EXHIBIT 10.1
COMPOSITE COPY
FIRST BANK SYSTEM, INC.
EXECUTIVE DEFERRAL PLAN
(1992 STATEMENT)
First Effective January 1, 1992
AND
As Amended By
The FIRST AMENDMENT Adopted October 20, 1993
But Effective January 1, 1994
The SECOND AMENDMENT Adopted October 20, 1993
But Effective January 1, 1992
The THIRD AMENDMENT Adopted July 17, 1996
But Effective July 17, 1996
The FOURTH AMENDMENT Adopted February 18, 1998
And Effective February 18, 1998
FIRST BANK SYSTEM, INC.
EXECUTIVE DEFERRAL PLAN
(1992 STATEMENT)
TABLE OF CONTENTS
PAGE
SECTION 1. INTRODUCTION 1
1.1. Statement of Plan
1.2. Definitions
1.2.1. Account
1.2.2. Affiliate
1.2.3. Annual Valuation Date
1.2.4. Beneficiary
1.2.5. Change in Control
1.2.6. Earliest Retirement Age
1.2.7. Effective Date
1.2.8. Employer
1.2.9. Event of Maturity
1.2.10. FBS
1.2.11. Normal Retirement Age
1.2.12. Participant
1.2.13. Plan
1.2.14. Plan Statement
1.2.15. Plan Year
1.2.16. Principal Sponsor
1.2.17. Termination of Employment
1.2.18. Valuation Date
1.2.19. Service
1.3. Rules of Interpretation
SECTION 2. PARTICIPATION 4
2.1. Participation
2.2. Enrollment
2.3. Specific Exclusion
SECTION 3. ADJUSTMENT OF ACCOUNTS 5
3.1. Establishment of Accounts
3.2. Adjustments of Accounts
3.2.1. Intermediate Distributions Subtraction
3.2.2. Investment Addition
3.2.3. Deferral Addition
3.2.4. Final Distributions Subtraction
SECTION 4. VESTING OF ACCOUNT 6
SECTION 5. MATURITY 7
5.1. Events of Maturity
5.2. Effect of Maturity upon Further Participation in Plan
SECTION 6. DISTRIBUTION 7
6.1. Form of Distribution
6.1.1. Form of Distribution
6.1.2. Time of Payment
6.1.3. Installment Amounts
6.1.4. Default
6.2. Previously Scheduled Distribution
6.2.1. Enrolling for the Distribution
6.2.2. Scheduled Distribution
6.3. Hardship Distributions
6.3.1. When Available
6.3.2. Purposes
6.3.3. Limitations
6.3.4. Forfeiture
6.4. Change in Control Distributions
6.4.1. When Available
6.4.2. Limitations
6.4.3. Forfeiture
6.5. Acceleration of Annual Installments
6.5.1. When Available
6.5.2. Forfeiture
6.6. Designation of Beneficiaries
6.6.1. Right to Designate
6.6.2. Failure of Designation
6.6.3. Disclaimers by Beneficiaries
6.6.4. Definitions
6.6.5. Special Rules
6.6.6. No Spousal Rights
6.7. Death Prior to Full Distribution
6.8. Facility of Payment
SECTION 7. FUNDING OF PLAN 14
7.1. Unfunded Agreement
7.2. Spendthrift Provision
SECTION 8. AMENDMENT AND TERMINATION 15
SECTION 9. DETERMINATIONS -- RULES AND REGULATIONS 16
9.1. Determinations
9.2. Rules and Regulations
9.3. Method of Executing Instruments
9.4. Claims Procedure
9.4.1. Original Claim
9.4.2. Claims Review Procedure
9.4.3. General Rules
9.5. Information Furnished by Participants
SECTION 10. PLAN ADMINISTRATION 18
10.1. Employer
10.1.1. Officers
10.1.2. Chief Executive Officer
10.1.3. Board of Directors
10.2. Conflict of Interest
10.3. Administrator
10.4. Service of Process
SECTION 11. DISCLAIMERS 19
11.1. Term of Employment
11.2. Source of Payment
11.3. Delegation
APPENDIX A -- CHANGE IN CONTROL DEFINITIONS A-1
FIRST BANK SYSTEM, INC.
