INTEREST RATE THAT IS
USED IN CALCULATING THE AMOUNTS UNDER (i) AND (ii):
(i) THE LUMP SUM VALUE OF THE PARTICIPANT'S ACCRUED
SERP BENEFIT DETERMINED AS OF THE PARTICIPANT'S
COMMENCEMENT DATE,
(ii) THE LUMP SUM VALUE OF THE SERP BENEFIT PAYMENTS
PREVIOUSLY PAID TO THE PARTICIPANT DISCOUNTED
TO THE PARTICIPANT'S COMMENCEMENT DATE. THE
LUMP SUM VALUE OF THE SERP BENEFIT PAYMENTS
PREVIOUSLY PAID TO THE PARTICIPANT SHALL BE
CALCULATED BASED ON THE MONTHLY PAYMENTS WHICH
WOULD HAVE BEEN MADE IF THE PARTICIPANT HAD
ELECTED TO RECEIVE THE SERP BENEFIT AS A SINGLE
LIFE ANNUITY, IRRESPECTIVE OF THE OPTIONAL FORM
OF PAYMENT OF THE SERP BENEFIT ACTUALLY ELECTED
BY THE PARTICIPANT.
(c) THE LUMP SUM PAYMENT TO A BENEFICIARY OF A DECEASED
PARTICIPANT SHALL BE DETERMINED IN A MANNER SIMILAR TO
THAT USED FOR A PARTICIPANT, EXCEPT THAT THE LUMP SUM
PAYMENT SHALL ONLY REFLECT THE VALUE OF THE REMAINING
PAYMENTS OF THE SERP BENEFIT WHICH WOULD BE MADE TO THE
BENEFICIARY UNDER THE OPTIONAL FORM OF PAYMENT ELECTED BY
THE PARTICIPANT ASSUMING THAT THE BENEFICIARY DIES UPON
REACHING HIS OR HER ORIGINAL LIFE EXPECTANCY DETERMINED AS
OF THE PARTICIPANT'S COMMENCEMENT DATE.
(d) FOR AN ACCELERATED DISTRIBUTION TO A PARTICIPANT OR
BENEFICIARY ON ACCOUNT OF A SEVERE FINANCIAL HARDSHIP, THE
LUMP SUM PAYMENT SHALL NOT EXCEED THE AMOUNT NECESSARY TO
RELIEVE THE HARDSHIP, AND SUBSEQUENT PAYMENTS OF THE SERP
BENEFIT SHALL BE REDUCED ACCORDING TO THE RATIO OF (i) TO
(ii) BELOW:
(i) THE AMOUNT OF THE HARDSHIP DISTRIBUTION PAID TO
THE PARTICIPANT OR BENEFICIARY,
(ii) THE ENTIRE LUMP SUM PAYMENT WHICH THE
PARTICIPANT OR BENEFICIARY COULD HAVE ELECTED
TO RECEIVE ON THE DATE OF THE HARDSHIP
DISTRIBUTION.
FOR EXAMPLE, IF THE HARDSHIP DISTRIBUTION REPRESENTS FORTY
PERCENT (40%) OF THE ENTIRE LUMP SUM DISTRIBUTION WHICH
COULD HAVE BEEN RECEIVED, SUBSEQUENT PAYMENTS TO THE
PARTICIPANT OR BENEFICIARY WILL EACH BE REDUCED BY FORTY
PERCENT (40%).
(e) ALL CALCULATIONS UNDER THIS SECTION 3.4. SHALL BE BASED ON
THE TABLES, FACTORS (INCLUDING INTEREST RATE), AND
ASSUMPTIONS THAT ARE SET FORTH IN APPENDIX A TO THIS PLAN
STATEMENT FOR DETERMINING ACTUARIALLY EQUIVALENT BENEFITS.
(f) ALL CALCULATIONS UNDER THIS SECTION 3.4 SHALL BE MADE BY
THE PRINCIPAL SPONSOR, AND ITS DETERMINATIONS WITH RESPECT
TO ACCELERATED DISTRIBUTIONS SHALL BE FINAL AND BINDING ON
ALL PARTIES.
3.4.3. FORFEITURES. ANY LUMP SUM PAYMENT UNDER THIS SECTION 3.4,
EXCEPT ANY HARDSHIP DISTRIBUTION, SHALL BE REDUCED BY A PENALTY EQUAL TO TEN
PERCENT (10%) OF SUCH PAYMENT WHICH SHALL BE FORFEITED TO THE PRINCIPAL SPONSOR;
PROVIDED, HOWEVER, THAT IF ANY SUCH PAYMENT IS MADE WITHIN 24 MONTHS AFTER A
CHANGE IN CONTROL HAS OCCURRED, THE PENALTY SHALL BE EQUAL TO FIVE PERCENT (5%).
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS PLAN, NO PENALTY SHALL APPLY IF THE
PRINCIPAL SPONSOR DETERMINES, BASED ON THE ADVICE OF COUNSEL OR A FINAL
DETERMINATION BY THE INTERNAL REVENUE SERVICE OR ANY COURT OF COMPETENT
JURISDICTION, THAT BY REASON OF THE ELECTIVE PROVISIONS OF THIS SECTION 3.4, ANY
PARTICIPANT OR BENEFICIARY HAS RECOGNIZED OR WILL RECOGNIZE GROSS INCOME FOR
FEDERAL INCOME TAX PURPOSES UNDER THIS PLAN IN ADVANCE OF PAYMENT TO HIM OR HER
OF THE SERP BENEFIT. THE PRINCIPAL SPONSOR MAY ALSO REDUCE OR ELIMINATE THE
PENALTY IF IT DETERMINES THAT THIS ACTION WILL NOT CAUSE ANY PARTICIPANT OR
BENEFICIARY TO RECOGNIZE GROSS INCOME FOR FEDERAL INCOME TAX PURPOSES UNDER THIS
PLAN IN ADVANCE OF PAYMENT OF THE SERP BENEFIT.
