-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VTOhAAv1nhzrp7yfUHwKm17igAe857rqD+WDQs5A71mbUe6wDCS1NpaOwgdNiuBF dd1otpZi3oAzMFMix+cAxw== 0000950005-96-000196.txt : 19960426 0000950005-96-000196.hdr.sgml : 19960426 ACCESSION NUMBER: 0000950005-96-000196 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19960425 EFFECTIVENESS DATE: 19960514 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: WELLS FARGO & CO CENTRAL INDEX KEY: 0000105598 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 132553920 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-02801 FILM NUMBER: 96550327 BUSINESS ADDRESS: STREET 1: 420 MONTGOMERY ST CITY: SAN FRANCISCO STATE: CA ZIP: 94163 BUSINESS PHONE: 4154771000 MAIL ADDRESS: STREET 1: 343 SANSOME ST 3RD FL STREET 2: WELLS FARGO BANK CITY: SAN FRANCISCO STATE: CA ZIP: 94163 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on April , 1996 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------------- WELLS FARGO & COMPANY (Exact name of issuer as specified in its charter) Delaware 13-2553920 (State or other jurisdiction (I.R.S. Employer Identification No.) of incorporation or organization) --------------------------- Wells Fargo & Company 420 Montgomery Street San Francisco, California 94163 (415) 477-1000 (Address, including zip code, and telephone number, including area code, of principal executive offices) --------------------------- THE EMPLOYEE SAVINGS PLAN OF FIRST INTERSTATE BANCORP (Full titles of the plans) --------------------------- Guy Rounsaville, Jr. Executive Vice-President, Chief Counsel and Secretary Wells Fargo & Company 420 Montgomery Street San Francisco, California 94163 (415) 477-1000 (Name, address and telephone number, including area code, of agent for service) --------------------------- This Registration Statement shall become effective immediately upon filing with the Securities and Exchange Commission, and sales of the registered securities will begin as soon as reasonably practicable after such effective date. --------------------------- CALCULATION OF REGISTRATION FEE
================================================================================================================== Proposed Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount of to be to be Price Offering Registration Registered Registered per Share Price Fee - ------------------------------------------------------------------------------------------------------------------- Wells Fargo Common Stock, $5.00 par value(1) 0(2) $ n\a (2) $ n\a (2) $100.00(2) --------- --------- - ------------------------------------------------------------------------------------------------------------------- (1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein. (2) 637,563 shares of Wells Fargo Common Stock are being carried forward pursuant to Rule 429 under the Securities Act of 1933 from Registration Statement No. 33-64575, as discussed below on this facing page. The amount of filing fee to register such securities is $48,426.67. The registration fee shown is the minimum fee required under Section 6 of the Securities Act of 1933.
================================================================================ Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus under this Registration Statement constitutes a combined Prospectus relating to 637,963 shares of Wells Fargo Common Stock, unsold as of April 17, 1996, registered pursuant to Registration Statement No. 33-64575 previously filed by the Registrant on Form S-4, as well as an indeterminate amount of plan interests registered pursuant to this Registration Statement. As a result, this Registration Statement does not register any additional shares of Wells Fargo Common Stock, but registers an indeterminate number of plan interests. PART I Information Required in the Section 10(a) Prospectus Item 1. Plan Information.* Item 2. Registrant Information and Employee Plan Annual Information.* * Information required by Part I to be contained in the Section 10(a) prospectus is omitted from the Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the "1933 Act") and the Note to Part I of Form S-8. PART II Information Required in the Registration Statement Item 3. Incorporation of Certain Documents by Reference Wells Fargo & Company (the "Registrant") hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the "Commission"): (a) The Registrant's Annual Report filed with the Commission on Form 10-K, File No. 01-06214, for the fiscal year ended December 31, 1995 excluding the information contained therein described in Item 402(a)(8) of the Commission's Regulation S-K; (b) The Registrant's Current Reports filed with the Commission on Form 8-K, File No. 01-06214, on January 16, January 24, January 31, February 29, April 1, April 4, April 10 and April 16, 1996; (c) The description of Common Stock contained in the Registrant's Registration Statement on Form 8-B, File No. 01-06214, filed with the Commission on June 17, 1987, and any amendment or report filed for the purpose of updating such description filed after the date of this Registration Statement; (d) The Employee Savings Plan's latest Annual Report on Form 11-K, File No. 33-36478, filed with the Commission by First Interstate Bancorp on June 28, 1995; and (e) First Interstate Bancorp's Annual Report filed with the Commission on Form 10-K, File No. 61-06214, for the fiscal year ended December 31, 1995 (excluding information contained therein described in Item 402(a)(8) of the Commission's Regulation 5-K). All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act") after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. Item 4. Description of Capital Stock Inapplicable. II-1. Item 5. Interests of Named Experts and Counsel Inapplicable. Item 6. Indemnification of Directors and Officers As permitted by Section 102(b)(7) of the Delaware General Corporation Law ("DCGL"), Article Fifth of the Registrant's Restated Certificate of Incorporation eliminates the monetary liability of a director to the corporation or its stockholders for breach of fiduciary duty as a director, with the following exceptions, as required by Delaware law: (i) breach of the director's duty of loyalty to the corporation or its stockholder; (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) payment of unlawful dividends or the making of unlawful stock purchases or redemptions; or (iv) any transaction from which the director derived an improper personal benefit. In addition, under Section 145 of the DGCL, a corporation may indemnify a director, officer, employee or agent of the corporation against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with any threatened, pending or completed Proceeding (other than an action by or in the right of the corporation) if he acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. In the case of an action brought by or in the right of the corporation, the corporation may indemnify a director, officer, employee or agent of the corporation against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of any threatened, pending or completed action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that a court determines upon application that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper. Article IV of the Registrant's Bylaws provides for indemnification of its directors, officers, employees, and other agents to the fullest extent permitted by the DGCL. Item 7. Exemption from Registration Claimed Inapplicable. Item 8. Exhibits Exhibit Number Exhibit - ---------------- ------- 4 Description of the Registrant's Common Stock (Incorporated by reference to the Registrant's Registration Statement on Form 8-B, File No. 01-06214, filed with the Commission on June 17, 1987, and any amendment or report filed for the purpose of updating such description filed after the date of this Registration Statement.) 5 Opinion of Brobeck, Phleger & Harrison LLP 23.1 Consent of KMPG Peat Marwick LLP 23.2 Consent of Ernst & Young LLP 23.3 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5 24 Power of Attorney (Reference to page II-4 of this Registration Statement) 99.1 1994 Restatement of the Employee Savings Plan of First Interstate Bancorp 99.2 Amendment to the Employee Savings Plan of First Interstate Bancorp - ------------------------ II-2. The undersigned Registrant hereby undertakes that it will submit the Employee Savings Plan of First Interstate Bancorp and any amendments thereto, to the Internal Revenue Service ("IRS") in a timely manner and has or will make all changes required by the IRS in order to qualify the plan under Internal Revenue Code Section 401. Item 9. Undertakings. A. The undersigned Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement (i) to include any prospectus required by Section 10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement, and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall not apply if the information required by those clauses to be included in a post-effective amendment is contained in the periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference into this Registration Statement; (2) that, for the purpose of determining any liability under the 1933 Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated by reference into this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers or controlling persons of the Registrant pursuant to the provisions and agreements summarized in Item 6 above or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue. II-3. SIGNATURES Registrant. Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Francisco, State of California, on this day of April, 1996. WELLS FARGO & COMPANY By /s/ Rodney L. Jacobs ------------------------------------------ Rodney L. Jacobs Vice Chairman and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That the undersigned officers and directors of WELLS FARGO & COMPANY, a Delaware corporation, do hereby constitute and appoint Paul Hazen, William F. Zuendt, Rodney L. Jacobs and any one of them, the lawful attorneys and agents or attorney and agent, with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms all that said attorneys and agents or any one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts. Pursuant to the requirements of the 1933 Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signatures Title Date - ---------- ------ ----- /s/ Paul Hazen - -------------------------------------------- Chairman of the Board, April 16, 1996 Paul Hazen Chief Executive Officer and Director (Principal Executive Officer) /s/ William F. Zuendt - -------------------------------------------- President and Director April 16, 1996 William F. Zuendt /s/ Rodney L. Jacobs - -------------------------------------------- Vice Chairman and Chief April 16, 1996 Rodney L. Jacobs Financial Officer (Principal Financial Officer) II-4. Signatures Title Date - ---------- ----- ---- /s/ Frank A. Moeslein - -------------------------------------------- Executive Vice President April 16, 1996 Frank A. Moeslein and Controller (Principal Accounting Officer) /s/ H. Jesse Arnelle - -------------------------------------------- Director April 16, 1996 H. Jesse Arnelle /s/ Edward M. Carson - -------------------------------------------- Director April 16, 1996 Edward M. Carson /s/ William S. Davila - -------------------------------------------- Director April 16, 1996 William S. Davila /s/ Rayburn S. Dezember - -------------------------------------------- Director April 16, 1996 Rayburn S. Dezember /s/ Myron Du Bain - -------------------------------------------- Director April 16, 1996 Myron Du Bain - -------------------------------------------- Director April 16, 1996 Don C. Frisbee /s/ Robert K. Jaedicke - -------------------------------------------- Director April 16, 1996 Robert K. Jaedicke - -------------------------------------------- Director April 16, 1996 Thomas L. Lee /s/ William F. Miller - -------------------------------------------- Director April 16, 1996 William F. Miller /s/ Ellen M. Newman - -------------------------------------------- Director April 16, 1996 Ellen M. Newman II-5. /s/ Philip J. Quigley - -------------------------------------------- Director April 16, 1996 Philip J. Quigley /s/ Carl E. Reichardt - -------------------------------------------- Director April 16, 1996 Carl E. Reichardt /s/ Donald B. Rice - -------------------------------------------- Director April 16, 1996 Donald B. Rice /s/ Richard J. Stegemeier - -------------------------------------------- Director April 16, 1996 Richard J. Stegemeier /s/ Susan G. Swenson - -------------------------------------------- Director April 16, 1996 Susan G. Swenson /s/ Daniel M. Tellep - -------------------------------------------- Director April 16, 1996 Daniel M. Tellep /s/ Chang-Lin Tien - -------------------------------------------- Director April 16, 1996 Chang-Lin Tien - -------------------------------------------- Director April 16, 1996 John A. Young
Plan. Pursuant to the requirements of the Securities Act of 1933, as amended, the 1994 Restatement of the Employee Savings Plan of First Interstate Bancorp has caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Francisco, State of California, on this day of April, 1996. EMPLOYEE SAVINGS PLAN OF FIRST INTERSTATE BANCORP By: /s/ Patricia R. Callahan ----------------------------------------------- Patricia R. Callahan Executive Vice President and Personnel Director Wells Fargo & Company II-6. SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 EXHIBITS TO FORM S-8 UNDER SECURITIES ACT OF 1933 WELLS FARGO & COMPANY II-7. EXHIBIT INDEX Exhibit Number Exhibit - -------------- ------- 4 Description of the Registrant's Common Stock (Incorporated by reference to the Registrant's Registration Statement on Form 8-B, File No. 01-06214, filed with the Commission on June 17, 1987.) 5 Opinion of Brobeck, Phleger & Harrison LLP 23.1 Consent of KMPG Peat Marwick LLP 23.2 Consent of Ernst & Young LLP 23.3 Consent of Brobeck, Phleger & Harrison LLP (included in Exhibit 5) 24 Power of Attorney (Reference is made to page II-4 of this Registration Statement) 99.1 1994 Restatement of the Employee Savings Plan of First Interstate Bancorp 99.2 Amendment to the 1994 Restatement of the Employee Savings Plan EX-5 2 OPINION OF BROBECK, PHLEGER & HARRISON LLP EXHIBIT 5 Opinion of Brobeck, Phleger & Harrison LLP [Letterhead of Brobeck Phleger & Harrison] April 18, 1996 Wells Fargo & Company 420 Montgomery Street San Francisco, California 94163 Re: Form S-8 Registration Statement Ladies and Gentlemen: We refer to your Form S-8 Registration Statement (the "Registration Statement") under the Securities Act of 1933, as amended, regarding the issuance of shares of Common Stock under the Employee Savings Plan of First Interstate Bancorp. and plan interests therein, assumed by the Wells Fargo & Company (the "Company") in connection with the merger of First Interstate into the Company. We advise you that, in our opinion, when such shares of Common Stock have been issued and sold pursuant to the applicable provisions of the Company's Plan and in accordance with the Registration Statement, such shares will be validly issued, fully paid and nonassessable shares of the Company's Common Stock. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, BROBECK, PHLEGER & HARRISON EX-23.1 3 CONSENT OF KMPG PEAT MARWICK LLP EXHIBIT 23.1 Consent of KMPG Peat Marwick LLP The Board of Directors Wells Fargo & Company: We consent to the incorporation by reference in the Registration Statement on Form S-8 (No. 33- ) of Wells Fargo & Company of our report dated January 16, 1996 except as to Note 15, which is as of February 27, 1996, incorporated by reference in the Annual Report on Form 10K of Wells Fargo & Company for the year ended December 31, 1995. KPMG Peat Marwick LLP San Francisco, CA April 24, 1996 EX-23.2 4 CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.2 Consent of Ernst & Young LLP Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement (Form S-8) of Wells Fargo and Company pertaining to The Employee Savings Plan of First Interstate Bancorp and its Affiliates of our report dated January 23, 1996 with respect to the consolidated financial statements of First Interstate Bancorp incorporated by reference in its Annual Report (Form 10-K) for the year ended December 31, 1995 and of our report dated June 26, 1995 with respect to the financial statements of The Employee Savings Plan of First Interstate Bancorp and its Affiliates included in its Annual Report (Form 11-K) for the year ended December 31, 1994 filed with the Securities and Exchange Commission. ERNST & YOUNG LLP Los Angeles, California March 25, 1996 EX-23.3 5 CONSENT OF BROBECK, PHLEGER & HARRISON LLP EXHIBIT 23.3 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5 EX-99.1 6 1994 RESTATEMENT OF THE EMPLOYEE SAVINGS PLAN 1994 RESTATEMENT OF THE EMPLOYEE SAVINGS PLAN OF FIRST INTERSTATE BANCORP TABLE OF CONTENTS EMPLOYEE SAVINGS PLAN Page ARTICLE I PLAN HISTORY AND FEATURES...................... 1 ARTICLE II DEFINITIONS.................................... 4 2.1 Account........................................ 4 2.2 Active Participant............................. 5 2.3 After-Tax Contributions........................ 5 2.4 After-Tax Contributions Account................ 5 2.5 Before-Tax Contributions....................... 5 2.6 Before-Tax Contributions Account............... 5 2.7 Beneficiary.................................... 6 2.8 Board of Directors............................. 6 2.9 Break in Service............................... 6 2.10 Code........................................... 6 2.11 Company or Companies........................... 6 2.12 Company Contributions Account.................. 7 2.13 Company Stock.................................. 8 2.14 Compensation................................... 8 2.15 Disability..................................... 10 2.16 Employee....................................... 10 2.17 Employment..................................... 11 2.18 ERISA.......................................... 11 2.19 Investment Fund................................ 11 2.20 Participant.................................... 11 2.21 Plan........................................... 12 2.22 Plan Administrator............................. 12 2.23 Plan Rules..................................... 12 2.24 Plan Year...................................... 12 2.25 Retirement..................................... 12 2.26 Rollover Account............................... 12 2.27 Savings Plan................................... 12 2.28 Service........................................ 13 2.29 Trust or Trust Fund............................ 15 2.30 Trust Agreement................................ 15 2.31 Trustee........................................ 15 2.32 Vested......................................... 15 ARTICLE III PARTICIPATION.................................. 15 3.1 Requirements for Participation................. 15 3.2 Former Employees............................... 17 ARTICLE IV BEFORE-TAX CONTRIBUTIONS AND AFTER-TAX CONTRIBUTIONS.................................. 17 4.1 Before-Tax Contributions....................... 17 i. Page 4.2 After-Tax Contributions......................... 19 4.3 Matched Contributions........................... 20 4.4 Unmatched Contributions......................... 20 4.5 Commencement, Change, Suspension and Resumption of After-Tax Contributions and Before-Tax Contributions........................ 21 4.6 Withholding and Crediting of Before-Tax Contributions and After-Tax Contributions....... 22 4.7 Special Anti-Discrimination Limits.............. 23 4.8 Rollover Contributions.......................... 30 ARTICLE V MATCHING CONTRIBUTIONS.......................... 31 5.1 Matching Contributions.......................... 31 5.2 Funding of Company Match........................ 32 ARTICLE VI VESTING......................................... 33 6.1 Basic Vesting Rules............................. 33 6.2 Accelerated Vesting............................. 34 6.3 Forfeitures After Resignation or Discharge...... 34 6.4 Vesting after Distributions or Withdrawals from Partially Vested Accounts.................. 36 6.5 Special Vesting Rule Under Voluntary Early Retirement Plan................................. 37 ARTICLE VII BENEFITS UPON TERMINATION OF EMPLOYMENT OR DISABILITY...................................... 37 7.1 Distribution of Accounts........................ 37 7.2 Subsequent Allocations.......................... 39 7.3 Suspension of Benefits.......................... 40 7.4 Immediate Payment Not Required Before Age 70-1/2.......................................... 40 7.5 Joint and Survivor Annuity Requirements......... 41 7.6 Benefit Distribution Requirements............... 41 7.7 Special Distribution Rule Under Voluntary Early Retirement Plan........................... 45 ARTICLE VIII BENEFITS UPON DEATH............................. 45 8.1 Designation of Beneficiary...................... 45 8.2 Distribution on Death........................... 46 8.3 Election of Other Payment Methods............... 47 8.4 Time of Distribution............................ 49 ARTICLE IX WITHDRAWALS AND LOANS........................... 49 9.1 General......................................... 49 9.2 Withdrawals from After-Tax Contributions Accounts........................................ 50 9.3 Withdrawals from Company Contributions Accounts........................................ 50 ii. Page 9.4 Hardship Withdrawals from Before-Tax Contri- bution Accounts and the Matched Portion of After-Tax Contribution Accounts................. 52 9.5 Withdrawal Procedures and Penalties............. 53 9.6 Loans to Participants........................... 55 ARTICLE X INVESTMENT FUNDS................................ 58 10.1 Investment Choices.............................. 58 10.2 Special Accounting Rules for the Stock Fund..... 60 10.3 Voting, Tendering or Retaining Company Stock.... 63 10.4 Allocation of Gains or Losses on Investment Funds........................................... 68 10.5 Earnings Factor................................. 69 10.6 Value of Investment Funds....................... 69 10.7 Account Values, Basis and Conversion of Company Stock to Cash........................... 71 ARTICLE XI ANNUAL ADDITION LIMITS.......................... 72 11.1 Limitation on Allocations....................... 72 11.2 Combined Defined Contribution/Defined Benefit Plan Limit...................................... 75 ARTICLE XII ADMINISTRATION OF THE PLAN...................... 76 12.1 Duties of the Plan Administrator................ 76 12.2 Investments and Funding Policy.................. 78 12.3 Delegation of Administrative Responsibility..... 78 12.4 Compensation, Expenses and Indemnity............ 79 12.5 Claims Procedure................................ 80 12.6 Effect of Plan Administrator Action............. 83 12.7 Appointment of Committees....................... 84 ARTICLE XIII AMENDMENT AND TERMINATION OF THE PLAN........... 86 13.1 Amendments...................................... 86 13.2 Termination of Plan; Discontinuance of Contributions................................... 88 ARTICLE XIV MISCELLANEOUS PROVISIONS........................ 91 14.1 Payments........................................ 91 14.2 Consolidation or Merger of Companies............ 93 14.3 Adoption of Plan to Cover Other Companies, Facilities or Groups............................ 93 14.4 Related Companies............................... 94 14.5 Eligibility Determinations for Part-Time Employees....................................... 95 14.6 Termination of Employment....................... 