EXHIBIT 10.4
COMPOSITE COPY
FIRST BANK SYSTEM, INC.
INDEPENDENT DIRECTOR
RETIREMENT AND DEATH BENEFIT PLAN
(1991 RESTATEMENT)
First Effective January 1, 1987
As Amended and Restated Effective May 15, 1991
AND
As Amended By
The FIRST AMENDMENT Adopted February 15, 1995
But Effective January 1, 1995
The SECOND AMENDMENT Adopted July 17, 1996
But Effective January 1, 1996
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.
INDEPENDENT DIRECTOR
RETIREMENT AND DEATH BENEFIT PLAN
(1991 RESTATEMENT)
TABLE OF CONTENTS
PAGE
SECTION 1. INTRODUCTION 1
1.1. Restatement of Plan
1.2. Definitions
1.2.1. Accrued Benefit
1.2.2. Beneficiary
1.2.3. Change in Control Definitions
(a) Acquiring Person
(b) Affiliate
(c) Associate
(d) Beneficial Owner
(e) Board of Directors
(f) Change in Control
(g) Company Entity
(h) Continuing Director
(i) Exchange Act
(j) Full Change In Control
(k) Partial Change in Control
(l) Permitted Director
(m) Permitted Transaction
(n) Person
(o) Resulting Corporation
1.2.4. Director
1.2.5. Director Service
1.2.6. FBS
1.2.7. Plan
1.2.8. Plan Statement
1.2.9. Present Value
1.2.10. Prior Plan Statement
1.2.11. Supplemental Retirement Pension
1.2.12. Termination of Service
1.3. Rules of Interpretation
SECTION 2. ELIGIBILITY 8
SECTION 3. SUPPLEMENTAL RETIREMENT BENEFITS 8
3.1. Supplemental Retirement Pension
3.1.1. When Available
3.1.2. Amount
3.1.3. Form of Pension
3.2. Change in Control
3.3. Facility of Payment
SECTION 4. DEATH BENEFITS 10
4.1. Death Before Benefit Commencement
4.1.1. When Available
4.1.2. Amount
4.1.3. Form of Benefit
4.2. Death After Benefit Commencement
4.3. Designation of Beneficiaries
4.3.1. Right To Designate
4.3.2. Failure of Designation
4.3.3. Disclaimers by Beneficiaries
4.3.4. Definitions
4.3.5. Special Rules
4.3.6. No Spousal Rights
SECTION 5. FUNDING OF PLAN 13
5.1. Unfunded Agreement
5.2. Spendthrift Provision
SECTION 6. AMENDMENT AND TERMINATION 14
SECTION 7. DETERMINATIONS -- RULES AND REGULATIONS 14
7.1. Determinations
7.2. Rules and Regulations
7.3. Method of Executing Instruments
7.4. Information Furnished by Directors
SECTION 8. PLAN ADMINISTRATION 15
8.1. FBS
8.2. Conflict of Interest
SECTION 9. DISCLAIMERS 16
FIRST BANK SYSTEM, INC.
INDEPENDENT DIRECTOR
RETIREMENT AND DEATH BENEFIT PLAN
(1991 RESTATEMENT)
SECTION 1
INTRODUCTION
1.1. RESTATEMENT OF PLAN. Effective February 18, 1987, FIRST BANK SYSTEM, INC.,
a Delaware corporation (hereinafter sometimes referred to as "FBS"), adopted the
"First Bank System, Inc. Independent Director retirement and Death Benefit Plan"
for the purpose of establishing a supplemental retirement and death benefit plan
for the benefit of certain eligible members of its Board of Directors
(hereinafter referred to as the "Plan"). FBS reserved the right to amend and
terminate that Prior Plan Statement from time to time. FBS now desires to
exercise that reserved power of amendment by the adoption of this Plan Statement
effective as of May 15, 1991.