3.5. EFFECT ON SERVICE. IF A PARTICIPANT RECEIVES A LUMP SUM DISTRIBUTION OR
COMMENCES TO RECEIVE ANY OPTIONAL FORM OF PAYMENT OF THE PARTICIPANT'S SERP
BENEFIT, THE PLAN SHALL THEREAFTER DISREGARD THE PARTICIPANT'S SERVICE AND THE
PARTICIPANT'S YEARS OF CONTINUOUS AND FULL-TIME SERVICE USED IN DETERMINING THE
SERP BENEFIT WITH RESPECT TO WHICH THE PARTICIPANT RECEIVED OR COMMENCED TO
RECEIVE SUCH DISTRIBUTION.
SECTION 4
FORM OF PAYMENT
THIRD AMENDMENT-EFFECTIVE JANUARY 1, 1995
4.1. OPTIONAL FORMS OF PAYMENT. AN EMPLOYEE WHO HAS FOUR (4) OR MORE YEARS OF
SERVICE WITH FIRST BANK SYSTEM, INC., IS ACTIVELY EMPLOYED AT GRADE 18 OR ABOVE,
AND IS A "HIGHLY COMPENSATED EMPLOYEE" AS DEFINED IN CODE SECTION 414(q) MAY
ELECT AT ANY TIME MORE THAN 12 MONTHS PRECEDING TERMINATION OF EMPLOYMENT TO
HAVE THE SERP BENEFIT PAID IN MONTHLY PAYMENTS AS A SINGLE LIFE ANNUITY, 50% OR
100% JOINT AND SURVIVOR ANNUITY, OR SINGLE LIFE ANNUITY WITH 10 OR 15 YEAR
CERTAIN PAYMENTS. ALL OPTIONAL FORMS OF PAYMENT SHALL HAVE THE SAME ACTUARIAL
EQUIVALENT PRESENT VALUE AS THE LUMP SUM PAYMENT. AN ELECTION OF AN OPTIONAL
FORM OF PAYMENT MUST BE MADE BY THE PARTICIPANT IN WRITING ON A FORM FURNISHED
BY AND FILED WITH THE PRINCIPAL SPONSOR AND MAY BE CHANGED AT ANY TIME MORE THAN
12 MONTHS PRECEDING TERMINATION OF EMPLOYMENT. ANY ELECTION WHICH IS NOT TIMELY
MADE WILL BE DISREGARDED. NOTWITHSTANDING SUCH AN ELECTION, AN OPTIONAL FORM OF
PAYMENT OF THE SERP BENEFIT (OTHER THAN A LUMP SUM PAYMENT) WILL ONLY BE MADE TO
A PARTICIPANT WHO HAS A TERMINATION OF EMPLOYMENT (A) AFTER ATTAINING AGE 65 OR
(B) AFTER ATTAINING AGE 55, WHEN THE SUM OF THE PARTICIPANT'S AGE AND YEARS OF
CONTINUOUS AND FULL-TIME SERVICE WITH THE EMPLOYER EQUALS OR EXCEEDS 65.
4.2. PAYMENTS IN CASE OF INCOMPETENCY OR DISABILITY. In case of legal
incompetency or disability, (including minority), of a person entitled to
receive any payment under this Plan, payment may be made, if the Principal
Sponsor has been advised of the existence of such condition:
(a) to the duly appointed guardian, conservator or other legal
representative of such incompetent or disabled person; or
(b) to a person or institution entrusted with the care or
maintenance of the incompetent or disabled person,
provided such person or institution has satisfied the
Principal Sponsor that the payment will be used for the
best interest and assist in the care of such disabled or
incompetent person or, provided further, that no prior
claim for said payment has been made by a duly appointed
guardian, conservator or other legal representative of
such disabled or incompetent person.
Any payment made in accordance with this Section shall constitute a complete
discharge of any liability or obligation of this Plan, the Principal Sponsor and
all Employers therefor.
THIRD AMENDMENT-EFFECTIVE JANUARY 1, 1995
4.3. SMALL BENEFITS. NOTWITHSTANDING ANY OTHER PROVISION OF THIS PLAN STATEMENT
TO THE CONTRARY, THE PRINCIPAL SPONSOR, IN ITS DISCRETION, MAY PAY ANY BENEFIT
WHICH IS PAYABLE UNDER THE PLAN TO A PARTICIPANT OR BENEFICIARY IN A LUMP SUM
PAYMENT IF THE LUMP SUM AMOUNT WHICH IS PAYABLE IS LESS THAN $50,000.
SECTION 5
DEATH BENEFITS
THIRD AMENDMENT-EFFECTIVE JANUARY 1, 1995
5.1. DEATH BENEFITS.
5.1.1. DEATH BEFORE SERP BENEFIT COMMENCEMENT. UPON THE DEATH OF A
PARTICIPANT WHO AT HIS OR HER DEATH HAD NOT YET COMMENCED TO RECEIVE PAYMENT OF
THE SERP BENEFIT UNDER THE PLAN, THERE SHALL BE PAID TO THE PARTICIPANT'S
BENEFICIARY THE SINGLE LUMP SUM WHICH THE PARTICIPANT WOULD HAVE RECEIVED UNDER
SECTION 3.1 IF THE PARTICIPANT HAD NOT DIED, BUT HAD INSTEAD HAD A TERMINATION
OF EMPLOYMENT ON THE DATE OF HIS OR HER DEATH; PROVIDED, HOWEVER, THAT AN
EMPLOYEE WHO IS ELIGIBLE TO MAKE AN ELECTION UNDER SECTION 4.1 MAY ELECT AT ANY
TIME PRIOR TO HIS OR HER DEATH TO HAVE THE DEATH BENEFIT WHICH IS PAYABLE UPON
HIS OR HER DEATH BEFORE COMMENCEMENT OF PAYMENT OF THE SERP BENEFIT PAID AS A
SINGLE LIFE ANNUITY FOR THE LIFE OF THE BENEFICIARY. SUCH SINGLE LIFE ANNUITY
SHALL HAVE THE SAME ACTUARIAL EQUIVALENT PRESENT VALUE AS THE LUMP SUM PAYMENT
WHICH WOULD OTHERWISE BE MADE TO THE BENEFICIARY. AN ELECTION TO HAVE THE DEATH
BENEFIT PAID AS A SINGLE LIFE ANNUITY MUST BE MADE BY THE EMPLOYEE ELIGIBLE TO
MAKE SUCH AN ELECTION IN WRITING ON A FORM FURNISHED BY AND FILED WITH THE
PRINCIPAL SPONSOR AND MAY BE CHANGED AT ANY TIME DURING SUCH EMPLOYEE'S LIFETIME
BEFORE COMMENCEMENT OF PAYMENT OF THE SERP BENEFIT. PAYMENT TO THE BENEFICIARY
SHALL BE MADE OR COMMENCED AS SOON AS MAY BE PRACTICABLE ON OR AFTER THE
FIFTEENTH DAY OF THE SECOND CALENDAR MONTH AFTER THE DEATH OF THE PARTICIPANT.