98 14.7 Corrective Contributions........................100 14.8 Plan Mergers and Spinoffs.......................101 14.9 Limitation on Rights of Employees...............101 14.10 Duty to Provide Data............................102 iii. Page 14.11 Service of Process...............................103 14.12 Governing Law....................................103 14.13 Top Heavy Rules..................................104 14.14 Division of Benefits by Domestic Relations Orders...........................................109 14.15 Rollovers to Other Plans.........................112 14.16 Family Aggregation Rules.........................114 14.17 Genders and Plurals..............................116 14.18 Titles...........................................116 14.19 References.......................................116 iv. 1994 RESTATEMENT OF THE EMPLOYEE SAVINGS PLAN OF FIRST INTERSTATE BANCORP ARTICLE I PLAN HISTORY AND FEATURES First Interstate Bancorp originally adopted this Employee Savings Plan, effective July 1, 1979. At that time, First Interstate Bancorp was known as "Western Bancorporation." Since its adoption and prior to this Restatement, the Plan has been amended nine times: on February 22, 1983; August 8, 1983; November 8, 1983; June 27, 1984; November 12, 1984; November 18, 1985; November 16, 1987; February 21, 1989; and November 20, 1989. The June 27, 1984 amendment restated the Plan in its entirety and converted it to a cash or deferred savings plan (the "1985 Restatement"). Effective January 1, 1983, the Companies adopted a tax credit employee stock ownership plan (the "PAYSOP"), which was called "The Employee Stock Ownership Plan of First Interstate Bancorp and Its Affiliates." The PAYSOP was incorporated into the 1985 Restatement and remained set forth in its entirety in the Savings Plan document. However, the PAYSOP remained a separate stock bonus plan. The First Amendment to the 1985 Restatement, adopted November 12, 1984, and effective January 1, 1985, restated the 1. Plan in its entirety and continued it in existence. The Second Amendment, adopted November 18, 1985, and effective January 1, 1986, added an additional investment option to the Plan. The Third Amendment, adopted November 16, 1987, and effective January 1, 1987, terminated the PAYSOP as of September 30, 1988, and set forth the required Tax Reform Act of 1986 amendments applicable to the terminated PAYSOP. The Fourth Amendment, adopted February 21, 1989, and effective January 1, 1989, adopted IRS Model Amendment No. 1 set forth in IRS Notice 88-131. The Ninth Amendment (the "1989 Restatement"), adopted November 20, 1989 and effective January 1, 1989 (and such earlier dates as may have been required to comply with applicable law) restated the Plan in its entirety and continued it in existence, and conformed the Savings Plan to Internal Revenue Code provisions enacted by the Tax Reform Act of 1986 and subsequent legislation. This Tenth Amendment (the "1994 Restatement"), effective January l, 1993 (and such earlier dates as may be required to comply with applicable law), restates the Plan in its entirety and continues it in existence, and conforms it to final Treasury Regulations issued pursuant to applicable provisions of the Internal Revenue Code as amended by the Tax Reform Act (of 1986, to the Uniform Compensation Amendments Act of 1992 and to the Revenue Reconciliation Act of 1993. The Savings Plan is a cash or deferred profit-sharing plan which is intended to qualify under applicable provisions of 2. the Internal Revenue Code and state law. Domestic, non-bargaining unit Employees of the Companies which have adopted the Plan become Participants after completing a year of Service. Each Participant is entitled to make Before-Tax Contributions and After-Tax Contributions to the Plan. Before-Tax Contributions are Company contributions to the cash or deferred portion of this Plan made pursuant to a salary reduction agreement between each Participant and the Company which employs the Participant. AfterTax Contributions are non-deductible contributions made by Participants. On a monthly basis, the Companies match the first six percent of Before-Tax Contributions or After-Tax Contributions by a Participant at a fifty percent matching rate. All contributions are credited to separate Accounts for each Participant and are held under the Trust Agreement pursuant to the Savings Plan. Matching contributions are normally invested in Company Stock, but Participants have the right to direct how their contributions are invested by choosing among a number of investment options. Before-Tax Contributions and After-Tax Contributions are fully Vested at all times. Company matching contributions, however, normally become fully vested under a graded vesting schedule after forty-eight months of contributions to the Savings Plan or, if earlier, after five years of Service with the Companies. Vested Accounts are normally distributed in a lump sum upon termination of Employment for any reason. However, a 3. Participant may defer distribution until age 70-1/2, if a Participant has an account, of more than $3500. Upon an Employee's Retirement, Disability or death, installment distributions are also available. Hardship withdrawals under limited circumstances are permitted prior to the termination of Employment. ARTICLE II DEFINITIONS The following terms, when capitalized, shall have the meaning specified below unless the context clearly indicates to the contrary. 2.1 "Account" shall mean a Participant's After-Tax Contributions Account, Before-Tax Contributions Account, and Company Contributions Account, collectively or singly as the context requires. Accounts shall be credited with contributions, credited or debited with investment gains or losses, debited for distributions and expenses charged to the Plan and commingled for investment purposes, as provided elsewhere in the Plan. The Plan Administrator may create subaccounts for administrative purposes (for example, the Plan Administrator may divide each Participant's Before-Tax Contributions Account into Matched and Unmatched Before-Tax Contributions Accounts to hold Before-Tax Contributions which are matched by the Companies and unmatched Before-Tax Contributions, respectively). 4. 2.2 "Active Participant" shall mean a Participant who, at the time in question, is employed in a position covered by the Plan (see Section 3.1(b)). 2.3 "After-Tax Contributions" shall mean a Participant's non-deductible personal contributions to the Plan made in accordance with Section 4.2. After-Tax Contributions are not Before-Tax Contributions, i.e., deferrals. A Participant's After-Tax Contributions shall be credited to his or her After-Tax Contributions Account, which shall be fully Vested at all times. 2.4 "After-Tax Contributions Account" shall mean the fully Vested account of a Participant to which his or her AfterTax Contributions under Article IV are credited, together with the gains and losses thereon. 2.5 "Before-Tax Contributions" shall mean an amount contributed to this Plan by a Company in lieu of being paid to a Participant as salary or wages. Before-Tax Contributions shall be made under salary reduction arrangements between each Participant and his or her Company. Article IV contains the provisions under which Before-Tax Contributions may be made. All Before-Tax Contributions constitute Company contributions, not Employee contributions. A Participant's Before-Tax Contributions shall be credited to his or her Before-Tax Contributions Account, which shall be fully Vested at all times. 2.6 Before-Tax Contributions Account" shall mean the fully Vested account of a Participant to which his or her Before- 5. Tax Contributions under Article IV are credited, together with the gains and losses thereon. 2.7 "Beneficiary" shall mean a person or entity entitled under Article VIII to receive a Participant's Account upon his or her death. 2.8 "Board of Directors" shall mean the Board of Directors of First Interstate Bancorp acting as a whole or through its Executive or Compensation Committee. 2.9 "Break in Service" shall mean a period of nonemployment which causes a former Employee to lose credits under this Plan. A former Employee incurs a Break in Service upon the completion of each 365 consecutive day period during which the individual is not an Employee. This period shall commence on the day following the last day on which the individual was an Employee. See Section 14.6 for special rules relating to maternity and paternity absences. 2.10 "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time. 2.11 "Company" or "Companies" shall mean: (a) Adopting Companies. Employers that have adopted the Plan (i.e., First Interstate Bancorp, all employers who have adopted the Plan (as listed in an exhibit to or incorporated by references in the Form F.R. Y-6 most recently filed with the Federal Reserve System by First Interstate Bancorp), any employer which subsequently adopts the Plan as a whole or as to one or more divisions in accordance with Sec- 6. tion 14.3, any predecessor to a Company and any successor to a Company which continues the Plan under Section 14.2); and (b) Non-Adopting Companies. Employers that have not adopted the Plan but which are related to the adopting Companies by ownership, as determined under Section 14.4 (generally subsidiaries at least eighty percent owned by First Interstate Bancorp, directly or indirectly). All employees of the adopting and non-adopting Companies shall be treated as employed by a single employer for all Plan purposes, including Service crediting, except as noted in this Section. No one shall become a Participant while employed by a non-adopting Company and a Participant shall cease to be an Active Participant if he or she transfers to a non-adopting Company (unless he or she is simultaneously employed by an adopting Company). Compensation paid to Employees by non-adopting Companies shall be ignored in determining Compensation for contribution purposes under this Plan, but such amounts shall be taken into account as "earnings" under Article XI for purposes of determining the maximum annual addition to a Participant's Account. The Companies shall act through the Plan Administrator, except as otherwise provided in this Plan. 2.12 "Company Contributions Account" shall mean the account of each Participant to which Company matching contributions, forfeitures and the gains and losses thereon are credited or debited. 7. 2.13 "Company Stock" shall mean the common stock, $2.00 par value, of First Interstate Bancorp. 2.14 "Compensation" shall mean an Employee's cash basic salary or straight-time wages paid by the Companies for the payroll period in question. For all purposes (other than applying the limits of Code Section 415 as described in Article XI), an Employee's Compensation in Plan Years beginning before 1994 in excess of $200,000, or in Plan Years beginning after 1993 in excess of $150,000 (or such other amount prescribed pursuant to Code Section 401(a)(17)) shall be ignored. The following special rules shall be applied in determining an Employee's compensation: (a) Payroll periods and paydays shall be established by the Company which employs the Employee. (b) Compensation shall only include amounts paid by a Company which has adopted the Plan for services rendered by the individual as an Employee while employed in a position covered by this Plan (see Article III), whether or not such amounts were earned before the individual became a Participant. (c) If the Plan Administrator determines that commissions are being paid in lieu of amounts which would otherwise be treated as Compensation, the commissions paid in lieu of Compensation shall be treated as Compensation. (d) Compensation shall be determined before reduction for an Employee's After-Tax Contributions or Before-Tax 8. Contributions to this Plan, before statutory or other payroll deductions and before elective welfare plan contributions. To the extent provided by Plan Rule, Compensation shall be determined before reductions made in connection with the operation of incentive bonus programs. (e) Except as provided in subsection (c) or (d), Compensation shall not include any of the following: (i) bonuses, overtime, incentive pay, or commissions; (ii) non-taxable or non-cash amounts; (iii) severance benefits other than salary continuation; (iv) retirement benefits or contributions; (v) pay in lieu of vacations; and (vi) any other special payments which are not part of cash basic salary or straight-time wages, such as insurance benefits or pay for temporary employment. (f) Even though "Compensation" includes Before- Tax Contributions and contributions to welfare plans which reduce taxable pay, such amounts shall not be taken into account in determining an Employee's maximum allowable annual addition under Article XI, and the maximum deductible contributions allowable to the Companies. (g) Except as otherwise determined by the Plan Administrator or provided by Plan Rule, all forms of individual salary reduction arrangements or group salary deferral plans not 9. generally available to all Employees and not described in subsections (a) through (f) shall be excluded from the definition of Compensation. 2.15 "Disability" shall mean a Participant's permanent inability to discharge his or her assigned duties as a result of mental or physical disease or condition. A Participant shall be considered disabled on the date as of which he or she is determined to have become disabled within the meaning of Section 216(i)(1) of the Social Security Act. The Plan Administrator may, by Plan Rule, adopt a more liberal definition of "Disability." When a Participant suffers a Disability while an Employee, the Participant's Company Contributions Account shall become fully Vested and the Participant shall be entitled to a distribution of his or her Account whether or not his or her Employment has technically ended. 2.16 "Employee" shall mean an individual who renders services to the Companies as a common law employee or officer (i.e., a person whose wages from the Companies are subject to federal income tax withholding). A person rendering services to a Company purportedly as (1) an independent contractor or (2) the employee of a company providing services to the Company is not an Employee before the Company has acknowledged that it must withhold federal income taxes from his or her pay. To the extent required by Code Section 414(n), a "leased" worker shall be treated as an Employee but shall not be eligible to participate actively in this Plan. To the extent required by Code Sec- 10. tion 414(o), individuals shall be treated as Employees, but shall not be eligible to participate actively in this Plan. 2.17 "Employment" shall mean the time during which an individual is an Employee. Employment shall commence on the day the individual first performs services for a Company as an Employee and shall terminate on the day such services cease, as determined under Section 14.6. See Section 14.6 for special rules relating to maternity and paternity absences. 2.18 "ERISA" shall mean the Employee Retirement Income Security Act of 1974. 2.19 "Investment Fund" shall mean a segregated investment fund in which Accounts may be invested, as provided in Section 10.1. The Plan Administrator may create or terminate Investment Funds or modify their nature. As of January 1, 1989, the Investment Funds were (a) the Indexed Equity Fund, (b) the Fixed Income Fund, (c) the Guaranteed Income Fund, (d) the Global Equity Fund, (e) the Managed Investment Fund, and (f) the First Interstate Stock Fund. These Investment Funds are more fully described in Section 1.04 of the Trust Agreement. Special rules pertaining to the Stock Fund are set forth in Article X. 2.20 "Participant" shall mean an Employee who is included in the Plan pursuant to Article III. A person shall 11. cease to be a Participant when he or she ceases to be an Employee, as provided in Article III or Section 14.6. 2.21 "Plan" shall mean this document and the Trust Agreement. 2.22 "Plan Administrator" shall mean First Interstate Bancorp, acting through its Chairman of the Board, his or her delegate or the Administrative Committee appointed in accordance with Section 12.7. The Plan Administrator is the Plan's "named fiduciary" within the meaning of Section 402(a)(2) of ERISA. 2.23 "Plan Rules" shall mean rules adopted by the Plan Administrator in accordance with Section 12.1(f) for the administration, interpretation, or application of the Plan. 2.24 "Plan Year" shall mean the fiscal year of the Plan, which is presently the calendar year. The Plan Year is the Plan's limitation year for purposes of Code Section 415. 2.25 "Retirement" shall mean a Participant's termination of Employment on or after his or her sixty-fifth birthday or, if earlier, on or after his or her attainment of age fifty-five and the completion of ten years of Service (including years of Service prior to July 1, 1979). 2.26 "Rollover Account" shall mean the account of a Participant to which his or her rollover contribution (if any) made pursuant to Section 4.8 and the gains and losses thereon are credited. A Participant's Rollover Account shall be fully Vested at all times. 2.27 "Savings Plan" shall mean this Plan. 12. 2.28 "Service" shall mean an Employee's period of Employment. Service is used to determine whether a Participant is eligible for the Plan, whether his or her Company Contributions Account is fully Vested and whether the Participant has qualified for Retirement. The Service requirement for participation is in Article III; the Service requirement for vesting is in Article VI; the Service requirement for Retirement is in Section 2.25. Service shall be calculated under the following elapsed time rules, except as otherwise provided in Section 14.5 with respect to calculations of Service for eligibility purposes as to part-time Employees. (a) Service shall be measured in days. Service shall commence with the first day on which an individual performs or resumes performing services for a Company as an Employee. Except as provided in subsection (b), an Employee's Service shall thereafter end on the day on which his or her Employment ends, as determined under Section 14.6. An Employee shall be credited with one year of Service for each 365 days in his or her period or periods of Service. Fractional years shall be ignored. Section 14.6 contains rules relating to maternity and paternity absences. (b) No more than 365 days of Service will be credited for any continuous period during which an individual is an Employee but performs no duties as an Employee (except as required by law with respect to military leaves and maternity and paternity absences (see Section 14.6)). If an individual's 13. Employment terminates but it resumes within 365 days (i.e., before he or she incurs a Break in Service), the period between the termination and resumption will be included in his or her period of Service. If an individual was on a leave of absence (or otherwise not actively performing duties as an Employee) when his or her Employment terminated, the maximum period of Service credited under the two preceding sentences shall be 365 days (except as required by law with respect to military leaves and maternity and paternity absences). An Employee on a military leave who fails to exercise his or her reemployment rights shall be credited with no more than 365 days of Service for such leave. (c) All of an Employee's periods of Service shall be aggregated, except that a former Employee's prior Service shall be cancelled if he or she has a parity break before rehire. A former Employee shall suffer a parity break if the individual did not have a Vested Before-Tax Contributions Account or Company Contributions Account under this Plan when his or her Employment terminated, the individual thereafter had five consecutive Breaks in Service (one Break in Service in the case of a person who completed a parity break prior to January 1, 1985) and the number of consecutive days from the individual's termination of Employment to his or her subsequent rehire equals or exceeds the individual's days of Service then taken into account under this Section. (d) Service with an employer before its acquisition by First Interstate Bancorp or an affiliate shall be 14. recognized to the extent provided in Schedule A to this Plan or in relevant acquisition agreements or corporate resolutions. Unless Schedule A or such agreements or resolutions specifically provide for recognition of service in accordance with specified seniority crediting rules of the predecessor employer, the amount of Service recognized shall be determined with the rules of this Section. (e) If this Plan is successor to another qualified plan (e.g., a plan which was merged into this Plan), all service recognized under the prior plan shall be recognized under this Plan. 2.29 "Trust" or "Trust Fund" shall mean the fund established under one or more Trust Agreements pursuant to the Plan. 2.30 "Trust Agreement" shall mean a trust agreement entered into for the purpose of investing and administering the Trust Fund. Each Trust Agreement is part of this Plan. 2.31 "Trustee" shall mean the trustee appointed by the Plan Administrator under a Trust Agreement. 2.32 "Vested" shall mean non-forfeitable. ARTICLE III PARTICIPATION 3.1 Requirements for Participation (a) The first day of each calendar month shall be an entry date. An Employee shall become a Participant on the 15. first entry date on which he or she meets all of the following requirements: (i) the Employee is then credited with one year of Service (see Section 2.28 and Section 14.5 with respect to part-time Employees); (ii) the Employee is employed by a Company which has adopted the Plan (see Section 2.11); (iii) the Employee is not a member of a bargaining unit which is covered by a collective-bargaining agreement (unless the agreement provides for his or her participation in this Plan); and (iv) the Employee is on a Company's United States payroll. (b) A Participant shall be an Active Participant (i.e., eligible to make After-Tax Contributions and Before-Tax Contributions) only while employed in a position covered by the Plan under subsection (a)(ii), (a)(iii) or (a)(iv). If an Active Participant transfers to any position with the Companies which is not covered by the Plan, he or she shall cease to be an Active Participant. The individual will again become an Active Participant when he or she returns to a position covered by the Plan. (c) A Participant shall cease to be a Participant when his or her Employment terminates (see Section 14.6). The period between a non-eligible Employee's termination and resumption of Employment shall be counted as 16. Service only to the extent provided in Section 2.28 (which generally requires absences of less than one year to be counted as Service). In the case of a non-eligible Employee who is a part-time Employee to whom Section 14.5 applies, his or her years of Service shall continue to be calculated with reference to successive twelve-month periods commencing on the date the Employee was first entitled to be credited with an hour of Service following his or her original date of Employment (unless a shift to the Plan Year occurred under Section 14.5). 3.2 Former Employees (a) A rehired Employee shall become a Participant on the first day of the calendar month on which he or she meets the requirements of subsection 3.1(a). Prior Service of a former Employee rehired after July 1, 1984 shall be cancelled if the individual had a "parity break" as defined in Section 2.28(c). If a rehired Employee's Service is cancelled, he or she must complete an additional year of Service to requalify. ARTICLE IV BEFORE-TAX CONTRIBUTIONS AND AFTER-TAX CONTRIBUTIONS 4.1 Before-Tax Contributions (a) Subject to subsection 4.4(a), a Participant may elect to make Before-Tax Contributions of from one percent to twelve percent of his or her Compensation (in whole percentages only) for each payroll period during which he or she is an Active 17. Participant. A Participant's Before-Tax Contributions elections shall be made in accordance with Section 4.5, which contains rules for commencing, changing, suspending and resuming BeforeTax Contributions, and Section 4.7, which contains legal limitations on allowable Before-Tax Contributions. (b) In no event may a Participant's Before-Tax Contributions for any Plan Year exceed $9,240 or such higher amount then allowed pursuant to Code Section 402(g). If this limit is exceeded through no fault of the Participant, as determined by the Plan Administrator in its sole discretion, the Plan Administrator may without penalty distribute the excess together with earnings attributable to the excess (determined in accordance with Code Section 401(k) and applicable Treasury Regulations thereunder) to the Participant no later than April 15 of the calendar year immediately following the calendar year for which the Before-Tax Contributions were made. If there is a loss attributable to excess Before-Tax Contributions, only the excess Before-Tax Contributions (reduced by the amount of the loss attributable thereto if permitted by applicable Treasury Regulations) or, if less, the Participant's entire Account, shall be distributed to the Participant. Excess Before-Tax Contributions distributed pursuant to this Section shall nevertheless be taken into account in determining excess BeforeTax Contributions under the anti-discrimination rules contained in Section 4.7. A Participant's Before-Tax Contributions in excess of the $9,240 (or higher) limit will be includable in his 18. or her taxable income for his or her tax year for which deferred and, if the excess is not distributed by the date specified in this subsection, it will again be includable in the Participant's taxable income for his or her tax year in which it is distributed. (c) Before-Tax Contributions shall be subject to the limitations in Section 4.7, which sets forth the statutory anti-discrimination test contained in Code Section 401(k), and Section 11.1, which limits the annual additions attributable to Before-Tax Contributions and matched contributions. 