EXHIBIT 10F
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
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
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
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1.2.12. Supplemental Retirement Pension
1.2.13. Termination of Service
1.3. Rules of Interpretation
SECTION 2. ELIGIBILITY.................................................... 5
SECTION 3. SUPPLEMENTAL RETIREMENT BENEFITS............................... 5
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................................................. 7
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
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SECTION 5. FUNDING OF PLAN................................................ 9
5.1. Unfunded Agreement
5.2. Spendthrift Provision
SECTION 6. AMENDMENT AND TERMINATION...................................... 10
SECTION 7. DETERMINATIONS -- RULES AND REGULATIONS........................ 10
7.1. Determinations
7.2. Rules and Regulations
7.3. Method of Executing Instruments
7.4. Information Furnished by Directors
SECTION 8. PLAN ADMINISTRATION............................................ 11
8.1. FBS
8.2. Conflict of Interest
SECTION 9. DISCLAIMERS.................................................... 11
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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 -- any of the following events:
(a) a change in control of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), whether or not FBS is then
subject to such reporting requirement; 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" (as
such term is used in Sections 13(d) and 14(d) of the Exchange
Act) that such person has become the "beneficial owner" (as
defined in Rule 13d-3 promulgated under the Exchange Act),
directly or indirectly, of securities of FBS representing 20% or
more of the combined voting power of FBS's then outstanding
securities; provided, however, that notwithstanding the
foregoing, no Change in
Control shall be deemed to have occurred for purposes of this
Agreement in the event that twenty percent (20%) or more of the
total voting capital stock of FBS then issued and outstanding is
owned by
(i) 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 Common Stock organized, appointed or
established for, or pursuant to the terms of, any such
plan (any such person or entity described in this clause
(i) is referred to herein as a "FBS Entity") or
(ii) Corporate Partners, L.P., Corporate Offshore Partners,
L.P., The State Board of Administration of Florida, their
respective "Affiliates" (including, for this purpose,
their respective limited partners) and/or any "Permitted
Transferee" of such "Persons" (collectively, the
"Investors"), who have acquired or will acquire such stock
at any time pursuant to, in conformity with and as
contemplated by the terms of the fully executed version of
that certain Stock Purchase Agreement and related
documents dated as of May 30, 1990, by FBS with the
Investors (the terms "Affiliates", "Permitted Transferee"
and "Persons" shall have the meanings given to them in the
Stock Purchase Agreement); or
(c) the announcement of a tender offer by any person or entity (other
than an FBS Entity) for 20% or more of FBS's voting capital stock
then issued and outstanding, which tender offer has been approved
by the Board of Governors of the Federal Reserve System and has
not been approved by the Board, a majority of the members of
which are Continuing Directors (as hereinafter defined), and
recommended to the shareholders of FBS; or
(d) the Continuing Directors (as hereinafter defined) cease to
constitute a majority of FBS's Board of Directors; or
(e) the shareholders of FBS approve
(i) any consolidation or merger of FBS in which FBS is not the
continuing or surviving corporation or pursuant to which
shares of FBS stock would be converted into cash,
securities or other property, other than a merger of FBS
in which shareholders immediately prior to the merger have
the same proportionate ownership of stock of the surviving
corporation immediately after the merger;
(ii) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or
substantially all of the assets of FBS; or
(iii) any plan of liquidation or dissolution of FBS; or
(f) the majority of the members of the Organization Committee
determines in its sole and absolute discretion that there has
been a Change in Control of FBS.
For this purpose, "Continuing Director" shall mean any person who is a member of
the Board of Directors of FBS, while such person is a member of the Board of
Directors, who is not an Acquiring Person (as defined below) or an Affiliate or
Associate (as defined below) of an Acquiring Person, or a representative of an
Acquiring Person or of any such Affiliate or Associate, and who
(i) was a member of the Board of Directors on the date of this
Agreement as
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first written above or
(ii) 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 is recommended or approved by a majority
of the Continuing Directors.
For this purpose, "Acquiring Person" shall mean any "person" (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act) who or which, together
with all Affiliates and Associates of such person, is the "beneficial owner" (as
defined in Rule 13d-3 promulgated under the Exchange Act), 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 the Investors
or any FBS Entity; and "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 promulgated under the Exchange
Act. FBS shall determine the date on which a Change in Control has occurred.
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.
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SECOND AMENDMENT-EFFECTIVE JANUARY 1, 1996
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
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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.
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1.2.6. FBS -- FIRST BANK SYSTEM, INC., a Delaware corporation.
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.
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1.2.12. SUPPLEMENTAL RETIREMENT PENSION -- the pension benefit described
in Section 3.1.
1.2.13. 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.
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(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.)
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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).
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SECOND AMENDMENT-EFFECTIVE JANUARY 1, 1996
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.
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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 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 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 Change in Control. The commuted benefits shall be paid in a
single lump sum payment within thirty (30) days following the date of such
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
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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;
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(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).
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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.
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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
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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 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 Change in Control, the Plan cannot be amended or terminated (as
applied to Directors who are Directors on the date of the Change in Control)
unless:
(a) all benefits earned by all Directors as of the date of the 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 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 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 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.
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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.
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