5.1.2. DEATH AFTER SERP BENEFIT COMMENCEMENT. IF PAYMENT TO A
PARTICIPANT OF THE SERP BENEFIT HAS BEEN MADE IN A LUMP SUM OR COMMENCED AS A
SINGLE LIFE ANNUITY, NO DEATH BENEFIT WILL BE PAYABLE UPON THE DEATH OF THE
PARTICIPANT. IF PAYMENT TO A PARTICIPANT OF THE SERP BENEFIT HAS COMMENCED AS A
50% OR 100% JOINT AND SURVIVOR ANNUITY OR AS A SINGLE LIFE ANNUITY WITH 10 OR 15
YEAR CERTAIN PAYMENTS, PAYMENTS WILL BE MADE FOLLOWING THE DEATH OF THE
PARTICIPANT ONLY IN ACCORDANCE WITH THE TERMS OF THE OPTIONAL FORM OF PAYMENT OF
THE SERP BENEFIT WHICH WAS ELECTED BY THE PARTICIPANT.
5.2. DESIGNATION OF BENEFICIARIES.
THIRD AMENDMENT-EFFECTIVE JANUARY 1, 1995
5.2.1. RIGHT TO DESIGNATE. EACH EMPLOYEE WHO IS ELIGIBLE TO MAKE AN
ELECTION UNDER SECTION 4.1 MAY DESIGNATE, UPON FORMS TO BE FURNISHED BY AND
FILED WITH THE PRINCIPAL SPONSOR, ONE OR MORE PRIMARY BENEFICIARIES OR ALTERNATE
BENEFICIARIES TO RECEIVE ALL OR A SPECIFIED PART OF SUCH EMPLOYEE'S SURVIVOR
BENEFIT IN THE EVENT OF HIS OR HER DEATH. SUCH EMPLOYEE MAY CHANGE OR REVOKE ANY
SUCH DESIGNATION FROM TIME TO TIME BEFORE COMMENCEMENT OF PAYMENT OF THE SERP
BENEFIT WITHOUT NOTICE TO OR CONSENT FROM ANY BENEFICIARY OR SPOUSE. NO SUCH
DESIGNATION, CHANGE OR REVOCATION SHALL BE EFFECTIVE UNLESS EXECUTED BY THE
EMPLOYEE ELIGIBLE TO MAKE SUCH DESIGNATION AND RECEIVED BY THE PRINCIPAL SPONSOR
DURING SUCH EMPLOYEE'S LIFETIME AND PRIOR TO COMMENCEMENT OF PAYMENT OF THE SERP
BENEFIT.
5.2.2. FAILURE OF DESIGNATION. If a Participant:
(a) fails to designate a Beneficiary,
(b) designates a Beneficiary and thereafter revokes such
designation without naming another Beneficiary, or
(c) designates one or more Beneficiaries and all such
Beneficiaries so designated fail to survive the
Participant,
such Participant's Survivor Benefit, or the part thereof as to which such
Participant's designation fails, as the case may be, shall be payable to the
first class of the following classes of automatic Beneficiaries with a member
surviving the Participant and (except in the case of surviving issue) in equal
shares if there is more than one member in such class surviving the Participant:
Participant's surviving spouse
Participant's surviving issue per stirpes and not per capita
Participant's surviving parents
Participant's surviving brothers and sisters
Representative of Participant's estate.
5.2.3. DISCLAIMERS BY BENEFICIARIES. A Beneficiary entitled to a
distribution of all or a portion of a deceased Participant's Survivor Benefit
may disclaim an interest therein subject to the following requirements. To be
eligible to disclaim, a Beneficiary must be a natural person, must not have
received a distribution of all or any portion of the lump sum death benefit at
the time such disclaimer is executed and delivered, and must have attained at
least age twenty-one (21) years as of the date of the Participant's death. Any
disclaimer must be in writing and must be executed personally by the Beneficiary
before a notary public. A disclaimer shall state that the Beneficiary's entire
interest in the undistributed Survivor Benefit is disclaimed or shall specify
what portion thereof is disclaimed. To be effective, duplicate original executed
copies of the disclaimer must be both executed and actually delivered to the
Principal Sponsor after the date of the Participant's death but not later than
one hundred eighty (180) days after the date of the Participant's death. A
disclaimer shall be irrevocable when delivered to the Principal Sponsor. A
disclaimer shall be considered to be delivered to the Principal Sponsor only
when actually received by the Principal Sponsor. The Principal Sponsor shall be
the sole judge of the content, interpretation and validity of a purported
disclaimer. Upon the filing of a valid disclaimer, the Beneficiary shall be
considered not to have survived the Participant as to the interest disclaimed. A
disclaimer by a Beneficiary shall not be considered to be a transfer of an
interest in violation of the provisions of Section 6 and shall not be considered
to be an assignment or alienation of benefits in violation of federal law
prohibiting the assignment or alienation of benefits under this Plan. No other
form of attempted disclaimer shall be recognized by the Principal Sponsor.
5.2.4. DEFINITIONS. When used herein and, unless the Participant has
otherwise specified in the Participant's Beneficiary designation, when used in a
Beneficiary designation, "issue" means all persons who are lineal descendants of
the person whose issue are referred to, including legally adopted descendants
and their descendants but not including illegitimate descendants and their
descendants; "child" means an issue of the first generation; "per stirpes" means
in equal shares among living children of the person whose issue are referred to
and the issue (taken collectively) of each deceased child of such person, with
such issue taking by right of representation of such deceased child; and
"survive" and "surviving" mean living after the death of the Participant.