4.2 After-Tax Contributions (a) Subject to subsection 4.4(b), a Participant may elect to make After-Tax Contributions at a rate of from one to ten percent of Compensation (in whole percentages only) for each payroll period in which he or she is an Active Participant. A Participant's After-Tax Contributions elections shall be made in accordance with Section 4.5, which contains rules for commencing, changing, suspending and resuming After-Tax Contributions. (b) A Participant's After-Tax Contributions shall be limited by the Plan Administrator to the extent necessary to keep them from exceeding the maximum annual addition limits of Article XI. (c) If an Active Participant is not permitted to make Before-Tax Contributions at a rate of at least six percent because of the anti-discrimination rules in Section 4.7, 19. those contributions shall be treated as After-Tax Contributions to the extent permitted by the anti-discrimination rules applicable to such contributions. These After-Tax Contributions shall be matched by the Companies under Section 4.3 to the extent that these After-Tax Contributions, when added to the Participant's Before-Tax Contributions, do not exceed six percent of his or her Compensation for the payroll period in question. 4.3 Matched Contributions Active Participants may make matched Before-Tax Contributions or After-Tax Contributions to this Plan of from one to six percent of Compensation. The Company matches the one to six percent of contributions at a fifty percent matching rate, as provided in Article V. Matched contributions must consist of either all Before-Tax contributions or all After-Tax Contributions regardless of the percentage elected by the Participant, but may be changed periodically as provided in Section 4.5. Before-Tax Contributions and After-Tax Contributions shall be credited to Accounts as of the last day of the calendar month in which they were made, in accordance with Section 4.6. Matching shall be suspended during post-withdrawal penalty periods imposed under Section 9.5. 4.4 Unmatched Contributions (a) If a Participant is contributing the maximum six percent matched contributions, he or she may make unmatched Before-Tax Contributions from one to six percent of Compensation. 20. (b) If a Participant is contributing the maximum six percent matched contributions, he or she may make unmatched After-Tax Contributions from one to ten percent of Compensation. (c) The maximum Before-Tax Contribution rate shall be twelve percent and the maximum After-Tax Contribution rate shall be ten percent. In addition, in no event shall the total of the Before-Tax Contribution and After-Tax Contribution rates exceed sixteen percent. 4.5 Commencement, Change, Suspension and Resumption of After-Tax Contributions and Before-Tax Contributions (a) As of the first day of each month, the Plan Administrator shall give each Participant who has not started taking Before-Tax Contributions or After-Tax Contributions, or who has suspended them, an opportunity to commence making BeforeTax Contributions or After-Tax Contributions. (b) On January, April, July, and October l (or at other times specified by the-Plan Administrator), Participants who are making Before-Tax Contributions or After-Tax Contributions may change their rate of Before-Tax Contributions or After-Tax Contributions (and may change their investment elections, as provided in Section 10.1). (c) A Participant may totally suspend all Before-Tax Contributions and After-Tax Contributions at any time, after adequate advance written notice to the Plan Administrator. A Participant who elects total suspension may not resume Before- 21. Tax Contributions and After-Tax Contributions before his or her first payroll period ending in the third calendar month beginning after the month in which the total suspension occurred. Subject to this restriction, resumption shall be permitted in accordance with Plan Rules. 4.6 Withholding and Crediting of Before-Tax Contributions and After-Tax Contributions (a) A Participant's Before-Tax Contributions and After-Tax Contributions shall be withheld from his or her Compensation for each payroll period at the elected rate then in effect and transferred to the Trustee within thirty days after the end of the month in which withheld. (b) As of the last day of each calendar month, a Participant's Before-Tax Contributions for the month shall be credited by the Plan Administrator to his or her Before-Tax Contributions Account and the Participant's After-Tax Contributions for the month shall be credited to his or her After-Tax Contributions Account. (c) If Before-Tax Contributions or After-Tax Contributions for a month are deposited in the Trust before the end-of-the-month crediting date, they shall be invested as the Plan Administrator shall direct and any gains or losses on them shall be allocated as follows: First, the gains or losses shall be split among the Investment Funds in the same proportions as the Before-Tax Contributions and After-Tax Contributions are to be credited (e.g., if half the Before-Tax Contributions and 22. After-Tax Contributions are to be credited to a particular Investment Fund, half the gains and losses on the Before-Tax Contributions and After-Tax Contributions shall be credited to that Fund); and second, gains and losses credited to an Investment Fund shall be allocated among Accounts as of the last day of the calendar month in proportion to their balances in the Investment Fund in question as of the last day of the preceding calendar month (after all distributions made as of such date). 4.7 Special Anti-Discrimination Limits (a) Before-Tax Contributions are subject to the anti-discrimination rules in Code Section 401(k), as explained in these subsections (b)-(g). After-Tax Contributions and Company contributions are subject to the anti-discrimination rules in Code Section 401(m), as explained in subsection (h). Subsec- tions (i)-(l) set forth related rules. (b) Before-Tax Contributions of any Participant who is "highly compensated" for the Plan Year shall be subject to the restrictions of subsection (c). Determination of whether a Participant is highly compensated shall be made in accordance with Exhibit II, Code Section 414(q) and applicable Treasury Regulations. (c) The aggregate Before-Tax Contributions rate of all highly compensated Participants for a Plan Year shall not exceed the aggregate Before-Tax Contributions rate of all nonhighly compensated Participants for that Plan Year by more than the applicable amount set forth in the following table: 23. If Non-Highly Compensated The Aggregate Before-Tax Participants* have an Contribution Rate of Highly Aggregate Before-Tax Compensated Participants* may Contribution Rate of not Exceed - ------------------------- ----------------------------- 0% to 2% 2.0 times the non-highly compensated group's aggregate Before-Tax Contribution Rate 2% to 8% The non-highly compensated group's aggregate Before-Tax Contribution rate plus two percentage points More than 8% 1.25 times the non-highly com- pensated group's aggregate Before-Tax rate The aggregate Before-Tax Contribution rate during a Plan year for a group of Participants shall be the percentage determined by averaging the Before-Tax Contribution rates of each member of the group. A Participant's Before-Tax Contribution rate shall be determined by dividing (i) the Participant's Before-Tax Contributions under Section 4.1, if any, for the Plan Year, by (ii) his or her earnings (as defined in Section 11.1(d)(iii) for the Plan Year while a Participant plus, at the election of the Plan Administrator, the Participant's Before-Tax Contributions and any amounts contributed by the Company on behalf of the Participant - -------- * Participants who have no Compensation for the Plan Year shall not be counted. Participants who make no Before-Tax Contributions for the Plan Year shall be counted. 24. pursuant to a salary reduction agreement under Code Section 125, 402(k)(2), 401(h) or 403(b). See Section 14.16 for special rules regarding the aggregation of certain highly compensated Employees and their family members. (d) If the aggregate Before-Tax Contribution rate for highly compensated Participants for a Plan Year would exceed the maximum Before-Tax Contribution rate permissible under subsection (c), the Plan Administrator shall reduce the amount to be contributed by highly compensated Participants by capping their Before-Tax Contributions at a level at which their aggregate Before-Tax Contribution rate does not exceed the maximum rate allowable under subsection (c) and refunding any excess in accordance with subsection (e). (e) If, despite subsection (d), the Before-Tax Contributions for a Plan Year of any highly compensated Participant exceed the limits of this Section, the excess amount, together with earnings attributable to such amount, shall be distributed to the Participant. Alternatively, the Plan Administrator may adopt Plan Rules providing for recharacterization of all or any part of the excess Before-Tax Contributions as After-Tax Contributions, to the extent permitted by applicable law. (f) If excess Before-Tax Contributions are distributed within two and one-half months after the end of the Plan Year for which they were made, no penalties will be imposed but the Participant will be taxed on the excess Before-Tax 25. Contributions for his or her tax year in which the excess BeforeTax Contributions would have been taxable had they not been contributed to the Plan. If excess Before-Tax Contributions are not distributed within this two and one-half month period, the Participant will be taxed on the excess Before-Tax Contributions for his or her tax year in which Before-Tax Contributions are distributed and the Company will be subject to a ten percent excise tax on the amount of the excess. Excess Before-Tax Contributions must be distributed no later than the last day of the Plan Year following the Plan Year for which-the Before-Tax Contributions were made or the Plan may be disqualified. The earnings attributable to excess Before-Tax Contributions shall be determined in accordance with Code Section 401(k) and applicable Treasury Regulations thereunder. If there is a loss attributable to the excess Before-Tax Contributions, only the excess BeforeTax Contributions (reduced by the amount of the loss attributable thereto, if permitted by applicable Treasury Regulations) or,if less, the Participant's entire Account, shall be distributed to the Participant. (g) If the Company has one or more other cash or deferred plans in addition to this Plan, (i) the Before-Tax Contribution limitations of this Section shall be applied to this Plan by aggregating it with any such other plan with which this Plan is aggregated for purposes of establishing that either plan covers a nondiscriminatory group of Employees, and 26. (ii) the Before-Tax Contributions and earnings (within the meaning of Code Section 414(s)) of any highly compensated active Participant who is also a participant in one or more other cash or deferred plans of the Company shall be aggregated for Before-Tax Contribution limit testing purposes under this Section. (h) After-Tax Contributions and Company contributions are subject to the anti-discrimination rules in Code Section 401(m), which are substantially identical to the anti-discrimination rules in Code Section 401(k) relating to Before-Tax Contributions. Thus, the rules of subsections (b)-(g) of this Section shall be applied separately and in the same manner to the aggregate of After-Tax Contributions and Company contributions, as follows: (i) After-Tax Contributions shall be aggregated with Company Contributions for purposes of applying the limits of this Section. If the limits of this Section are exceeded, the excess shall be eliminated by first distributing After-Tax Contributions for the Plan Year which were not matched by the Company (adjusted for earnings or losses in accordance with Code Section 401(m) and applicable Treasury Regulations thereunder) to the Participants to whom the excess is attributable, in accordance with Section 401(m) and Treasury Regulations thereunder. With respect to any Participant, any additional excess amount that must be distributed shall be made up of 27. both After-Tax Contributions which were matched together with the Company contributions which matched them (both amounts to be adjusted for earnings or losses as provided above). If the Company Contributions Account of a Participant is partially Vested and Company contributions must be distributed, the Plan Administrator shall treat the contribution which is being distributed as either (1) Vested to the same extent as the Participant's Company Contributions Account, in which case the special vesting rule in Section 6.4 shall not apply, or (2) consisting to the fullest extent possible of the Vested portion of that Account, in which case the special vesting rule in Section 6.4 shall apply. The unvested amount of the excess matching contribution otherwise to be distributed shall be forfeited, except as prohibited by law. (ii) To the extent and in the manner permitted by applicable Treasury Regulations, Before-Tax Contributions (excluding Before-Tax Contributions refunded because they exceed the anti-discrimination limits of this Section, except as otherwise provided by applicable Treasury Regulations) may be aggregated with and treated as if they were Company contributions in determining whether the requirements of Code Section 401(m) are satisfied. (i) If Before-Tax Contributions must be distributed to prevent violation of the anti-discrimination rules of this Section, or the $9,240 or higher limit, unmatched Before- 28. Tax Contributions shall be distributed before matched Before-Tax Contributions. Until this process is completed during the Plan Year following the Plan Year in which the Before-Tax Contributions were made, Company contributions shall not accrue to any highly compensated Participant (although they may be contingently credited to Accounts before they accrue and, if they accrue, shall be considered "annual additions" for Section 415 purposes for the Plan Year for which they were made). If, as part of the process of correcting excess Before-Tax Contributions, Before-Tax Contributions which were to be matched were distributed, the matching contributions with respect to such Before-Tax Contributions shall not accrue and shall be forfeited. (j) In testing for discrimination under subsections (c) and (h) and under any other plans of the Company which are subject to the Section 401(k) or Section 401(m) testing requirements, multiple use of the so-called "alternative limit" shall not be permitted. If multiple use would occur, the Plan Administrator shall take the corrective steps authorized by this Section to prevent or cure multiple use. Determinations of whether multiple use would occur shall be made in accordance with proposed Treas. Reg. Section 1.401(m)-2. This regulation generally provides that prohibited multiple use occurs if any highly compensated Employee participates both in a Section 401(k) arrangement and a Section 401(m) arrangement and the sum of the aggregate Before-Tax Contributions and aggregate rate of AfterTax Contributions and Company matching contributions for highly 29. compensated persons in those arrangements exceeds the greater of (i) the sum of (1) 125 percent of the higher of those two rates for all other persons and (2) two plus the lower of those two rates for all other persons or (ii) the sum of (1) and (2) applied by substituting "higher" for "lower" and vice versa. (k) No provisions of this Plan shall prohibit the Plan Administrator from testing this Plan for discrimination in any manner allowable by law or to correct any actual or possible discrimination problem in any manner allowable by law. If a testing or correction procedure which the Plan Administrator elects to use is inconsistent with this Plan, the Plan Administrator may nevertheless use that testing or correction procedure without the need for any Plan amendment. (l) No Participant may make Before-Tax Contributions or After-Tax Contributions to the extent it would cause the Plan to violate the limitations in Section 11.1 (relating to Code Section 415) as to that Participant. 4.8 Rollover Contributions (a) As permitted by the Plan Administrator, any person who is or who may become a Participant and who has received or who is entitled to receive a distribution from a pension benefit plan or from a "rollover" individual retirement arrangement may contribute such amount, or cause such amount to be contributed, to the Plan. Normally, a contribution of this type will only be permitted if it is received by this Plan before the beginning of the calendar year in which the individual making 30. the contribution attains age 69-1/2. A "rollover" contribution shall only be allowed to the extent permitted by Code Section 402(c). (b) The Plan Administrator shall establish a fully Vested Rollover Account for each Participant electing to make a rollover contribution under subsection (a), to which shall be credited the rollover contribution and credited or debited investment gains or losses. For all purposes of the Plan, a Rollover Account shall be treated as if it were a separate fully Vested Account belonging to the owner of the Rollover Account. If the Rollover Account's owner is not otherwise a Participant, the individual shall be considered a Participant with respect to his or her Rollover Account, but for no other Plan Purpose until he or she becomes a regular Participant pursuant to Section 3.1. Amounts may not be withdrawn from Rollover Accounts during continued Employment, except as otherwise permitted by Plan Rules. ARTICLE V MATCHING CONTRIBUTIONS 5.1 Matching Contributions For each dollar of Before-Tax Contributions credited to a Participant's Before-Tax Contributions Account or After-Tax Contributions credited to a Participant's After-Tax Contributions Account, fifty cents shall be credited to the Participant's Company Contributions Account as of the last day of the month, 31. but Before-Tax Contributions and After-Tax Contributions for any period in excess of six percent of Compensation shall not be matched. Matching shall be suspended during post-withdrawal penalty periods imposed under Section 9.5. 5.2 Funding of Company Match (a) Matching Company contributions under Sec- tion 5.1 shall be funded by Company cash contributions and by forfeitures which are available for allocation (see Section 6.3). Company contributions needed to match Before-Tax Contributions and After-Tax Contributions during a month shall normally be paid to the Trust in the next month. Pending allocation, Company contributions shall be invested in the Stock Fund, in accordance with Section 10.2. To the extent forfeitures by themselves exceed the amount of matching Company contributions to be allocated for a Plan Year, the excess shall be allocated under Section 5.1 as of the last day of the Plan Year. (b) The Companies may also elect to make an additional cash contribution to the Plan for a Plan Year in an amount determined by the Board of Directors. This amount shall be allocated to the Company Contributions Accounts of Participants who were Employees on the last day of the Plan Year for which the contribution is made (or who died, suffered a Disability or took Retirement during the Year) in proportion to the principal amount of matching contributions credited to their Company Contributions Accounts for the Plan Year. Pending 32. allocation, Company contributions under this subsection shall be invested in the Stock Fund. ARTICLE VI VESTING 6.1 Basic Vesting Rules (a) A Participant's After-Tax Contributions Account and Before-Tax Contributions Account and Rollover Account shall be fully Vested at all times. A Participant's Company Contributions Account shall vest in full after five years of Service, determined in accordance with subsection (b), or, if earlier, in accordance with the following schedule: Number of Calendar Months in which the Participant Has Made Before-Tax Contributions or Vested Performance of Company After-Tax Contributions Contributions Account - ------------------------------ ------------------------------ 11 or less 0% 12 25% 24 50% 36 75% 48 or more 100% The foregoing vesting rules are subject to Section 6.2 (which accelerates vesting under certain circumstances) and Section 6.4 (which specifies how the vesting schedule is to be applied following certain distributions or withdrawals). (b) An Employee's years of Service shall be determined in accordance with Section 2.28 (which defines 33. "Service"), except that Service before the date the Plan was adopted (July 1, 1979) shall be disregarded. (c) If a Participant who has elected to make After-Tax Contributions is not permitted to make Before-Tax Contributions or After-Tax Contributions in a month because of the limits of Section 4.7, he or she will be treated as if he or she made After-Tax Contributions for that month for purposes of applying the vesting rules in subsection (a). 6.2 Accelerated Vesting A Participant's Company Contributions Account which is not otherwise fully Vested shall become fully Vested upon the earliest to occur of: (a) the later of his or her attainment of age sixty-five while an Employee or the fifth anniversary of the date the individual first became a Participant while an Employee (this anniversary requirement shall not apply to an Employee who was hired before January 1, 1989), (b) his or her death while an Employee, (c) his or her suffering a Disability while an Employee (see Section 2.15), or (d) partial or complete termination of the Plan, as more fully provided for in Section 13.2. 6.3 Forfeitures After Resignation or Discharge (a) The unvested portion of the Company Contributions Account of a Participant who resigns or is discharged shall be provisionally forfeited on the day his or her 34. Employment terminates. Forfeitures for a Plan Year will be applied in a manner prescribed in Section 5.1. (b) If a Participant who resigns or is discharged again becomes an Employee before he or she has five consecutive Breaks in Service (one Break in Service in the case of persons who had completed the single Break in Service before January 1, 1985) and before the Plan is terminated, the forfeited portion of his or her Account shall be restored, as more fully provided in subsection (c). Thereafter, any future allocations for the individual's benefit of Company matching contributions and forfeitures, and the gains and losses thereon, shall be made to his or her pre-existing Company Contributions Account and future vesting shall be determined in accordance with the special rules in Section 6.4. When the Plan is terminated, all rights to forfeiture restoration shall lapse as to affected persons who have not resumed Employment before Plan termination. (c) Each Participant's Company Contributions Account contains a Cash Account and a Stock Account (see Section 10.2). When part of a Company Contributions Account is forfeited, a pro rata portion of its Cash Account and its Stock Account shall be forfeited and made available for allocation under Section 5.1. If the forfeiture is restored, the Cash Account shall be credited (from funds available under Section 5.1 or 14.7) with a cash amount equal to the amount forfeited from such Account plus the cash value of Company Stock forfeited from the Participant's Stock Account. This value shall be determined 35. under Section 10.7 as of the date of the forfeiture occurred. In making forfeited Company Stock available for allocation under Section 5.1, it shall first be converted into cash in accordance with Section 10.7. 