EXECUTIVE DEFERRAL PLAN
(1992 STATEMENT)
SECTION 1
INTRODUCTION
1.1. STATEMENT OF PLAN. Effective January 1, 1992, FIRST BANK SYSTEM, INC., a
Delaware corporation (hereinafter sometimes referred to as "Principal Sponsor")
hereby creates a nonqualified, unfunded, elective deferral plan for the purpose
of allowing a select group of management and highly compensated employees of the
Principal Sponsor and other Employers to defer the receipt of incentive
compensation which would otherwise be paid to those employees.
1.2. DEFINITIONS. When the following terms are used herein with initial capital
letters, they shall have the following meanings:
1.2.1. ACCOUNT -- the separate bookkeeping account representing the
unfunded and unsecured general obligation of Principal Sponsor established with
respect to each Participant to which is credited the dollar amounts specified in
Section 3 and from which are subtracted payments and forfeitures made pursuant
to Section 6. To the extent necessary to accommodate and effect the distribution
elections made by Participants pursuant to Section 2, separate bookkeeping
sub-accounts shall be established with respect to each of the several annual
deferral elections made by Participants.
1.2.2. 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.
1.2.3. ANNUAL VALUATION DATE -- each December 31.
1.2.4. BENEFICIARY -- a person designated by a Participant (or
automatically by operation of this Plan Statement) to receive all or a part of
the Participant's Account in the event of the Participant's death prior to full
distribution thereof. A person so designated shall not be considered a
Beneficiary until the death of the Participant.
1.2.5. 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 A to this Plan Statement.
1.2.6. EARLIEST RETIREMENT AGE -- the earlier of:
(i) the earliest date that a Participant who is at least age
fifty-five (55) years has a sum of his or her age (in
whole years) and Service (also in whole years) that
equals at least sixty-five (65), or
(ii) the date a Participant attains Normal Retirement Age.
1.2.7. EFFECTIVE DATE -- January 1, 1992.
1.2.8. EMPLOYER -- the Principal Sponsor and any business entity
affiliated with the Principal Sponsor that employs persons who are designated
for participation in this Plan.
1.2.9. EVENT OF MATURITY -- any of the occurrences described in
Section 5 by reason of which a Participant or Beneficiary may become entitled to
a distribution from the Plan.
1.2.10. FBS -- FIRST BANK SYSTEM, INC., a Delaware corporation, or
any successor thereto.
1.2.11. NORMAL RETIREMENT AGE -- the last day of the calendar month
in which a Participant attains age sixty-five (65) years.
1.2.12. PARTICIPANT -- an employee of the Employer who is designated
as eligible to participate in this Plan by the Organization Committee of the
Board of Directors and elects to participate in accordance with the terms of
this Plan and becomes a Participant in the Plan in accordance with the
provisions of Section 2. An employee shall not be eligible to become a
Participant unless the employee is a member of a select group of management or
highly compensated employees. No employee is presumed or automatically eligible
to participate in this Plan. 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 or an Affiliate and upon which the Participant no longer
has any Account under the Plan (that is, the Participant has received a
distribution of all of the Participant's Account).
1.2.13. PLAN -- the nonqualified, income deferral program maintained
by the Principal Sponsor established for the benefit of Participants eligible to
participate therein, as set forth in this Plan Statement. (As used herein,
"Plan" does not refer to the documents pursuant to which the Plan is maintained.
Those
documents are referred to herein as the "Plan Statement"). The Plan shall be
referred to as the "FIRST BANK SYSTEM, INC. EXECUTIVE DEFERRAL PLAN."
1.2.14. PLAN STATEMENT -- this document entitled "FIRST BANK SYSTEM,
INC. EXECUTIVE DEFERRAL PLAN (1992 Statement)" as adopted by the Organization
Committee of the Board of Directors of FIRST BANK SYSTEM, INC. effective as of
January 1, 1992, as the same may be amended from time to time thereafter.
1.2.15. PLAN YEAR -- the twelve (12) consecutive month period ending
on any Annual Valuation Date.
1.2.16. PRINCIPAL SPONSOR -- FIRST BANK SYSTEM, INC., a Delaware
corporation.