1.2. DEFINITIONS. When used herein with initial capital letters, the following
words have the following meanings:
1.2.1. ACCRUED BENEFIT -- the aggregate amount determined for the
Director as of a specified date equal to:
(a) the annualized amount of the base director retainer
(exclusive of committee attendance and similar extra fees)
in effect on the date on which occurs the earlier of: (i)
the Director's Termination of Service, or (ii) the
Director's death; multiplied by
(b) the number of full years, and fractions of years, of the
Director's Director Service (not to exceed ten years).
For this purpose, fractions of years shall be recorded in twelfths (1/12) and
one-twelfth of a year of Director Service shall be credited only for each full
calendar month of Director Service.
1.2.2. BENEFICIARY -- a person designated by a Director (or
automatically by operation of this Plan Statement) to receive all or a part of
the Director's benefit in the event of the Director's death prior to full
distribution thereof. A person so designated shall not be considered a
Beneficiary until the death of the Director.
1.2.3. CHANGE IN CONTROL DEFINITIONS. When used herein with
initial capital letters, the following words relating to the "Change in Control"
definition have the following meanings:
(a) ACQUIRING PERSON -- shall mean any Person who or which,
together with all Affiliates 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.
(b) AFFILIATE -- shall have the meaning ascribed to the term
"Affiliate" in Rule 12b-2 promulgated under the Exchange
Act.
(c) ASSOCIATE -- shall have the meaning ascribed to such term
in Rule 12b-2 promulgated under the Exchange Act.
(d) BENEFICIAL OWNER -- shall have the meaning ascribed to such
term in Rule 13d-3 promulgated under the Exchange Act.
(e) BOARD OF DIRECTORS -- shall mean the board of directors of
FBS.
(f) CHANGE IN CONTROL -- shall mean a Full Change in Control or
a Partial Change in Control.
(g) COMPANY ENTITY -- shall mean 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.
(h) 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 or Associate of an Acquiring Person,
or a representative of an Acquiring Person or of any such
Affiliate 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 (ii) of the definition of Full
Change in Control.
(i) EXCHANGE ACT -- shall mean the Securities Exchange Act of
1934, as amended.
(j) FULL CHANGE IN CONTROL -- shall mean:
(i) 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
(ii) 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
(iii) 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.
(k) PARTIAL CHANGE IN CONTROL -- shall mean:
(i) 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
(ii) 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.
(l) PERMITTED DIRECTOR -- shall mean 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.
(m) PERMITTED TRANSACTION -- shall mean 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 (i) 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.
(n) 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.
(o) RESULTING CORPORATION -- shall mean 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.
1.2.4. DIRECTOR -- an individual serving on the Board of
Directors of FBS who is not at the same time a common law employee of FBS or any
of its subsidiary corporations.
1.2.5. DIRECTOR SERVICE -- a measure of a Director's service as a
Director (stated as a number of months) which is equal to the total completed
months of the
individual's service as a Director (irrespective of any Termination of Service
and subsequent reentry into service as a Director); subject, however, to the
following:
(a) PRE-EFFECTIVE SERVICE. Director Service shall be credited
for any period of service completed before January 1, 1991,
as if this Plan Statement were then in effect.
(b) SUBSIDIARY SERVICE. In the case of a Director who has
performed at least one (1) month of actual Director
Service, Director Service shall be credited for services
performed as a member of the board of directors of any
corporation which is an eighty percent (80%) or greater
subsidiary of FBS (while such corporation was at least an
eighty percent subsidiary of FBS) as if such service were
performed as a Director for FBS.
(c) ACQUIRED ENTITIES SERVICE. In the case of a Director who
has performed at least one (1) month of actual Director
Service, Director Service shall be credited for
pre-acquisition services performed as a member of the board
of directors of any corporation if not less than
ninety-five percent (95%) of its capital stock of that
corporation is directly or indirectly acquired by FBS as if
such pre-acquisition services were performed as a Director
for FBS; provided, however, that such service shall be
credited only if the Director agrees to have offset from
benefits due under this Plan the value of benefits
attributable such service in a fair and equitable manner as
determined by the Organization Committee of the Board of
Directors.