6.4 Vesting after Distributions or Withdrawals from Partially Vested Accounts If a Participant terminates his or her Employment, receives a distribution from his or her Company Contributions Account before it is fully Vested and again becomes an Employee before completing five consecutive Breaks in Service (one Break in Service in the case of a person who had completed the single Break in Service before January 1, 1985), the Participant's Vested interest in the Account shall not be determined under Section 6.1. In addition, Section 6.1 shall not apply to a Participant who has withdrawn amounts from his or her Company Contributions Account in accordance with Section 9.3 before it has Vested fully. In either case, before the Participant's Company Contributions Account vests in full, the Participant's Vested interest in his or her Company Contributions Account shall be the amount that would then be Vested under Section 6.1 if the Company Contributions Account were increased by the amount previously distributed or withdrawn, but with such Vested amount being reduced by the amount of the prior distribution or withdrawal. 36. 6.5 Special Vesting Rule Under Voluntary Early Retirement Plan First Interstate Bancorp adopted The 1994 First Interstate Voluntary Early Retirement Plan ("VERP") to provide exit incentives to certain employees of First Interstate Bancorp and its affiliates. Although VERP is separate from this Plan, the following VERP provisions are included herein because they have an ongoing impact on this Plan. (a) The Company Contributions Account of a Participant who also participates in VERP shall become fully Vested (if it is not already fully Vested under the regular provisions of this Plan) as of the later of September 1, 1994 or the Participant's "Departure Date" as defined in VERP. (b) If a Participant is rehired by the Company after the Participant's Company Contributions Account becomes fully Vested pursuant to subsection (a), any Company contributions credited to the Participant's Company Contributions Account for participation after the Participant's rehire shall vest in accordance with the regular vesting provisions of this Plan, ignoring the special rule in subsection (a). ARTICLE VII BENEFITS UPON TERMINATION OF EMPLOYMENT OR DISABILITY 7.1 Distribution of Accounts (a) A Participant's Account shall be distributed to him or her in a cash lump in the event of his or 37. her termination of Employment for any reason or in the event of his or her Disability, except as provided in subsections (b) and (c) and Section 7.4. See Article VIII for special rules relating to death benefits. The value of an Account shall be its value under Section 10.7 as last determined preceding the distribution. (b) Lump sum distributions under subsection (a) shall be made in cash unless the Participant elects to receive in kind the whole shares of Company Stock credited to his or her Account. A fractional share of Company Stock credited to the Participant's Account will be distributed in cash. When Company Stock is distributed in cash, the distribution shall be funded by, in effect, selling the Company Stock to Stock Accounts in the Stock Fund in accordance with procedures described in Section 10.7(b). Distribution of Company Stock may be made in the name of such other person as the Participant shall specify. (c) If a Participant's Account is being distributed on account of Retirement or Disability, he or she may elect (1) to receive his or her lump sum payment at a future specified date which is not later than the time prescribed in Section 7.6, or (2) to receive payment of his or her Account, as adjusted for gains and losses, in annual or more frequent cash installments of at least $50 (except for the last payment) in a manner permissible under subsection (e)). Pending distribution, the Participant's Account shall be invested as the Participant may direct and within the time and in the manner prescribed by the Plan Administrator. 38. (d) Distribution under this Section shall normally be made or commence not later than the sixtieth day following the end of the Plan Year in which the Participant's Retirement or Disability occurs, or as soon as administratively possible. A Participant may elect, in accordance with Plan Rules, that distribution be made or commence at a later date specified by the Participant. Any such election shall specify a plan of distribution which utilizes a distribution option available under this Section 7.1 and which complies with subsection (e). (e) Periodic distributions must be made in installments which meet the requirements of Section 7.6. (f) If a deferred lump sum or installment payment is elected, the Participant may nevertheless elect to be paid the unpaid balance of his or her Account in a lump sum in accordance with subsection (b) upon reasonable advance request to the Plan Administrator and all future payments shall thereafter be cancelled. (g) Pending complete distribution of an Account, the person entitled to the Account shall have the same investment direction rights as any other Participant, except to the extent the Plan Administrator elects to restrict or expand such rights for persons awaiting distribution. 7.2 Subsequent Allocations If any amount is allocated to a Participant's Account after a distribution is made or commences, the amount allocated 39. shall be paid to the Participant in cash in one lump sum within the time allowed under Section 7.6. 7.3 Suspension of Benefits If a former Participant is reemployed with the Companies and makes additional Before-Tax Contributions or AfterTax Contributions under this Plan, payments under this Article shall cease, unless otherwise required under Section 7.6. Upon a subsequent Disability or termination of Employment (other than by death), payment of the balance then credited to the Participant's Account shall be made under this Article and the Participant may exercise any distribution option available under Section 7.1 to the Participant at that time. 7.4 Immediate Payment Not Required Before Age 70-1/2 If a Participant whose Account under the Plan exceeds $3,500 terminates Employment before reaching his or her required beginning date under Section 7.6(c)(ii), distribution to the Participant shall not be required until the Participant reaches his or her required beginning date. However, such a Participant may elect to receive a lump sum distribution at any time prior to his or her required beginning date. Such election shall be made in accordance with Plan Rules. Pending distribution, the Participant's entire Account shall be automatically transferred to and invested in the Guaranteed Income Fund and the investment elections offered under subsection 7.1(g) shall not be available. 40. 7.5 Joint and Survivor Annuity Requirements This Plan is not subject to the joint and survivor Annuity requirements of ERISA and the Code because it is not a money purchase pension plan and (1) Vested benefits are payable on the death of a Participant to his or her surviving spouse (and are not paid to non-spousal Beneficiaries unless the Participant is not survived by a spouse or the spouse has otherwise consented), (2) annuities are not available under this Plan (except as provided in this Section), and (3) prior to January 1, 1985, this Plan had never been the transferee of benefits from a defined benefit or defined contribution plan which was subject to the joint and survivor annuity requirements of the Code or ERISA. 7.6 Benefit Distribution Requirements (a) All distributions from this Plan to a Participant (or to his or her Beneficiaries following the Participant's death) shall be made in accordance with the legal requirements set forth in Code Section 401(a)(9) and related provisions of the Code and Treasury Regulations issued pursuant to such provisions, notwithstanding any provision in this Plan to the contrary. These requirements consist of (1) the prohibition of involuntary benefit commencement before a certain age, absent consent; (2) minimum and maximum deadlines for the commencement of benefits; (3) a minimum annual distribution requirement for installment payments after a Participant attains age 70-1/2; and (4) the prohibition of more than incidental death benefits. Subsections (b) through (e) of this Section summarize how these 41. restrictions shall normally apply to this Plan. The Plan Administrator, however, may elect to override subsections (b) through (e) in any fashion which complies with applicable Code provisions and Treasury Regulations thereunder. (b) Prohibition of Immediate Benefit Commence- ment Without Consent: Distribution from this Plan shall not commence before the date the Participant attains age 70-1/2 unless (1) the Participant's Vested Account does not exceed $3,500 (or such higher amount allowable under applicable law) or (2) the Participant consents in writing to the distribution. To the extent authorized by Section 7.1(d), a Participant may elect, in accordance with Plan Rules, that distribution be made or commence at a later date specified by the Participant. Any such election shall specify a plan of distribution which utilizes a distribution option available under Section 7.1(a) and complies with this Section. (c) Deadlines for Benefit Commencement (i) Deadline by which benefits must commence absent consent: Unless a Participant consents otherwise (either affirmatively or by failing to request a distribution), distributions from this Plan to the Participant must commence within sixty days after the end of the Plan Year in which the Participant terminates Employment or attains age 65, whichever is later, except as provided in paragraph (iii). 42. (ii) Absolute deadline by which benefits must commence. Even if a Participant elects otherwise, benefit distributions must commence by the Participant's "required beginning date," except as provided in paragraph (iii). A Participant's required beginning date shall be the end of the calendar year in which the Participant attains age 70-1/2 (although payment for that year can be made at any time on or before April 1 of the next year). (iii) Exception to commencement deadline when amount of payment or identity or location of recipient is uncertain. If the amount payable under the Plan cannot be clearly ascertained or the person to whom it is payable has not been determined or located, distributions under this Article shall be made or commenced no later than sixty days after such amount is ascertained or such person is determined or located. (d) Minimum Annual Distribution Requirements: Distributions from the Plan prior to a Participant's required beginning date (see subsection (c)(ii)) are not subject to legal minimums. However, commencing with the calendar year in which a Participant attains age 70-1/2 (or the calendar year in which an Employee first becomes a Participant, if later), a minimum annual distribution shall be made by the end of each calendar year (or, on or before April 1 of the following year with respect to the first year for which a minimum annual distribution must be made). The minimum annual distribution shall be determined by dividing 43. the Participant's "adjusted account balance" (as defined below) as of the last valuation date during the calendar year preceding the year for which the distribution is being made by the Participant's life expectancy as of his or her required beginning date (as defined in subsection (c)(ii)), reduced by l for each calendar year beginning after his or her required beginning date. Life expectancies shall be determined from Table V of Treas. Reg. Section 1.72-9. In the calendar year in which the Participant dies, if the required distribution was not made before the Participant's death, it shall be paid to the Participant's Beneficiary during that calendar year in accordance with Article VIII and the balance of the Participant's Account shall then be distributed to the Participant's Beneficiary in accordance with that Article. For purposes of this subsection, a Participant's "adjusted account balance" means the amount credited to his or her Account as of the applicable valuation date, increased by any allocation of contributions or forfeitures for the period, if any, between the valuation date and the end of the calendar year in which the valuation date falls and decreased by any distributions during that period. No other adjustments shall be made. See prop. Treas. Reg. subsections 1.401(a)(9)-1 F-6 for special rules to be followed when distributions are being made from an Account which is not fully Vested. (e) Incidental Death Benefit Rule. Distri- butions by this Plan in accordance with its terms comply with the incidental death benefit rule as set forth in prop. Treas. Reg. 44. subsections 1.401(a)(9)-2. No distributions from the Plan shall violate the incidental death benefit rule. 7.7 Special Distribution Rule Under Voluntary Early Retirement Plan First Interstate Bancorp adopted The 1994 First Interstate Voluntary Early Retirement Plan ("VERP") to provide exit incentives to certain employees of First Interstate Bancorp and its affiliates. Although VERP is separate from this Plan, the following VERP provision is included herein because it may have an ongoing impact on this Plan: A Participant who also participates in VERP but who has not attained age fifty-five and completed ten years of Service at the time the Participant's Account is to be distributed from this Plan shall nevertheless be allowed to elect any form of payment then available under Section 7.1(c) to a Participant who has met such age and Service requirements. ARTICLE VIII BENEFITS UPON DEATH 8.1 Designation of Beneficiary (a) Each Participant or former Participant may designate, revoke and redesignate Beneficiaries. These actions shall be taken in writing on a form provided by the Plan Administrator and shall be effective upon delivery to the Plan Administrator. 45. (b) A Participant's surviving spouse shall automatically be his or her Beneficiary unless the spouse has consented in writing to the designation of a Beneficiary other than the spouse and the consent has been witnessed by a representative of the Plan Administrator or a notary public. Such consent shall apply only to the specific Beneficiary designated and shall acknowledge the effect of the designation. Spousal consent may be revoked by the spouse in writing at any time prior to the earlier of the Participant's Retirement or the Participant's death. The Plan Administrator in its discretion may refuse to recognize a spousal consent if it believes for any reason that the consent is invalid. Spousal consent shall be waived by the Plan Administrator if a Participant has no spouse and may be waived if the spouse cannot be located or for such other reasons authorized In applicable Treasury Regulations. 8.2 Distribution on Death (a) Upon the death or presumed death of a Participant or former Participant, the amount credited to his or her Account shall be paid to the person or persons determined under subsection (b). Distribution shall be made in one lump sum in accordance with Section 7.1 unless another method of distribution is properly elected under Section 8.3. (b) Amounts payable under subsection (a) shall be distributed to the highest priority persons or persons surviving at the time the distribution is actually paid or commences. Distribution priorities are as follows: 46. (i) first, to the person or persons properly designated by the Participant under Section 8.1, (ii) second, to the Participant's surviving spouse. (iii) third, to the Participant's surviving heirs at law, if any, determined in the reasonable judgment of the Plan Administrator under applicable state law governing succession to personal property. (iv) fourth, to Participants in the Plan to be allocated as a forfeiture. (c) Members of a priority class shall cease to be entitled to benefits upon the Plan Administrator's determination that no members of the class exist or the Plan Administrator's failure to locate any members of the class after making reasonable efforts to do so. 8.3 Election of Other Payment Methods (a) The Participant's primary Beneficiary under Section 8.2(b) may elect how distribution is to be made. (b) Subject to subsection (c), any form of payment permitted under Section 7.1 at the time of payment may be elected, but installment payments to a Beneficiary other than the Participant's surviving spouse shall not extend past the fifth anniversary of the Participant's death unless installment payments commence before the first anniversary of his or her death and are to be paid over a period not longer than the Beneficiary's life expectancy, as determined under Table V of 47. Treas. Reg. Section 1.72-9. If the Participant's Beneficiary is his or her spouse, these payments need not commence any earlier (but must commence no later) than the end of the calendar year in which the Participant would have attained age 70-1/2. If the Participant's Beneficiary is his or her estate, payments must be completed by the end of the fifth calendar year beginning on or after the Participant's death. The preceding sentence shall also apply to a trust unless it meets the requirements of prop. Treasury Regulations Section 1.401(a)(9)-1 Q & A D-5. (c) If the Participant dies on or after April l of the first calendar year beginning after the Participant attained age 70-1/2, or if benefit payments commenced before the Participant dies, distributions must be at least as rapid as under the form of distribution in effect as of the Participant's death. (d) Elections under this Article must be made in the manner specified by the Plan Administrator and must be filed with the Plan Administrator prior to the commencement of any payments under this Article or such earlier time as the Plan Administrator specifies. (e) If an installment distribution of an Account is elected and a Beneficiary receiving payments dies before the payments have been completed, the balance then credited to the Account shall be paid to the next highest priority Beneficiary determined under Section 8.2(b) in a cash lump sum. 48. 8.4 Time of Distribution (a) Distributions under this Article shall be made or commence not later than sixty days after the close of the Plan Year in which the Participant in question died, unless the Beneficiary otherwise consents. (b) If the amount payable under this Article cannot be ascertained or the person to whom it is payable has not been determined or located and reasonable efforts to do so have been made within the time limits of subsection (a), then distributions under this Article shall be made or commence no later than sixty days after such amount is ascertained or such person is determined or located. ARTICLE IX WITHDRAWALS AND LOANS 9.1 General A Participant may make withdrawals from his or her Account while he or she is still an Employee in accordance with the provisions of this Article and Plan Rules adopted to implement them. There are three withdrawal options: (a) Penalty-free withdrawals from After-Tax Contributions Accounts, as permitted under Section 9.2; (b) Withdrawals from Company Contributions Accounts, subject to a penalty, as permitted under Section 9.3; and 49. (c) Hardship withdrawals from Before-Tax Contribution Accounts, certain matched After-Tax Contributions, and Rollover Contributions, subject to a penalty, as permitted under Section 9.4. 9.2 Withdrawals from After-Tax Contributions Accounts A Participant may make cash withdrawals from the unmatched portion of his or her After-Tax Contributions Account of any amount not in excess of the amount then credited to that Account. Withdrawal requests shall be made in accordance with Section 9.5. Such a withdrawal will be taxable to the extent the amount withdrawn exceeds the amount of the Participant's "basis" recovered with the withdrawal. 9.3 Withdrawals from Company Contributions Accounts A Participant who has withdrawn all amounts then credited to and available within his or her After-Tax Contributions Account may withdraw in cash all or a portion of his or her Company Contributions Account, subject to the following rules: (a) If the Participant's Company Contributions Account is fully Vested, the Participant may withdraw up to the entire amount then credited to the Account. (b) If the Participant's Company Contributions Account is not fully Vested, the Participant may withdraw an amount not in excess of the lesser of 50. (i) the Vested amount then credited to such Account, or (ii) the portion of the Account contributed more than two years previously (i.e., the amount credited to the Account on the withdrawal date reduced by the principal amount of matching contributions credited to the Account under Section 5.1 for the twenty-four months preceding the month in which the withdrawal occurs). Matched After-Tax Contributions made on or after January 1, 1987, shall not be made available under Section 9.2, but shall only be made available pursuant to Section 9.4. After such a withdrawal, the special vesting rules in Section 6.4 shall apply. (c) Withdrawal requests shall be made in accordance with Section 9.5. (d) Withdrawals shall be funded from cash credited to the Participant's Company Contributions Account. To the extent that Company Stock credited to the Participant's Company Contributions Account must, in effect, be sold to fund the cash withdrawal, the procedure set forth in Section 10.7 shall be followed. (e) The entire amount withdrawn under this Sec- tion will normally be included in the Participant's taxable income, except to the extent he or she recovers "basis." 51. 9.4 Hardship Withdrawals from Before-Tax Contri- bution Accounts and the Matched Portion of After-Tax Contribution Accounts (a) A Participant who has withdrawn or who simultaneously withdraws all amounts available under Sections 9.2 and 9.3 may withdraw amounts on account of a hardship as follows: (1) the matched portion of his or her After-Tax Contributions Account; (2) the Rollover Contribution; (3) unmatched Before-Tax Contributions; and (4) matched Before-Tax Contributions. A Participant's written request for a withdrawal on account of a hardship shall state all of the facts and circumstances necessary for the Plan Administrator to determine the existence and extent of the Participant's hardship and shall also state the amount the Participant requires. A withdrawal shall be deemed necessary to satisfy a hardship if the amount requested to be withdrawn, net of anticipated income taxes or penalties reasonably expected to result from the withdrawal (which may be included in the amount withdrawn), does not exceed the amount of the need and the Participant has obtained all distributions (other than hardship distributions) and all nontaxable loans currently available under the Plan and all other qualified retirement plans maintained by the Company. The Plan Administrator shall treat all requests uniformly. In no event shall the Plan Administrator authorize a distribution under this Section greater than the amount necessary to meet the hardship created by the financial need, nor shall the cumulative withdrawals from the Participant's Before-Tax Contributions Account exceed the sum of the amount credited to 52. that Account on December 31, 1988, and the Before-Tax Contributions made to that Account thereafter. The entire amount withdrawn under this Section will normally be included in the Participant's taxable income, except to the extent the Participant recovers "basis." (b) Only the following events shall be considered a "hardship": (1) unreimbursed medical expenses (those which are not paid by medical insurance) of the Participant, his or her spouse or his or her dependent (as defined in Code Section 152); (2) purchase of a principal residence for the Participant (excluding mortgage payments); (3) unreimbursed tuition and related educational expenses for the next twelve months of post-secondary education of the Participant, his or her spouse or his or her dependent (as defined in Code Section 152); (4) the avoidance of eviction from or foreclosure of a Participant's principal residence; or (5) funeral expenses for immediate family members of a Participant (e.g., spouse or children). (c) A Participant who makes a hardship withdrawal shall be subject to the penalties prescribed in Sec- tion 9.5(c). 