1.2.17. TERMINATION OF EMPLOYMENT -- a complete severance of an
employee's employment relationship with the Employer and all Affiliates, if any,
for any reason other than the employee's death. A transfer from employment with
the Employer to employment with an Affiliate of the 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 the Employer, then Participants who are employed by that Employer and
who cease to be employed by the Principal Sponsor or an Employer on account of
the sale of substantially all the stock or assets of the Employer shall be
deemed to have thereby had a Termination of Employment for the purpose of
commencing distributions from this Plan.
1.2.18. VALUATION DATE -- the last day of each calendar month of the
Plan Year.
1.2.19. SERVICE -- a measure of an employee's service with the
Employer 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 the "First
Bank System Personal Retirement Account" (or any similar successor plan) as
those rules may exist at the time the Participant's Service is being determined.
1.3. RULES OF INTERPRETATION. An individual shall be considered to have attained
a given age on such individual's birthday for that age (and not on the day
before). Individuals born on February 29 in a leap year shall be considered to
have their birthdays on February 28 in each 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 or Beneficiary shall be deemed for all
purposes of this Plan and all elections and designations made under this Plan to
have died before such Participant or Beneficiary. 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 this 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. This Plan Statement shall be construed and
this Plan shall be administered to create an unfunded plan providing deferred
compensation to a select group of management or highly compensated employees so
that it is exempt from the requirements of Parts 2, 3 and 4 of Title I of ERISA
and qualifies for a form of simplified, alternative compliance with the
reporting and disclosure requirements of Part 1 of Title I of ERISA. 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 document has been executed and delivered in the
State of MINNESOTA and has been drawn in conformity to the laws of that State
and shall be construed and enforced in accordance with the laws of the State of
MINNESOTA.
SECTION 2
PARTICIPATION
2.1. PARTICIPATION. Each employee of the Employer designated by the Organization
Committee of the Board of Directors as eligible to enroll in this Plan shall be
a participant in the Plan as of the first day of the Plan Year with respect to
which the employee first enrolls as Participant. Employees shall be designated
as eligible to enroll on a Plan Year by Plan Year basis. Eligibility to enroll
one Plan Year does not entitle the employee to enroll the next Plan Year.
2.2. ENROLLMENT. Prior to the first day of any Plan Year, an employee who has
been designated as eligible to enroll may make an enrollment for that Plan Year.
A separate enrollment shall be made for each Plan Year. Each such enrollment:
(a) Shall be irrevocable for the remainder of the Plan Year with respect
to which it is made once it has been accepted by the Principal
Sponsor.
(b) Shall designate the amount or portion of the Participant's incentive
compensation or base compensation or both which is earned during
that Plan Year (without regard to whether it would be paid during
that or a subsequent Plan Year) which shall not be paid to the
Participant but instead shall be accumulated in this Plan under
Section 3 and distributed from this Plan under Section 6. The amount
or portion may be designed as a dollar amount or a percentage. The
amount or portion of the base compensation that can be designated
shall not exceed fifty percent (50%) of the Participant's base
compensation.
(c) Shall specify the form in which distribution of the portion of the
Account attributable to that enrollment shall be made under Section
6 upon the occurrence of an Event of Maturity (and if such
designation is not clearly made to the contrary shall be deemed to
have been an election of a single lump sum distribution).
(d) Shall specify whether and what amount of the Account attributable to
that enrollment shall be distributed before an Event of Maturity in
accordance with Section 6.2.
(e) Shall be made upon forms furnished by the Principal Sponsor, shall
be made at such time as the Principal Sponsor shall determine, shall
be made before the beginning of the Plan Year with respect to which
it is made and shall conform to such other procedural and
substantive rules as the Principal Sponsor shall make.
2.3. SPECIFIC EXCLUSION. Notwithstanding anything apparently to the contrary in
this Plan Statement 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 herself 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 the Employer shall distribute the
individual's Account immediately.
SECTION 3
ADJUSTMENT OF ACCOUNTS
3.1. ESTABLISHMENT OF ACCOUNTS. There shall be established for each Participant
an unfunded, bookkeeping Account which shall be adjusted each Valuation Date.
3.2. ADJUSTMENTS OF ACCOUNTS. As of each Valuation Date (the "current Valuation
Date"), the value of each Account determined as of the immediately preceding
Valuation Date (the "initial Account value") shall be increased (or decreased)
by the following adjustments made in the following sequence:
3.2.1. INTERMEDIATE DISTRIBUTIONS SUBTRACTION. The initial Account
value shall be reduced by the total amount distributed in fact to (or with
respect to) the Participant (or forfeited in connection with a distribution)
from such Account as of a date subsequent to the immediately preceding Valuation
Date but prior to the current Valuation Date.