(d) ADVISORY BOARDS SERVICE. In the case of a Director who has
performed at least one (1) month of actual Director
Service, Director Service shall be credited for services
performed as a member of an advisory board of any
subsidiary described in (b) above or any acquired entity
described in (c) above as if such service were performed as
a Director for FBS; provided, however, that such service
shall be credited only if the Director agrees to have
offset from benefits due under this Plan the value of
benefits attributable such service in a fair and equitable
manner as determined by the Organization Committee of the
Board of Directors.
(e) EXCLUDED SERVICE. Director Service shall not be credited
for any period of service during which the Director is a
common law employee of FBS or any of its subsidiary
corporations or acquired entities.
1.2.6. FBS -- FIRST BANK SYSTEM, INC., a Delaware corporation, or
any successor thereto.
1.2.7. PLAN -- the supplemental retirement and death benefit
program maintained by FBS for the Board of Directors eligible to participate
therein, as first set forth in the Prior Plan Statement effective February 18,
1987, and as amended and restated in the 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 "Prior Plan Statement" and the "Plan
Statement.") The Plan shall be referred to as the "FIRST BANK SYSTEM, INC.
INDEPENDENT DIRECTOR RETIREMENT AND DEATH BENEFIT PLAN."
1.2.8. PLAN STATEMENT -- this document entitled "FIRST BANK
SYSTEM, INC. INDEPENDENT DIRECTOR RETIREMENT AND DEATH BENEFIT PLAN (1991
Restatement)," as adopted by FBS effective as of May 15, 1991 as the same may be
amended from time to time thereafter.
1.2.9. PRESENT VALUE -- the actuarially equivalent single sum
value of the unpaid installments of the Supplemental Retirement Pension
determined as of a specified date assuming:
(a) that the installments would have commenced on the earliest
date when the installments benefit could have commenced;
and
(b) the interest rate used by the Pension Benefit Guaranty
Corporation to value annuities (for participants who are
the same age) in the event of plan terminations occurring
on the first day of the calendar year in which occurs the
date as of which the actuarially equivalent single sum is
being determined.
The number of unpaid installments of the Supplemental Retirement Pension shall
never be greater than ten (10) minus the number of annual installments already
paid and shall never be less than zero (0).
1.2.10. PRIOR PLAN STATEMENT -- the series of documents pursuant
to which this Plan was established as of January 1, 1987, and operated
thereafter until May 15, 1991.
1.2.11. SUPPLEMENTAL RETIREMENT PENSION -- the pension benefit
described in Section 3.1.
1.2.12. TERMINATION OF SERVICE -- the termination of the
Director's service as a Director for any of the following reasons:
(a) The Director retires as required under the terms of the FBS
Directors' Retirement Policy then in effect.
(b) The Director resigns voluntarily.
(c) The Director is not reelected to a succeeding term as a
member of the Board of Directors when his or her term
expires.
(d) The Director terminates after he or she is determined by
FBS to be disabled and is, therefore, unable to fulfill the
duties of a member of the Board of Directors because of
that disability, however caused.
When necessary, FBS shall determine the date of the Termination of Service. The
death of the Director is not a Termination of Service.
1.3. RULES OF INTERPRETATION. An individual shall be considered to have attained
a given age on his 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 Director 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 Director 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, FBS 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. 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
ELIGIBILITY
Each Director shall be a participant in the Plan as of the first day the
Director first becomes a Director. A Director shall not be required to enroll as
a condition of participation in this Plan.
SECTION 3
SUPPLEMENTAL RETIREMENT BENEFITS
3.1. SUPPLEMENTAL RETIREMENT PENSION.
3.1.1. WHEN AVAILABLE. Upon the later of:
(i) the Director's Termination of Service, or
(ii) the Director's attainment of age sixty-five (65) years,
the Director who has completed at least sixty (60) months of Director Service
shall receive a Supplemental Retirement Pension. (No benefits shall be payable
under this Plan to, or with respect to, any Director who dies or has a
Termination of Service before completing sixty months of Director Service.)