9.5 Withdrawal Procedures and Penalties (a) Withdrawals under this Article must be requested by Participants in writing and may only be requested in the form and at such times as the Plan Administrator establishes. The minimum withdrawal shall be $200 or, if less, the total then 53. available for withdrawal under the Section in question. Only two withdrawals may be made under this Article in any calendar year. A hardship withdrawal from a Participant's Before-Tax Contributions Account will not be authorized unless the Participant has borrowed the maximum amount, if any, then available to him or her under Section 9.6. Withdrawals from a Participant's Account shall be charged to the Investment Fund or Funds in which the Account is invested, in the hierarchy as the Plan Administrator shall specify. (b) If a Participant withdraws amounts from his or her Company Contributions Account, his or her After-Tax Contributions and Before-Tax Contributions shall not be matched during the six calendar months beginning after the date of the withdrawal. If the Participant withdraws additional amounts from his or her Company Contributions Accounts during this six-month penalty period, the period shall be extended by an additional six months commencing at the end of the first penalty period. The penalty period shall not be extended further if additional withdrawals are made before the end of the twelve-month period; however, a subsequent withdrawal will result in a new penalty period. (c) If a Participant makes a hardship withdrawal from his or her Before-Tax Contributions Account, certain Matched After-Tax Contribution Accounts, or Rollover Contribution Account, the Participant (1) must stop all contributions to all contributory plans of the Company (such as 54. this Plan, any stock option plan or any non-qualified deferred compensation plan) for twelve months from the date of receipt of the hardship withdrawals, and (2) for the calendar year beginning after receipt of the hardship withdrawal, the $9,240 limit set forth in Section 4.1(b) shall be reduced by the Before-Tax Contributions made by the Participant for the calendar year in which the hardship withdrawal occurred. Clause (1) shall not apply to group insurance plans and to any other plans to which the Internal Revenue Service does not require that it apply, as the Plan Administrator determines in good faith. To the extent clause (1) does apply, suspension of contributions shall be permitted notwithstanding anything to the contrary in this or any other affected plan (which is hereby so amended). 9.6 Loans to Participants (a) The Plan Administrator shall have the investment management discretion to direct the Trustee to loan money to Participants. Each such loan shall be treated as an investment of the Trust Fund as a whole or, if the Plan Administrator so directs, as an investment of a specified portion of the Trust Fund such as the borrower's Account. As of the date of this 1989 Restatement, the Plan Administrator has directed that the loan is an investment of the affected Participant's Account. (b) The Plan shall establish Plan Rules governing loan procedures. These Rules may require loan processing fees, limit the number of loans a Participant may 55. receive, establish ordering rules for funding loans or curing defaults and may establish any other loan terms or procedures the Plan Administrator believes to be necessary or desirable. A Participant who wishes to borrow money from the Plan shall file a written loan application with the Plan Administrator in accordance with these Plan Rules. The Plan Administrator, in its sole discretion, shall approve or deny the loan. The Plan Administrator may deny a loan application if it believes that the loan would not be repaid (e.g., if the borrower has failed to repay a prior loan on time) or for any other reason if denial would be in the best interests of the Plan or the Participant. The Plan Administrator shall exercise its discretion in a uniform and nondiscriminatory manner. No loan shall be granted unless the following requirements are met: (i) No loan shall be made in an amount which is less than $1,000 or which exceeds fifty percent of the Vested portion of the Participant's Accounts. In addition, no loan of more than $50,000 shall be made. The $50,000 limit shall be reduced by the highest outstanding balance of all qualified retirement plan loans to the Participant during the one-year period ending on the day before the date on which the loan is made. A "qualified retirement plan loan" is any loan from this Plan or any other qualified pension benefit plan of the Company and all related companies (see Section 14.4); 56. (ii) The loan shall bear a fixed interest rate of five percent above First Interstate Bank of California's personal savings passbook rate, determined as of the commencement of the loan or such other rate as the Plan Administrator determines to be reasonable and in accordance with applicable Department of Labor Regulations; (iii) Except as otherwise authorized by the Plan Administrator, interest and principal on a loan must be repaid in installments not less frequently than quarterly (normally through payroll deductions) over a specified period not to exceed four years (or thirteen years if the loan is made to assist the Participant to purchase his or her primary residence) (including renewals, extensions and refinancing); (iv) The loan shall be adequately secured and security may be required in addition to that automatically provided under subsection (c); and (v) The loan shall be documented by such notes, evidences of indebtedness and other instruments executed by the Participant which the Plan Administrator in its discretion requires. (c) Each loan from the Plan shall be secured by the borrowing Participant's interest in the Plan. If a Participant's Employment terminates or the Plan terminates before he or she has repaid a loan, the loan shall become immediately due and shall be repaid out of the Participant's Vested Account, 57. which shall be reduced accordingly. This right of set-off does not authorize the Plan Administrator to defer collection of a loan until termination of Employment but merely provides a method of insuring payment by such time. If a Participant's loan is in default and the Participant's Employment has not terminated, the loan shall become immediately due and payable and shall be satisfied, to the extent possible, from the Participant's Vested Company Contributions Account or After-Tax Contributions Account. Any remaining unpaid balance shall be collected when the Participant's Before-Tax Contributions Account becomes distributable. (d) Interest paid on a loan shall not be deductible for federal income tax purposes, beginning January 1, 1991. ARTICLE X INVESTMENT FUNDS 10.1 Investment Choices (a) For investment purposes, the assets of the Plan have been allocated among a number of Investment Funds, including a Company Stock Fund, a Guaranteed Income Fund, an Indexed Equity Fund, a Global Equity Fund, a Fixed-Income Fund and a Managed Investment Fund. See Section 1.04 of the Trust Agreement. (b) Each Participant may specify the extent to which his or her Before-Tax Contributions and After-Tax 58. Contributions shall be invested among the Investment Funds, other than the Stock Fund. Investment directions shall be made in writing in the manner specified by the Plan Administrator and in accordance with the following rules: (i) When an individual becomes a Participant, the Plan Administrator shall give the Participant the right to specify how his or her After-Tax Contributions and Before-Tax Contributions shall be allocated among the Investment Funds, other than the Stock Fund. Thereafter, the Plan Administrator shall periodically give all Participants the opportunity to elect to change how their new After-Tax Contributions or Before-Tax Contributions are invested or to change how the amounts previously credited to their After-Tax Contributions Accounts or Before-Tax Contributions Accounts are invested. To the extent a Participant does not make an investment election, his or her Before-Tax Contributions and After-Tax Contributions shall be invested in the Guaranteed Income Fund. (ii) All Company Contributions Accounts (and only such Accounts) shall be invested in the Stock Fund, except to the extent that-qualifying Participants elect to have all or a portion of their Company Contributions Accounts (or new contributions to such Accounts) transferred out of the Stock Fund and invested among the other Investment Funds. (Amounts transferred from 59. the Stock Fund cannot thereafter be transferred back into the Stock Fund.) Elections may be made on dates and in the manner allowed by the Plan Administrator. A Participant shall qualify for this special investment option (A) upon suffering a Disability, or (B) after attaining age fiftyfive and having a fully Vested Company Contributions Account. (c) All gains and losses with respect to an Investment Fund shall be credited to it. Accordingly, in allocating investment gains and losses among Accounts, each Fund shall be separately valued and the gains and losses on the Fund shall be credited among Accounts in proportion to their interests in the Investment Fund, as more fully provided in Sections 10.4, 10.5 and 10.6. 10.2 Special Accounting Rules for the Stock Fund Each Investment Fund other than the Stock Fund is a pooled investment fund and the gains or losses on such Funds shall be allocated monthly using the unit accounting method specified in this Article. The Stock Fund, however, is only a pooled investment fund in part and special accounting rules apply. These rules are as follows: (a) Each Company Contributions Account invested in the Stock Fund shall consist of a cash portion (the "Cash Account") and a Company Stock portion (the "Stock Account"). Unallocated amounts being held in the Stock Fund for Allocation 60. shall also be credited to segregated unallocated Cash and Stock Accounts within the Stock Fund. (b) Cash Accounts shall be invested in short term debt instruments, or other assets, pending investment in Company Stock. Gains or losses on Cash Accounts shall be credited in accordance with this Article as if all Cash Accounts comprised a separate Investment Fund, put gains and losses need not be credited on the monthly crediting date prescribed under Section 10.4 and may instead be credited on such other dates specified by the Plan Administrator. (c) Each Stock Account shall be credited with a specific number of shares of Company Stock rather than with an undivided interest in a pool of Company Stock. Accordingly, the unit accounting procedures set forth in this Article shall not apply to the Stock Accounts. Each Stock Account, at any relevant time, shall be worth the fair market value on that date of the shares of Company Stock credited to it (see Section 10.7(b)). (d) Company matching contributions shall be made in cash. Forfeitures shall be converted into cash in accordance with Section 10.7 prior to reallocation as matching contributions. Pending allocation, these cash amounts shall be held in the unallocated Cash Account within the Stock Fund. The appropriate amounts shall then be withdrawn from the unallocated Cash Account and allocated in accordance with Article V to the appropriate Participant Cash Accounts. 61. (e) Each Cash Account shall be invested in Company Stock from time to time and Company Stock so acquired shall be allocated to the corresponding Stock Account in proportion to the amount withdrawn from the Cash Account. (f) Cash dividends on Company Stock held in a Stock Account shall be allocated to the corresponding Cash Account. (g) Stock dividends on Company Stock held in a Stock Account shall be credited to that Stock Account. Any cash received in connection with a stock dividend on Company Stock held in a Stock Account in lieu of a fractional share shall be credited to the corresponding Cash Account in the Stock Fund. (h) In the event any rights, warrants or options are issued with respect to Company Stock, the Trustee, as directed by the Plan Administrator, shall exercise any or all of the rights, warrants or options received on Company Stock in a Stock Account for such Account using such cash as may be available in the corresponding Cash Account. Company Stock so acquired shall be credited to that Stock Account. Alternatively, the Trustee may sell any such rights, warrants or options for the benefit of the Cash Account corresponding to the Stock Account. (i) Pending allocation with respect to the Plan, Company Stock attributable to the Plan shall be credited to the unallocated Stock Account and all other assets shall be credited to the unallocated Cash Account. Earnings on the 62. unallocated Cash Account shall be allocated in the manner specified by the Plan Administrator. (j) A Participant shall have no right to request, direct or demand that the Trustee exercise on his or her behalf rights to purchase shares of Common Stock or other securities of the company. 10.3 Voting, Tendering or Retaining Company Stock (a) General Effective as of the date that shares of Company Stock are first allocated to the Company Contributions Account of any Participant, each Participant (or, in the event of his or her death, his or her Beneficiary) is, for purposes of this Section, hereby designated a "named fiduciary," within the meaning of Section 403(a)(1) of ERISA, with respect to (i) the number of shares of Company Stock allocated to his or her Company Contributions Account and (ii) his or her proportionate share of (a) all shares of Company Stock held in the unallocated Stock Account and (b), for purposes of subsection 10.3(b), that portion of the shares of Company Stock allocated to the Company Contribution Accounts of all Participants for which Participants do not give timely instructions (such proportionate share being determined at the respective times such fiduciary rights are exercisable, as set forth below). (b) Voting Rights Each Participant (or, in the event of his or her death, his or her Beneficiary) shall have the right to instruct the 63. Trustee in writing as to the manner in which to vote (i) the shares of Company Stock allocated to his or her Company Contribution Account and (ii) his or her share (as determined in the last sentence of this subsection 10.3(b) of (a) all shares of Company Stock (of whatever class) held in the unallocated Stock Account and (b) that portion of the shares of Company Stock (of whatever class) allocated to the Company Contribution Accounts of all Participants for which Participants do not give timely instructions to the Trustee, as described in this subsection 10.3(b), at any shareholders' meeting of the Company. The Company shall use its best efforts to timely distribute or cause to be distributed to each Participant (or Beneficiary) the information distributed to shareholders of the Company in connection with any such shareholders' meeting, together with a form requesting confidential instructions on how such shares of Company Stock shall be voted on each such matter. Upon timely receipt of such instructions, the Trustee shall, on each such matter, vote as instructed the appropriate number of shares (including fractional shares) of Company Stock. The instructions received by the Trustee from Participants (or Beneficiaries) shall be held by the Trustee in strict confidence and shall not be divulged to any person, including employees, officers and directors of the Company or any affiliate; provided, however, that, to the extent necessary for the operation of the Plan, such instructions may be relayed by the Trustee to a recordkeeper, auditor or other persons providing services to the Plan if such 64. person (i) is not the Company or an affiliate or any employee, officer or director thereof, and (ii) agrees not to divulge such instructions to any other person, including employees, officers and directors of the Company or its affiliates. An individual's proportionate share or shares of Company Stock for purposes of clause (ii) of the first sentence of this Section shall be a fraction, the numerator of which shall be the number of shares held in the individual's Company Contribution Account for which he or she provides timely instructions to the Trustee, and the denominator of which shall be the number of such shares of Company Stock in all such accounts for which timely instructions are provided to the Trustee. (c) Rights on Tender or Exchange Offer Each Participant (or, in the event of his or her death, his or her Beneficiary) shall have the right to instruct the Trustee in writing as to the manner in which to respond to a tender or exchange offer with respect to (i) shares of Company Stock allocated to his or her Company Contribution Account and (ii) his or her proportionate share (as determined in the last sentence of this subsection 10.3(c)) of shares of Company Stock (of whatever class) held in the unallocated Stock Account. The Company shall use its best efforts to timely distribute or cause to be distributed to each such Participant (or Beneficiary) the information distributed to shareholders of the Company in connection with any such tender or exchange offer, together with a form requesting confidential instructions to the Trustee on how 65. to respond to such tender or exchange offer. Upon timely receipt of such instructions, the Trustee shall respond as instructed with respect to such shares of Company Stock. If, and to the extent that, the Trustee shall not have received timely instructions from any individual who has the right, pursuant to the first sentence of this subsection, to instruct the Trustee with respect to shares of Company Stock, such individual shall be deemed to have timely instructed the Trustee not to tender or exchange; such shares of Company Stock. The instructions received by the Trustee from individual Participants (or Beneficiaries) shall be held by the Trustee in strict confidence and shall not be divulged or released to any person, including employees, officers and directors of the Company or any affiliate; provided, however, that, to the extent necessary for the operation of the Plan, such instructions may be relayed by the Trustee to a recordkeeper, auditor or other person providing services to the Plan if such person (i) is not the Company, an affiliate or any employee, officer or director thereof, and (ii) agrees not to divulge such instructions to any other person, including employees, officers and directors of the Company and its affiliates. An individual's proportionate share or shares of Company Stock held in the unallocated Stock Account shall be a fraction, the numerator of which shall be the respective number of shares of Company Stock held in such individual's Company Contribution Account and the denominator of which shall be the number of such shares in all Company Contribution Accounts. 66. (d) Retention of Company Stock The Trustee is authorized and directed to retain Company Stock acquired by the Stock Fund, regardless of fluctuations in value, except that (1) in the normal course of Plan administration, the Trustee may sell Company Stock to satisfy Plan administration and distribution requirements as directed by the Plan Administrator or in accordance with provisions of the Plan or Trust Agreement specifically authorizing such sales, and (2) in the event of a tender or exchange offer, the Trustee shall have no authority or responsibility to sell, transfer or exchange (hereinafter, "to tender") Company Stock pursuant to the offer except in accordance with Participant directions given to the Trustee pursuant to the procedures described in this Section 10.3. (e) Confidentiality of Participant Instructions. The Trustee shall take steps reasonably necessary under the circumstances to (i) maintain the confidentiality of Participant instructions as to the manner in which to vote shares of Company Stock under subsection 10.3(b) or to respond to a tender or exchange offer under subsection 10.3(c), and (ii) prevent disclosure of such instructions to employees, officers, or directors of the Company or its affiliates, other than employees and officers of the Trustee who are directly responsible for receiving, tabulating, and carrying out such instructions. In extraordinary circumstances, including, without limitation, contested proxy matters or tender or exchange offers 67. not endorsed by Company management, the Trustee may, in its discretion and at the expense of the Plan, take additional precautions to preserve the confidentiality of Participant instructions, including, without limitation, hiring an independent party to receive and tabulate Participant instructions, and, in the event some, but not all, of the Company Stock held by the Plan is sold or exchanged pursuant to a tender or exchange offer, to maintain Participant records. Any such independent party must agree, as a condition of its retention, not to divulge Participant instructions or records to employees, officers, or directors of the Company or its affiliates, except as otherwise required by law. The Company acknowledges and agrees to honor the confidentiality of Participant instructions to the Trustee. 10.4 Allocation of Gains or Losses on Investment Funds The last day of each calendar month shall be a valuation date. As of each valuation date, the Plan Administrator shall allocate the gains and losses on each Investment Fund since the last valuation date among Accounts invested in the Fund by adjusting the stated value of each Account to reflect its actual value as of the current valuation date. This adjustment shall be accomplished by multiplying the last determined value of each Account's interest in the Fund (or, at the election of the Plan Administrator, the average value of its interest during the period since the last valuation date) by 68. the Investment Fund's earnings factor for the valuation date. Alternatively, the Plan Administrator may elect to allocate earnings and losses in any other consistent manner so long as the resulting allocations would be generally similar to those determined under the provisions of this Article. In applying this Section with respect to the Stock Fund, only the Cash Account within the Stock Fund shall be taken into account, as more fully provided in Section 10.2. 10.5 Earnings Factor (a) Except as otherwise determined by the Plan Administrator, an Investment Fund's earnings factor referred to in Section 10.4 shall mean the percentage determined by dividing its current adjusted value, as defined in subsection (b), by the total amount credited to all Accounts in the Investment Fund as of the valuation date before allocations of gains and losses and before distributions as of such date. (b) The current adjusted value of an Investment Fund shall be its value, as determined under Section 10.6 as of the monthly valuation date, reduced by any unallocated amounts credited thereto. 