3.2.2. INVESTMENT ADDITION. The initial Account value (as adjusted
above) shall be increased by interest.
(a) The rate shall be determined from time to time by the
Principal Sponsor. Except as provided in Section 8, the rate
may be changed by the Principal Sponsor by amendment of the
Plan Statement without notice to or the consent of any
Participant, former Participant or any Beneficiary.
(b) Beginning January 1, 1992, the rate for each month shall be
determined annually for each Plan Year and shall be equal to
the monthly equivalent of one hundred percent (100%) of the
10-year Treasury Note 120 month rolling average (as
established on the September 30 of the preceding Plan Year).
(c) This rate shall be uniform for all Participants for the same
Valuation Date but may change from Valuation Date to Valuation
Date.
3.2.3. DEFERRAL ADDITION. The initial Account value (as adjusted
above) shall be increased by the total amount of incentive compensation, if any,
which
would have been paid to the Participant as of a date subsequent to the
immediately preceding Valuation Date but prior to or coincident with the current
Valuation Date but for the enrollment agreement signed by the Participant
pursuant to Section 2.
3.2.4. FINAL DISTRIBUTIONS SUBTRACTION. The initial Account value (as
adjusted above) shall be reduced by the total amount distributed in fact to (or
with respect to) the Participant (or forfeited in connection with a
distribution) from such Account as of the current Valuation Date.
SECTION 4
VESTING OF ACCOUNT
Except as provided in Section 6.2 and Section 6.4 (relating to the forfeiture
for hardship or Change in Control distributions) and Section 8 (relating to the
ability to amend the Plan Statement and terminate the Plan), the Account of each
Participant shall be fully (100%) vested and nonforfeitable at all times.
SECTION 5
MATURITY
5.1. EVENTS OF MATURITY. A Participant's Account shall mature and shall become
distributable in accordance with Section 6 upon the earliest occurrence of any
of the following events while in the employment of the Employer or an Affiliate:
(a) his or her death, or
(b) his or her Termination of Employment from the Employer, or
(c) termination of the Plan;
provided, however, that a termination of the opportunity to make an enrollment
by action of the Organization Committee of the Board of Directors pursuant to
Section 2 or a transfer of employment to an Affiliate that is not an Employer
shall not constitute an Event of Maturity.
5.2. EFFECT OF MATURITY UPON FURTHER PARTICIPATION IN PLAN. On the occurrence of
an Event of Maturity, a Participant shall cease to have any interest in the Plan
other than the right to receive payment of his or her Account as provided in
Section 6 hereof, adjusted from time to time as provided in Section 3.
SECTION 6
DISTRIBUTION
6.1. FORM OF DISTRIBUTION. Upon the occurrence of an Event of Maturity effective
as to a Participant, the Principal Sponsor shall commence payment of such
Participant's Account (reduced by the amount of any applicable payroll,
withholding and other taxes) in the form designated by the Participant in his or
her enrollment. A Participant shall not be required to make application to
receive payment. Distribution shall not be made to any Beneficiary, however,
until such Beneficiary shall have filed a written application for benefits in a
form acceptable to the Principal Sponsor and such application shall have been
approved by the Principal Sponsor.
6.1.1. FORM OF DISTRIBUTION. Distribution shall be made in whichever
of the following forms as the Participant shall have designated in writing at
the time of his or her enrollment (to the extent that such election is
consistent with the rules of this Plan Statement):
(a) TERM CERTAIN INSTALLMENTS TO PARTICIPANT. If the Distributee
is a Participant, the Account at the Termination of Employment
is at least Twenty Thousand Dollars ($20,000) and the
Participant had attained Earliest Retirement Age at the
Termination of Employment, in a series of annual installments
payable over fifteen (15) years. (For the purpose of applying
this dollar limitation, all portions of the Account
distributable in fifteen annual installments shall be
considered together notwithstanding that such amounts may have
been attributable to enrollments relating to more than one
Plan Year.)