5.2.5. SPECIAL RULES. Unless the Participant has otherwise specified
in the Participant's Beneficiary designation, the following rules shall apply:
(a) If there is not sufficient evidence that a Beneficiary was
living at the time of the death of the Participant, it
shall be deemed that the Beneficiary was not living at the
time of the death of the Participant.
(b) The automatic Beneficiaries specified in Section 5.2.2 and
the Beneficiaries designated by the Participant shall
become fixed at the time of the Participant's death so
that, if a Beneficiary survives the Participant but dies
before the receipt of all payments due such Beneficiary
hereunder, such remaining payments shall be payable to the
representative of such Beneficiary's estate.
(c) If the Participant designates as a Beneficiary the person
who is the Participant's spouse on the date of the
designation, either by name or by relationship, or both,
the dissolution, annulment or other legal termination of
the marriage between the Participant and such person shall
automatically revoke such designation. (The foregoing
shall not prevent the Participant from designating a
former spouse as a Beneficiary on a form executed by the
Participant and received by the Principal Sponsor after
the date of the legal termination of the marriage between
the Participant and such former spouse, and during the
Participant's lifetime.)
(d) Any designation of a nonspouse Beneficiary by name that is
accompanied by a description of relationship to the
Participant shall be given effect without regard to
whether the relationship to the Participant exists either
then or at the Participant's death.
(e) Any designation of a Beneficiary only by statement of
relationship to the Participant shall be effective only to
designate the person or persons standing in such
relationship to the Participant at the Participant's
death.
A Beneficiary designation is permanently void if it either is executed or is
filed by a Participant who, at the time of such execution or filing, is then a
minor under the law of the state of the Participant's legal residence. The
Principal Sponsor shall be the sole judge of the content, interpretation and
validity of a purported Beneficiary designation.
5.2.6. NO SPOUSAL RIGHTS. No spouse or surviving spouse of a
Participant and no person designated to be a Beneficiary shall have any rights
or interest in the benefits accumulated under this Plan including, but not
limited to, the right to be the sole Beneficiary or to consent to the
designation of Beneficiaries (or the changing of designated Beneficiaries) by
the Participant.
5.3. DEATH PRIOR TO FULL DISTRIBUTION. If, at the death of the Participant, any
payment to the Participant was due or otherwise pending but not actually paid,
the amount of such payment shall be included in the Survivor Benefit which are
payable to the Beneficiary (and shall not be paid to the Participant's estate).
SECTION 6
FUNDING OF PLAN
6.1. UNFUNDED AGREEMENT. The obligation of the Employers to make payments under
this Plan constitutes only the unsecured (but legally enforceable) promise of
the Employers to make such payments. The Participant shall have no lien, prior
claim or other security interest in any property of any Employer. If a fund is
established by the Employers in connection with this Plan, the property therein
shall remain the sole and exclusive property of the Employers. The Employers
will pay the cost of this Plan out of their general assets.
If the Principal Sponsor elects to finance all or a portion of its costs in
connection with this Plan through the purchase of life insurance or other
similar investments, the Participant agrees, as a condition of participation in
this Plan, to cooperate with the Principal Sponsor in the purchase of such
investment to any extent reasonably required by the Principal Sponsor and
relinquishes any claim he or she may have either for himself or herself or any
beneficiary to the proceeds of any such investment or any other rights or
interests in such investment. If a Participant fails or refuses to cooperate,
then notwithstanding any other provision of this Plan Statement (including,
without limiting the generality of the foregoing, Section 4) the Principal
Sponsor shall immediately and irrevocably terminate and forfeit the
Participant's entitlement to benefits under the Plan.
6.2. SPENDTHRIFT PROVISION. No Participant or Beneficiary shall have any
interest under this Plan which can be transferred nor shall any Participant or
Beneficiary have any power to anticipate, alienate, dispose of, pledge or
encumber the same while in the possession or control of the Employers, nor shall
the Principal Sponsor recognize any assignment thereof, either in whole or in
part, nor shall any benefit under this Plan be subject to attachment,
garnishment, execution following judgment or other legal process while in the
possession or control of the Employers.
The power to designate Beneficiaries to receive the Survivor Benefit of a
Participant in the event of such Participant's death shall not permit or be
construed to permit such power or right to be exercised by the Participant so as
thereby to anticipate, pledge, mortgage or encumber such Participant's SERP
Benefit or any part thereof, and any attempt of a Participant so to exercise
said power in violation of this provision shall be of no force and effect and
shall be disregarded by the Principal Sponsor.
FIRST AMENDMENT-EFFECTIVE JANUARY 1, 1992
FOURTH AMENDMENT-EFFECTIVE JULY 17, 1996
SECTION 7
AMENDMENT AND TERMINATION
THE PRINCIPAL SPONSOR RESERVES THE POWER TO AMEND THE PLAN STATEMENT OR
TERMINATE THE PLAN PRIOR TO A FULL CHANGE IN CONTROL. NO SUCH AMENDMENT OF THE
PLAN STATEMENT OR TERMINATION OF THE PLAN, HOWEVER, SHALL REDUCE A PARTICIPANT'S
SERP BENEFIT EARNED AS OF THE DATE OF SUCH AMENDMENT UNLESS THE PARTICIPANT SO
AFFECTED CONSENTS IN WRITING TO THE AMENDMENT. AFTER A FULL CHANGE IN CONTROL,
THE PLAN CANNOT BE AMENDED OR TERMINATED (AS APPLIED TO PARTICIPANTS WHO ARE
PARTICIPANTS ON THE DATE OF THE FULL CHANGE IN CONTROL) UNLESS:
(a) ALL SERP BENEFITS OF ALL PARTICIPANTS AS OF THE DATE OF
THE FULL CHANGE IN CONTROL HAVE BEEN PAID, OR
(b) EIGHTY PERCENT (80%) OF ALL THE PARTICIPANTS AS OF THE
DATE OF THE FULL CHANGE IN CONTROL GIVE WRITTEN CONSENT TO
SUCH AMENDMENT OR TERMINATION.