10.6 Value of Investment Funds The Plan Administrator or its delegate shall determine the fair market value of Investment Fund assets in compliance with this Section and the principles of Section 3(26) of ERISA and regulations issued pursuant thereto. Valuation shall be based upon information reasonably available to the Plan 69. Administrator or its delegate, including data from, but not limited to, newspapers and financial publications of general circulation, statistical and valuation services, records of securities exchanges, appraisals by qualified persons, transactions and bona fide offers in assets of the type in question and other information customarily used in the valuation of property for purposes of the Code. The Plan Administrator or its delegate may elect to value any bank deposit, interest-bearing insurance contract or other evidence of indebtedness at its unpaid face value (and, at the election of the Plan Administrator or its delegate, with interest accrued to the valuation date) if the obligation is not in default. In determining the value of the Plan's investment in any collective investment fund, separate account, partnership or similar entity, the Plan Administrator or its delegate may (but need not) rely on the most recent prior valuation of units or interests in the fund, separate account, partnership or entity made by or on behalf of the fund, separate account, partnership or entity. The value of any real property held in an Investment Fund, determined as of the end of any Plan Year, shall be considered to remain unchanged until the end of the following Plan Year. With respect to securities for which there is a generally recognized market, the published selling prices on or last preceding the valuation date shall establish the fair market value of such securities. The Plan Administrator or its delegate may elect to treat as an asset the unamortized amount of capitalized administrative 70. expenditures charged to an Investment Fund. Fair market value so determined shall be conclusive for all purposes of the Plan and Trust. 10.7 Account Values, Basis and Conversion of Company Stock to Cash (a) Except as provided in subsection (b), the value of an Account for all purposes of this Plan shall be its value as last determined under this Article on or before the date in question, increased by contributions thereafter credited to the Account and decreased by amounts thereafter withdrawn or distributed from the Account. (b) As provided in Section 10.2, the Stock Account component of a Participant's Company Contributions Account consists of the Company Stock credited to the Account at the time in question. The Stock Account shall be worth the fair market value of the Company Stock credited to it. To the extent that Company Stock in a Stock Account is to be distributed or withdrawn in cash, or converted to cash when forfeited, its value shall be determined based on the closing trading price of the Company Stock credited to the Account, determined as of the end of the last business day of the calendar month in which the distribution, withdrawal or forfeiture is processed (or such other earlier date specified by the Plan Administrator) by the Plan Administrator under a reasonable method consistently applied. For purposes of informing Participants of the Plan's basis in Company Stock distributed to them, the Plan 71. Administrator shall keep records of the Plan's basis in the Company Stock credited to each Stock Account in accordance with Treas. Reg. Section 1.402(a)-1(b)(2). ARTICLE XI ANNUAL ADDITION LIMITS 11.1 Limitation on Allocations (a) The annual addition to any Participant's Account for any Plan Year shall not exceed his or her maximum permissible amount. Subsection (d) defines the terms used in this Article. (b) Prior to determining the Participant's actual earnings for the Plan Year, the Company may determine the maximum permissible amount on the basis of a reasonable estimate of the Participant's earnings for the Plan Year, uniformly determined for all Participants similarly situated. As soon as administratively feasible after the end of the Plan Year, the maximum permissible amount for the Plan Year will be determined on the basis of the Participant's actual earnings for the Plan Year. (c) If a Participant's annual addition would exceed his or her maximum permissible amount, the excess amount shall be eliminated as follows: (i) Any After-Tax Contributions, to the extent they would reduce the excess, shall be returned to the Participant as soon as administratively feasible. 72. (ii) The excess amount, if any, remaining after application of paragraph (i) shall be held unallocated in a suspense account. The suspense account shall be allocated in the next Plan Year (and succeeding Plan Years, if necessary) to all remaining Participants in lieu of Company contributions which would otherwise be allocated to those Participants. (d) Terms used in this Article shall have the following meanings: (i) "Annual Addition" means the sum for the Plan Year of all contributions and forfeitures allocated to a Participant's accounts in all qualified defined contribution and defined benefit plans maintained by the Company. Funds set aside to provide post-retirement medical benefits to the Participant shall be included in his or her annual addition to the extent required under Code Section 415(1) or 419A(d)(2). Under Code Section 415(c)(6)(C), certain Company contributions and forfeitures which would otherwise be considered annual additions may be excluded. (ii) "Maximum Permissible Amount" shall mean, with respect to a Participant, the lesser of (A) twenty-five percent of the Participant's earnings for the Plan Year, or (B) $30,000 (or, if greater, one quarter of the amount (currently $118,800) then in effect pursuant to Code Section 415(b)(1)(A) for the 73. calendar year in or with which the Plan Year ends). Because the Plan Year is the "limitation year," if a short Plan Year is created for any reason, the dollar amount in this subparagraph shall be prorated by multiplying it by a fraction, the numerator of which is the number of months in the short Plan Year and the denominator of which is twelve. Under Code Section 415(c)(6)(A), the dollar amount in this subparagraph may be increased if certain conditions are met. (iii) "Earnings" shall mean a Participant's earned income, wages, salaries, fees for professional services and other amounts received or considered received from the Company and all related companies during the entire Plan Year (even if the individual is a Participant for only part of the Plan Year) for personal services actually rendered to the Company as an Employee and includable in the Participant's gross income for the Plan Year (including any such amounts which are otherwise excluded from "Compensation," as defined in Section 2.14), but excluding (A) employer contributions for simplified employee pensions to the extent such contributions are excludable from the gross income of the Participant, (B) salary reduction contributions to cash or deferred plans or cafeteria plans, deferred compensation or any distributions from a plan of 74. deferred compensation (other than an amount included in the Participant's gross income for the Plan Year which is attributable to an unfunded, non-qualified plan), (C) amounts realized from the exercise of a non-qualified stock option, or when restricted stock (or property) held by a Participant becomes freely transferable or is no longer subject to a substantial risk of forfeiture, (D) amounts realized from the sale, exchange or other disposition of stock under a qualified or incentive stock option, and (E) other amounts which receive special tax benefits, such as contributions made by the Company (whether or not under a salary reduction agreement) towards the purchase of a Code Section 403(b) annuity contract (whether or not the contribu- tions are excludable from the gross income of the Participant). 11.2 Combined Defined Contribution/Defined Benefit Plan Limit (a) If a Participant in this Plan has at any time participated in any qualified defined benefit plan of the Company, the annual additions which may be credited to a Participant's Account under this Plan for any limitation year shall be limited so that the sum of the Participant's defined contribution plan and defined benefit plan fractions, as defined 75. below, will not exceed 1.0. This limitation shall only apply if the defined benefit plan does not provide for a corresponding limitation on the Participant's accrued benefit under that plan. (b) "Defined Contribution Plan Fraction" shall have the meaning set forth in Code 415(e)(3). If, based on reasonable projections, it is expected that a Participant's defined contribution plan fraction in the future will be materially less than his or her current defined contribution plan fraction, the Plan Administrator shall compute the defined contribution plan fraction on a projected basis. (c) "Defined Benefit Plan Fraction" shall have the meaning set forth in Code Section 415(e)(2). (d) For any limitation year in which the Plan is top heavy, "one hundred percent" shall be substituted for "one hundred twenty-five percent" under Code Sections 415(e)(2) and (3) in determining the denominators of a key employee's defined contribution and defined benefit plan fractions. ARTICLE XII ADMINISTRATION OF THE PLAN 12.1 Duties of the Plan Administrator The Plan Administrator shall be responsible for the general administration of the Plan and shall administer the Plan on a non-discriminatory basis in accordance with its terms. The Plan Administrator shall have all powers and duties necessary to 76. fulfill its responsibilities, including, but not limited to, the following powers and duties: (a) To determine all questions relating to the eligibility of Employees to participate; (b) To determine, compute and certify to the Trustee the amount and kind of benefits payable to Participants and their Beneficiaries; (c) To authorize all disbursements by the Trustee from the Trust; (d) To maintain all records necessary for the administration of the Plan, other than those maintained by the Companies or the Trustees; (e) To provide for disclosure of all information and filing or provision of all reports and statements to Participants, Beneficiaries or governmental bodies as shall be required of the Plan Administrator by the Code or ERISA or any other federal law; (f) To adopt or modify Plan Rules for the regulation or application of the Plan (see Exhibit I); such Rules may establish administrative procedures or requirements which modify the terms of this Plan, but Plan Rules shall not substantially alter significant requirements or provisions of the Plan; (g) To administer the claims procedure set forth in Section 12.5; 77. (h) To the extent required under Code Section 402(f), to notify each recipient of a distribution from this Plan of his or her right to make a rollover contribution of all or part of the distribution; (i) To delegate any power or duty to any person or entity in accordance with Section 12.3; and (j) To exercise all other powers or duties granted to the Plan Administrator by other provisions of the Plan or the Trust Agreement. 12.2 Investments and Funding Policy The Plan Administrator shall establish a funding policy. The Plan Administrator shall advise the Trustee and any other person delegated investment management responsibility of all such matters, if any, as may be pertinent to their duties. 12.3 Delegation of Administrative Responsibility (a) The Plan Administrator may delegate all or any portion of its administrative responsibilities with respect to the Plan (other than investment management responsibilities) to any other person or persons pursuant to this Section. Investment responsibilities may be delegated only to the extent permitted under the Trust Agreement. (b) A delegation under this Section shall be accomplished by a written instrument executed by the Plan Administrator specifying responsibilities delegated and the fiduciary responsibilities allocated to such delegate. The delegation of such responsibilities shall be effective upon the 78. date specified in the delegation, subject to written acceptance by the delegate. 12.4 Compensation, Expenses and Indemnity (a) Any delegate under Section 12.3 who is an Employee shall serve without compensation for services to the Plan. Any individual who handles Plan assets shall be bonded. The Companies shall furnish the Plan Administrator and any such delegate with all clerical or other assistance necessary in the performance of their duties. The Plan Administrator is authorized to employ such legal counsel and advisers as it may deem advisable to assist in the performance of its duties thereafter. (b) All costs of administering the Plan (including the cost of the bond and legal services described in subsection (a)) shall be paid either out of Plan assets or by the Companies. Expenses paid out of the Plan shall be charged to the Investment Fund or Funds with respect to which the expenses were incurred or in such other fashion as the Plan Administrator may direct. Except as the Plan Administrator otherwise directs, any expenses incurred in resolving disputes among different claimants as to entitlement to a benefit which is payable under the Plan shall be charged against the benefit, which shall be reduced accordingly. (c) To the extent permitted by applicable law, the Companies shall indemnify and hold harmless the Board of Directors, the Plan Administrator and any delegate appointed 79. pursuant to Section 12.3 who is an Employee or any committee appointed under Section 12.7 against any and all expenses, liabilities and claims (including legal fees incurred to defend against such liabilities and claims) arising out of their discharge in good faith of responsibilities under or incident to the Plan. Expenses and liabilities arising out of willful misconduct shall not be covered under this indemnity. This indemnity shall not preclude such further indemnities as may be available under insurance purchased by the Companies or provided by the Companies under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, as such indemnities are permitted under applicable law. Payments with respect to any indemnity and payment of expenses or fees shall be made only from assets of the Companies and shall not be made directly or indirectly from Trust assets. 12.5 Claims Procedure (a) Normally, a Participant or Beneficiary need not present a formal claim for benefits in order to qualify for rights or benefits under this Plan. However, if any person is not granted the rights or benefits to which the individual believes himself or herself to be entitled, a formal claim for benefits must be filed in accordance with this Section. A claim by a Participant, former Participant, Beneficiary or any other person shall be presented to the Plan Administrator in writing. The Plan Administrator shall, within a reasonable time, consider the claim and shall issue its determination thereon in writing. 80. If the claim is granted, the appropriate distribution or payment shall be made from the Trust Fund. (b) If a claim is wholly or partially denied, the Plan Administrator shall, within ninety days (or such longer period as may be reasonable necessary), provide the claimant with written notice of such denial, setting forth, in a manner calculated to be understood by the claimant (i) the specific reason or reasons for such denial, (ii) specific references to pertinent Plan provisions on which the denial is based, (iii) 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 (iv) an explanation of the Plan's claim review procedure. (c) Each claimant shall have the opportunity to appeal in writing the Plan Administrator's denial of a claim to a review officer designated by the Plan Administrator for a full and fair review. The claimant or his or her duly authorized representative (i) may request a review upon written application to the Plan Administrator (which shall be filed with it), (ii) may review pertinent documents, and 81. (iii) may submit issues and comments in writing. (d) The Plan Administrator may establish time limits within which a claimant may request review of a denied claim as are reasonable in relation to the nature of the benefit which is the subject of the claim and other attendant circumstances, but which shall not be less than sixty days after receipt by the claimant of written notice of denial of his or her death. The Plan Administrator shall adopt procedures pursuant to which claims shall be reviewed and may, in its discretion, adopt different procedures for different claims without being bound by past actions. Any procedures adopted, however, shall be designed to afford a claimant a full and fair review of his or her claim. (e) The decision by the review official upon review of a claim shall be made not later than sixty days after his or her receipt of the request for review, unless special circumstances require an extension of time for processing, in which case a decision shall be rendered as soon as possible, but not later than 120 days after receipt of the request for review. (f) The decision on review shall be in writing and shall include specific reasons for the decision written in a manner calculated to be understood by the claimant, with specific references to the pertinent Plan provisions on which the decision is based. (g) To the extent permitted by law, the decision of the Plan Administrator (if no review is properly 82. requested) or the decision of the review official on review, as the case may be, shall be final and binding on all parties. No legal action for benefits under the Plan shall be brought unless and until the claimant has exhausted his or her remedies under this Section. 12.6 Effect of Plan Administrator Action The Plan shall be interpreted by the Plan Administrator and all Plan fiduciaries in accordance with the terms of the Plan and its intended meanings. However, the Plan Administrator and all Plan fiduciaries shall have the discretion to make any findings of fact needed in the administration of the Plan, and shall have the discretion to interpret or construe ambiguous, unclear or implied (but omitted) terms in any fashion they deem to be appropriate in their sole judgment. The validity of any such findings of fact, interpretation, construction or decision shall not be given de novo review if challenged in court, by arbitration or in any other forum, and shall be upheld unless clearly arbitrary or capricious. To the extent the Plan Administrator or any Plan has been granted discretionary authority under the Plan, the Plan Administrator's or Plan fiduciary's prior exercise of such authority shall not obligate it to exercise its authority in like fashion thereafter. If, due to the errors in drafting, any Plan provision does not accurately reflect its intended meaning, as demonstrated by consistent interpretations or other evidence of intention, or as determined by the Plan Administrator in its sole and exclusive judgment, the 83. provision shall be considered ambiguous and shall be interpreted by the Plan Administrator and all Plan fiduciaries in a fashion consistent with its intent, as determined by the Plan Administrator in its sole discretion. The Plan Administrator, without the need for Board of Directors' approval, shall amend the Plan retroactively to cure any such ambiguity. This Section may not be invoked by any person to require the Plan to be interpreted in a manner which is inconsistent with its interpretation by the Plan Administrator or by any Plan fiduciaries. All actions taken and all determinations made in good faith by the Plan Administrator or by Plan fiduciaries shall be final and binding upon all persons claiming any interest in or under the Plan. 12.7 Appointment of Committees (a) The Board of Directors may, but need not, appoint an administrative committee (the "Administrative Committee") to serve as Plan Administrator or an investment committee (the "Investment Committee") to monitor the Plan's investments. The Investment Committee shall not manage investments or make investment decisions or recommendations. Its sole function is to monitor the Investment Funds and advise the Board of Directors from time to time as to their performance. (b) Each Committee shall consist of at least three members. The members of a Committee shall be appointed by the Board of Directors. A person appointed shall become a member of a Committee by filing a written notice of acceptance with the 84. Board of Directors. A member of a Committee may resign by delivering a written notice of resignation to the Board of Directors. The Board of Directors may remove any member (with or without cause) by delivering a certified copy of its resolution of removal to such member. Resignation or removal shall be effective on the date specified. The Trustee shall be promptly notified of the membership (and of any changes in the membership) of a Committee and of the Secretary of the Committee authorized to give directions to the Trustee on behalf of the Committee. The Trustee shall also be provided with specimen signatures of each Committee member. These notifications shall be accompanied by certified copies of the resolution of the Board of Directors relating thereto. Vacancies in the membership of a Committee shall be filled promptly by the Board of Directors. (c) Each Committee shall choose a Secretary who shall keep minutes of the Committee's proceedings and all records and documents pertaining to the Committee's administration of the Plan. Any action of a Committee shall be taken pursuant to a majority vote, or pursuant to the written consent of a majority, of its members and such action shall constitute the action of the Committee and be as binding as if all members had joined therein. A quorum of a Committee shall consist of a majority of the members. The Secretary of a Committee may execute any certificate or other written direction on behalf of a Committee. The Trustee or third persons dealing with a Committee may conclusively rely upon any certificate or other written direction 85. signed by the Secretary which purports to have been duly authorized by the Committee. (d) A member of a Committee shall not vote or act upon any matter which specifically relates to such person as a Participant or to any other matter in which the member has an interest which may affect such member's best judgment as a fiduciary. If a matter arises affecting one of the members of a Committee and the other members of the Committee are unable to agree as to the disposition of such matter, the Board of Directors shall appoint a substitute member of the Committee in the place and stead of the affected member for the sole and only purpose of passing upon and deciding the particular matter. ARTICLE XIII AMENDMENT AND TERMINATION OF THE PLAN 13.1 Amendments (a) First Interstate Bancorp shall have the right to amend this Plan. All amendments may be adopted in writing by resolution of the Board of Directors or resolution of the Executive Committee or Compensation Committee of the Board. Notwithstanding the previous sentence, the Plan Administrator shall have the power to amend the Plan in any way, without approval of the Board of Directors or its Executive or Compensation Committees, for the purpose of complying with antidiscrimination provisions of the Code, as long as the amendment does not substantially increase the expense of the Plan to the 86. Company. By way of illustration, the Plan Administrator may, for the purpose of anti-discrimination rule compliance, restrict Plan eligibility, divide the Plan into substantially identical separate plans or change any provisions relating to Before-Tax or After-Tax Contributions or Company contributions. (b) No amendment or any other action by the Companies shall divert any assets of the Plan to any purpose other than the exclusive benefit of the Participants or their Beneficiaries. No amendment shall decrease the Vested percentage or amount of a Participant's Account or, to the extent prohibited by Code Section 411(d)(6)(B), reduce or eliminate any subsidy, early retirement benefit or optional benefit form. (c) Any material modification of the Plan shall be communicated to all interested parties and the Secretaries of Labor and the Treasury in the time and manner required by law. (d) No amendment, unless it expressly provides otherwise, shall be applied retroactively to increase the Vested percentage of a former Participant whose Employment terminated before the date such amendment became effective unless and until he or she again becomes a Participant. (e) No amendment, unless it expressly provides otherwise, shall be applied retroactively to increase the amount of Service credited to any person for Employment before the date the amendment became effective. (f) Except as provided in subsections (d) and (e), all rights under the Plan shall be determined under the 87. terms of the Plan as in effect at the time the determination is made. (g) Any other provisions of this Plan to the contrary notwithstanding, if any amendment to ERISA or the Code (or administrative interpretation thereof) requires that a conforming plan amendment be adopted as of a stated effective date in order for this Plan to continue to be a qualified plan which complies with ERISA, this Plan shall be operated in accordance with the requirements of that ERISA or Code provision from its effective date until the date when a conforming plan amendment is adopted, or the date when a clear and unambiguous nonconforming plan amendment is adopted whichever occurs first. (h) If the Internal Revenue Service determines that the Plan does not qualify under applicable provisions of the Internal Revenue Code for any Plan Year, the Plan shall be a new and separate plan and trust for the next plan year and the Plan Administrator shall segregate the assets of the new plan and trust from all other Plan and Trust assets. 