(b) CONTINUED TERM CERTAIN INSTALLMENTS TO BENEFICIARY. If the
Distributee is a Beneficiary of a deceased Participant and
distribution had commenced to the deceased Participant before
his or her death over a fifteen (15) year period as specified
in paragraph (a) above, in a series of annual installments
payable over the remainder of the fifteen (15) year period.
(c) LUMP SUM. If the Distributee is a Participant, in a single
lump sum. If the Distributee is a Beneficiary of a deceased
Participant and distribution had not commenced to the deceased
Participant before his or her death, in a single lump sum
payment.
6.1.2. TIME OF PAYMENT. Payment shall be made or commenced to a
Participant in accordance with the following rules:
(a) RETIREMENT. If the Participant's Termination of Employment is
on a date on or after the Participant's Earliest Retirement
Age, payment shall be made or commenced as of the Annual
Valuation Date coincident with or immediately following the
Participant's Termination of Employment and shall be made or
commenced as soon as practicable after such Annual Valuation
Date.
(b) DEATH. If the payment is made or commenced on account of the
Participant's death, payment shall be made or commenced as of
the Annual Valuation Date coincident with or immediately
following the Participant's Termination of Employment and
shall be made or commenced as soon as practicable after such
Annual Valuation Date.
(c) OTHER. In all other cases, payment to the Participant shall be
made as of the second Valuation Date subsequent to the
Participant's Termination of Employment and shall be made as
soon as practicable after such second Valuation Date.
(d) CODE SS.162(m) DELAY. If the Principal Sponsor determines that
delaying the time of the initial payments are made or
commenced would increase the probability that such payments
would be fully deductible for federal or state income tax
purposes, the Principal Sponsor may unilaterally delay the
time of the making or commencement of payments for up to
twenty-four (24) months after the date such payments would
otherwise be payable.
6.1.3. INSTALLMENT AMOUNTS. The amount of the annual installments
shall be determined by dividing the amount of the Account as of the Annual
Valuation Date as of which the installment is being paid by the number of
remaining installment payments to be made (including the payment being
determined).
6.1.4. DEFAULT. If for any reason a Participant shall have failed to
make a timely written designation of form for distribution (including reasons
entirely beyond the control of the Participant), the distribution shall be made
in a single lump sum. No spouse, former spouse, Beneficiary or other person
shall have any right to participate in the Participant's selection of a form of
benefit.
6.2. PREVIOUSLY SCHEDULED DISTRIBUTION.
6.2.1. ENROLLING FOR THE DISTRIBUTION. At the time of enrollment for
each Plan Year, each enrolling Participant shall have the opportunity to elect
to cause the Plan to make a scheduled distribution to the Participant from the
Account of a fixed dollar amount or percentage of Account (not less than $2,000)
as of an Annual Valuation Date designated by the Participant in the enrollment
which distribution shall be made as soon as practicable after such Annual
Valuation Date. The failure to make such a scheduled distribution election one
Plan Year shall not preclude an election in a subsequent Plan Year. Making a
scheduled distribution election for one Plan Year shall not require any such
election in a subsequent Plan Year. The scheduled distribution election that is
made with each Plan Year's enrollment shall relate only to the portion of the
Account that is attributable to that Plan Year's deferrals.
6.2.2. SCHEDULED DISTRIBUTION. As of the Annual Valuation Date
designated by the Participant in his or her enrollment, there shall be
distributed from the Account to the Participant such amount as the Participant
shall have elected to receive from the Account when the Participant enrolled.
Notwithstanding the dollar amount designated by the Participant in his or her
enrollment, if a scheduled distribution is required as of an Annual Valuation
Date and the value of the portion of the Account that is attributable to the
Plan Year's deferrals on such Annual Valuation Date is less than Five Thousand
Dollars ($5,000) the entire Account attributable to that Plan Year's deferrals
shall be distributed. In no event shall such scheduled distributions occur after
the death of the Participant or after any other Event of Maturity with respect
to the Participant. In no event shall such scheduled distributions made pursuant
to an enrollment for a Plan Year exceed the Account attributable to that Plan
Year.