3.1.2. AMOUNT. The annual amount of the Director's Supplemental
Retirement Pension shall be the amount of the Director's Accrued Benefit
determined as of the date of the Director's Termination of Service divided by
ten (10).
3.1.3. FORM OF PENSION. The form of the Supplemental Retirement
Pension is an annuity payable annually on or about each May 1.
(a) If, at the Director's Termination of Service, the Director
was at least age sixty-seven (67) years or had completed
one hundred forty-four (144) months of Director Service
(i.e., the Director is entitled to a lifetime annuity),
(i) the first payment shall be due on the May 1
coincident with or next following the later of the
Director's Termination of Service, or the Director's
attainment of age sixty-seven (67) years, and
(ii) the last payment to the Director shall be due on the
May 1 immediately preceding the date on which the
Director dies.
(b) In all other cases,
(i) the first payment shall be due on the May 1
coincident with or next following the later of the
Director's Termination of Service or the Director's
attainment of age sixty-five (65) years, and
(ii) the last payment to the Director shall be due on the
date on which the tenth annual payment is made or,
if earlier, on the May 1 immediately preceding the
date on which the Director dies.
Provided, however, if the payment of the Supplemental Retirement Pension is on
account of the disability of the Director, the first payment shall be due on the
May 1 coincident with or next following the Director's Termination of Service.
3.2. CHANGE IN CONTROL. For the purpose of this Section 3, all Directors shall
be deemed to have had a Termination of Service on the date of a Full Change in
Control if they have not previously had a Termination of Service.
Notwithstanding anything to the contrary in this Plan Statement, in the event of
a Full Change in Control, the remaining benefits payable hereunder (whether
payable to Directors who are deemed to have had a Termination of Service,
payable to Directors who have previously had a Termination of Service, without
regard to whether payment of their benefits has begun, or payable with respect
to Directors who have previously died) shall be commuted to their Present Value
as of the date of such Full Change in Control. The commuted benefits shall be
paid in a single lump sum payment within thirty (30) days following the date of
such Full Change in Control.
3.3. FACILITY OF PAYMENT. In case of the legal disability of a Director entitled
to receive any distribution under the Plan, payment shall be made, if the Board
of Directors shall be advised of the existence of such condition:
(a) to the duly appointed guardian, conservator or other legal
representative of such Director, or
(b) to a person or institution entrusted with the care or
maintenance of the incompetent or disabled Director,
provided such person or institution has satisfied the Board
of Directors that the payment will be used for the best
interest and assist in the care of such Director, 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
Director.
Any payment made in accordance with the foregoing provisions of this section
shall constitute a complete discharge of any liability or obligation of FBS and
the Board of Directors.
SECTION 4
DEATH BENEFITS
4.1. DEATH BEFORE BENEFIT COMMENCEMENT.
4.1.1. WHEN AVAILABLE. If, upon the death of a Director who:
(a) has not begun to receive any payment of any supplemental
retirement benefits under this Plan;
(b) has completed sixty (60) months of Director Service;
a death benefit shall be payable to the Director's Beneficiary. (If any benefit
is payable under this Section 4.1, no benefit shall be payable under Section
4.2.)
4.1.2. AMOUNT. The amount of the death benefit payment shall be
the Present Value of an annuity of ten (10) annual payments each payment of
which is equal to one-tenth (1/10) of the Director's Accrued Benefit. The
Accrued Benefit and the Present Value shall be determined as of the date of the
Director's death. The annuity will be deemed to commence on the May 1 coincident
with or next following the Director's death.
4.1.3. FORM OF BENEFIT. The death benefit payable hereunder shall
be paid in a single lump sum payment as soon as administratively practicable
following the Director's death.
4.2. DEATH AFTER BENEFIT COMMENCEMENT. The only death benefits which shall be
payable under the Plan upon the death of a Director after payment of the
Supplemental Retirement Pension has commenced to the Director shall be:
(a) the payment of any unpaid installments of the Supplemental
Retirement Pension to the Director's Beneficiary at the
same times and in the same amount as would have been paid
if the Director had not died; or
(b) if the Director has so elected in writing prior to the date
of his or her Termination of Service, the payment to the
Beneficiary in a single lump sum of the Present Value of
any unpaid installments of the Supplemental Retirement
Pension to the Director's Beneficiary as soon as
administratively practicable after the Director's death.