13.2 Termination of Plan; Discontinuance of Contributions (a) The Plan is intended to be a permanent program, but the Companies shall have the right at any time to declare the Plan terminated completely as to all Companies or as to any Company or any of its divisions, facilities, operational units or job classifications. Such a termination by itself shall 88. not constitute a "partial termination," within the meaning of subsection (b). (b) If the Plan Administrator determines in its sole discretion that the Plan has been terminated partially or completely within the meaning of regulations under Code Section 411, the Plan Administrator shall determine the date of such termination and who has been affected by the termination. The Accounts of all persons affected by the termination who were Employees on the date thereof shall become fully Vested. In addition, the Plan Administrator in its sole discretion may vest the Accounts of a group of Participants in full because they are affected by a business divestiture, layoff or other similar transaction, in which case the partial termination rules set forth in this Section shall apply (even when a true "partial termination" has not occurred). The Plan Administrator shall document in writing its decision to vest certain Participants' Accounts in full and the reasons therefor. The Plan Administrator's action in any one event shall not be considered as establishing a precedent nor requiring a similar action in another event. If the Plan is being completely terminated, the unvested portion of the Account of each person who is not then an Employee shall be forfeited (except as otherwise required under any Treasury Regulation or Internal Revenue Service Revenue Ruling or Notice issued after 1988). These forfeitures shall be allocated to all other Participants as of the termination date, as specified by the Plan Administrator. Since partial 89. termination of the Plan does not necessarily involve liquidation of the Plan, the Accounts of all persons affected by such an occurrence, to the extent Vested, shall remain payable under the terms set forth in the Plan, except as provided in subsection (c). (c) In connection with a complete or partial termination of the Plan or thereafter, the Plan Administrator may elect to discharge all of the Plan's obligations to affected Participants. In such event, the Plan Administrator shall cause the following actions to take place: (i) Amounts being held under Sec- tion 11.1(c) shall revert to the Companies if a complete Plan termination is taking place; and (ii) The Plan Administrator shall direct the Trustee to liquidate the necessary portion of the Trust Fund and distribute affected Accounts, less proportionate shares of the expenses of termination, to the persons entitled thereto. (d) Except as provided otherwise in any applicable collective bargaining agreement, any Company shall have the right at any time to discontinue contributions to the Plan completely or as to any of the Company's divisions, facilities, operational units or job classifications. A complete discontinuance of contributions by all Companies shall constitute a "partial termination" within the meaning of subsection (b). 90. (e) This Section has been included in the Plan to meet requirements of federal law. It is not intended to create, nor shall it be construed as creating, any contractual rights whatsoever. (f) Notwithstanding any other provision in the Plan to the contrary, the benefit of any person who is highly compensated (within the meaning of Code Section 414(q)) shall be limited to a benefit that is nondiscriminatory under Code Section 401(a)(4). ARTICLE XIV MISCELLANEOUS PROVISIONS 14.1 Payments (a) In the event any amount becomes payable under the Plan to a minor or a person who, in the sole judgment of the Plan Administrator, is considered to be unable to give a valid receipt for the payment by reason of physical or mental condition, the Plan Administrator may direct that such payment be made to any person found by the Plan Administrator, in its sole judgment, to have assumed the care of the person in question. Any payment made pursuant to such determination shall constitute payment by the Plan and result in a full release and discharge of the Trustee, the Plan Administrator and the Companies and their officers, directors, employees, agents and representatives. (b) Payment of benefits to the person entitled thereto may be sent by first class mail, address correction 91. requested, to the last known address on file with the Plan Administrator. If, within six months from the date of issuance of the payment, the payment letter cannot be delivered to the person entitled thereto or the payment has not been negotiated, the payment shall be treated as forfeited and shall be allocated as specified by the Plan Administrator. However, if the person to whom the benefit became payable subsequently appears and identifies himself or herself to the satisfaction of the Plan Administrator, the amount forfeited (without earnings thereon) shall be restored and subsequently distributed to the person entitled thereto. The right of any person to restoration of a benefit which was forfeited pursuant to this Section shall cease upon termination of this Plan. (c) If the Plan Administrator retains at the Plan's expense a private investigator or other person or service to assist in locating a missing person, all costs incurred for such services shall be paid from the Account to which the missing person was entitled, except as the Plan Administrator may otherwise direct. (d) Payments to Participants or Beneficiaries may be postponed by the Trustee or Plan Administrator until any anticipated taxes or expenses or amounts to be paid under a qualified domestic relations order have been paid in full or until it is determined that such charges will not be imposed. 92. 14.2 Consolidation or Merger of Companies In the event of the consolidation or merger of a Company with or into any other business entity, or the sale by a Company of its assets, the successor may continue the Plan by adopting the same by resolution of its board of directors or agreement of its partners or proprietor, with the approval of the Plan Administrator. If, within ninety days from the effective date of such consolidation, merger or sale of assets, such new corporation, partnership or proprietorship does not adopt the Plan, the Plan shall be terminated as to the Company in question in accordance with Section 13.2, although such a termination will not ordinarily be a "partial termination." 14.3 Adoption of Plan to Cover Other Companies, Facilities or Groups Any Company described in Section 14.4(a) may, with the approval of the Plan Administrator, adopt the Plan (as a whole Company or as to any one or more divisions or facilities, or other employment classifications) effective as of the day it specified. Adoption may be accomplished either (1) by formal written adoption (i.e., by resolution of the board of directors of the adopting Company or other written instrument signed by officers of the adopting Company without board approval) or (2) by adoption in operation as evidenced by communication of the Plan to the adopting Company's Employees, or the making of contributions to the Plan or the supplying of Employee data to the Plan by the adopting Company. The same procedures may be 93. followed when a Company that has adopted the Plan wishes to change the positions or facilities covered by the Plan. 14.4 Related Companies (a) A Company is a "related company" while it and the Companies are members of a controlled group of corporations, a group of trades or businesses under common control or an affiliated service group, within the meaning of Sections 414(b), 414(c) and 414(m) of the Code, or required to be aggregated pursuant to Treasury Regulations under Section 414(o) of the Code. For purposes of determining the maximum annual addition to a Participant's Account, Code Sections 414(b) and (c) shall be applied as modified by the Code Section 415(h) with respect to parent-subsidiary groups only. The Plan Administrator may allow companies which are not "related companies" (e.g., because they are less than eighty percent-owned subsidiaries or joint ventures) to adopt the Plan. Any such company which adopts the Plan shall thereafter be treated as a "Company," as shall any other entity which is "related" to it under the rules set forth in this subsection. (b) If this Plan is adopted by a Company which is not a member of the controlled group of corporations of which First Interstate Bancorp is a member, the following special rules shall apply, as required by Code Section 413(c): (i) Service with such company (or companies related to it under subsection (a)) shall be 94. recognized by all other Companies for participation and vesting purposes, and vice versa. (ii) Deductions with respect to the Plan under Code Section 404 shall be allocated among the Companies in a reasonable fashion, in accordance with applicable law under Code Section 413(c). (iii) Discrimination as to participation or benefits (including testing under Code Sections 401(k) and 401(m) or the occurrence of a partial or complete Plan termination shall be determined separately for each Company or group of Companies which constitutes a single employer under Code Section 414(b), (c) or (m). (iv) Contribution and benefit limits under Code Section 415 shall be applied as if all Companies are a single employer pursuant to Treas. Reg. ss. 1.415-1(e)(1). (v) To the extent required by applicable law, if the Plan is disqualified as to any one Company it shall be disqualified as to all Companies. 14.5 Eligibility Determinations for Part-Time Employees In the case of an Employee regularly scheduled to work less than twenty hours per week and solely for purposes of determining his or her eligibility for the Plan, Service shall be calculated as follows: (a) An Employee shall have one year of Service for eligibility purposes if he or she completes one thousand 95. hours of Service in the twelve consecutive month period commencing on the day he or she first performs an hour of Service for the Company or, failing that, in any Plan Year beginning thereafter. (b) An Employee shall not be credited with a year of Service for eligibility purposes until the end of the twelve consecutive month period in which the hours of Service requirement is met. (c) An Employee shall be credited with one hour of Service for: (i) Each hour (straight-time or overtime) for which he or she is paid or entitled to payment for the performance of services as an Employee by the Company. (ii) Each hour in or attributable to a period of time during which the individual performs no such duties (irrespective of whether his or her Employment has terminated) due to a vacation, holiday, illness, incapacity (including pregnancy or disability), layoff, jury duty, military duty or a leave of absence, for which he or she is paid or entitled to payment by the Company, whether direct or indirect; provided, however, that (A) no more than five hundred and one hours of Service shall be credited under this paragraph to an Employee on account of any such period, and (B) no such hours shall be credited to an Employee if attributable to payments made or due 96. under a plan maintained solely for the purpose of complying with applicable workers' compensation, unemployment compensation or disability insurance laws or to a payment which solely reimburses the Employee for medical or medically related expenses incurred by the Employee. (iii) Each hour not credited under para- graphs (i) and (ii) for which the individual is entitled to back pay, irrespective of mitigation or damages, whether awarded or agreed to by the Company. (d) Hours of Service under subsections (c)(ii) and (c)(iii) shall be calculated in accordance with 29 C.F.R. subsection 2530.200b-2(b). Each hour of Service shall be attributed to the Plan Year or initial eligibility year in which it occurs except to the extent that the Company, in accordance with 29 C.F.R. subsection 2530.200b-2(c), credits such hour to another computation period. (e) Subsections 2.28(b), (c), (d) and (e) shall, as applicable, continue to apply to an Employee regularly scheduled to work less than twenty hours per week whose Service is being measured by this hours of Service method. (f) An Employee whose service is or was calculated under this Section shall lose Service credits attributable to any period of employment which precedes a "parity break." For purposes of this subsection only, a "parity break" occurs if an individual who does not have any Vested Account in 97. the Plan completes less than 501 hours of Service (as determined under this Section) in five consecutive Plan Years or, if longer, in as many consecutive Plan Years as the Years of Service then credited to the individual. 14.6 Termination of Employment (a) A person's Employment shall terminate upon his or her resignation, discharge, death or Retirement. Employment shall not terminate on account of an authorized leave of absence, sick leave or vacation, or on account of a military leave described in subsection (b), a direct transfer between a Company and any other Company, a temporary layoff for lack of work, or a permanent layoff during a leave of absence for which salary continuation is paid. However (i) if a temporary layoff for lack of work continues beyond the period allowed under applicable personnel policies of the Companies, a person's Employment shall terminate as of the last day of such period; and (ii) failure to return to work upon expiration of any leave of absence, sick leave or vacation or within the time period allowed under applicable personnel policies of the Companies after recall from a temporary layoff for lack of work shall be considered a resignation effective as of the expiration of such leave of absence, sick leave, vacation or layoff. (b) Any Employee who leaves the Employer directly to perform service in the Armed Forces of the United 98. States or in the United States Public Health Service under conditions entitling the Employee to reemployment rights, as provided in the laws of the United States, shall be on military leave. An Employee's military leave shall expire if such Employee voluntarily resigns from the Companies during the leave or if he or she fails to make application for reemployment within the period specified by such laws for the preservation of reemployment rights. In such event, the individual's Employment shall terminate by resignation on the day such military leave expired. (c) Section 2.28(b) imposes limits on the amount or Service credited to an Employee while absent from work for the reasons set forth in subsections (a) and (b). (d) As long as the First Interstate Bancorp group continues to maintain this Plan, a Participant's Employment shall be considered terminated for all purposes of this Plan, including distribution-triggering purposes, if the Participant ceases to be employed by the First Interstate Bancorp group of companies, as determined under Section 14.4, because of the sale of a business of such companies (whether the sale is a stock sale or asset sale), unless the sales agreement or related documents expressly provide to the contrary. Employment shall be considered terminated under the preceding sentence on account of a "separation from the service" without regard to whether the termination was a "separation from the service" within the 99. meaning of Code Section 401 or 402 for lump sum distribution or other purposes. (e) If an Employee is absent from work because of such individual's pregnancy, the birth of a child, placement of an adopted child, or caring for an adopted or natural child following birth or placement, the individual's Employment shall not be deemed to have terminated until the expiration of one year from the commencement of the maternity or paternity absence, or such earlier time permitted under applicable Treasury Regulations. (f) No credit shall be given under subsec- tion (e) unless a Participant files a written request which establishes valid reasons for the absence, as determined by the Plan Administrator. (g) Except to the extent that a maternity or paternity absence constitutes an authorized leave of absence from the Employer under applicable personnel policies, an Employee who is absent from work for reasons of maternity or paternity shall be deemed to have terminated Employment for all purposes of this Plan other than the special rules in subsection (e). 14.7 Corrective Contributions To the extent required by an order of a court of competent jurisdiction or by a settlement or agreement granting back pay, the Companies shall make corrective contributions to the Plan (subject to the applicable limitations on deductible Company contributions and maximum annual additions). On a 100. voluntary basis, the Companies may also make corrective contributions in order to remedy mistakes made in distributing, forfeiting, crediting or investing Accounts. A corrective contribution shall be allocated or credited in the fashion specified by the Plan Administrator. 14.8 Plan Mergers and Spinoffs The Plan shall not be merged or consolidated with any other plan, nor shall its assets or liabilities be transferred to any other plan, unless immediately after the merger (if the plan in question were then terminated), each Participant in this Plan would have a benefit which is equal to or greater in amount than the benefit the Participant would have been entitled to under this Plan had this Plan been terminated immediately before the merger, consolidation or transfer. This provision shall not be construed as prohibiting the commingling of assets of this Plan and any other qualified plans for investment purposes. A defined benefit plan, money purchase pension plan or any other plan subject to the joint and survivor annuity requirements of Code Section 401(a)(11) may not be merged with this Plan unless the surviving plan is amended to comply with such requirements. 14.9 Limitation on Rights of Employees Except as provided in any applicable basic labor agreement, the Plan is strictly a voluntary undertaking on the part of the Companies and shall not constitute a contract between the Companies and any Employee, or consideration for, or an inducement or condition of, the employment of an Employee. 101. Except as otherwise required by statute or such a basic labor agreement, nothing contained in the Plan shall give any Employee the right to be retained in the service of the Companies or to interfere with or restrict the right of the Companies, which is hereby expressly reserved, to discharge or retire any Employee at any time for any reason not prohibited by statute, without the Company being required to show cause for termination. Except as otherwise required by statute, inclusion under the Plan will not give any Employee any right or claim to any benefit hereunder except to the extent such right has specifically become fixed under the terms of the Plan and there are funds available in the hands of the Trustee to pay the benefit. The doctrine of substantial performance shall have no application to Employees, Participants or Beneficiaries. Each condition and provision, including numerical items, has been carefully considered and constitutes the minimum limit on performance which will give rise to the applicable right. 14.10 Duty to Provide Data (a) Every person with an interest in the Plan or claiming benefits under the Plan shall furnish the Plan Administrator on a timely and accurate basis with such documents, evidence or information as it considers necessary or desirable for the purpose of administering the Plan. The Plan Administrator may postpone the withholding of Before-Tax Contributions or After-Tax Contributions, the allocation of matching contributions 102. or the payment of benefits until such information and such documents have been furnished. (b) Every person claiming a benefit under this Plan shall give written notice to the Plan Administrator of his or her post office address and each change of post office address. Any communication, statement or notice addressed to such a person at his or her latest post office address, as filed with the Plan Administrator will, on deposit in the United States mail with postage prepaid, be binding upon such person for all purposes of the Plan as if it had been received, whether actually received or not. If a person fails to give notice of his or her correct address, the Plan Administrator, the Companies and Plan fiduciaries shall not be obliged to search for, or to ascertain, his or her whereabouts. 14.11 Service of Process. The Secretary of First Interstate Bancorp is hereby designated as agent for the service of legal process on the Plan. 14.12 Governing Law The Plan and Trust shall be interpreted, administered and enforced in accordance with the Code and ERISA, and the rights of Participants, former Participants, Beneficiaries and all other persons shall be determined in accordance with these laws. To the extent that state law is applicable, however, the laws of the State of California shall apply, except as provided in Section 8.2(b)(iii) (pertaining to determination of heirs at law). 103. 