6.3. HARDSHIP DISTRIBUTIONS.
6.3.1. WHEN AVAILABLE. A Participant may receive a hardship
distribution from his or her Account if the Principal Sponsor determines that
such hardship distribution is for a purpose described in Section 6.3.2 and the
conditions in Section 6.3.3 and Section 6.3.4 have been fulfilled. To receive
such a distribution, the Participant must file a written hardship distribution
application with the Principal Sponsor and furnish such documentation as the
Principal Sponsor may require. In the application, the Participant shall specify
the basis for the distribution and the dollar amount to be distributed. If such
hardship distribution is approved by the Principal Sponsor, distribution shall
be made as of the Valuation Date coincident with or next following the approval
of a completed application by the Principal Sponsor and such hardship
distribution shall be made in a lump sum cash payment as soon as
administratively feasible after such Valuation Date. The
amount of each hardship distribution shall be taken from the portion of the
Account attributable to the earliest enrollment (including related earnings)
first.
6.3.2. PURPOSES. Hardship distributions shall be allowed under
Section 6.3.1 only if the Participant establishes that the hardship distribution
is to be made on account of an immediate and heavy financial need of the
Participant for which the Participant does not have other available resources.
6.3.3. LIMITATIONS. The amount of the hardship distribution shall not
exceed the amount of the Participant's proven immediate and heavy financial
need. A hardship distribution shall not be made after the death of the
Participant or after the occurrence of any other Event of Maturity. The amount
of approved hardship distribution (and the forfeiture described below) shall not
exceed the value of the Account.
6.3.4. FORFEITURE. Upon the approval of a hardship distribution,
there shall be irrevocably forfeited from the Account of the Participant an
amount equal to ten percent (10%) of the amount approved for distribution.
6.4. CHANGE IN CONTROL DISTRIBUTIONS.
6.4.1. WHEN AVAILABLE. A Participant or Beneficiary may receive a
distribution of his or her entire Account (after reduction for the forfeiture
described in Section 6.4.3) if a Full Change in Control or a Qualifying
Termination has occurred and the condition in Section 6.4.2 has been fulfilled
(a "Change in Control Distribution"). To receive such a distribution, the
Participant or Beneficiary must file a written distribution application with the
Principal Sponsor. The Principal Sponsor shall approve the Change in Control
Distribution if such application has been filed and a Full Change in Control or
a Qualifying Termination has occurred. Distribution of the entire Account (after
reduction for the forfeiture described in Section 6.4.3) shall be made as of the
Valuation Date coincident with or next following the approval of a completed
application by the Principal Sponsor. Such distribution shall be made in a lump
sum cash payment as soon as administratively feasible after such Valuation Date.
6.4.2. LIMITATIONS. The amount of approved Change in Control
Distribution (and the forfeiture described below) shall not exceed the value of
the Account.
6.4.3. FORFEITURE. Upon the approval of a Change in Control
Distribution, there shall be irrevocably forfeited from the Account of the
Participant or Beneficiary an amount equal to five percent (5%) of the Account.
6.5. ACCELERATION OF ANNUAL INSTALLMENTS.
6.5.1. WHEN AVAILABLE. A Participant or Beneficiary who is receiving
annual installments may receive an accelerated payment of his or her entire
Account (after reduction for the forfeiture described in Section 6.5.2). To
receive such an accelerated payment, the Participant or Beneficiary must file a
written payment application with the Principal Sponsor. Payment of the
accelerated payment (after reduction for the forfeiture described in Section
6.5.2) shall be made as of the Annual Valuation Date coincident with or next
following the approval of a completed application by the Principal Sponsor. Such
accelerated payment shall be made in a lump sum cash payment as soon as
administratively feasible after such Valuation Date. The amount of the
accelerated payment shall be equal to the value of the Account as of such Annual
Valuation Date (after reduction for the forfeiture described below).
6.5.2. FORFEITURE. Upon the approval of an accelerated payment, there
shall be irrevocably forfeited from the Account of the Participant or
Beneficiary an amount equal to ten percent (10%) of the Account.
6.6. DESIGNATION OF BENEFICIARIES.
6.6.1. RIGHT TO DESIGNATE. Each Participant may designate, upon forms
to be furnished by and filed with the Principal Sponsor, one or more primary
Beneficiaries or alternative Beneficiaries to receive all or a specified part of
such Participant's Account in the event of such Participant's death. The
Participant may change or revoke any such designation from time to time without
notice to or consent from any Beneficiary. No such designation, change or
revocation shall be effective unless executed by the Participant and received by
the Principal Sponsor during the Participant's lifetime.
6.6.2. 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 Account, 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.