For this purpose, the number of any unpaid installments of the Supplemental
Retirement Pension and the Present Value of such unpaid installments shall be
determined as of the date of the Director's death. The number of unpaid
installments of the Supplemental Retirement Pension shall never be greater than
ten (10) minus the number of annual installments paid before the Director's
death and shall never be less than zero (0).
4.3. DESIGNATION OF BENEFICIARIES.
4.3.1. RIGHT TO DESIGNATE. Each Director may designate, upon
forms to be furnished by and filed with FBS, one or more primary Beneficiaries
or alternative Beneficiaries to receive all or a specified part of such
Director's benefit in the event of such Director's death. The Director 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 Director and received by FBS during the
Director's lifetime.
4.3.2. FAILURE OF DESIGNATION. If a Director:
(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 Director,
such Director's benefit, or the part thereof as to which such Director'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
Director and (except in the case of surviving issue) in equal shares if there is
more than one member in such class surviving the Director:
Director's surviving spouse
Director's surviving issue per stirpes and not per capita
Director's surviving parents
Director's surviving brothers and sisters
Representative of Director's estate.
4.3.3. DISCLAIMERS BY BENEFICIARIES. A Beneficiary entitled to a
distribution of all or a portion of a deceased Director's 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 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 Director'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 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 FBS after the date of
the Director's death but not later than one hundred eighty (180) days after the
date of the Director's death. A disclaimer shall be irrevocable when delivered
to FBS. A disclaimer shall be considered to be delivered to FBS only when
actually received by FBS. FBS 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
Director 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 5. No other form of attempted disclaimer shall be recognized by FBS.
4.3.4. DEFINITIONS. When used herein and, unless the Director has
otherwise specified in the Director'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 Director.
4.3.5. SPECIAL RULES. Unless the Director has otherwise specified
in the Director'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 Director, it shall
be deemed that the Beneficiary was not living at the time
of the death of the Director.
(b) The automatic Beneficiaries specified in Section 4.3.2 and
the Beneficiaries designated by the Director shall become
fixed at the
time of the Director's death so that, if a Beneficiary
survives the Director 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 Director designates as a Beneficiary the person who
is the Director'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 Director and such person shall
automatically revoke such designation. (The foregoing shall
not prevent the Director from designating a former spouse
as a Beneficiary on a form executed by the Director and
received by FBS after the date of the legal termination of
the marriage between the Director and such former spouse,
and during the Director's lifetime.)
(d) Any designation of a nonspouse Beneficiary by name that is
accompanied by a description of relationship to the
Director shall be given effect without regard to whether
the relationship to the Director exists either then or at
the Director's death.
(e) Any designation of a Beneficiary only by statement of
relationship to the Director shall be effective only to
designate the person or persons standing in such
relationship to the Director at the Director's death.
FBS shall be the sole judge of the content, interpretation and validity of a
purported Beneficiary designation.
4.3.6. NO SPOUSAL RIGHTS. No spouse or surviving spouse of a
Director 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 Director.
SECTION 5
FUNDING OF PLAN
5.1. UNFUNDED AGREEMENT. The obligation of FBS to make payments under this Plan
constitutes only the unsecured (but legally enforceable) promise of FBS to make
such payments. The Director shall have no lien, prior claim or other security
interest in any property of FBS. FBS is not required to establish or maintain
any fund, trust or account 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 FBS. FBS will pay the cost of
this Plan out of its general assets.
5.2. SPENDTHRIFT PROVISION. No Director or Beneficiary shall have any
transmissible interest in any benefit under this Plan nor shall any Director or
Beneficiary have any power to anticipate, alienate, dispose of, pledge or
encumber the same while in the possession or control of FBS, nor shall FBS
recognize any assignment thereof, either in whole or in part, nor shall any
benefit be subject to attachment, garnishment, execution following judgment or
other legal process while in the possession or control of FBS.