NOTWITHSTANDING THE RULES OF SECTION 2, FOR THE PURPOSES OF THE RULES OF THIS
SECTION 7, EACH EMPLOYEE WHO WOULD BE A PARTICIPANT AT THE TIME OF THE FULL
CHANGE IN CONTROL IF HE OR SHE: (i) HAD A TERMINATION OF EMPLOYMENT COINCIDENT
WITH THE FULL CHANGE IN CONTROL, AND (ii) HAD NOT LESS THAN FIVE (5) YEARS OF
SERVICE WITH FIRST BANK SYSTEM, INC. AND ITS SUBSIDIARIES AND AT LEAST ONE YEAR
ACTIVE EMPLOYMENT AT GRADE 18 OR ABOVE AT THE TIME OF THE FULL CHANGE IN
CONTROL, SHALL BE CONSIDERED A PARTICIPANT (ASSUMING THAT SUCH EMPLOYEES WERE
ACTIVELY EMPLOYED AT GRADE 18 OR ABOVE IMMEDIATELY PRIOR TO THE TIME OF THE FULL
CHANGE IN CONTROL). NO MODIFICATION OF THE TERMS OF THIS PLAN STATEMENT SHALL BE
EFFECTIVE UNLESS IT IS IN WRITING AND SIGNED ON BEHALF OF THE PRINCIPAL SPONSOR
BY A PERSON AUTHORIZED TO EXECUTE SUCH WRITING. NO ORAL REPRESENTATION
CONCERNING THE INTERPRETATION OR EFFECT OF THIS PLAN STATEMENT SHALL BE
EFFECTIVE TO AMEND THE PLAN STATEMENT.
SECTION 8
DETERMINATIONS -- RULES AND REGULATIONS
8.1. DETERMINATIONS. The Principal Sponsor shall make such determinations as may
be required from time to time in the administration of the Plan. The Principal
Sponsor shall have the discretionary authority and responsibility to interpret
and construe the Plan Statement and to determine all factual and legal questions
under the Plan, including but not limited to the entitlement of Participants and
Beneficiaries, and the amounts of their respective interests. Each interested
party may act and rely upon all information reported to them hereunder and need
not inquire into the accuracy thereof, nor be charged with any notice to the
contrary.
8.2. RULES AND REGULATIONS. Any rule not in conflict or at variance with the
provisions hereof may be adopted by the Principal Sponsor. The Principal Sponsor
shall adopt rules regarding the computation of continuous and full time service
with the Employer including, without limiting the generality of the foregoing,
rules regarding the exclusion of periods of employment with respect to which
benefits may have been previously paid under this Plan, the exclusion of periods
of employment at levels or in positions not covered by this Plan, the
computation of continuous and full time service upon the reemployment of a
former employee and the exclusion of periods of employment when disabled (under
the Employer's separate plan of long term disability benefits or otherwise).
Such rules shall also prescribe the effect of loss of eligibility, deemed
Termination of Employment upon loss of eligibility, the computation of
continuous and full time service upon reemployment and the method for computing
the Projected PRA Account when the period benefits accrued under PRA does not
match the period of continuous and full time service under this Plan.
8.3. METHOD OF EXECUTING INSTRUMENTS. Information to be supplied or written
notices to be made or consents to be given by the Principal Sponsor pursuant to
any provision of this Plan Statement may be signed in the name of the Principal
Sponsor by any officer who has been authorized to make such certification or to
give such notices or consents.
FOURTH AMENDMENT-EFFECTIVE JULY 17, 1996
8.4. CLAIMS PROCEDURE. The claims procedure set forth in this Section 8.4 shall
be the exclusive procedure for the disposition of claims for benefits arising
under the Plan until such time as a FULL Change in Control occurs.
8.4.1. ORIGINAL CLAIM. Any employee, former employee or beneficiary
of such employee or former employee may, if he or she so desires, file with the
Principal Sponsor a written claim for benefits under the Plan. Within ninety
(90) days after the filing of such a claim, the Principal Sponsor shall notify
the claimant in writing whether the claim is upheld or denied in whole or in
part or shall furnish the claimant a written notice describing specific special
circumstances requiring a specified amount of additional time (but not more than
one hundred eighty days from the date the claim was filed) to reach a decision
on the claim. If the claim is denied in whole or in part, the Principal Sponsor
shall state in writing:
(a) the specific reasons for the denial;
(b) the specific references to the pertinent provisions of
this Plan Statement on which the denial is based;
(c) a description of any additional material or information
necessary for the claimant to perfect the claim and an
explanation of why such material or information is
necessary; and
(d) an explanation of the claims review procedure set forth in
this section.
8.4.2. CLAIMS REVIEW PROCEDURE. Within sixty (60) days after receipt
of notice that the claim has been denied in whole or in part, the claimant may
file with the Principal Sponsor a written request for a review and may, in
conjunction therewith, submit written issues and comments. Within sixty (60)
days after the filing of such a request for review, the Principal Sponsor shall
notify the claimant in writing whether, upon review, the claim was upheld or
denied in whole or in part or shall furnish the claimant a written notice
describing specific special circumstances requiring a specified amount of
additional time (but not more than one hundred twenty days from the date the
request for review was filed) to reach a decision on the request for review.
8.4.3. GENERAL RULES.
(a) No inquiry or question shall be deemed to be a claim or a
request for a review of a denied claim unless made in
accordance with the claims procedure. The Principal
Sponsor may require that any claim for benefits and any
request for a review of a denied claim be filed on forms
to be furnished by the Principal Sponsor upon request.
(b) All decisions on claims and on requests for a review of
denied claims shall be made by the Principal Sponsor.
(c) the Principal Sponsor may, in its discretion, hold one or
more hearings on a claim or a request for a review of a
denied claim.
(d) A claimant may be represented by a lawyer or other
representative (at the claimant's own expense), but the
Principal Sponsor reserves the right to require the
claimant to furnish written authorization. A claimant's
representative shall be entitled to copies of all notices
given to the claimant.