6.6.3. DISCLAIMERS BY BENEFICIARIES. A Beneficiary entitled to a
distribution of all or a portion of a deceased Participant's Account 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 Account 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 Account 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.
6.6.4. 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.
6.6.5. 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 6.6.2 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.
6.6.6. 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.
6.7. 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 Account which are payable to
the Beneficiary (and shall not be paid to the Participant's estate).
6.8. FACILITY OF PAYMENT. In case of the legal disability, including minority,
of a Participant or Beneficiary entitled to receive any distribution under the
Plan, payment shall be made, if the Principal Sponsor shall be advised of the
existence of such condition:
(a) to the duly appointed guardian, conservator or other legal
representative of such Participant or Beneficiary, or
(b) to a person or institution entrusted with the care or
maintenance of the incompetent or disabled Participant or
Beneficiary, 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 Participant or
Beneficiary, and provided further, that no prior claim for
said payment has been made by a duly appointed guardian,
conservator or other legal representative of such Participant
or Beneficiary.
Any payment made in accordance with the foregoing provisions of this section
shall constitute a complete discharge of any liability or obligation of the
Principal Sponsor therefor.
SECTION 7
FUNDING OF PLAN
7.1. UNFUNDED AGREEMENT. The obligation of the Employer to make payments under
this Plan constitutes only the unsecured (but legally enforceable) promise of
the Employer to make such payments. The Participant shall have no lien, prior
claim or other security interest in any property of the Employer. The Employer
is not required to establish or maintain any fund, trust or account (other than
a bookkeeping account or reserve) for the purpose of funding or paying the
benefits
promised under this Plan. If such a fund is established, the property therein
shall remain the sole and exclusive property of the Employer. The Employer will
pay the cost of this Plan out of its general assets. All references to accounts,
accruals, gains, losses, income, expenses, payments, custodial funds and the
like are included merely for the purpose of measuring the Employer's obligation
to Participants in this Plan and shall not be construed to impose on the
Employer the obligation to create any separate fund for purposes of this Plan.
If the Employer 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 Employer in the purchase of such investment to any
extent reasonably required by the Employer 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 Employer shall distribute the individual's Account
immediately and the Participant shall not be eligible to enroll in the Plan
again.
7.2. SPENDTHRIFT PROVISION. No Participant or Beneficiary shall have any
interest in any Account 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 Employer, nor shall
the Employer recognize any assignment thereof, either in whole or in part, nor
shall any Account be subject to attachment, garnishment, execution following
judgment or other legal process while in the possession or control of the
Employer.
The power to designate Beneficiaries to receive the Account 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 Account 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 Employer.
This section shall not prevent the Employer from exercising, in its discretion,
any of the applicable powers and options granted to it upon the occurrence of an
Event of Maturity, as such powers may be conferred upon it by any applicable
provision hereof.
SECTION 8
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
Account 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 Accounts 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.
SECTION 9
DETERMINATIONS -- RULES AND REGULATIONS
9.1. 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.
9.2. RULES AND REGULATIONS. Any rule not in conflict or at variance with the
provisions hereof may be adopted by the Principal Sponsor.
9.3. 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.
9.4. CLAIMS PROCEDURE. The claims procedure set forth in this Section 9.4 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.
9.4.1. 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.
9.4.2. 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.
9.4.3. 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.
9.5. INFORMATION FURNISHED BY PARTICIPANTS. The Principal Sponsor shall not be
liable or responsible for any error in the computation of the Account 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 Account. The Principal Sponsor shall not be obligated or
required to increase the Account 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 Account 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 10
PLAN ADMINISTRATION
10.1. EMPLOYER.
10.1.1. 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.
10.1.2. 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 Employer generally hereunder as the
Chief Executive Officer may from time to time deem advisable.
10.1.3. 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.
10.2. CONFLICT OF INTEREST. If any officer or employee of the Employer, or any
member of the Organization Committee of the Board of Directors of the 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.
10.3. 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.
10.4. SERVICE OF PROCESS. In the absence of any designation to the contrary by
the Employer, 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.
SECTION 11
DISCLAIMERS
11.1. 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 Employer 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 the Employer.