The power to designate Beneficiaries to receive the benefit of a Director in the
event of such Director's death shall not permit or be construed to permit such
power or right to be exercised by the Director so as thereby to anticipate,
pledge, mortgage or encumber such Director's benefit or any part thereof, and
any attempt of a Director so to exercise said power in violation of this
provision shall be of no force and effect and shall be disregarded by FBS.
SECTION 6
AMENDMENT AND TERMINATION
FBS reserves the power to amend or terminate the Plan prior to a Full Change in
Control. No amendment of the Plan, however, shall reduce a Director's benefits
earned as of the date of such amendment unless the Director so affected consents
in writing to the amendment. Benefits earned as of the date of an amendment
shall be determined as if the Director had a Termination of Service on that
date. After a Full Change in Control, the Plan cannot be amended or terminated
(as applied to Directors who are Directors on the date of the Full Change in
Control) unless:
(a) all benefits earned by all Directors as of the date of the
Full Change in Control have been paid, or
(b) a majority of the Continuing Directors (as defined in
Section 1.2.3) as of the date of the Full Change in Control
give written consent to such amendment or termination.
The foregoing restrictions and limitations on the ability to amend and terminate
the Plan shall not be effective, however, if, within ten (10) business days
following the
date of the Full Change in Control, a majority of the members of the
Organization Committee of the Board of Directors determines in its sole
discretion that such restrictions and limitations shall not apply with respect
to such Full Change in Control.
SECTION 7
DETERMINATIONS -- RULES AND REGULATIONS
7.1. DETERMINATIONS. FBS shall make such determinations as may be required from
time to time in the administration of the Plan. FBS shall have the 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 Directors 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.
7.2. RULES AND REGULATIONS. Any rule not in conflict or at variance with the
provisions hereof may be adopted by FBS.
7.3. METHOD OF EXECUTING INSTRUMENTS. Information to be supplied or written
notices to be made or consents to be given by FBS pursuant to any provision of
this Plan Statement may be signed in the name of FBS by any officer or director
thereof who has been authorized to make such certification or to give such
notices or consents.
7.4. INFORMATION FURNISHED BY DIRECTORS. FBS shall not be liable or responsible
for any error in the computation of the benefit of a Director resulting from any
misstatement of fact made by the Director, directly or indirectly, to FBS, and
used by it in determining the Director's benefit. FBS shall not be obligated or
required to increase the benefit of such Director which, on discovery of the
misstatement, is found to be understated as a result of such misstatement of the
Director. However, the benefit of any Director which are overstated by reason of
any such misstatement shall be reduced to the amount appropriate in view of the
truth.
SECTION 8
PLAN ADMINISTRATION
8.1. FBS. Except as hereinafter provided, functions generally assigned to FBS
shall be discharged by the Organization Committee of the Board of Directors or
delegated and allocated as provided herein.
8.2. CONFLICT OF INTEREST. If any member of the Board of Directors of FBS to
whom authority has been delegated or redelegated hereunder shall have an benefit
in the Plan, such Director shall have no authority as such Director with respect
to any matter specially affecting such Director's individual interest hereunder
(as distinguished from the interests of all Directors and Beneficiaries or a
broad class of Directors and Beneficiaries), all such authority being reserved
exclusively to the other Directors, to the exclusion of such Director, and such
Director shall act only in such Director's individual capacity in connection
with any such matter.
SECTION 9
DISCLAIMERS
Neither FBS nor any of its officers nor any member of its 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 Director or to any Beneficiary or to any
creditor of a Director or a Beneficiary. Each Director, Beneficiary or other
person entitled at any time to payments hereunder shall look solely to the
assets of FBS for such payments or to the benefit distributed to any Director or
Beneficiary, as the case may be, for such payments. In each case where benefit
shall have been distributed to a former Director 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 Director
or Beneficiary, or such person or persons, as the case may be, shall have no
further right or interest in the other assets of FBS. Neither FBS 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 FBS. FBS 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.