(e) The decision of the Principal Sponsor on a claim and on a
request for a review of a denied claim shall be served on
the claimant in writing. If a decision or notice is not
received by a claimant within the time specified, the
claim or request for a review of a denied claim shall be
deemed to have been denied.
(f) Prior to filing a claim or a request for a review of a
denied claim, the claimant or his or her representative
shall have a reasonable opportunity to review a copy of
this Plan Statement and all other pertinent documents in
the possession of the Principal Sponsor.
8.5. INFORMATION FURNISHED BY PARTICIPANTS. The Principal Sponsor shall not be
liable or responsible for any error in the computation of the SERP Benefit of a
Participant resulting from any misstatement of fact made by the Participant,
directly or indirectly, to the Principal Sponsor, and used by it in determining
the Participant's SERP Benefit. The Principal Sponsor shall not be obligated or
required to increase the SERP Benefit of such Participant which, on discovery of
the misstatement, is found to be understated as a result of such misstatement of
the Participant. However, the SERP Benefit of any Participant which are
overstated by reason of any such misstatement shall be reduced to the amount
appropriate in view of the truth.
SECTION 9
PLAN ADMINISTRATION
9.1. PRINCIPAL SPONSOR.
9.1.1. OFFICERS. Except as hereinafter provided, functions generally
assigned to the Principal Sponsor shall be discharged by its officers or
delegated and allocated as provided herein.
9.1.2. CHIEF EXECUTIVE OFFICER. Except as hereinafter provided, the
Chief Executive Officer of the Principal Sponsor may delegate or redelegate and
allocate and reallocate to one or more persons or to a committee of persons
jointly or severally, and whether or not such persons are directors, officers or
employees, such functions assigned to the Principal Sponsor generally hereunder
as the Chief Executive Officer may from time to time deem advisable.
9.1.3. BOARD OF DIRECTORS. Notwithstanding the foregoing, the
Organization Committee of the Board of Directors of the Principal Sponsor shall
have the exclusive authority, which may not be delegated, to act for the
Principal Sponsor to amend this Plan Statement, to terminate this Plan, and to
determine eligibility to participate in the Plan under Section 2.
9.2. CONFLICT OF INTEREST. If any officer or employee of the Principal Sponsor
or any Employer, or any member of the Organization Committee of the Board of
Directors of the Principal Sponsor or any Employer to whom authority has been
delegated or redelegated hereunder shall also be a Participant in the Plan, such
Participant shall have no authority as such officer, employee or member with
respect to any matter specially affecting such Participant's individual interest
hereunder or the interest of a person superior to him or her in the organization
(as distinguished from the interests of all Participants and Beneficiaries or a
broad class of Participants and Beneficiaries), all such authority being
reserved exclusively to the other officers, employees or members as the case may
be, to the exclusion of such Participant, and such Participant shall act only in
such Participant's individual capacity in connection with any such matter.
9.3. ADMINISTRATOR. FIRST BANK SYSTEM, INC. shall be the administrator for
purposes of section 3(16)(A) of the Employee Retirement Income Security Act of
1974.
9.4. SERVICE OF PROCESS. In the absence of any designation to the contrary by
the Principal Sponsor, the Secretary of FIRST BANK SYSTEM, INC. is designated as
the appropriate and exclusive agent for the receipt of service of process
directed to the Plan in any legal proceeding, including arbitration, involving
the Plan.
9.5. IRC AND ERISA STATUS. This Plan is intended to be a nonqualified deferred
compensation arrangement. The rules of section 401(a) et. seq. of the Code shall
not apply to this Plan. This Plan is adopted with the understanding that it is
in part an unfunded excess benefit plan within the meaning of section 3(36)
ERISA and is in part an unfunded plan maintained primarily for the purpose of
providing deferred compensation for a select group of management or highly
compensated employees as provided in sections 201(2), 301(3) and 401(a)(1) of
ERISA. Each provision hereof shall be interpreted and administered accordingly.
This Plan shall not alter, enlarge or diminish any person's employment rights or
obligations or rights or obligations under PRA or any other plan.
It is specifically contemplated that PRA and the Excess Plan will,
from time to time, be amended and possibly terminated. All such amendments and
termination shall be given effect under this Plan (it being expressly intended
that this Plan shall not lock in the benefit structures of PRA and the Excess
Plan as they exist at the adoption of this Plan or upon the commencement of
participation, or commencement of benefits by any Participant).
This Plan will not provide any excess benefits with respect to any
profit sharing plan, stock bonus plan, employee stock ownership plan or PAYSOP.
This Plan shall be construed to prevent the duplication of benefits provided
under any other plan or arrangement, whether qualified or nonqualified, funded
or unfunded, to the extent that such other benefits are provided directly or
indirectly by an Employer.
SECTION 10
DISCLAIMERS
10.1. TERM OF EMPLOYMENT. Neither the terms of this Plan Statement nor the
benefits hereunder nor the continuance thereof shall be a term of the employment
of any employee. The Principal Sponsor and the Employers shall not be obliged to
continue the Plan. The terms of this Plan Statement shall not give any employee
the right to be retained in the employment of any Employer.
10.2. SOURCE OF PAYMENT. Neither the Principal Sponsor, any Employer nor any of
its officers nor any member of their Boards of Directors in any way secure or
guarantee the payment of any benefit or amount which may become due and payable
hereunder to any Participant or to any Beneficiary or to any creditor of a
Participant or a Beneficiary. Each Participant, Beneficiary or other person
entitled at any time to payments hereunder shall look solely to the assets of
the Employers for such payments or to the benefits distributed to any
Participant or Beneficiary, as the case may be, for such payments. In each case
where benefits shall have been distributed to a former Participant or a
Beneficiary or to the person or any one of a group of persons entitled jointly
to the receipt thereof and which purports to cover in full the benefit
hereunder, such former Participant or Beneficiary, or such person or persons, as
the case may be, shall have no further right or interest in the other assets of
the Employers. Neither the Employers nor any of their officers nor any member of
their Boards of Directors shall be under any liability or responsibility for
failure to effect any of the objectives or purposes of the Plan by reason of the
insolvency of any of the Employers.