11.2. SOURCE OF PAYMENT. Neither the Employer nor any of its officers nor any
member of its Organization Committee of the Board 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 Employer for such payments or to the Accounts distributed to any Participant
or Beneficiary, as the case may be, for such payments. In each case where
Accounts 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 Employer. Neither
the Employer nor any of its officers nor any member of its Board 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 the Employer.
11.3. DELEGATION. The Employer and its officers and the members of its Board 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.
_________________, 1991 FIRST BANK SYSTEM, INC.
By
Its
APPENDIX A
CHANGE IN CONTROL DEFINITIONS
SECTION 1
1.1. ACQUIRING PERSON -- 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 FBS representing 20% or more of the combined voting
power of FBS's then outstanding securities, but shall not include any Company
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 -- the board of directors of FBS.
1.6. CHANGE IN CONTROL -- a Full Change in Control or a Partial Change in
Control.
1.7. COMPANY ENTITY -- FBS, any subsidiary of FBS or any employee benefit plan
of FBS or of any subsidiary of FBS or any entity holding shares of the voting
capital stock of FBS organized, appointed or established for, or pursuant to the
terms of, any such plan.
1.8. CONTINUING DIRECTOR -- 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 February 18,
1998 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 FBS (or who is contemplating entering into such an agreement) to
effect a consolidation or merger of FBS or a Company Entity, or other
reorganization, with or into one or more entities which are not Company
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, in each case solely for the purpose of determining
whether the addition of members of the Board of Directors in connection with, or
in contemplation of, such transaction results in a Full Change in Control under
clause (b) of the definition of Full Change in Control.
1.9. EXCHANGE ACT -- the Securities Exchange Act of 1934, as amended.
1.10. 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 FBS or any Person that a
Person (other than a Company Entity) has become the Beneficial
Owner, directly or indirectly, of securities of FBS (x) representing
20% or more, but not more than 50%, of the combined voting power of
FBS'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 FBS'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 FBS 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; 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 FBS and its subsidiaries or the adoption of
any plan of liquidation or dissolution of FBS.
1.11. PARTIAL CHANGE IN CONTROL -- shall mean:
(a) a consolidation or merger of FBS or a Company Entity, or other
reorganization, with or into one or more entities which are not
Company 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 FBS 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 FBS) 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 FBS or any Person that a
Person (other than a Company Entity) has become the Beneficial
Owner, directly or indirectly, of securities of FBS representing 20%
or more, but not more than 50%, of the combined voting power of
FBS's then outstanding securities if the transaction resulting in
such ownership has been approved in advance by the Continuing
Directors.
1.12. PERMITTED DIRECTOR -- a director who was a Continuing Director immediately
prior to consummation of a Permitted Transaction and any director who fills a
vacancy created by the termination of service as a director or expiration of the
term as a director of any Permitted Director if such person was selected solely
by the then current Permitted Directors.
1.13. PERMITTED TRANSACTION -- a transaction in which, pursuant to a written
agreement between FBS and all Persons who have entered into an agreement with
FBS 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
FBS 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 Permitted 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 Permitted Directors, (y) upon expiration of the term of
any Permitted Director during such three-year period, the nominee to succeed
such director shall be selected solely by the Permitted 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 Permitted Directors
and all directors designated by other parties to the transaction during such
three-year period. Notwithstanding the foregoing, such agreement may provide
that directors added to the Board of Directors (x) pursuant to an expansion of
the number of members of the Board of Directors approved by 75% of the then
current members of the Board of Directors or (y) pursuant to the terms of
any subsequent agreement relating to an acquisition by or of FBS, shall not be
subject to the foregoing limitations. The determination of whether a transaction
constitutes a Permitted Transaction shall be made at the time of consummation of
such transaction, and no subsequent events shall cause such transaction to no
longer constitute a Permitted Transaction.
1.14. 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.
1.15. QUALIFYING TERMINATION -- 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, the First Bank System, Inc. Senior Management Change in
Control Severance Pay Plan (including any successor plan thereto), the First
Bank System, Inc. Middle Management Change in Control Severance Pay Program
(including any successor program thereto) or the First Bank System, Inc.
Broad-Based Change in Control Severance Pay Program (including any successor
program thereto).
1.16. RESULTING CORPORATION -- the surviving corporation in any consolidation,
merger or other reorganization to which FBS 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 Company Entity (other
than FBS) is a party, then FBS shall be deemed the Resulting Corporation.