14.13 Top Heavy Rules (a) If the Plan is top heavy for a Plan Year, as determined under subsection (b), the following special rules shall apply: (i) Each Participant who is an Employee on the last day of the Plan Year shall receive an allocation of Company contributions (including After-Tax Contributions) and forfeitures under Article V at least equal to the product of (A) the Participant's earnings while an Active Participant during the Plan Year (as determined under Section 11.1(c)), and (B) the lesser of (1) three percent or (2) the percentage of such earnings allocated under Article V for the Plan Year to the most highly benefited key employee, determined in accordance with subsection (c). (ii) All Company-provided benefits accruing through the end of the Plan's last top heavy Plan Year shall vest in accordance with the following schedule: 104. Years of Service Vested Percentage (at least) 2 20% 3 40% 4 60% 5 80% 6 or more 100% A former Employee's Vested percentage shall not be determined under this Paragraph unless he or she again becomes an Employee before the unvested portion of his or her Company Contributions Account is permanently forfeited under the terms of this Plan. When the Plan ceases to be top heavy, vesting in Company contributions accruing thereafter shall be determined in accordance with the regular vesting provisions of the Plan. However, to the extent required by applicable law, a Participant with at least five years of Service when the Plan ceases to be top heavy shall be entitled to elect to have the Vested percentage of Company contributions accruing thereafter determined under this paragraph rather than under the regular vesting provisions of the Plan. The period during which the election may be made shall commence with the date the Plan ceases to be top heavy and shall end on the later of (i) sixty days after such date, or (ii) sixty days after the Participant is issued written notice of the right to make the election by the Plan Administrator. The Plan Administrator shall establish 105. appropriate procedures consistent with the other vesting provisions of this Plan for administering this special vesting rule. (b) This Plan is top heavy for a Plan Year commencing after 1983 if, as of the last day of the preceding Plan Year, the amount credited to the Accounts of key employees (as defined in subsection (c)) exceeds sixty percent of the amounts credited to all Participant Accounts. The Account of (1) a former key Employee (i.e., a person who was a key employee for any prior Plan Year but not for the Plan Year in question) or (2) any Participant who has not received earnings from the Companies during the five-year period ending on the determination date, shall not be included in determining whether the Plan is top heavy. The amount credited to an Account shall be determined as of the last valuation date coincident with or next preceding the determination date, and shall include contributions not yet made but to be allocated as of the determination date. For purposes of determining whether this Plan is top heavy, the aggregate distributions (without interest thereon) made under the Plan to a Participant, other than a former key employee, during the five-year period ending on the determination date shall be taken into account. Deductible (IRA-type) contributions and rollovers (or similar transfers) initiated by the Participant and made after December 31, 1984 shall be ignored in determining whether this Plan is top heavy, except as otherwise provided in applicable Treasury Regulations. Notwithstanding the foregoing, if, as of 106. the determination date described above, this Plan is part of an "aggregation group," this Plan shall be top heavy if the group is top heavy and shall not be top heavy if the group is not top heavy. An "aggregation group" shall include all plans of the Companies in which a key employee participates and each other plan of the Companies which enables any such plan to meet the requirements of Code Section 401(a)(4) or 410. Distributions made within the five Plan Years ending on the determination date from a terminated and liquidated plan shall be included in the aggregation group if the terminated plan would have been required to be included in the group had the plan not been terminated. The Companies may treat any plan not required to be included in an aggregation group as pact of that group if inclusion of the plan would not prevent the aggregation group from meeting the requirements of Code Section 401(a)(4) or 410. The rules set forth above for determining whether this Plan is top heavy shall be applied with respect to the sum of benefits provided under all plans in the aggregation group to determine whether the group is top heavy. (c) A Participant shall be a "key employee" if, during the Plan Year in question or any of the four preceding Plan Years, he or she is or was (i) one of the top fifty corporate officers of the Companies having an annual compensation greater than 50 percent of the amount in effect under Code Section 415(b)(1)(A) for the Plan Year in question. 107. (ii) one of the ten Employees owning (or considered as owning within the meaning of Code Section 318) the largest interest in the Companies and having an annual compensation at least equal to the amount in effect under Code Section 415(c)(1)(A) for the Plan Year in question, (iii) a five-percent owner of the Companies, or (iv) a one percent or more owner of the Companies having an annual compensation from the Companies of more than $150,000. In determining under paragraph (ii) which Employees own the largest interests in the Employer, if two Employees have the same interest, the Employee having the greatest annual compensation for the Plan Year in question shall be treated as owning the greater interest. A Beneficiary of a key employee or a former key employee shall also be treated as a key employee or former key employee, respectively. Determinations under this subsection shall be made in accordance with Code Section 416(i) and applicable Treasury Regulations. For all purposes of this subsection, except for calculation of ownership interests under paragraphs (ii), (iii) and (iv), the Companies and all related companies described in Section 14.4 shall be treated as a single employer. 108. 14.14 Division of Benefits by Domestic Relations Orders (a) This Plan will follow the terms of any qualified domestic relations order issued with respect to a Participant. However, except as provided in subsection (e), the Plan will only follow orders which meet all of the requirements of subsection (b) or subsection (c). Subsection (c) establishes an optional standardized procedure. (b) A "qualified domestic relations order" is any judgment, decree or order, including the approval of a property settlement agreement, provided that (i) the order relates to the provision of child support, alimony or marital property rights and is made pursuant to state domestic relations or community property law; (ii) the order creates or recognizes the existence of an alternate payee's right to receive all or a portion of a Participant's Account; (iii) the order specifies the name and last known mailing address of the Participant and each alternate payee covered by the order; (iv) the order precisely specifies the amount or percentage of the Participant's Account to be paid to each alternate payee or the manner in which the amount or percentage is to be determined; 109. (v) the order specifies the number of payments or the period to which the order applies; (vi) the order specifically names this Plan as the plan to which the order applies; (vii) the order does not require this Plan to provide any type of benefits or form of benefits not otherwise provided under this Plan; (viii) (if the order requires that payments to the alternate payee commence before they commence with respect to the Participant) the order specifies that payments will not commence before the Participant's fifty-fifth birthday. Subsection (d) sets forth the procedures under which the Plan Administrator shall determine whether a domestic relations order properly qualifies. (c) The Plan Administrator in its discretion may furnish a standard form of qualified domestic relations order to a Participant or any other person. This order may provide for an immediate lump sum payment of the present value of the amount to which the alternate payee is determined to be entitled. If this form is used without substantial modification and is incorporated in a judgment, decree or order described in subsection (b)(i) which on its face appears to be valid, the Plan Administrator shall treat it as a qualified domestic relations order and shall pay benefits to the alternate payee in accordance with its terms. If this procedure is not followed, the alternate 110. payee (1) must wait until the time described in subsection (b)(viii) before benefits which are not in pay status can become payable to the alternate payee and (2) cannot use any special forms of benefit payment authorized in the standard form of order. Any special benefit form provisions in standard domestic relations orders adopted by the Plan Administrator shall be authorized as benefit options under this Plan, but only as to alternate payees for whom the standard order has been used. (d) The Plan Administrator shall not treat any judgment, order or decree as a "qualified domestic relations order" unless it meets all of the requirements set forth in subsection (b) or (c) and is sufficiently precise and unambiguous so as to preclude any interpretative disputes. If the order meets these requirements, the Plan Administrator shall follow the terms of the order whether or not this Plan has been joined as a party to the litigation out of which the order arises. Upon receipt of a domestic relations order, the Plan Administrator shall notify the Participant and alternate payee of (1) its receipt of the order and (2) its need to determine the qualified status of the order in accordance with subsection (b) or (c). The alternate payee may designate a representative to receive copies of future notices with respect to the qualified status of the order. To the extent an order calls for benefits to be paid to an alternate payee before the qualified nature of the order is determined, a separate account shall be established to hold the benefit payments affected by the order. This account shall be 111. administered in accordance with the rules set forth in Sec- tion 206(d)(3)(H) of ERISA. (e) The Plan Administrator, in its discretion, may treat a property settlement agreement or stipulation which is not contained in a judgment, order or decree as a qualified domestic relations order if it meets all of the other requirements of this Section. 14.15 Rollovers to Other Plans (a) Notwithstanding any contrary provision of the Plan, a Distributee may elect, at the time and in the manner prescribed by the Plan Administrator, to have any portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specified by the Distributee in a Direct Rollover. (b) The special capitalized terms used only in this Section shall have the meanings specified below: (i) "Eligible Rollover Distribution" means any distribution of all or any portion of the balance to the credit of the Distributee, except that an Eligible Rollover Distribution does not include: (A) any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life (or life expectancy) of the Distributee or the joint lives (or joint life expectancies) of the Distributee and the 112. Distributee's designated beneficiary, or for a specified period of ten years or more; (B) any distribution to the extent such distribution is required under Section 401(a)(9) of the Code; and (C) the portion of any distribution that is not includible in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities). (ii) "Eligible Retirement Plan" means an individual retirement account described in Section 408(a) of the Code, an individual retirement annuity described in Section 408(b) of the Code, an annuity plan described in Section 403(a) of the Code, or a qualified trust described in Section 401(a) of the Code, that accepts the Distributee's Eligible Rollover Distribution. However, in the case of an Eligible Rollover Distribution to a surviving spouse, only an individual retirement account or individual retirement annuity shall be an Eligible Retirement Plan. (iii) "Distributee" means an Employee or former Employee. In addition, the Employee's or former Employee's surviving spouse and the Employee's or former Employee's spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Code, are Distributees with regard to the interest of the spouse or former spouse. 113. (iv) "Direct Rollover" means a payment by the Plan to the Eligible Retirement Plan specified by the Distributee. (c) The provisions of this Section shall apply only to distributions made after December 31, 1992 and only to the extent required by the plan qualification rules of Section 401(a) of the Code. 14.16 Family Aggregation Rules (a) Notwithstanding anything in the Plan to the contrary, certain Plan provisions must be applied by treating certain family members as if they were a single Employee whose compensation or Plan benefits equals the sum of the compensation or Plan benefits of all family members so aggregated. (b) The Plan provisions to which family aggregation applies are: (i) application of the anti-discrimination rules of Section 4.7, in accordance with Treas. Reg. ss.ss. 1.401(k)-1(g)(1)(ii)(C), 1.401(k)-1(f)(5)(ii), 1.401(m)-1(f)(1)(ii)(C) and 1.401(m)-1(e)(2)(iii); (ii) the Compensation limit of Section 2.14; (iii) any other provisions, to the extent required by applicable law. (c) In addition, the family aggregation rules shall apply to determinations of whether the Plan discriminates in favor of highly compensated employees in violation of Code 114. Section 401(a)(4) or 410(b) and for such other purposes as may be required by law. (d) The individuals to whom family aggregation applies are generally (1) any five percent owner of the Companies who is or has been employed by the Companies or any Employee who is among the ten most highly compensated Employees of the Companies, and (2) such a person's spouse and lineal ascendants and descendants and their spouses (in applying the Compensation limit of Section 2.14, only such a person's spouse and lineal descendants who have not attained age 19 before the close of the year to which the limit applies shall be aggregated with the person). Determinations of the individuals to whom family aggregation applies shall be made in accordance with Treas. Reg. Section 1.414(g)-IT Q&A-11 and Q&A-12. (e) If this Plan would violate any qualification requirement if benefits were to accrue to family members subject to aggregation under this Section without the application of special limits which prevent disqualifying accruals, these special limits shall automatically apply and shall prevent any disqualifying accrual from occurring (even if such a disqualifying accrual was initially recognized on records of the Plan because application of these special limits was not then recognized). The Plan Administrator shall determine how the special limits imposed by this subjection shall apply and shall take any actions needed to effect these special limits, including 115. any steps needed to impose them as of the date they previously prevented a given accrual. 14.17 Genders and Plurals Where the context so indicates, the masculine pronoun shall include the feminine pronoun and the singular shall include the plural. 14.18 Titles Titles are used in the Plan for convenience only and are not to serve as a basis for interpretation or construction of the Plan or Trust Agreement. 14.19 References Unless the context clearly indicates to the contrary, a reference to a Plan or Trust provision, statute, regulation or document shall be construed as referring to any subsequently enacted, adopted or executed counterpart. Executed this ____ day of _____________. FIRST INTERSTATE BANCORP By -------------------------------- Executive Vice President By -------------------------------- Secretary 116. EXHIBIT I PLAN RULES As permitted by Section 2.23 and 12.1 of the Plan, the Plan Administrator may adopt Plan Rules for the administration and interpretation of the Plan. These Rules may be changed from time to time. The Plan Rules shall consist of the Rules set forth in this document, in administrative forms adopted by the Plan Administrator or in written or oral policy decisions or interpretations made by the Plan Administrator. Although the Plan Administrator has broad powers to establish administrative procedures and to interpret the Plan by means of Plan Rules, the following Plan provisions, among others, expressly contemplate the establishment of Plan Rules: a) Section 2.15 (Adoption of a more liberal definition of "Disability") b) Article IV (Procedures for making and changing After-Tax Contributions and Before-Tax Contributions elections) c) Section 7.1 (Benefit distribution elections) d) Article VIII (Beneficiary designations and death benefit elections) e) Article IX (Rules governing withdrawals from accounts) f) Section 10.1 (Choice among investment funds) 117. g) Section 10.4 (Allocation of earnings among accounts) h) Section 10.7(b) (Conversion of stock in account to cash) i) Section 11.1 (Establishment of alternate method for dealing with annual additions problem) j) Section 12.2 (Funding policy) k) Section 12.5 (Implementation of claims procedure) l) Section 14.1(b) (Forfeitures in lieu of escheats) m) Section 14.14 (Qualified Domestic Relations Order) 118. EXHIBIT II DETERMINATION OF HIGHLY COMPENSATED EMPLOYEES NOTE: Determinations using the attached forms are to be made in conformity with Temporary Treas. Reg. Sec. 1.414(q)-IT, which is hereby incorporated by reference. Many of the terms used in these forms are defined in a highly precise, technical manner by that regulation and correct application of the rules in that regulation is critical. SUMMARY LIST OF HIGHLY COMPENSATED ACTIVE EMPLOYEES All of the following information must be taken from both the current year and prior year highly compensated employee schedules, which are attached. 1. List all "five percent owners" for either year: -------------------------------------------------------------- -------------------------------------------------------------- 2. List all Employees who were paid more than $75,000(1) by the Employer for the prior year: -------------------------------------------------------------- -------------------------------------------------------------- 3. List all officers of the Employer for the prior year: -------------------------------------------------------------- -------------------------------------------------------------- 4. List all Employees who were paid more than $50,000(1) and who were in the top paid 20% group for the prior year: -------------------------------------------------------------- -------------------------------------------------------------- - -------- (1) The $75,000 and $50,000 amounts are indexed for inflation and are $99,000 and $66,000 respectively for years beginning in 1994. 119. 5. List the 100 highest paid Employees who earn more than $50,000 and are in the top paid 20% group for the current year: -------------------------------------------------------------- -------------------------------------------------------------- 6. List all Employees who are family members of highly compensated Employees for either year: -------------------------------------------------------------- -------------------------------------------------------------- 120. SCHEDULE ONE: HIGHLY COMPENSATED EMPLOYEE CENSUS FOR PRIOR YEAR, THE YEAR ENDING ________ 1. List all "five percent owners" (see Code Sec- tion 416(i)): -------------------------------------------------------------- -------------------------------------------------------------- 2. List all Employees who were paid more than $75,000 (as indexed) by the Employer: -------------------------------------------------------------- -------------------------------------------------------------- 3. List bona fide officers of the Employer earning more than $45,000 (see indexed). If there are 500 or more Employees, no more than 50 need be listed; if there are 30-500 Employees, no more than 10% need be listed as officers; if there are 30 or fewer Employees, no more than 3 need be listed as officers. If these numerical caps would limit the number of officers listed, list the highest paid officers first. If no officer earns more than $45,000 (as indexed), list just the highest paid officer: -------------------------------------------------------------- -------------------------------------------------------------- 4. Determine the size of the top paid 20% group: (a) total number of Employees during the year ......................... _____________ (b) Employees with less than 6 months of Service as of the end of the year ....... _____________ (c) part-time and seasonal Employees during the year (normally working less than 17.5 hours weekly or six months annually) ........................ _____________ (d) Employees under age 21 as of the end of the year ............... _____________ 121. (e) bargaining unit Employees(1) during the year ......................... _____________ (f) non-resident aliens with no U.S. source income from the Employer during the year ......................... _____________ (g) add the amounts on lines (b),(c), (d), (e) and (f) ........................ _____________ (h) subtract line (g) from line (a) ......... _____________ number in top paid 20% group .......... x 20% ------------- 5. List each Employee who earned more than $50,000 (as indexed) from the Employer in descending order of pay. Stop when all such Employees are listed or, if sooner, when the list includes the number of Employees determined at the end of step 4: -------------------------------------------------------------- -------------------------------------------------------------- 6. List each Employee who is a family member of (i) a person listed in step 1, or (ii) a person who is among the ten highest paid Employees (a "family member" is an Employee's spouse or a lineal ancestor or descendant of the Employee or the spouse of a lineal ancestor or descendant): -------------------------------------------------------------- -------------------------------------------------------------- - --------------------------- (1) Complete (e) only if (1) at least 90 percent of the total number of Employees are bargaining unit members and (2) no bargaining unit members are covered by the Plan. 122. SCHEDULE TWO: HIGHLY COMPENSATED EMPLOYEE CENSUS FOR CURRENT YEAR, THE YEAR ENDING ________ 1. List all "five percent owners" (see Code Sec- tion 416(i)): -------------------------------------------------------------- -------------------------------------------------------------- 2. List all Employees who were paid more than $75,000 (as indexed) by the Employer (prorate the dollar amount if the prior year is a calendar year and the current year is less than twelve months): -------------------------------------------------------------- -------------------------------------------------------------- -------------------------------------------------------------- 3. List bona fide officers of the Employer earning more than $45,000 (see indexed). If there are 500 or more Employees, no more than 50 need be listed; if there are 30-500 Employees, no more than 10% need be listed as officers; if there are 30 or fewer Employees, no more than 3 need be listed as officers. If these numerical caps would limit the number of officers listed, list the highest paid officers first. If no officer earns more than $45,000, list just the highest paid officer: -------------------------------------------------------------- -------------------------------------------------------------- 4. Determine the size of the top paid 20% group: (a) total number of Employees during the year ......................... _____________ (b) Employees with less than 6 months of Service as of the end of the year ....... _____________ (c) part-time and seasonal Employees during the year (normally working less than 17.5 hours weekly or six months annually) ........................ _____________ (d) Employees under age 21 as of the end of the year ......................... _____________ 123. (e) bargaining unit Employees(1) during the year ......................... _____________ (f) non-resident aliens with no U.S. source income from the Employer during the year ......................... _____________ (g) add the amounts on lines (b),(c), (d), (e) and (f) ........................ _____________ (h) subtract line (g) from line (a) ......... _____________ number in top paid 20% group ............ x 20% -------------- 5. List each Employee who earned more than $50,000 (as indexed) from the Employer in descending order of pay. Stop when all such Employees are listed or, if sooner, when the list includes the number of Employees determined at the end of step 4: -------------------------------------------------------------- -------------------------------------------------------------- 6. List each Employee who is a family member of (i) a person listed in step 1, or (ii) a person who is among the ten highest paid Employees (a "family member" is an Employee's spouse or a lineal ancestor or descendant of the Employee or the spouse of a lineal ancestor or descendant): -------------------------------------------------------------- -------------------------------------------------------------- - --------------------------- (1) Complete (e) only if (1) at least 90 percent of the total number of Employees are bargaining unit members and (2) no bargaining unit members are covered by the Plan. 124. EX-99.2 7 AMDT. TO THE 94 REST. OF THE EMPLOYEE SVNGS. PLAN EXHIBIT 99.2 Amendment to the 1994 Restatement of the Employee Savings Plan -----END PRIVACY-ENHANCED MESSAGE-----