10.3. DELEGATION. The Employers and their officers and the members of their
Boards of Directors shall not be liable for an act or omission of another person
with regard to a responsibility that has been allocated to or delegated to such
other person pursuant to the terms of this Plan Statement or pursuant to
procedures set forth in this Plan Statement.
SCHEDULE I
PARTICIPATING EMPLOYERS
Effective as of January 1, 1995
NAME EMPLOYER ID NUMBER
- ---- ------------------
Boulevard Bank National Association 36-1521230
Boulevard Technical Services, Inc., Chicago, IL 36-3610403
Colorado Capital Advisors, Inc., Denver, CO 84-1072892
Colorado National Bank, Denver, CO 84-0165025
Colorado National Bank Aspen, Aspen, CO 84-0671596
Colorado National Bankshares, Inc., Denver, CO 84-0571505
Colorado National Leasing, Inc., Denver, CO 84-0636453
Colorado National Service Corporation, Denver, CO 84-1041820
FBS Ag. Credit, Inc., Englewood, CO 84-0818505
FBS Business Finance Corporation, Minneapolis, MN 41-0832663
FBS Card Services, Inc., Minneapolis, MN 41-1558798
FBS Information Services Corporation, St. Paul, MN 41-0880291
FBS Investment Services, Inc., Denver, CO 84-1019337
FBS Mortgage Corporation, Minneapolis, MN 58-1025135
First Bank (N.A.), Milwaukee, WI 39-0152428
First Bank Montana, National Association, Billings, MT 81-0166295
First Bank National Association, Minneapolis, MN 41-0256895
First Bank of North Dakota, National Association, Fargo, ND 45-0164355
First Bank of South Dakota, National Association, Sioux Falls, SD 46-0168855
First Bank System, Inc., Minneapolis, MN 41-0255900
First National Bank of East Grand Forks, East Grand Forks, MN 41-0417860
First System Agencies, Inc., Minneapolis, MN 41-0831328
First System Services, Inc., Minneapolis, MN 41-0257030
First Trust National Association, St. Paul, MN 41-0257700
First Trust Company of Montana, National Association, Billings, MT 81-0259015
First Trust Company of North Dakota, Fargo, ND 45-0342631
First Trust of California, National Association, San Francisco, CA 94-3160100
First Trust of New York, National Association, New York, NY 13-3781471
First Trust Washington, Seattle, WA 91-1587893
Republic Acceptance Corporation, Minneapolis, MN 41-1753837
Rocky Mountain BankCard System, Inc., Denver, CO 84-1010148
SCHEDULE II
PRIOR PLANS' OFFSET
AGE WHEN FIRST EMPLOYED FACTOR
----------------------- ------
36 0.45%
37 0.94%
38 1.47%
39 2.06%
40 2.71%
41 3.41%
42 4.18%
43 5.01%
44 5.92%
45 6.91%
46 7.98%
47 9.14%
48 10.40%
49 11.76%
50 13.23%
51 14.82%
52 16.53%
53 18.38%
54 20.37%
55 22.51%
56 24.82%
57 27.30%
58 29.97%
59 32.83%
60 35.91%
61 39.21%
62 42.76%
63 46.56%
64 50.63%
65 55.00%
APPENDIX A
ACTUARIALLY EQUIVALENT BENEFITS
Section 1. GENERAL RULES. The point of reference for determining the
Actuarially Equivalent single lump sum benefit is the monthly benefit amount
expressed in the single life annuity form. When, under the terms of the Plan,
the monthly amount of the SERP Benefit or other benefit has been determined in
the single life annuity form, reference to the following factors and tables will
determine the Actuarially Equivalent single lump sum benefit:
INTEREST: The interest rate used by the Pension Benefit Guaranty Corporation to
value immediate annuities (for participants who are age 65 years) in the event
of plan terminations occurring on the first day of the Plan Year in which occurs
the date as of which the Actuarially Equivalent single lump sum benefit is being
determined
MORTALITY: 1971 Group Annuity Mortality Table, assuming all Participants are
male.
The single life annuity benefit to be converted to the single lump sum benefit
shall be the benefit commencing on the first day of the calendar month following
the attainment of age sixty-five (65) years or if later the first day of the
calendar month after Termination of Employment.
APPENDIX B
CHANGE IN CONTROL DEFINITIONS
SECTION 1
1.1. ACQUIRING PERSON -- shall mean any Person who or which, together with all
Affiliates (CIC) and Associates of such person, is the Beneficial Owner,
directly or indirectly, of securities of the Principal Sponsor representing 20%
or more of the combined voting power of the Principal Sponsor's then outstanding
securities, but shall not include any Principal Sponsor Entity.
1.2. AFFILIATE (CIC) -- shall have the meaning ascribed to the term "Affiliate"
in Rule 12b-2 promulgated under the Exchange Act.
1.3. ASSOCIATE -- shall have the meaning ascribed to such term in Rule 12b-2
promulgated under the Exchange Act.
1.4. BENEFICIAL OWNER -- shall have the meaning ascribed to such term in Rule
13d-3 promulgated under the Exchange Act.
1.5. BOARD OF DIRECTORS -- shall mean the board of directors of the Principal
Sponsor.
1.6. CHANGE IN CONTROL -- shall mean a Full Change in Control or a Partial
Change in Control.
1.7. CONTINUING DIRECTOR -- shall mean any person who is a member of the Board
of Directors, while such person is a member of the Board of Directors, who is
not an Acquiring Person or an Affiliate (CIC) or Associate of an Acquiring
Person, or a representative of an Acquiring Person or of any such Affiliate
(CIC) or Associate, and who (x) was a member of the Board of Directors as of
July 17, 1996 or (y) subsequently becomes a member of the Board of Directors, if
such person's initial nomination for election or initial election to the Board
of Directors has been approved in advance by the Continuing Directors; provided
that any director designated by or on behalf of a Person who has entered into an
agreement with the Principal Sponsor (or who is contemplating entering into such
an agreement) to effect a consolidation or merger of the Principal Sponsor or a
Principal Sponsor Entity, or other reorganization, with or into one or more
entities which are not Principal Sponsor Entities, and any director that serves
in connection with the act of the Board of Directors of increasing the number of
directors and filling vacancies in connection with, or in contemplation of, any
such transaction, shall not be deemed to have received such advance approval for
initial nomination or election, and any such director shall not be deemed to be
a Continuing Director; provided, further, that any such director shall
subsequently become a Continuing Director at such time as a new term of office
as a director is approved by the Principal Sponsor's shareholders at an annual
meeting of shareholders occurring subsequent to the completion of any such
transaction (and excluding any annual meeting at which the shareholders approve
any such transaction); and, provided, further, that in the case of a Permitted
Transaction, any such director shall not become a Continuing Director until the
later of (i) the end of the three-year period following consummation of such
Permitted Transaction or (ii) such time as a new term of office as a director is
approved by the Principal Sponsor's shareholders at an annual meeting of
shareholders occurring subsequent to the completion of such Permitted
Transaction.
1.8. EXCHANGE ACT -- shall mean the Securities Exchange Act of 1934, as amended.
1.9. FULL CHANGE IN CONTROL -- shall mean:
(a) the public announcement (which, for purposes of this
definition, shall include, without limitation, a report
filed pursuant to Section 13(d) of the Exchange Act) by
the Principal Sponsor or any Person that a Person (other
than a Principal Sponsor Entity) has become the Beneficial
Owner, directly or indirectly, of securities of the
Principal Sponsor (x) representing 20% or more, but not
more than 50%, of the combined voting power of the
Principal Sponsor's then outstanding securities unless the
transaction resulting in such ownership has been approved
in advance by the Continuing Directors or (y) representing
more than 50% of the combined voting power of the
Principal Sponsor's then outstanding securities
(regardless of any approval by the Continuing Directors);
or
(b) the Continuing Directors cease to constitute a majority of
the Board of Directors of the Principal Sponsor or the
Resulting Corporation, except in accordance with the terms
of a Permitted Transaction and except as a result of the
death, retirement or disability of one or more Continuing
Directors (unless any such death, retirement or disability
occurs following a Permitted Transaction and any vacancies
created thereby are not filled in accordance with the
terms of the written agreement governing such Permitted
Transaction); or
(c) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or
substantially all of the consolidated assets of the
Principal Sponsor and its subsidiaries or the adoption of
any plan of liquidation or dissolution of the Principal
Sponsor.
1.10. PARTIAL CHANGE IN CONTROL -- shall mean:
(a) a consolidation or merger of the Principal Sponsor or a
Principal Sponsor Entity, or other reorganization, with or
into one or more entities which are not Principal Sponsor
Entities, as a result of which less than 60% of the
outstanding voting securities of the Resulting Corporation
are, or are to be, owned by former shareholders of the
Principal Sponsor as determined immediately prior to
consummation of such transaction (excluding voting
securities of the Resulting Corporation owned, or to be
owned, by such shareholders by reason of their ownership
prior to such transaction of securities of any entity
other than the Principal Sponsor) and as a result of which
the Continuing Directors constitute (i) more than 50% of
the Board of Directors of the Resulting Corporation or
(ii) exactly 50% of the Board of Directors of the
Resulting Corporation if the transaction resulting in such
event is a Permitted Transaction; or
(b) the public announcement (which, for purposes of this
definition, shall include, without limitation, a report
filed pursuant to Section 13(d) of the Exchange Act) by
the Principal Sponsor or any Person that a Person (other
than a Principal Sponsor Entity) has become the Beneficial
Owner, directly or indirectly, of securities of the
Principal Sponsor representing 20% or more, but not more
than 50%, of the combined voting power of the Principal
Sponsor's then outstanding securities if the transaction
resulting in such ownership has been approved in advance
by the Continuing Directors.
1.11. PERMITTED TRANSACTION -- shall mean a transaction in which, pursuant to a
written agreement between the Principal Sponsor and all Persons who have entered
into an agreement with the Principal Sponsor to effect a transaction described
in paragraph (A)of the definition of Partial Change in Control, it is agreed
that (w) the Chief Executive Officer of the Principal Sponsor immediately prior
to the consummation of such transaction shall be the Chief Executive Officer of
the Resulting Corporation for not less than three years following consummation
of such transaction, (x) upon termination of service of any Continuing Director
for any reason, including upon death, disability or retirement, prior to the
expiration of such director's term during such three-year period, the vacancy
thereby created shall be filled by a nominee selected solely by the Continuing
Directors, (y) upon expiration of the term of any such director during such
three-year period, the nominee to succeed such director shall be selected solely
by the Continuing Directors and (z) the parties will take other appropriate
steps to ensure that the Board of Directors of the Resulting Corporation will be
evenly divided between Continuing Directors and all directors designated by
other parties to the transaction during such three-year period.
1.12. PERSON -- shall have the meaning ascribed to such term as such term is
used in Sections 13(d) and 14(d) of the Exchange Act.
1.13. PRINCIPAL SPONSOR ENTITY -- shall mean the Principal Sponsor, any
subsidiary of the Principal Sponsor or any employee benefit plan of the
Principal Sponsor or of any subsidiary of the Principal Sponsor or any entity
holding shares of the voting capital stock of the Principal Sponsor organized,
appointed or established for, or pursuant to the terms of, any such plan.
1.14. QUALIFYING TERMINATION -- shall mean a termination of employment of a
Participant prior to a Full Change in Control or prior to or following a Partial
Change in Control that results in such Participant becoming entitled to receive
change in control related severance payments pursuant to the terms of the change
in control provisions of an employment contract, an individual change in control
severance agreement or the First Bank System, Inc. Senior Management Change in
Control Severance Pay Plan (including any successor plan thereto).
1.15. RESULTING CORPORATION -- shall mean the surviving corporation in any
consolidation, merger or other reorganization to which the Principal Sponsor is
a party; provided, however, that if the surviving corporation in any such
transaction is a subsidiary of another corporation, then the Resulting
Corporation is the ultimate parent corporation of such surviving corporation;
and provided, further, that in the event of a consolidation, merger or other
reorganization to which a Principal Sponsor Entity (other than the Principal
Sponsor) is a party, then the Principal Sponsor shall be deemed the Resulting
Corporation.